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365 F.Supp.2d 700 (2005) Frank HAGAN, Plaintiff, v. FELD ENTERTAINMENT, INC. d/b/a Ringling Bros. and Barnum & Bailey Circus, Defendant. No. ACT. 2:04CV663. United States District Court, E.D. Virginia, Norfolk Division. April 15, 2005. *701 *702 *703 *704 Amberley G. Jochens, Esquire, Saunders Barlow Riddick Babineau Farmer & Brewbaker, P.C., Suffolk, VA, Lisa A. Bertini, Esquire, Norfolk, VA, Counsel for Plaintiff. Susan R. Blackman, Esquire, Brett A. Spain, Esquire, Willcox & Savage, Norfolk, VA, Eugene D. Gulland, Esquire, Covington & Burling, Washington, DC, Counsel for Defendant. OPINION AND ORDER REBECCA BEACH SMITH, District Judge. This matter is before the court on plaintiff's motion to remand and defendant's motion to dismiss. For the reasons outlined below, plaintiff's motion to remand is GRANTED in part and MOOTED in part. Defendant's motion to dismiss is GRANTED in part and DENIED in part. I. Factual and Procedural History Plaintiff, Frank Hagan ("Hagan"), is a resident and citizen of Virginia. (Compl.¶ 1). Defendant, Feld Entertainment, Incorporated ("Feld"), is a Virginia corporation with its principal place of business in Virginia. (Compl. ¶ 2). Beginning in March 1993, Hagan was hired by Feld to work for Ringling Bros. and Barnum & Bailey Circus ("Ringling Bros."). (Compl.¶ 4). Hagan worked intermittently for Feld from March 1993 until 2000. (Compl.¶ 4). Beginning on or about March 7, 2000, Hagan worked continuously for Feld without interruption until he was terminated on July 21, 2004. (Compl.¶ 5). In December 2003 Feld assigned Hagan to work as a lion handler for Ringling Bros. (Comp.¶ 6). As part of his job, he fed and watered the lions, cleaned their cages, cared for their transport on the train, and cared for them at the performance site. (Compl.¶ 7). He spent between twelve and fourteen hours every day with the lions. (Compl.¶ 8). On or about 11:00 a.m. on July 12, 2004, the Ringling Bros. train left Phoenix, Arizona, headed for Fresno, California. (Compl.¶ 10). At the three train stops during the day, Hagan checked on the lions, during which time the lions seemed healthy. The next day, July 13, 2004, Hagan watered down the lions at approximately 8:30 a.m. (Compl.¶ 12). That day the train traveled through the Mojave desert where temperatures reached upwards of one hundred degrees. (Compl.¶ 13). At approximately 9:30 a.m. Hagan called Ringling Bros.' Train Master Gene Petis ("Petis") to inform him that the train needed to be stopped so that Hagan could again water down the lions. (Compl.¶ 14). Petis advised Hagan that the train could not stop because it was behind schedule. (Compl.¶ 15). Thereafter Jarak, another lion handler, attempted without success to contact Jeff Steele, General Manager of Ringling Bros., to request a train stop to water down the lions. (Compl.¶ 17). Finally, at 2:45 p.m., the train stopped in Arizona. (Compl.¶ 19). Between 8:30 a.m. and 2:45 p.m. the lions had no drinking water and they were not watered down. (Compl.¶ 18). When the train stopped, Hagan immediately went to the lion car where he discovered that a two-year-old lion named Clyde was unresponsive and was lying in the fetal position with his tongue hanging out, eyes rolled back in his head, and barely breathing. (Compl.¶¶ 19, 20). When Hagan placed his hands on Clyde in an attempt to help him, he realized that Clyde's body was extremely hot. (Compl.¶ 21). As Hagan attempted to help Clyde, the lion died. (Compl.¶ 21). After sitting and crying with Clyde's body for a period of time, Hagan once again tried to contact Steele, but was unsuccessful. He was, however, able to reach Ringling Bros.' Operations Manager, John Griggs ("Griggs"), who told him to move Clyde's body to the meat *705 truck and to not say a word about it to anyone. (Compl.¶¶ 22, 23). The train arrived in Fresno, California, shortly before midnight on July 13, 2004. On or about July 14, 2004, Hagan was ordered to move Clyde's body from the meat car to a Ryder rental truck. (Compl.¶ 25). He was also ordered to pressure wash the meat car to remove Clyde's hair and blood before the United States Department of Agriculture ("U.S.D.A.") inspectors arrived. (Compl.¶ 26). When the U.S.D.A. inspectors arrived, Hagan was taken to another location where he was questioned by Feld's legal counsel. (Compl.¶ 27). Hagan was told not to talk to anyone about Clyde's death, which Hagan understood to mean no conversations with the U.S.D.A. inspectors. (Compl.¶ 27). Hagan continued to talk about Clyde's death and was threatened and intimidated by Steele not to talk about it with anyone. (Compl.¶¶ 28, 29). On July 21, 2004, while still in California, Hagan was terminated and he and his daughter were left in California with no way to get home. (Compl.¶¶ 30, 31). The reason given for the termination was that Hagan caused a power outage. (Compl.¶ 31). On October 8, 2004, plaintiff filed a Motion for Judgment in the Norfolk Circuit Court; an Amended Motion for Judgment was filed on October 13, 2004. Plaintiff asserts claims of wrongful discharge and intentional infliction of emotional distress ("emotional distress"). On November 4, 2004, defendant filed a notice of removal to federal district court on the grounds that plaintiff's claims are completely preempted by Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. On November 12, 2004, defendant filed a motion to dismiss. On December 8, 2004, plaintiff filed a response to the motion to dismiss and defendant filed a reply on December 16, 2004. On December 3, 2004, and December 8, 2004, plaintiff filed motions to remand the case to state court.[1] Defendant responded to the remand motion on December 16, 2004. All outstanding motions are ripe for review. II. Analysis Plaintiff seeks this court to remand the action, based on a lack of subject matter jurisdiction. The removal statute states that "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). The burden of establishing federal jurisdiction is on the party seeking removal. See Wagner v. Regent Investments, Inc., 903 F.Supp. 966, 968 (E.D.Va.1995). Furthermore, "because removal jurisdiction raises significant federalism concerns, its application should be strictly construed. If federal jurisdiction is doubtful, a remand is necessary." Id. at 968. A defendant may remove a case from state court to any federal court that would have had original jurisdiction over the case. 28 U.S.C. § 1441(a). Thus, the propriety of defendant's removal of plaintiff's state law claims depends on whether this court had original jurisdiction over the case. Federal district courts are courts of limited jurisdiction, having subject matter jurisdiction only if there is a federal question or the parties are diverse and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1331; 28 U.S.C. § 1332. There is no diversity jurisdiction in this case, as both parties are citizens of Virginia. In order to determine whether there is federal question jurisdiction, courts use the well-pleaded complaint rule. Under the rule, federal question jurisdiction only exists "when a federal question is presented *706 on the face of the plaintiff's properly pleaded complaint." Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Generally, a plaintiff may avoid federal court jurisdiction by relying exclusively on state law claims. An important exception to the well-pleaded complaint rule is the doctrine of "complete preemption." Under the complete preemption doctrine, federal law can so completely preempt state law that "any complaint that comes within the scope of the federal cause of action necessarily `arises under' federal law," and is removable to federal court. Franchise Tax Bd. v. Constructive Laborers Vacation Trust, 463 U.S. 1, 24, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). The state law claim is transformed into a federal claim for purposes of the well-pleaded complaint rule. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). In the case at bar, defendant argues that while plaintiff only alleged state law claims in his complaint, plaintiff's state law claims are completely preempted by federal law because plaintiff and defendant are parties to a collective bargaining agreement. Section 301 of the Labor Management Relations Act of 1947 (" § 301") grants federal courts jurisdiction over cases involving collective bargaining agreements and authorizes federal courts to establish a body of federal law interpreting collective bargaining agreements. See Textile Workers v. Lincoln Mills, 353 U.S. 448, 451, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). Additionally, "if the resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement, the application of state law ... is pre-empted and federal labor-law principles — necessarily uniform throughout the nation — must be employed to resolve the dispute." Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 406, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). However, if the state law cause of action is independent from the collective bargaining agreement, meaning that resolution of the state law claim does not require interpretation of the collective bargaining agreement, the state law claim is not preempted. See id. at 413, 108 S.Ct. 1877. Thus, in order to determine whether the plaintiff's state law claims are preempted by federal law, it is necessary to determine whether an interpretation of the collective bargaining agreement is required to resolve the state law claims. Furthermore, because the preemptive effect of § 301 is dependent upon the elements of the state law claims, "a federal district court has the discretion to address the validity of the alleged state-law claim during the course of its preemption inquiry." Childers v. Chesapeake & Potomac Tel. Co., 881 F.2d 1259, 1262 (4th Cir.1989). If the district court determines that a colorable state law claim exists, it should then determine whether the claim is independent of the collective bargaining agreement. See id. Only those state law claims whose lack of merit is obvious should be dismissed. See id. Thus, the court first determines whether plaintiff has stated a colorable state law claim and then proceeds to determine whether such claim is preempted by § 301. A. Governing Law The parties are in disagreement regarding the appropriate state law to apply to the claims at bar. Defendant argues that Virginia law should apply, whereas plaintiff states that California law should apply. This action was filed in the Eastern District of Virginia; accordingly, this federal court applies Virginia choice-of-law rules to determine which state's substantive law should apply. See America Online, Inc. v. St. Paul Mercury Ins. *707 Co., 347 F.3d 89, 92 (4th Cir.2003) (holding that a federal district court applies the choice-of-law rules of the state in which it sits). Both the wrongful discharge and emotional distress claims are tort claims. Under Virginia law, "the law of the place of the wrong determines the substantive issues of tort liability...." Buchanan v. Doe, 246 Va. 67, 431 S.E.2d 289, 291 (1993); see also Jones v. R.S. Jones and Assoc., Inc., 246 Va. 3, 431 S.E.2d 33, 34 (1993). The place of the wrong for purposes of this rule is the, "place where the last event necessary to make an actor liable for an alleged tort takes place...." Insteel Indus. v. Costanza Contracting, 276 F.Supp.2d 479, 486 (E.D.Va.2003) (citing Quillen v. International Playtex, Inc., 789 F.2d 1041, 1044 (4th Cir.1986)). Different claims may be governed by different substantive law, if the choice-influencing considerations differ amongst the claims. See Buchanan, 431 S.E.2d at 291. Thus, in order to determine which substantive law should apply, the court must determine the place of the wrong for each individual claim. In regard to the wrongful discharge claim, it is clear that the place of the wrong as alleged by the plaintiff is California. Prior to his discharge, plaintiff claims that Feld told him not to talk to anyone, including U.S.D.A. investigators, about Clyde's death, and, because plaintiff continued to talk about the incident, plaintiff was fired. One of these conversations between plaintiff and Feld occurred in Arizona, but all others occurred in California. Plaintiff was discharged from his employment with Feld while in California. The actual discharge was the last event necessary to make Feld liable; thus, the wrong occurred in California and the proper substantive law to apply to that claim is California law. It is more difficult to determine which substantive law should apply to the emotional distress claim. The plaintiff does not claim that a single act by the defendant gave rise to his emotional distress claim. Instead, a series of actions beginning in Arizona and ending in California are the basis of his emotional distress. In order to prove an emotional distress claim under Arizona, California, or Virginia law, plaintiff must show that the defendant engaged in intentional or reckless conduct that was so extreme or outrageous it caused severe emotional distress. See, e.g., Mintz v. Bell Atlantic Systems Leasing Intern., Inc., 183 Ariz. 550, 905 P.2d 559, 562-63 (1995) (holding the elements of a cause of action for emotional distress are: "first, the conduct by the defendant must be extreme and outrageous; second, the defendant must either intend to cause emotional distress or recklessly disregard the near certainty that such distress will result from his conduct; and third, severe emotional distress must indeed occur as a result of defendant's conduct"); Russo v. White, 241 Va. 23, 400 S.E.2d 160, 162 (1991) (holding that plaintiff must prove by clear and convincing evidence that "the wrongdoer's conduct is intentional or reckless; the conduct is outrageous and intolerable; the wrongful conduct and the emotional distress are causally connected; and, the distress is severe"); Cervantez v. J.C. Penney Co., Inc., 24 Cal.3d 579, 156 Cal.Rptr. 198, 595 P.2d 975, 983 (1979) ("holding the elements of a suit for intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering sever or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct"). *708 In all of these jurisdictions, a claim of emotional distress is very difficult to maintain, and it is important to consider the totality of all acts committed by defendant in determining outrageous and extreme conduct, which acts in this case occurred in Arizona and California. However, the last alleged act giving rise to the emotional distress claim occurred in California. Accordingly, the court will apply the substantive law of California to plaintiff's emotional distress claim. See Insteel, 276 F.Supp.2d at 486 (holding that, under Virginia choice-of-law principles, the proper substantive law to apply is the law of the place where the last event necessary to make an actor liable for an alleged tort takes place). B. Underlying State Claims 1. Wrongful Discharge California recognizes the tort of wrongful discharge. See Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330 (1980). A claim for wrongful discharge exists when an "employer's discharge of an employee violates fundamental principles of public policy." Id. at 1331. Generally, California courts have found that an employee was discharged in violation of public policy where the employee was discharged after the employee: "(1) refused to violate a statute; (2) performed a statutory obligation; (3) exercised a constitutional or statutory right or privilege; or (4) reported a statutory violation for the public's benefit." Green v. Ralee Engineering Co., 19 Cal.4th 66, 78 Cal.Rptr.2d 16, 960 P.2d 1046, 1051 (1998). A claim for wrongful discharge also exists if the employee is discharged after reporting a statutory violation to management and other employees, but not to a government official or other enforcement entity. See id. at 1049, 1061. The statutory violation may exist at either the state or federal level. See id. at 1059. Additionally, an employee's allegation that a federal regulation, rather than a statute or constitution, was violated is sufficient to show that the employee was discharged in contravention of public policy. See id. at 1061. As a final limiting factor, the statute (or regulation) in question must be "designed to protect the public or advance some substantial public policy goal." Id. Plaintiff alleges a prima facie case of wrongful discharge. He alleges that he was discharged for reporting to management and other employees a statutory violation of the Animal Welfare Act, 7 U.S.C. § 2131 et seq., and the California Penal Code § 597 et seq. (prohibiting cruelty to animals).[2] The Animal Welfare Act ("the Act") authorizes the Secretary of Agriculture to promulgate standards and rules governing the humane handling, care, treatment and transportation of animals by exhibitors. 7 U.S.C. § 2143(a). Pursuant to this grant of rulemaking authority, the Secretary of Agriculture promulgated rules requiring that animals in transit be observed at least once every four hours to ensure that ambient temperature is within a specified range and that animals are not in physical distress. 9 C.F.R. § 3.140. If animals are in obvious physical distress, the carrier is required to provide veterinary care as soon as possible. 9 C.F.R. § 3.140. Live animals are not to be subjected to surrounding air temperatures in excess of 85 degrees Fahrenheit and care *709 must be taken to ensure that animals do not suffer physical trauma. 9 C.F.R. § 3.142. The facts as alleged by plaintiff indicate that these regulations were violated when no one observed the lions for over six hours, the ambient air temperature was greater than it should have been, and care was not taken to insure that animals suffered no physical distress. Allegedly, as a result of these violations, a lion died and plaintiff was fired because he complained to management and other employees about violations of the Animal Welfare Act. While it may be difficult to determine what constitutes a public policy source, at the core it must have a legislative root and be of fundamental concern to the general public, rather than to an individual. See Gantt v. Sentry Ins., 1 Cal.4th 1083, 4 Cal.Rptr.2d 874, 824 P.2d 680, 684, 687-88 (1992). In order to meet the first prong, that the public policy has a legislative root, a plaintiff's public policy source in a wrongful discharge claim must be tethered to a statutory or constitutional provision. See Green, 78 Cal.Rptr.2d 16, 960 P.2d at 1051. A regulation that accomplishes the purpose of a statute is properly tethered to a public policy source. California courts recognize that "if a statute that seeks to further a public policy objective delegates the authority to adopt administrative regulations to an administrative agency in order to fulfill that objective, and that agency adopts regulations that are within the scope of its statutory policy, then those regulations may be manifestations of important public policy." Id. at 1056. The regulations accompanying the Animal Welfare Act are closely related to the statutory language and advance the stated purpose of the Animal Welfare Act. The stated purpose of the Act is "to insure that animals intended for use ... for exhibition purposes ... are provided humane care and treatment." 7 U.S.C. § 2131. The Act grants the Secretary of Agriculture the authority to promulgate rules and standards to govern the humane handling of animals. The Secretary is directed to set minimum standards for "handling, housing, feeding, watering, sanitation, ventilation, shelter from extremes of weather and temperatures, adequate veterinary care ... necessary for humane handling, care or treatment of animals." 7 U.S.C. § 2143. The rules and standards promulgated under this grant of power are found in 9 C.F.R. 3 et seq. The rules that defendant allegedly violated about which plaintiff complained, namely failure to observe animals at regular intervals, failure to water animals properly, failure to maintain proper handling temperatures, and failure to prevent physical distress, directly flow from the legislative grant of power to the Secretary in 7 U.S.C. § 2143. Furthermore, these regulations carry out the stated purpose of the Act in insuring that animals in interstate commerce are treated humanely. See 7 U.S.C. § 2143. In sum, while the alleged violations by the defendant are regulatory in nature, they are sufficiently tethered to a statute to constitute public policy. The Animal Welfare Act and accompanying regulations further an important public policy concern, the welfare of animals in commerce, thereby meeting the final limiting factor of California law for a wrongful discharge claim. See Green, 78 Cal.Rptr.2d 16, 960 P.2d at 1061; Gantt, 4 Cal.Rptr.2d 874, 824 P.2d at 684, 687-88. There are two primary factors California courts look to in determining whether a statute furthers public policy. First, the matter must affect "society at large rather than a purely personal or proprietary interest of the plaintiff." Gantt, 4 Cal.Rptr.2d 874, 824 P.2d at 684. The Act clearly benefits society at large rather than the personal interests of the plaintiff. *710 The Act is designed to insure that the nation's animals in interstate commerce are treated in a safe and humane manner. Society as a whole, rather than an individual such as the plaintiff, benefits from the humane handling of animals. In examining whether the Act was meant to protect the public, the District of Columbia Circuit found that "the legislative history of both the 1985 amendments to the Animal Welfare Act and the 1970 act that first included animal exhibitions within the AWA confirms that Congress acted with the public's interest in mind." Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426, 444 (D.C.Cir.1998). The Act was designed to benefit the public at large rather than specific individuals. Second, the matter must be fundamental, substantial, and well-established at the time of the wrongful discharge. See Gantt, 4 Cal.Rptr.2d 874, 824 P.2d at 684. The Act and its accompanying regulations are fundamental. The statement of policy accompanying the Act states that it is "essential" to regulate how animals are treated in interstate commerce. 7 U.S.C. § 2131. The statute is substantial in that it sets out a broad-based statutory and regulatory framework for the treatment of animals used in research facilities, for exhibition purposes, and for pets. It is the "core federal statute regulating animal use and abuse." United States v. Thompson, 118 F.Supp.2d 723, 724 (W.D.Tex.1998). The public policy embodied in the statute of treating animals humanely is well-established; the statute was originally passed in 1966. Its requirements were made applicable to exhibitors, such as circuses showcasing animals, in 1970. Pub.L. 91-579 (1970), as codified in 7 U.S.C. § 2131. Defendant has been on notice since that time of the policy purpose of the Act. In sum, plaintiff has presented a prima facie case of wrongful discharge under California law. As alleged, he was fired after complaining to management about violations of a federal statute. A colorable state law claim has been made, and the court DENIES defendant's motion to dismiss the wrongful discharge claim. The court must now determine whether the claim has been preempted by § 301. 2. Intentional Infliction of Emotional Distress Plaintiff asserts a claim of emotional distress against his employer Feld Entertainment. Under California's Labor Code, the state's workers' compensation system generally provides the sole remedy for an employee's injury sustained on the job. See, e.g., Fermino v. Fedco, Inc., 7 Cal.4th 701, 30 Cal.Rptr.2d 18, 872 P.2d 559, 561 (1994).[3] In particular, an employee cannot bring a civil suit for physical or emotional injury, or both, if the injury occurred during the normal course of the employment relationship. See, e.g., Livitsanos v. Superior Court, 2 Cal.4th 744, 7 Cal.Rptr.2d 808, 828 P.2d 1195, 1201-02 (1992); Cole v. Fair Oaks Fire Protection Dist., 43 Cal.3d 148, 233 Cal.Rptr. 308, 729 P.2d 743, 748-50 (1987)(rule applies when employer is guilty of "intentional," even "malicious or deceitful," misconduct). In determining whether worker's compensation is the exclusive remedy, *711 the court must look at whether the actions of misconduct attributed to the employer are "a normal part of the employment relationship." Cole, 233 Cal.Rptr. 308, 729 P.2d at 750. Actions such as "demotions, promotions, criticism of work practices, and frictions in negotiations as to grievances" are all part of the normal employment relationship, even if the actions can be characterized as unfair or outrageous. Id. All of the actions of which plaintiff complains in regard to his emotional distress claim, while arguably outrageous, involved a normal part of the employment relationship. As pled by plaintiff, the claim for emotional distress arises from defendant's actions in regard to plaintiff's job of taking care of the lions: defendant's refusing to stop the train for watering down and water for the lions, at plaintiff's request; having plaintiff dispose of Clyde's body; directing plaintiff to clean the area where Clyde's body was stored; and telling plaintiff not to discuss Clyde's death. These are all actions incident to plaintiff's normal employment of taking care of the lions. The defendant's conduct itself may have been abnormal and inhumane, making the circumstances surrounding Clyde's death distasteful or outrageous. However, the acts constituting defendant's misconduct all occurred during the normal course of the employment relationship between plaintiff and defendant, and were part of that relationship. The circumstances of Clyde's death did not change plaintiff's job duties to take care of the lions, rather defendant's actions may have kept plaintiff from properly performing his job.[4] Plaintiff has not stated a colorable state law claim for emotional distress under California law, and the court DISMISSES plaintiff's claim for emotional distress.[5] Plaintiff's motion to remand the claim for emotional distress is thereby MOOT. C. Preemption Under § 301 Section 301 of the Labor Management Relations Act ("LMRA") provides that: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. 29 U.S.C. § 185. This section gives federal courts jurisdiction over cases involving collective bargaining agreements and authority to establish federal common law to resolve such cases. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985); McCormick v. AT & T Technologies, Inc., 934 F.2d 531, 534 (1991). The Supreme Court has been consistent in holding that § 301 preempts state law claims, only when resolution of the state law claim requires interpretation of a collective bargaining agreement. In Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962), the underlying state law issue was whether a collective bargaining agreement implicitly prohibited *712 a union strike. The Washington state court held that state contract interpretation rules applied. The Supreme Court reversed, holding that federal common law applied and § 301 preempted the claim. Id. at 102, 82 S.Ct. 571. In Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206, the Court considered whether the Wisconsin tort for bad-faith handling of an insurance claim in a case involving a claim for disability benefits authorized by a collective bargaining agreement, was preempted by § 301. Following the reasoning articulated in Lucas Flour, the Court in Allis-Chalmers held that because the tort grew from a breach of a duty implied in a collective bargaining agreement that the claim was preempted by § 301. 471 U.S. at 220-21, 105 S.Ct. 1904. Applying the same reasoning to a factually different case, the Court in Lingle, 486 U.S. 399, 108 S.Ct. 1877, held that a retaliatory discharge claim was not preempted by § 301. In order for the plaintiff in Lingle to prove her underlying state claim, she was required to show that she was discharged, or threatened to be discharged, and the employer's motive was to deter her from exercising her rights under the Illinois Worker's Compensation Act. Id. at 406-07, 108 S.Ct. 1877. While the plaintiff in Lingle was covered by a collective bargaining agreement, it was unnecessary to look to the collective bargaining agreement in resolving the retaliatory discharge claim. Id. at 407, 108 S.Ct. 1877. Therefore, the retaliatory discharge claim existed outside the collective bargaining agreement and was not preempted by § 301. See id. at 413, 108 S.Ct. 1877. Plaintiff's wrongful discharge claim at bar is similar to that in Lingle. Because a prima facie claim for wrongful discharge exists if plaintiff was discharged from employment in violation of public policy, and existence or non-existence of a prima facie case does not depend on the provisions of the collective bargaining agreement, § 301 does not preempt plaintiff's state law claim. A court need not interpret any provision of the collective bargaining agreement between plaintiff and defendant. Feld's obligation to refrain from discharging Hagan does not depend on an express or implied promise set forth in the collective bargaining agreement, but instead reflects a duty imposed by law on all employers in California in order to implement fundamental public policies embodied in statutes, constitutions, and regulations. See Tameny, 164 Cal.Rptr. 839, 610 P.2d at 1335. Furthermore, the California Supreme Court, in dicta, specifically stated that the tort of wrongful discharge is "not a vehicle for enforcement of an employer's internal policies or the provisions of its agreements with others." Green, 78 Cal.Rptr.2d 16, 960 P.2d at 1053. Finally, while defendant has the burden of proving jurisdiction, defendant fails to identify any provision of the collective bargaining agreement that a court would need to interpret in resolving plaintiff's wrongful discharge claim. In fact, defendant's response to plaintiff's motion to remand lacks any argument as to why § 301 preempts the wrongful discharge claim under California law.[6] Instead, defendant argues *713 that the court has jurisdiction because § 301 preemption of the emotional distress claim then provides supplemental jurisdiction over the wrongful discharge claim.[7] The emotional distress claim has been dismissed; thus, there is no preemption of the emotional distress claim, much less supplemental jurisdiction flowing from its preemption. Since plaintiff's wrongful discharge claim does not rely on an interpretation of the collective bargaining agreement, § 301 does not preempt this valid state law claim. III. Conclusion For the reasons set forth above, defendant's motion to dismiss plaintiff's wrongful discharge claim is DENIED, and defendant's motion to dismiss the emotional distress claim is GRANTED. Plaintiff's state wrongful discharge claim is not preempted by federal law, and consequently there is no federal question jurisdiction under 28 U.S.C. § 1331. As there is no federal question or diversity jurisdiction, the court REMANDS plaintiff's wrongful discharge claim to the Circuit Court for the City of Norfolk, Virginia, for all further proceedings.[8] The Clerk is DIRECTED to send a copy of this Opinion and Order to counsel for plaintiff and defendant, and to the Circuit Court of the City of Norfolk. Further, the Clerk shall take the necessary steps to effect the remand to the state court. IT IS SO ORDERED. NOTES [1] It is unclear to the court why plaintiff filed two motions, as the two motions are identical. [2] While some of Feld's actions may have been criminal under the California penal statute had they occurred in California, the actions occurred in Arizona, not California. Thus, it is unclear whether the California penal statute could serve as a public policy source in this case. However, as the Animal Welfare Act and regulations clearly qualify as a public policy source, it is unnecessary for the court to make this determination. [3] An important exception to the rule is that worker's compensation is not the sole remedy where an employee is wrongfully discharged in violation of public policy. See Fermino, 30 Cal.Rptr.2d 18, 872 P.2d at 566 (citing Gantt, 4 Cal.Rptr.2d 874, 824 P.2d at 691). A wrongful discharge in violation of public policy "cannot under any reasonable viewpoint be considered a normal part of the employment relationship." Gantt, 4 Cal.Rptr.2d 874, 824 P.2d at 691 (internal citations omitted). Thus, plaintiff's wrongful discharge claim is not preempted by workers' compensation law. [4] The actions constituting the misconduct complained of in the case at bar were committed by the defendant. Plaintiff has not alleged that defendant requested him to perform an illegal activity. But see supra note 2. A request by an employer for an employee to commit an illegal act is not part of the normal employment relationship. To the extent that defendant instructed plaintiff not to discuss Clyde's death with the U.S.D.A., there is no "whistle-blower" provision in the Animal Welfare Act. [5] A claim for emotional distress is extremely difficult to maintain under Arizona, California, or Virginia law. See supra Part II.A. [6] Defendant does make an argument in its memorandum in support of its motion to dismiss as to why the wrongful discharge claim is preempted by § 301. However, the argument relies solely on Virginia's failure to recognize a wrongful discharge claim when a collective bargaining agreement exists. As there is no California case law prohibiting a person working under a collective bargaining agreement from bringing a wrongful discharge claim, defendant's argument under Virginia law is not on point. Although this case was filed in Virginia, plaintiff's complaint clearly cites to California law, and this court's choice-of-law analysis agrees with plaintiff. See supra Part II.A. [7] Yet, defendant argues that plaintiff's emotional distress claim should be dismissed for failure to state a claim. Despite making the argument to dismiss the emotional distress claim, defendant fails to anticipate that the emotional distress claim may be dismissed, in which case the court would not have supplemental jurisdiction over the wrongful discharge claim, absent preemption of it. [8] Plaintiff's motion to remand plaintiff's emotional distress claim is MOOT due to its dismissal.

994 So.2d 305 (2008) LANDY v. STATE. No. SC08-1873. Supreme Court of Florida. October 3, 2008. Decision without published opinion. Rev.dismissed.

599 F.3d 339 (2010) UNITED STATES of America, Plaintiff-Appellee, v. Larry JOHNSON, Defendant-Appellant. No. 08-4042. United States Court of Appeals, Fourth Circuit. Argued: January 29, 2010. Decided: April 1, 2010. *340 ARGUED: Sapna Mirchandani, Office of the Federal Public Defender, Greenbelt, Maryland, for Appellant. Tonya Kelly Kowitz, Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Jonathan Biran, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee. Before WILKINSON and AGEE, Circuit Judges, and R. Bryan HARWELL, United States District Judge for the District of South Carolina, sitting by designation. Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge AGEE and Judge HARWELL joined. OPINION WILKINSON, Circuit Judge: Larry Johnson appeals on Fourth Amendment grounds from his conviction on various drug and firearm charges. Police witnessed Johnson making what appeared to be a series of hand-to-hand exchanges with multiple people in a known open-air drug market. By this point, the facts known to the officers were at least sufficient to support a "reasonable suspicion" that Johnson was dealing drugs, justifying a brief investigatory detention under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A police officer then approached Johnson and ordered him to show his hands. When Johnson responded by attempting in front of the officer to toss a heroin gelcap out of sight, reasonable suspicion ripened into probable cause to arrest. And when police later learned that Johnson had been back and forth to a nearby car just before the series of hand-to-hand contacts, probable cause to arrest in turn ripened into probable cause to search the car. Johnson was not detained until police had a basis for a reasonable suspicion, he was not arrested until police had probable cause to arrest, and the car was not searched until police had probable cause to search it. Since no Fourth Amendment *341 violation occurred at any point, we affirm the district court's rejection of Johnson's motions to suppress evidence arising out of these events. That court carefully examined the evidence, heard from the parties, and its considered conclusion warrants our respect. See, e.g., United States v. Arvizu, 534 U.S. 266, 276, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). I. On the evening of September 14, 2006, Baltimore City Police Detective Eric Green was monitoring the 1800 block of Pennsylvania Avenue in the city of Baltimore by video camera from a police station about five minutes' drive away. The block is reputedly home to a brisk open-air drug trade. Around 7 o'clock, Detective Green witnessed Johnson standing on the sidewalk of the street. He watched as Johnson, in rapid succession, made quick hand-to-hand contact with three different men, after which each of the three men immediately hurried off. Although he could not see an actual object being exchanged, it appeared to Green that something small was being passed between them. Green, who had made thousands of drug arrests based on observing hand-to-hand exchanges during his career, concluded that Johnson was dealing drugs. He immediately dispatched his partner, Officer Joseph Bannerman, and another officer to the scene. While his colleagues were en route, Detective Green continued to monitor Johnson's movements. He watched as Johnson milled about on the sidewalk, briefly turned down a side street, and soon returned to the spot where the previous inter actions had taken place. Green then saw two other people enter the frame, whereupon Johnson headed for a local Chinese carry-out restaurant with the two others appearing to follow. Green suspected Johnson was about to sell them drugs, since local dealers sometimes conduct their business in legitimate shops in order to elude police cameras. Green alerted his colleagues that Johnson was taking the suspected buyers into the Chinese carry-out. Johnson and one of the suspected buyers entered the eatery as the police officers pulled up, but the second suspected buyer kept walking up the street after spotting the approaching police. Immediately upon arriving, Officer Bannerman entered the restaurant and approached Johnson, identified himself as a police officer, and asked to see Johnson's hands. Johnson, however, did not comply, instead throwing what Bannerman correctly believed to be a heroin gelcap over the restaurant counter. A struggle ensued, but Bannerman eventually gained the upper hand and Johnson was duly arrested and handcuffed. Bannerman recovered the gelcap and loaded Johnson into his patrol car. Johnson was found to be carrying $102 in cash. While this was taking place, Detective Green reviewed a recording of the earlier surveillance video. In doing so, he noticed something he had originally overlooked. The video showed that just before the suspected drug deals, Johnson had gone to a car parked along the street, opened the passenger door, shut it, paced back and forth, reached back into the car and emerged appearing to hold something in his hand. Concluding that Johnson was using the car to store drugs, Green radioed to Officer Bannerman and instructed him to return to the scene and secure the car. Officer Bannerman arrived at the car and looked inside the passenger side window. On the floor of the car, he saw a plastic bag containing baggies of gelcaps like the one Johnson had thrown during their tussle. Bannerman also saw a set of *342 keys on the car seat. He relayed this information to Detective Green, who told him to bring the car back to the police station. Bannerman then opened the car door and saw that in addition to the gelcaps the plastic bag contained vials of what he suspected to be cocaine. Officer Bannerman drove the car back to the police station, whereupon Detective Green conducted a full search. He found fifty-six heroin gelcaps, thirty-nine cocaine vials, a mirror and scale, both of which had what appeared to be drug residue on them, a razor blade, and a loaded Rossi .38 Special handgun. In March 2007, Johnson was charged by a federal grand jury with distribution and possession of cocaine and heroin with intent to distribute under 21 U.S.C. § 841, possession of a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c), and being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). Prior to trial, Johnson filed two motions to suppress evidence. The court held a hearing on the issue, at which it viewed the surveillance footage and heard testimony from Detective Green, Officer Bannerman, and the officer who had accompanied Bannerman, as well as from Johnson. At the conclusion of the hearing, the court denied Johnson's suppression motions. Following a three-day jury trial, Johnson was convicted of all three charges and thereafter sentenced to 360 months' imprisonment. He now appeals from the denial of his suppression motions. He also challenges the sufficiency of the evidence on the two firearms charges and raises a Sixth Amendment objection to a portion of his sentence. II. At the suppression hearing, Detective Green explained that Johnson's conduct appeared to him like drug-dealing "based on hundreds of observations in that area and hundreds of arrests." Johnson contends that Detective Green's experience counts for little, if anything. He argues that although Green's background and experience "certainly affected his perception of events, that experience simply could not transform Mr. Johnson's outwardly lawful behavior into a criminal offense." Appellant's Br. at 29. Johnson's insistence that Green's training and experience count for little runs headlong into the teachings of the Supreme Court. As the Court has explained, "[a] trial judge views the facts of a particular case in light of the distinctive features and events of the community; likewise, a police officer views the facts through the lens of his police experience and expertise. The background facts provide a context for the historical facts, and when seen together yield inferences that deserve deference." Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). The Fourth Amendment requires such an approach. It is more practical than theoretical. Both the language of the Amendment, which prohibits "unreasonable searches and seizures," and the decisions of the Court interpreting it are purposely imprecise. They reflect a preference for case-by-case analysis, informed judgment, and an examination of the entire factual picture over any "neat set of legal rules." Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The reason for this is plain enough. The task the police per form requires them to translate the law's abstractions into actual practice in the unpredictable circumstances of the streets. This is at once a vital and a difficult mission. It is vital because errors in either direction—toward excessive intrusion or toward impotent enforcement—can *343 be costly. It is difficult because the contexts are varying and, quite often, the time for deciding is short. Getting the balance right is never guaranteed, but the chances of doing so are improved if officers, through training, knowledge, and experience in confronting criminality, are uniquely capable both of recognizing its signatures, and by the same token, of not reading suspicion into perfectly innocent and natural acts. In this way, experience leads not just to proper action but to prudent restraint. "Reasonableness" is a matter of probabilities, and probability in turn is best assessed when one has encountered variations on a given scenario many times before. See United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Johnson simply fails to explain why the experience we extol in other walks of life should suddenly be devalued in the field of law enforcement. An experienced repairman may pick up on a problem the rest of us might overlook. The same is true of law enforcement officers, who may "draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person." Arvizu, 534 U.S. at 273, 122 S.Ct. 744 (internal quotations omitted). The Court's insistence on this point has been nothing less than overwhelming. See id.; Ornelas, 517 U.S. at 700, 116 S.Ct. 1657; Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); United States v. Sokolow, 490 U.S. 1, 13, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); United States v. Sharpe, 470 U.S. 675, 682 n. 3, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); Cortez, 449 U.S. at 414, 421-22, 101 S.Ct. 690; Brown v. Texas, 443 U.S. 47, 52 n. 2, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); United States v. Ortiz, 422 U.S. 891, 897, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975); United States v. Brignoni-Ponce, 422 U.S. 873, 885, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Terry, 392 U.S. at 27, 88 S.Ct. 1868. But while officers have the advantage of experience, they do not necessarily have the advantage of neutrality, and that is where district courts come in. Johnson, however, would discount their vantage point as well. At no point in his arguments to reverse its rulings does Johnson recognize the advantages of the district court's ability to consider the evidence firsthand. The only time Johnson so much as acknowledges the district court's fact-finding efforts is when he attacks its conclusion that he was seen on video handing something to the men with whom he made hand-to-hand contact. Johnson claims the "key distinction" between touching hands and exchanging an object "was lost on the district court"—as if the district court after hearing the evidence was forbidden to make a reasoned inference that something was being exchanged. Appellant's Reply Br. at 4. This whole view essentially implies that the consideration expended in suppression hearings counts for naught. The district court, which sat in the city of Baltimore, considered the evidence fully. The suppression hearing it conducted spanned two days, and the transcript of the proceedings runs to well over 150 pages. The court heard from Johnson and the three police officers involved in his arrest. Both Green and Banner-man were subjected to cross-examination and re-cross. When Johnson questioned Bannerman's credibility, the court specifically found that Bannerman was "perfectly credible" adding that "there's no doubt in my mind that this officer is truthful." The court also viewed the surveillance video. District courts offer an unbiased forum to test the conclusions of police, and *344 they possess a perspective that appellate forums cannot match. In examining evidence directly, those courts assess inflections and demeanor, the human dimensions and the practical demands in the situations before them. Here too the Supreme Court has called attention to a "district court's superior access to the evidence and the well-recognized inability of reviewing courts to reconstruct what happened in the courtroom." Arvizu, 534 U.S. at 276, 122 S.Ct. 744; see also Ornelas, 517 U.S. at 699, 116 S.Ct. 1657. Thus the role of courts of appeal is comparatively circumscribed. While it is true we examine legal determinations by district courts de novo, it is "a peculiar sort of de novo review." Arvizu, 534 U.S. at 278, 122 S.Ct. 744 (Scalia, J., concurring). We must not only accept factual determinations unless they are clearly in error, we must also "give due weight to inferences drawn from those facts by resident judges and local law enforcement officers"—an acknowledgement that satellite imagery often cannot replicate community insights and on-the-ground intelligence. Ornelas, 517 U.S. at 699, 116 S.Ct. 1657. Standards of review are formulated not out of some abstract fondness for legal terminology but to encapsulate insights about institutional vantage points. Courts of appeal have a comparative advantage born of collegial deliberations over matters of law while trial courts have a distinct edge when it comes to making context-sensitive judgments. The Fourth Amendment often implicates the latter more than the former, and the standard of review that governs in these cases is accordingly designed to ensure they are resolved concretely, not simply abstractly. Johnson's invitation to reverse would move us in the wrong direction. His case is quintessentially one in which the officers involved and the district court that heard the evidence were better positioned than we to consider the merits of his claim. Does an officer's long experience end the inquiry? Of course not. But in the Supreme Court's Fourth Amendment calculus, it matters. Do a district court's superior eyes and ears end the inquiry? Of course not. But in the Supreme Court's Fourth Amendment calculus, they matter. So we shall keep them much in mind as we proceed. III. In the case before us, Johnson argues that he was unreasonably seized by Officer Bannerman and that the district court should therefore have suppressed any evidence discovered as a result of the seizure. See Wong Sun v. United States, 371 U.S. 471, 485-86, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Specifically, Johnson objects to the district court's having allowed evidence concerning the gelcap he threw, the cash found on his person, and the drugs, drug paraphernalia, and handgun discovered in the car. We review these claims in turn. A. We begin with the gelcap Johnson attempted to dispose of when Officer Bannerman arrived. In Johnson's view, he was subjected to an unreasonable seizure when Bannerman entered the Chinese restaurant and ordered him to show his hands. This claim is mistaken. Even assuming this initial encounter was a Fourth Amendment seizure, it was in no sense unreasonable. The Supreme Court has identified two kinds of personal seizures: (1) brief investigatory stops of the sort identified in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and (2) arrests. See United *345 States v. Brown, 401 F.3d 588, 592 (4th Cir.2005). A so-called Terry stop allows a police officer whose observations lead him to suspect that a particular person has committed or is about to commit a crime to detain the person briefly in order to "investigate the circumstances that provoke suspicion." Brignoni-Ponce, 422 U.S. at 881, 95 S.Ct. 2574; see also Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). So long as a temporary detention is for this limited purpose, it does not cross the line into a full-blown arrest. See United States v. Leshuk, 65 F.3d 1105, 1109 (4th Cir.1995). In this case, Officer Bannerman's conduct was entirely consistent with simply trying to ascertain who Johnson was and what he was doing. Prior to his formal arrest of Johnson, therefore, Officer Bannerman can be said at most to have subjected Johnson to a Terry stop. A Terry stop satisfies the reasonableness requirement of the Fourth Amendment if there exists "a reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). This requires only "some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." Cortez, 449 U.S. at 417, 101 S.Ct. 690. But the officer's suspicions must also be more than an "inchoate and unparticularized suspicion or hunch." Terry, 392 U.S. at 27, 88 S.Ct. 1868. In this case, Officer Bannerman had an objective basis to think that Johnson was selling drugs. Johnson's conduct was entirely consistent with drug dealing. He was observed making similar hand-to-hand contact with multiple people and appeared to be waiting to meet them. The hasty, even furtive, nature of this series of encounters was much in keeping with an illicit handoff. Moreover, it is hard to imagine what else Johnson could have been doing. The only innocent explanation Johnson offers is that he could have been greeting the men he touched. But his conduct was hardly consistent with a social interaction. The other men did not linger or engage in conversation. They approached quickly and just as quickly quit the scene. These observations, however, are only the beginning. The fact that this activity was taking place in a location well known for street-side drug-dealing alters the landscape of reasonable inferences. The Supreme Court has held that the combination of presence in an area known for heavy narcotics trafficking and unprovoked flight upon seeing police arrive was enough to support a reasonable suspicion under Terry. See Wardlow, 528 U.S. at 124, 120 S.Ct. 673. Here we have a stronger case than that, for Johnson appeared to have been caught in the very act of drug-dealing for which the area was renowned. On top of that, one of the two suspected buyers who seemed to be following Johnson into the Chinese restaurant veered off at the sight of the police. For all these reasons, Johnson's suggestion that upholding the denial of his suppression motions means that the police will be permitted to detain any person who is seen touching hands with someone else in a high crime area is well off the mark. There is nothing to suggest that the series of contacts in question were in any way social and much to suggest that they were instances of illegal drug dealing. Where there is a plausible claim to be made that a suspect has been caught in flagrante delicto, Terry standards are most often satisfied. Since Officer Bannerman did not violate Johnson's Fourth Amendment rights by requiring him to open his hands in the brief period before he attempted to arrest Johnson, evidence concerning the *346 gelcap that Johnson threw during that period was not subject to suppression. B. Next, we consider the money found on Johnson's person. This evidence was obtained as a result of Johnson's being placed under arrest. Because we conclude that the arrest did not violate the Fourth Amendment, the district court was again correct in rejecting Johnson's suppression claim. Under the Fourth Amendment, a warrantless arrest is an unreasonable seizure unless there is probable cause to believe that a criminal offense has been or is being committed. See United States v. Watson, 423 U.S. 411, 417-424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). The standard for whether probable cause exists is an objective one; it exists when, "at the time the arrest occurs, the facts and circumstances within the officer's knowledge would warrant the belief of a prudent person that the arrestee had committed or was committing an offense." United States v. Manbeck, 744 F.2d 360, 376 (4th Cir.1984). Johnson argues against a finding of probable cause, urging that much of his conduct could be seen as innocent. But as with the "reasonable suspicion" standard under Terry, "innocent behavior frequently will provide the basis for a showing of probable cause." Gates, 462 U.S. at 243 n. 13, 103 S.Ct. 2317. And as we noted earlier, "a police officer may draw inferences based on his own experience in deciding whether probable cause exists," Ornelas, 517 U.S. at 700, 116 S.Ct. 1657, including inferences "that might well elude an untrained person," Cortez, 449 U.S. at 418, 101 S.Ct. 690.[*] At any rate, assuming arguendo that probable cause to arrest did not already exist when Bannerman entered the Chinese restaurant, it certainly did by the time Bannerman actually attempted to arrest Johnson. The reasonable suspicion that would have supported an investigatory stop progressed to probable cause to arrest when Johnson reacted to Officer Bannerman's commands by flinging what Bannerman believed to be a heroin gelcap over the restaurant counter. While Bannerman was entitled to conclude that the gelcap contained drugs simply from its appearance, the fact that Johnson attempted to discard it precisely when the police appeared provided even more reason to believe that Johnson had been caught redhanded. Once Johnson was observed in possession of illegal drugs, the officers certainly had probable cause to believe that the already suspicious series of hand-to-hand contacts were exactly what police suspected them of being. Accordingly, since the arrest did not violate the Fourth *347 Amendment, the district court was correct in allowing evidence obtained as a result. C. Finally, Johnson challenges the district court's refusal to suppress evidence concerning the drugs, drug paraphernalia, and handgun discovered in the car. Once again, we find no error. Officers may search a readily mobile automobile if they have probable cause to believe that their search will uncover contraband. See United States v. Kelly, 592 F.3d 586, 589-91 (4th Cir.2010). Here there was ample basis for probable cause. Officer Bannerman had probable cause to believe that Johnson had been engaging in drug crimes by the time he reached the car. Since Johnson was seen on video going to the car just before the hand-to-hand encounters that were at the heart of the probable cause to arrest, Bannerman in turn had probable cause to believe the car contained evidence of those activities. This was all the more so since when Bannerman looked into the car's window, an act that in no way violated the Fourth Amendment, he saw gelcaps in plain view like the one he had recovered from Johnson. See Brown, 460 U.S. at 740, 103 S.Ct. 1535; United States v. Taylor, 90 F.3d 903, 909 n. 4 (4th Cir.1996). IV. In addition to his Fourth Amendment claims, Johnson challenges aspects of his conviction on two other grounds. First, Johnson argues his convictions on the two counts relating to possession of a firearm were not supported by sufficient evidence. Because a sufficiency claim must fail "if there is substantial evidence, viewed in the light most favorable to the Government, to support" the jury's verdict, United States v. Cardwell, 433 F.3d 378, 390 (4th Cir. 2005), we reject Johnson's claim. In light of our discussion of the more than ample reasons for the search of the car, we find no merit to Johnson's suggestion that there was insufficient evidence for the jury to conclude that he possessed the items found within it. Finally, citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Johnson also raises a Sixth Amendment challenge to his sentence enhancement under 18 U.S.C. § 924(e), the Armed Career Criminal Act. But since, as he acknowledges, we have already rejected the very argument he makes, see United States v. Cheek, 415 F.3d 349, 352-53 (4th Cir.2005), this claim too must fail. V. For the foregoing reasons, the judgment is hereby AFFIRMED. NOTES [*] Johnson cites a handful of cases in which probable cause to arrest may have been lacking, but none of them presents the kind of circumstance we confront here, where a suspect is observed in the course of affirmatively committing a criminal act, as opposed to other behavior incriminating only by inference, such as flight. See United States v. Christian, 187 F.3d 663 (D.C.Cir.1999); United States v. Wilson, 2 F.3d 226 (7th Cir.1993); United States v. Embry, 546 F.2d 552 (3d Cir.1976). The two cases from this circuit Johnson cites are likewise inapposite. The only holding in United States v. Mayo, 361 F.3d 802 (4th Cir.2004) was that police could use evidence obtained from a Terry stop. United States v. Sprinkle, 106 F.3d 613 (4th Cir.1997), meanwhile, held that the Terry standard was not met where a police officer "could actually see that nothing of a criminal nature was happening" at the moment he observed the defendant. Id. at 618. In this case, the officer actually observed the opposite.

[Cite as Springfield Acme Rental, L.L.C. v. Clark Cty. Bd. of Revision, 2012-Ohio-4454.] IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY SPRINGFIELD ACME RENTAL, L.L.C. : : Appellate Case No. 2012-CA-4 Appellant : : Trial Court Case No. 2008-A-2528 v. : : CLARK COUNTY BOARD OF : (Administrative Appeal from REVISION, : (Board of Tax Appeals) et al. : : Appellees : : ........... OPINION Rendered on the 28th day of September, 2012. ........... MARK H. GILLIS, Atty. Reg. #0066908, and KELLEY A. GORRY, Atty. Reg. #0079210, Rich & Gillis Law Group, LLC, 6400 Riverside Drive, Suite D, Dublin, Ohio 43017 Attorneys for Plaintiff-Appellee, Springfield City School District Bd. Of Edu. THOMAS H. LAGOS, Atty. Reg. #0014980, Lagos & Lagos P.L.L., One South Limestone Street, Suite 1000, Springfield, Ohio 45502 Attorney for Appellant, Springfield Acme Rental, L.L.C. WILLIAM D. HOFFMAN, Atty. Reg. #0047109, and D. ANDREW WILSON, Atty. Reg. #0073767, Clark County Prosecutor’s Office, 50 East Columbia Street, Post Office Box 1608, Springfield, Ohio 45501  2 Attorneys for Defendant-Appellees, Clark Co. Auditor & Clark Co. Bd. of Revision ............. HALL, J. {¶ 1} Appellant Springfield Acme Rental LLC has appealed a Board of Tax Appeals (BTA) decision and order. The BTA order reverses the Clark County Board of Revision’s (BOR) order that reduces the true value of property owned by the rental company. The BTA’s order also reinstates the true value originally determined by the county auditor. The primary issue here is whether the rental company presented sufficient evidence to the BOR to justify its true-value reduction. We conclude that it did not. Therefore we affirm. I. Background {¶ 2} The subject property in this case consists of three adjacent lots on which sit two adjoining buildings. The property is owned by the rental company, which is owned by Patrick McCurdy1. The property sits in the taxing district of the Springfield City Schools. {¶ 3} The county auditor reappraised the property for the 2007 tax year. The auditor determined that the property’s true value was $604,710. The rental company filed a complaint against valuation with the BOR. It proposed a fair market value of only $158,000.2 Appellee Springfield City School District Board of Education filed a countercomplaint asserting that the auditor’s value was correct. {¶ 4} The BOR held a hearing. The rental company presented testimony from McCurdy, its owner. He testified that the company purchased the property about three years 1 The transcript of the hearing before the BOR refers to the rental company’s owner as Patrick McCarty, but the rental company’s brief refers to him as Patrick McCurdy. We believe that the latter last name is correct. 2 It is not clear from the record what the property’s true value was before 2007. Presumably, it was lower.  3 earlier for about $150,000. McCurdy said that the company has since invested around $300,000 in the property. But he said that, based on his knowledge of the local real-estate market, the property could be sold for only around $150,000. The rental company presented no documentary or other evidence supporting its proposed fair market value. No other party presented any evidence. The BOR determined that the property’s true value for the 2007 tax year is $173,000 and ordered a reduction. The BOR did not explain its decision. {¶ 5} The school board appealed to the BTA, arguing that there was insufficient evidence in the record to support the BOR’s reduction from $604,710 to $173,000. The parties waived their right to a hearing before the BTA. Based on the record developed before the BOR, the BTA agreed that the evidence failed to justify the BOR’s reduction. The BTA reversed the BOR’s order and reinstated the auditor’s original true value. {¶ 6} The rental company appealed. {¶ 7} The rental company presents three assignments of error. It alleges that the BTA erred in its determination that the evidence was insufficient, erred in its rejection of the BOR’s true-value determination and by reversing the BOR’s reduction order, and erred by reinstating the auditor’s true value. II. The Evidence Supporting the BOR’s Reduction Order {¶ 8} “The BTA’s duty * * * is to reach its ‘own independent judgment [of the subject property’s value] based on its weighing of the evidence contained in the [BOR] transcript.’” Vandalia-Butler City Sch. Bd. of Edn. v. Montgomery Cty. Bd. of Revision, 130 Ohio St.3d 291, 2011-Ohio-5078, 958 N.E.2d 131, ¶ 21, quoting Columbus Bd. of Edn. v. Franklin Cty. Bd. Of Revision, 76 Ohio St.3d 13, 15, 665 N.E.2d 1098 (1996). The BTA may  4 adopt the BOR’s value if the evidence is sufficient to support that value. See id. at ¶ 21. The evidence is sufficient “if and only if the BTA independently concluded that the evidence supports the very value found by the BOR.” (Emphasis sic.) Id. {¶ 9} A property’s “true value,” its value for calculating tax value, is either the sale price, if the sale occurred within a reasonable length of time from the tax year and the sale was at arm’s length, Ohio Admin. Code 5703-25-05(A)(2); R.C. 5713.03, or the property’s fair or current market value, Ohio Admin. Code 5703-25-05(A)(1); R.C. 5713.31. Here the BTA found that the evidence does not establish that the rental company purchased the property in an arm’s-length transaction. The BTA also concluded that McCurdy’s testimony is not probative or reliable evidence of the property’s 2007 market value. A. Sale price of an arm’s-length transaction {¶ 10} The sale price of property recently sold in an arm’s-length transaction is deemed the property’s true value. Berea City Sch. Dist. Bd. of Educ. v. Cuyahoga County Bd. of Revision, 106 Ohio St.3d 269, 2005-Ohio-4979, 834 N.E.2d 782, ¶ 13, quoting R.C. 5713.03; Wellington Square, L.L.C. v. Clark Cty. Aud., 2d Dist. Clark No. 2009-CA-87, 2010-Ohio-2928, ¶ 32 (“This [the sale price] is deemed to be the value, ‘regardless of other appraisal evidence or methods.’”), quoting Rhodes v. Hamilton Cty. Bd. of Revision, 117 Ohio St.3d 532, 2008-Ohio-1595, 885 N.E.2d 236, ¶ 11. “An arm’s-length sale is characterized by the following elements: ‘it is voluntary, i.e., without compulsion or duress; it generally takes place in an open market; and the parties act in their own self-interest.’”Wellington Square at ¶ 33, quoting Walters v. Knox County Bd. of Revision, 47 Ohio St.3d 23, 546 N.E.2d 932 (1989), syllabus.  5 {¶ 11} McCurdy testified that the rental company purchased the property “[a]pproximately three years ago.” (BOR Hearing Tr. 5). He said that “[he] thought the total package was $150,000.” (BOR Hearing Tr. 4).3 McCurdy also testified that the property was not listed for sale at the time. He explained that the rental company bought the property from someone who restored a house for him. The rental company presented no documentary evidence relating to the sale. There is little evidence regarding the voluntariness of the sale or the interests of the parties to the sale. And the evidence plainly establishes that the sale did not take place in an open market. {¶ 12} The Ohio Supreme Court has held that “the absence of even one of the [elements] * * * is sufficient to support a finding that a transaction was not conducted at arm’s length.” Shiloh Automotive, Inc. v. Levin, 117 Ohio St.3d 4, 2008-Ohio-68, 881 N.E.2d 227, ¶ 23, citing Strongsville Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision, 112 Ohio St.3d 309, 2007-Ohio-6, 859 N.E.2d 540, ¶ 13. With respect to the open-market element in particular, although it is not strictly necessary, Wellington Square at ¶ 35, the Court has “upheld the BTA’s finding that a transaction was not at arm’s length in the absence of an open-market sale.” Shiloh at ¶ 23, citing Kroger Co. v. Hamilton Cty. Bd. of Revision, 67 Ohio St.3d 145, 147, 616 N.E.2d 877 (1993). {¶ 13} Here there is little evidence regarding two of the arm’s-length-transaction elements. And the evidence regarding the open-market element simply fails to demonstrate an open-market transaction. Accordingly, we determine that the BTA conclusion, that the rental 3 The BTA notes McCurdy’s uncertainty about the purchase price. The auditor’s 2007 appraisal, which is in the record, makes a historical reference that McCurdy purchased the property in October 2004 for $150,000.  6 company did not purchase the property in an arm’s-length transaction, is a reasonable finding. B. The fair or current market value {¶ 14} The rental company did not present any documentary evidence regarding the property’s fair or current market value either. On this issue too, McCurdy’s testimony is the only relevant evidence. The BTA concluded, though, that his testimony is not probative or reliable. {¶ 15} The BTA’s discretion is wide when it comes to evaluating the credibility of witnesses and weighing their testimony. Hardy v. Delaware Cty. Bd. of Revision, 106 Ohio St.3d 359, 2005-Ohio-5319, 835 N.E.2d 348, ¶ 10. The BTA “may accept all, part, or none” of a witness’s testimony. Simmons v. Cuyahoga County Bd. of Revision, 81 Ohio St. 3d 47, 48, 689 N.E.2d 22 (1998). A court may not disturb the BTA’s credibility evaluation or the weight it accords a witness’s testimony unless the court concludes that the BTA abused its discretion. Hardy at ¶ 10. The BTA abuses its discretion when its decision is unreasonable, that is, the decision “lacks a sound reasoning process.” Wellington Square, 2010-Ohio-2928, at ¶ 27, citing AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). The BTA’s decision to reject McCurdy’s market-value testimony was reasonable. {¶ 16} A property owner is competent to testify about the market value of his property. Simmons at 48. But “the BTA [i]s not required to accept his opinion of value.” Id. The rental company purchased the property in 2004 for $150,000. McCurdy testified that since then he has spent around $300,000 on repairs to the buildings. But he said that the market value of the property did not increase by the same amount because of the abundance of similar  7 property on the market and the reputation for crime in the area around the property. McCurdy said that if he sold the property, he believed he could not get more than $150,000. {¶ 17} The rental company argues that McCurdy had reliable knowledge of the property’s market value. It asserts that McCurdy’s job as an electrical contractor in the Springfield area “naturally places him in contact with buyers and sellers for real estate in a way that affords him an insider’s view of the relative pricing required to repair or trade similarly situated buildings in the marketplace.” (Appellant’s Brief, p.10). {¶ 18} The BTA found that the record does not establish McCurdy’s qualifications to quantify any effect on market value that the improvements might have. And the BTA found that nothing else in the record suggests how the improvements may have affected the property’s market value. The BTA also rejected the reliable-knowledge argument, saying that the record does not establish McCurdy’s expertise as an electrical contractor. Nor, added the BTA, does the record establish his expertise as a real-estate appraiser. {¶ 19} The BTA’s reasoning that led it to reject McCurdy’s market-value testimony as not probative or reliable is not an abuse of its discretion.4 Compare Valigore v. Cuyahoga Cty. Bd. of Revision, 105 Ohio St. 3d 302, 2005-Ohio-1733, 825 N.E.2d 604, ¶ 7. {¶ 20} We determine that the BTA’s conclusion, that the record developed before the BOR contains insufficient evidence to support the BOR’s true-value reduction, is reasonable. 4 We note that in its written decision the BTA said that it “d[id] not consider the opinion expressed by the owner to be competent or probative evidence of value * * *.” (Emphasis added.) McCurdy, as the owner, is plainly competent to testify about the fair- or current-market-value of his property. Accord Simmons at 48. In the sentence before the just-quoted one, the BTA said that “[t]he weight to be accorded an owner’s evidence is left to the sound discretion of this board.” (Emphasis added.) We conclude the BTA’s use of “competent or probative” is a reference to the talismanic expression of the quality of the evidence and does not deny the owner’s capacity to have presented it.  8 And, because of the BTA finding that the evidence is not sufficient to support the BOR’s reduction, the BTA must reverse. Vandalia-Butler, 2011-Ohio-5078, at ¶ 21. Thus the BTA here properly reversed the BOR’s reduction order. {¶ 21} The first and third assignments of error are overruled. III. The BTA’s Reinstatement of the Auditor’s Value {¶ 22} BOR decisions are not presumed to be valid. Colonial Village, Ltd. v. Washington Cty. Bd. of Revision, 114 Ohio St.3d 493, 2007-Ohio-4641, 873 N.E.2d 298, ¶ 23. A county auditor’s valuation is. Colonial Vill. Ltd. v. Washington Cty. Bd. of Revision, 123 Ohio St. 3d 268, 2009-Ohio-4975, 915 N.E.2d 1196, ¶ 31. So “[t]he county’s appraised value * * * forms in most cases a default valuation that must be preferred and adopted if the appellant before the BTA fails to prove a different value of the property.” Id. “[I]t is proper to revert to [the auditor’s original] valuation when the BTA finds that the owner has not proved a lower value and there is otherwise ‘no evidence from which the BTA can independently determine value.’” (Emphasis sic.) Vandalia-Butler at ¶ 24, quoting Simmons, 81 Ohio St.3d at 49, 689 N.E.2d 22. {¶ 23} Here the BTA concluded that the rental company did not prove a lower value. The BTA also (reasonably) rejected the only market-value evidence in the record, McCurdy’s testimony, leaving insufficient evidence for it to perform an independent valuation. Therefore the BTA properly reinstated the auditor’s original value. {¶ 24} The second assignment of error is overruled. IV. Conclusion {¶ 25} The BTA did not err in its determination that the evidence was insufficient,  9 rejection of the BOR’s value and reversal of the BOR’s value-reduction order, or reinstatement of the auditor’s value. {¶ 26} The BTA’s decision and order is affirmed. ............. FAIN and FROELICH, JJ., concur. Copies mailed to: Mark H. Gillis Kelley A. Gorry Thomas H. Lagos William D. Hoffman D. Andrew Wilson Ohio Board of Tax Appeals 

468 A.2d 590 (1983) ESTATE OF Leo P. TESSIER Supreme Judicial Court of Maine. Argued September 15, 1983. Decided November 14, 1983. *591 Ronald J. Cullenberg, Farmington (orally), for plaintiff. Richard Edwards (orally), Perkins & Edwards, Guilford, for defendant. Before NICHOLS, ROBERTS, VIOLETTE and GLASSMAN, JJ., and DUFRESNE, A.R.J. DUFRESNE, Active Retired Justice. Leo P. Tessier died on September 17, 1979, leaving a will in which he nominated the Northeast Bank of Guilford executor for the administration of his estate. Tessier's children[1] raised objections to the first and final account filed by the Bank with the Probate Court, Somerset County, on March 10, 1981. In pursuit of their objections to the Bank's accounting, the children, on July 14, 1982, filed two petitions with the Probate Court, one for review of the Bank's employment of, and compensation paid to, its attorneys, as well as for review of the reasonableness of its own compensation for its own services as personal representative of the estate (18-A M.R.S.A. § 3-721), the other petition seeking to have the Bank surcharged for breach of various duties allegedly mandated by its fiduciary position (18-A M.R.S.A. § 3-712).[2] On *592 January 12, 1983, the Probate Court after hearing allowed the executor's account as a first account, and denied the children's petitions. They appeal from that decision, and we affirm. Surcharge of the Bank is claimed on account of breaches of duties in several particulars and because of alleged excessive fees paid to its attorneys and excessive compensation taken by itself as executor. These alleged breaches of duties range from the failure to renegotiate the testator's inter vivos option to sell the ancestral home to one Pensiero to the non-renting of the home for a year, to the loss of income in not investing funds of the estate in money market certificates, to the omission to inventory certain Florida personal property. We shall dispose of each contention in sequence. 1. Renegotiation of the inter vivos option. In October, 1971, the deceased, Leo Tessier, sold a small grocery store in Rockwood to Joseph Pensiero. The purchase-sale agreement included an option whereby Pensiero, upon Tessier's death, could purchase for $19,000 the Tessier residence and accompanying real estate next to the grocery store. After Tessier's death and shortly after the Bank's appointment as executor, the children informed the Bank that the value of the house and land far exceeded $19,000 and that they objected to the Bank's selling it to Pensiero at the option price. On October 25, 1979 Pensiero filed in Probate Court a `proof of claim' against the estate based upon his option to purchase the residence. The Bank sought the advice of its own corporation counsel and of the attorney for the estate, each of whom advised that Pensiero held a valid option. The dispute between the children and Pensiero centered on whether there was any consideration for the option. The Bank, through its legal advisers, determined that Pensiero had earlier refused to buy the grocery store without the adjacent real estate, and that the option became necessary for the sale and purchase of the store to take place. The Bank also inquired as to the value of the residence by examining a financial inventory prepared by Leo Tessier himself in 1979 and by obtaining two additional appraisals of its market value. The Bank, however, disregarded the children's objections; instead, it encouraged Pensiero to sue for specific performance of the option. Pensiero did file such an action in Superior Court. Prior to any judicial resolution of the issue, the children bought the option from Pensiero for $8,000, and, then, one of them purchased the house for $35,000; this resulted in a gain of $8,000 to the estate. 2. Non-renting of the home. In April, 1980, Kay Staples, Tessier's housekeeper, moved out of the Tessier residence. On the Bank's request of the children for them to agree to the Bank's renting of the building while it sought a buyer, they readily consented; nevertheless, the Bank never did attempt to rent the place. From the evidence before the court, it appears that the rental value of the house from April, 1980, to April, 1981, when the property was sold, was $3,000. 3. Loss of Income. Leo Tessier had approximately $63,000 invested in United States treasury notes and in several savings accounts. These accounts and notes earned interest at rates from 5.75% to 7.9%. During the period in question, six-months money market certificates earned interest at approximately 11%. Most of the $63,000 was invested in banks other than the Northeast Bank of Guilford. Approximately one half of the $63,000 was distributed to the children during the first year of administration in April, June and July of 1980. Funds placed in a money market certificate could not be withdrawn during the six months period without a substantial penalty. 4. The Florida personal property. Tessier owned a mobile home in Florida which, together with its contents, had been evaluated by him at $5,000 in 1979. The Bank did not prepare a list of the personal property located in the trailer for inventory purposes. The Bank received an appraisal from the trailer park owner who valued the trailer and its contents at $4,500. Kay Staples, *593 the former housekeeper, prepared a list of the personal property in the trailer for the children, and Virginia Richards, one of them, evaluated the same at $2,540. The Bank sold the trailer and all of its contents for $5,500. 5. Fees. In its first and final account the Bank sought fees of $10,782.08 of which $6,009.89 was for attorney's fees. The Bank's fee of $4,772.19 was based upon a commission arrangement it had made with Leo Tessier in his lifetime. This figure primarily represents a commission of 5% of the value of the estate. The attorney in question had spent 15 to 20% of his ten-year practice in probating estates. He testified that his charges were $100 per hour for court time work and $60 per hour for office time work. He considered the case, so he stated on the stand, a particularly difficult one. In their petition for review of compensation the children contend that these fees were excessive. Standard of review On appeal, we can reverse the judgment of the Probate Court only if its findings of fact are clearly erroneous. Estate of Rosen, 447 A.2d 1220, 1221 (Me.1982). See also Estate of Turf, 435 A.2d 1087, 1089 (Me.1981); Estate of Hatt, 431 A.2d 52, 53 (Me.1981). Although we might not have found the Bank completely blameless, had we been the authorized fact-finding forum, we cannot say on this record that the Probate Court's judgment for the Bank was clearly erroneous. At the time of the Bank's appointment as executor of the estate of Mr. Tessier, the Probate Code had just been enacted by the Legislature, but by express provision of the legislative act it did not become effective until January 1, 1981. Public Laws, 1979, ch. 540, § 53 (18-A M.R.S.A. § 8-401(a)). We must presume that the Bank, as a professional fiduciary operating a trust department, was familiar with the Code's mandated standard of conduct in dealing with trust property. Except as otherwise provided by the terms of the trust, the trustee shall observe the standards in dealing with the trust assets that would be observed by a prudent person dealing with the property of another, and if the trustee has special skills or expertise, he is under a duty to use those skills. 18-A M.R.S.A. § 7-302(a). This standard of care is made applicable to personal representatives, which include executors and administrators. 18-A M.R.S.A. § 3-703(a). This statute further prescribes that [a] personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of any probated and effective will and this Code, and as expeditiously and efficiently as is consistent with the best interests of the estate. He shall use the authority conferred upon him by this Code, the terms of the will, if any, and any order in proceedings to which he is a party for the best interests of successors to the estate. The preexisting law, 18 M.R.S.A. § 4054, couched the fiduciary's standard of care in somewhat different terminology. [A] fiduciary shall exercise the judgment and care under the circumstances then prevailing, which men of prudence, discretion and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital. Within the limitations of the foregoing standard, a fiduciary is authorized to acquire and retain every kind of property,. . ., which men of prudence, discretion and intelligence acquire or retain for their own account, . . . . The change in language is more cosmetic than substantial, as even under the old standard of care the fiduciary's treatment of the trust funds as if they were his own estate was not absolute. In Mattocks v. Moulton, 84 Me. 545, 552, 24 A. 1004 (1892), the Court said: *594 While he must be as diligent and painstaking in the management of the trust estate, as the average prudent man is in managing his own estate he may not always place the trust funds where he, or the average prudent man, would place his own funds. In measuring the duty of the trustee with the usual conduct of the man of average prudence in the care of his own estate, reference is to be had to the conduct of such a man in making permanent investments of his savings outside of ordinary business risks, rather than to his conduct in taking business chances. The Code's formulation of the standard of care in terms of what prudent persons would use when dealing with the property of others was merely intended to debunk the idea that the standard of care of the reasonable person in dealing with his own property heretofore prevailing might be viewed as an entirely personal concept. The fiduciary's obligation always was to administer the trust property having in mind at all times the several interests of the beneficiaries of the estate and of others interested therein. See Ahuna v. Dept. of Hawaiian Home Lands, 64 Hawaii 327, 640 P.2d 1161, 1169 (Haw.1982); Uniform Laws Annotated, Master Ed., Vol. 8, p. 555 (Comment to Section 7-302 of the Probate Code). See also In Re Cook's Trust Estate, 20 Del.Ch. 123, 171 A. 730 (1934). We need not detail the differences, if any, between the standard of care with which fiduciaries under the old law had to comply, i.e. exercise the judgment and care under the circumstances which men of prudence, discretion and intelligence exercise in the management of their own affairs, and the current formulated duty under the Probate Code, i.e. to observe the standards in dealing with the trust assets that would be observed by such persons when dealing with the property of another. Testing the Bank's conduct in the instant case under either standard, we cannot say that the judge of probate was clearly in error in his findings of fact and we do reach the same conclusion of law as he did, that surcharges were not warranted. As pointed out in Estate of Baldwin, 442 A.2d 529, 532 (Me.1982), comparable duties of diligence were imposed upon fiduciaries by the code as by the old law. Mattocks v. Moulton, supra, 84 Me. at 551-52, 24 A. at 1006; 18-A M.R.S.A. § 3-703(a). In all cases, the executor must act in good faith, but good faith and prudence are not alone enough. As stated in Estate of Baldwin, the duties of an executor (and these survive implicitly in the code if not expressly codified therein) encompass the obligation to fully enlighten oneself without delay by investigation or otherwise as to what needs to be done in the discharge of the office consistent with the duties required by a proper management of the trust estate. The executor must always bear in mind that the estate must be preserved for distribution to the beneficiaries, and investments are to be made or maintained in such a way that will not interfere with an expeditious settlement of the estate. No matter what dissension or displeasure may arise among the beneficiaries of the estate, their attorneys or other representatives, the executor must realize at all times that it is his affirmative duty to manage the deceased's property in such a way as to fulfill his obligation which is his alone to settle and distribute the estate as expeditiously and efficiently as is consistent with the best interests of the estate. 18-A M.R.S.A. § 3-703(a). See also Estate of Baldwin, supra, at 534-35. 1. The Pensiero Option In reviewing the Bank's handling of the children's objections to the honoring of Tessier's option agreement with Pensiero, we do not require that its conduct conform to what we know in hindsight might have been the best course to follow. Estate of Baldwin, 442 A.2d at 534. We look at what the Bank knew and at what a skilled professional should have known in evaluating its choices of action and the propriety of its determination therein. *595 The children argue that the Bank should have renegotiated the option price with Pensiero. But, if the option was a legally valid part of the existing contract between the deceased and Pensiero, that left the Bank with no leverage with which to renegotiate, the position taken by Pensiero's attorney with the Bank. We believe that the Bank was justified in relying on the opinion of counsel that adequate consideration supported the purchase option and in favoring, as it did, a judicial determination of the question. We cannot say that the children's ability to buy the option for $8,000 and sell the house to one of them for $35,000 proves that the Bank did not prudently manage the estate. It would have been risky for the Bank to use the estate's funds to buy the option and then attempt to sell the house. This would have tied up even more of the estate's assets at a time when the children were demanding that those funds be invested or distributed. Although some persons, such as the children here, may have been willing to risk their own money to buy up the option, it was within the range of reasonableness and prudence for the Bank in its professional judgment to take a more cautious course. 2. Non-renting of the home The decision of the Bank not to rent the house may be questionable, but the Probate Court's decision that the Bank's conduct in that regard did not constitute a breach of duty is not clear error. Again, the Bank cannot be held to the hindsight knowledge we now have, that the house would go unoccupied from April 1980 to April 1981. True, the dispute respecting the Pensiero option should have suggested a delay in the availability of the house for sale either to Pensiero or some third party; nevertheless, pursuant to its duty to expeditiously settle and distribute the estate under 18-A M.R.S.A. § 3-704, the Bank could take into consideration that the matter might be resolved within a short period of time and, if the Pensiero option were perchance declared invalid, that it needed to keep its position flexible so that a sale to a prospective purchaser might be more readily and advantageously made. Furthermore, no evidence was introduced showing the house-rental market in the area to support the children's contention that the house was readily rentable, even though on the market for sale. Under all these circumstances surrounding the dispute respecting the sale of the house, we cannot say that the court below committed clear error in refusing to surcharge the Bank for alleged loss of rent pending resolution of the question. 3. Money market certificates The children contend that the Bank improperly failed to exercise the power that it had to seek greater revenue for the estate, that it should not have retained the estate's assets in bank savings accounts or United States treasury notes as Mr. Tessier had done, but that it had the duty to invest the funds in more profitable money market certificates. The loss resulting from this alleged breach of fiduciary duty, it is asserted, should have compelled a surcharge as requested. See 18-A M.R.S.A. § 3-712. We disagree. The children early on were pressuring the Bank to make partial distributions, and the Bank's refusal to commit funds of the estate on a long term basis, which money market certificates would have involved, merely reflects its concern for flexible estate management, which in fact permitted the Bank to make the partial distributions sought by the children. The Bank's good faith cannot be questioned on this score, as the moneys were invested primarily in other banks; there were no grounds for imputing an improper profit motivation to the Bank's investment choice. 4. The Florida personal property The executor failed to inventory separately as assets of the estate the personal furnishings which Mr. Tessier owned at his death in his house trailer in Florida. A bank officer testified that "it was our job to attempt to get a figure for the trailer and *596 contents at least that would equal or exceed the figure that the owner had placed on it that very year that he died, which we did." This was a technical violation of the Code, as well as of the existing law prior thereto.[3] Even though under 18-A M.R.S.A. § 3-611(b), a personal representative's failure to perform any duty pertaining to the office is made "cause for removal" when removal would be in the best interests of the estate, the Bank's failure in the instant case to include in the inventory of the estate's assets the decedent's household goods in his Florida trailer home may not be the cause for surcharge, where the breach of duty was formalistic only, the executor acted in good faith and the record shows that no loss ensued to the estate. Such omission was overlooked and characterized as a breach of only a directory regulation in Pettingill v. Pettingill, 60 Me. 411, 419 (1872). We conclude that no error was committed in this area. 5. Executor's compensation and Attorneys' fee In 18-A M.R.S.A. § 8-401, it is provided that (2) The Code applies to any proceedings in Court then [January 1, 1981] pending or thereafter commenced regardless of the time of death of decedent except to the extent that in the opinion of the court the former procedure should be made applicable in a particular case in the interest of justice . . . . Thus, pursuant to 18-A M.R.S.A. § 3-719, the Bank, as personal representative, was entitled to reasonable compensation for its services. The 5% commission charged and received by the Bank stemmed from an agreement made by it with Mr. Tessier, the testator. The law expressly recognizes such inter vivos agreements, since the reference section does state that if a will provides for compensation of the personal representative and there is no contract with the decedent regarding compensation, he may renounce the provision before qualifying and be entitled to reasonable compensation. We see nothing in this record to preclude the Bank's recovery of compensation according to the pre-arranged commission agreement. So far as the attorneys' fees paid out are concerned, we cannot say that the Probate Court was clearly in error in approving such disbursements. The record is devoid of any expert evidence to support a claim of excessive charges by the attorneys for the legal services furnished the executor in connection with the dispute surrounding the Pensiero option and its defense of the children's petition for removal of the Bank as executor carried on appeal to the Superior Court acting as the Supreme Court of Probate. The Probate Court was justified in accepting the attorney's testimony that the total hours of work involved and the rates per hour charged were not outside the range which attorneys of his standing in comparable cases would say are reasonable. See 18-A M.R.S.A. § 3-720. These legal charges were made necessary by reason of the ongoing disputes between the children and the Bank executor. Although a personal representative should not reject out of hand the suggestions of the beneficiaries, but in the exercise of a sound discretion might honor their wishes if consistent with the overriding duty which the law imposes upon an executor to provide a prudent, efficient, expeditious, impartial and professional administration of the estate, we find in this record no cause for surcharge on account of payment of excessive attorneys' fees. The Probate Court could consider as guides in determining their reasonableness: *597 the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the service properly; the fee customarily charged in the locality for similar services; the amount involved and the results obtained; the time limitations imposed by the personal representative or by the circumstances; the experience, reputation and ability of the person performing the services. 18-A M.R.S.A. § 3-721. The Probate Court's ultimate decision thereon consisted of findings of fact which we cannot reverse on appeal except for clear error.[4] The entry is: Judgment affirmed. All concurring. NOTES [1] Lorene Pratt, Ramona Tessier, Cora Eighney, Ronald Tessier, Virginia Richards and Paul Tessier are the children of Leo P. Tessier and the residuary beneficiaries of his will. Throughout these proceedings the six children have been represented as a unit by the same counsel and for purposes of simplicity we will refer to them collectively as the "children." [2] 18-A M.R.S.A. § 3-712 provides in relevant part as follows: If the exercise of power concerning the estate is improper, the personal representative is liable to interested persons for damage or loss resulting from breach of his fiduciary duty to the same extent as a trustee of an express trust. . . . . [3] 18-A M.R.S.A. § 3-706 provides in pertinent part as follows: Within 3 months after his appointment, a personal representative, ... shall prepare and file or furnish an inventory of property owned by the decedent at the time of his death, listing it with reasonable detail, and indicating as to each listed item, its fair market value as of the date of the decedent's death, . . . . . Its counterpart under the prior law may be seen at 18 M.R.S.A. § 1501(1). [4] Because we affirm the Probate Court's judgment that the petitions below were unmeritorious, we need not reach the appellee-bank's alternative ground for affirmance, that the earlier proceeding to remove the executor has a collateral estoppel or res judicata effect on this case.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-6706 TERRY L. BRAMWELL, Plaintiff - Appellant, versus RAYMOND IGLECIA, Doctor, Defendant - Appellee, and JOHNNY NEWHART, Sheriff, Defendant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:05-cv-00475) Submitted: August 30, 2007 Decided: September 7, 2007 Before MICHAEL, KING, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Terry L. Bramwell, Appellant Pro Se. Andrew Joseph Terrell, WHITEFORD, TAYLOR & PRESTON, Washington, DC, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Terry L. Bramwell appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2000) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Bramwell v. Iglecia, No. 3:05-cv-00475 (E.D. Va. Mar. 22, 2007). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED - 2 - 

216 F.2d 638 STOCKTON HARBOR INDUSTRIAL COMPANY, Petitioner,v.COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 13615. United States Court of Appeals Ninth Circuit. November 1, 1954. Rehearing Denied December 1, 1954. 1 Valentine Brookes, Arthur H. Kent, San Francisco, Cal., for appellant. 2 H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack, Lee A. Jackson, Melva M. Graney, Sp. Assts. to Atty. Gen., Charles W. Davis, Chief Counsel, Bureau of Internal Revenue, Washington, D. C., for appellee. 3 Before ORR and CHAMBERS, Circuit Judges, and YANKWICH, District Judge. 4 YANKWICH, District Judge. 5 We are called upon to review a decision of the Tax Court of the United States. The main question before us is whether the petitioner, to whom we shall refer as the taxpayer, acquired its property in a reorganization and whether the money derived from a condemnation of land by the United States Government resulted in a capital gain. 6 * The Scope of Review 7 The taxpayer filed its tax return on the assumption that the basis of the land for computing its tax liability in 1944 and 1945 was its cost to it, amounting to $380,000.00 and that the gain from the sale of the condemnation of the land was capital gain. The Commissioner disallowed both contentions in his deficiency letters and his action was sustained by the Tax Court, which found: 8 "That there are deficiencies in income tax for the years 1944 and 1945 in the respective amounts of $2,484.57 and $840.13; that for such years there are deficiencies in declared value excess profits tax in the respective amounts of $317.01 and $39,639.50; and that for such years there are deficiencies in excess profits tax in the respective amounts of $1,884.50 and $220,935.95." 9 This is a petition to review the decision. Under the provisions of the Internal Revenue Code the scope of our review, except as provided in 28 U.S.C. § 1254, with which we are not concerned here, is stated to be: 10 "* * * in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury". 26 U.S.C., § 1141. 11 In applying this provision, this court and other courts have held that it is not our function to retry questions of fact determined by the trial court upon conflicting evidence or even upon uncontradicted evidence where different inferences may reasonably be drawn from them. Grace Bros. v. Commissioner of Internal Revenue, 9 Cir., 1949, 173 F.2d 170, 173-174; Rider v. Commissioner of Internal Revenue, 8 Cir., 200 F.2d 524; Wisdom v. United States, 9 Cir., 1953, 205 F.2d 30, 33; R. P. Farnsworth & Co. v. Commissioner of Internal Revenue, 5 Cir., 1953, 203 F.2d 490. 12 The Court of Appeals for the Eighth Circuit has summed up the limitations of the scope of this review in these words: 13 "It is not the province of this court to retry the issues that were presented to the Tax Court. It was the province of that court to determine the facts." Rider v. Commissioner of Internal Revenue, supra, 200 F.2d at page 525. 14 These cases are in line with the statement of the Supreme Court that the Tax Court 15 "is the agency designated by law to find and examine the facts and to draw conclusions as to whether a particular assignment left the assignor with substantial control over the assigned property or the income which accrues to the assignee. And it is well established that its decision is to be respected on appeal if firmly grounded in the evidence and if consistent with the law." Commissioner of Internal Revenue v. Sunnen, 1948, 333 U.S. 591, 607, 68 S.Ct. 715, 724, 92 L.Ed. 898.1 II The Basic Facts 16 The basic facts as found by the Tax Court are these. The taxpayer, a California corporation, was incorporated on October 16, 1936. Ten days later it acquired certain assets of Lindley Patrick Farms, Inc., (to be referred to as Lindley Patrick) a California corporation of which Albert Lindley was president, director and sole stockholder. His wife was the other director. 17 Between the years 1912 and 1926 Albert Lindley purchased various parcels of land totaling approximately 1,150 acres on an adjoining Rough and Ready Island, which is situated in the delta of the San Joaquin River near Stockton. The Stockton Deep Water Channel runs along the island's northern boundary to the Port of Stockton. Lindley purchased the lands for the purpose of holding them for appreciation in value which he expected would result from public improvements for navigation, with the thought that, while awaiting such developments, he could farm the land and thereby receive income or rentals. 18 Upon the organization of Lindley Patrick, Lindley transferred 1,110 acres of land to the corporation in exchange for all of its stock. The corporation was organized for the purpose of farming, working, developing and otherwise dealing with the properties acquired. 19 In 1930, further improvements for navigation were planned by public authority and were later made. The Belt Line Railroad was proposed and constructed at approximately the same time. It was about that time that a demand arose for parcels of the property for waterfront and industrial uses. Lindley Patrick undertook to sell its lands in parcels for such purposes. 20 By October 1, 1936, approximately 200 acres had been sold, but Lindley Patrick was in financial difficulties because of inability to pay $25,655.77 back taxes and mortgage interest. It was indebted to the San Francisco Bank in the amount of $79,000.00, secured by a deed of trust, and to the Stockton Savings and Loan Bank in the amount of $45,595.65 and to L. F. Grimsley, Inc., in the amount of $3,557.97, both secured by a single second deed of trust. Interest on these debts had not been paid for several years, and by October 1, 1936, totaled about $20,500.00. In addition, the property was subject to liens for delinquent county taxes in the amount of $3,767.36. 21 On October 6, 1936, Lindley Patrick gave Stuart L. Rawlings a written option "to purchase" its assets, the terms of which (as amended by an addendum dated October 8, 1936) were as follows: 22 (a) A new corporation was to be formed for the purpose of "holding, operating and selling" the real property, with a board of directors of three members, one of whom was to be Albert Lindley. 23 (b) "The purchase price" of the property was "to be paid" by the delivery to Lindley Patrick of 49 per cent of the new corporation's stock, subject to the payment of the principal sum of the above-mentioned promissory notes and accrued interest thereon. 24 (c) Rawlings was to pay to the new corporation the sum of $30,000.00 and receive 51 per cent of its stock. 25 (d) The $30,000.00 was to be used by the new corporation to pay the delinquent taxes and the overdue interest, and any balance was to remain in the treasury of the new corporation. 26 (e) Rawlings was to lend $20,000.00 to Lindley Patrick, to be secured by the pledge of its 49 per cent of the stock in the new corporation. 27 On October 15, 1936, the Stockton Savings and Loan Bank (which held promissory notes of Lindley Patrick on which there was a balance due of $45,495.65 secured by a second trust) bought from the San Francisco Bank its entire interest in the first deed of trust for the face amount of the principal ($79,000) and overdue interest, plus one dollar for a release. E. L. Wilhoit was at that time president of the Stockton Savings and Loan Bank and is now chairman of its board of directors. 28 On October 16, 1936, the taxpayer was incorporated by E. L. Wilhoit, R. L. Eberhardt and Stuart L. Rawlings, each receiving one $50 share of stock. Taxpayer had a capital stock of $60,000 divided into 1,200 shares of a par value of $50 each, all of which was common stock. Its stated powers and purposes were, among other things, "to acquire, own, subdivide, develop, improve, buy, sell, lease * * * all kinds of land and personal property; * * * to transact any other kind of business that may be beneficial and desirable for the stockholders." 29 On October 22, 1936, the directors of Lindley Patrick resolved to deed the real property to the taxpayer, subject to the principal amount of the encumbrances, and to transfer to taxpayer a related obligation of the City of Stockton and five promissory notes made by Grant B. Shipley to Lindley Patrick, hereinafter referred to as the Shipley notes. The resolution stated "the consideration therefor to this corporation to be the sum of approximately $25,655.77 in cash, and five hundred ninety-nine (599) shares of the capital stock of" taxpayer. 30 Two days later, on October 24, 1936, the taxpayer's board of directors adopted a resolution to acquire from Lindley Patrick all the real property, the related obligation of the City of Stockton and the Shipley notes. The real property was to be acquired subject to the deeds of trust securing the principal of the notes, and to the second installment of the current realty taxes. The resolution also provided that "The consideration to be paid therefor by this corporation to the said Lindley Patrick Farms, Inc., is the sum of $25,655.77 and the issuance by this corporation to Lindley Patrick Farms, Inc., of 599 shares of the capital stock of this corporation." 31 On the same day, October 24, 1936, the taxpayer's board of directors, also by resolution, instructed its officers to apply to the State Corporation Commission for a permit to issue additional shares of stock, for the following named considerations E. L. Wilhoit — 259 shares for $12,950 32 Stuart L. Rawlings — 239 shares for $11,950 33 William Wallace Mein — 100 shares for $5,000 34 Lindley Patrick Farms, Inc. — 599 shares, for the transfer of the property subject to the encumbrances described above. 35 The resolution also recited that "in addition to the said 599 shares of the capital stock of this corporation, there is to be paid to the Lindley Patrick Farms, Inc., the sum of $25,655.77." 36 On October 22, 1936, two days prior to the date of the above resolution, taxpayer filed with the Corporation Commissioner its application for a permit to issue stock. This application stated, inter alia, that stock was to be issued for cash to the individuals above named in the total of 601 shares and that the corporation was to acquire from Lindley Patrick certain of its assets; that the 902 acres of land to be acquired from Lindley Patrick had been appraised at the sum of $418,000; "that said property is to be acquired subject to the payment of the principal sum of secured indebtedness, the total amount of which is the sum of $218,153.62", and which indebtedness was secured by five separate deeds of trust; "that the consideration to be paid by this corporation for said real and personal property is the sum of $25,655.77 and 599 shares of the capital stock of this corporation"; and "that this corporation has been formed and organized primarily for the purpose of acquiring and dealing in real estate of all kinds, and of improving, subdividing, and selling the same". 37 The taxpayer's officers were designated and described in the application. E. L. Wilhoit was designated as president. It was stated that for more than 25 years, he had been engaged in buying and selling real estate and that at the time was president of the Stockton Savings and Loan Bank, of Stockton, a capacity in which he had served for many years. Stuart L. Rawlings, who was shown as having been actively engaged in selling and buying real estate and as being associated with a cement company, an oil company and other corporations at that time, was designated as executive vice president. Albert Lindley was shown as vice president and general manager. It was stated that for many years he had owned real estate situated at San Joaquin County and that he had operated his properties as farming lands, had subdivided and sold portions for industrial purposes, and was thoroughly acquainted with the real property to be acquired by the taxpayer. Freda Keser, who was shown at that time to be secretary to Wilhoit, was designated as secretary and treasurer. She was described as an experienced secretary and accountant. 38 The permit was issued October 23, 1936. It authorized the taxpayer to issue 599 shares of its stock to Lindley Patrick Farms, Inc., for "the property and assets described in its application * * * subject to liabilities and encumbrances not exceeding in the aggregate $153,809.39". It also authorized the taxpayer to issue "601 shares to the persons named in its application at par for cash". Upon receipt of this permit, the taxpayer issued 599 shares of its stock in the name of Lindley Patrick Farms, Inc., and 601 shares to individuals of the Rawlings group. 39 On October 24, 1936, Lindley Patrick wrote a letter of instructions to the Security Title Insurance and Guarantee Company, the escrow agent, and transmitted with it the deed to the 902 acres of real property, the assignments to the Shipley notes and to the Stockton obligation, and also a $20,000 demand note executed by it and made payable to Stuart L. Rawlings, with a pledge agreement hypothecating its stock in the taxpayer as security for the note. In the letter, it was stated: 40 "6. There will be handed to you for the account of the undersigned by Stockton Harbor Industrial Company the sum of $25,655.77, which said sum is to be disbursed by you in the following manner, to-wit: 41 "`Stockton Savings & Loan Bank — Interest on $79,000.00 note ................................ $14,357.81 Stockton Savings & Loan Bank — Interest on $100.00 note and $45,495.65 note ............ 6,156.47 L. F. Grimsley, Inc. — Interest on notes totaling $3,557.97 ......... 798.87 Redemption from Tax Sales ............................... 3,767.36 First Installment of State and County Taxes for 1936-1937 ........................... 575.26 ___________ $25,655.77' 42 All interest to be paid by October 24, 1936. After payment of the above amounts, any surplus remaining is to be paid by you to the Stockton Harbor Industrial Company. 43 "There will also be handed to you for the account of the undersigned, certificate or certificates for 488 shares of the capital stock of the Stockton Harbor Industrial Company, this stock to be issued in the name of Lindley Patrick Farms, Inc., Stuart L. Rawlings, pledgee. 44 "The deed numbered 1, assignment numbered 2, and assignment numbered 3, are to be delivered to the Stockton Harbor Industrial Company, upon the payment of the money, and the delivery of the stock as hereinabove set forth, and thereupon you are authorized to deliver the said stock in pledge, the said promissory note, and said pledge agreement, upon the said certificate of stock being properly endorsed, upon their being delivered to you for the account of undersigned, of the sum of $20,000.00. 45 "Deliveries herein authorized are to be made only at the consummation of one transaction, including the conveyance of the property and the issuance of the stock, and the pledge thereof, in accordance with the terms hereinabove set forth. 46 "The President of the corporation is authorized to make such changes in the foregoing instructions as may be necessary to accomplish the purposes and objects thereof." 47 The letter was signed by Albert Lindley, as president of Lindley Patrick Farms, Inc. At the foot of the instructions is a statement, dated October 24, 1936, and signed by the taxpayer through its president, E. L. Wilhoit, as follows: 48 "We hand you herewith the sum of $25,655.77 which you are directed to use in accordance with the foregoing instructions, which we approve, provided nothing has transpired affecting the property subject to this escrow, since your report No. 68832 of date of October 20, 1936. We also deliver you herewith Certificate No. 8, and Certificate No. 11 for 587 and 1 share, respectively, Stockton Harbor Industrial Company Stock for delivery to Lindley Patrick Farms, Inc." 49 The contemplated acts to be performed by the escrow agent were carried out in accordance with the instructions received. 50 Lindley Patrick reported and deducted a loss from this transaction in its 1936 income tax return. The return was not audited and the claimed deduction was accordingly not disallowed. 51 Lindley Patrick was not dissolved prior to 1942. 52 At the time the taxpayer acquired "the approximately 902 acres of land" from Lindley Patrick, the land had a fair market value of $380,000. The values of the other assets acquired were as follows: 53 "Shipley notes — 5 at $2,500 .......... $12,500.00 Accrued interest on Shipley notes, August 5, 1936 to October 22, 1936, about ............. 162.50 Amount due from City of Stockton ............................ 4,188.00 Accrued interest on amount due from City of Stockton ........... 775.74 ___________ $17,626.24" 54 The taxpayer acquired the real property for the purpose of developing and selling it as industrial property. It was adjacent to the Port of Stockton and gas for commercial use was available from wells approximately four miles away. III 55 Was There a Tax-Free "Reorganization"? 56 On the basis of the above facts and others to be referred to further on in the decision, the Tax Court held that (1) the exchange of the taxpayer's stock for the assets of Lindley Patrick was a "reorganization" within the meaning of Section 112(g) (1) (C) of the Internal Revenue Code, with the result that, pursuant to Section 113(a) (7), the taxpayer's basis for the real property received was the same as that of its transferor and that (2) the real property was held primarily for sale to customers in the ordinary course of business within the meaning of Section 117(j) (1) (B), with the result that the taxpayer's gain on the disposition of the real property is taxable as ordinary income rather than as capital gain. 57 It is the contention of the taxpayer that the real property was not acquired solely for stock. This is based upon the contention that in acquiring the property from Lindley Patrick, there was paid by them the sum of $25,655.77 in cash and that they assumed the unpaid indebtedness of Patrick on the property and as a condition a $20,000.00 loan was required to be made to Lindley Patrick by one of the taxpayer's shareholders. On the basis of this, it is argued that the consideration was the stock, the $25,655.77 in cash and the $20,000.00 loan. 58 Reorganization under the section involved means: 59 "* * * the acquisition by one corporation, in exchange solely for all or a part of its voting stock, of at least 80 per centum of the voting stock and at least 80 per centum of the total number of shares of all other classes of stock of another corporation, or (C) the acquisition by one corporation, in exchange solely for all or a part of its voting stock, of substantially all the properties of another corporation, but in determining whether the exchange is solely for voting stock the assumption by the acquiring corporation of a liability of the other, or the fact that property acquired is subject to a liability, shall be disregarded". 26 U.S.C. § 112(g) (1) (B). 60 The last clause excluding the liabilities of the other corporation assumed by the transferee or liabilities to which the acquired property is subject, was added by the amendment of 1939 and was made retroactive to the act of 1934, 53 Stat. 871. 61 We eliminate at the start the $20,000.00 loan for that was not money paid in exchange for the voting stock. The only thing that can be considered as being involved in such exchange is money paid to the other party or for its benefit as consideration for the transfer. The only properties which can be considered are those exchanged, — one for the other. The $20,000.00 loan was a private transaction between one of the taxpayer's stockholders and Lindley Patrick. The money so paid was not assumed by the transferee, and while it went through the same escrow it cannot be considered a part of the transaction. In Commissioner of Internal Revenue v. Schumacher Wallboard Corp., 9 Cir., 1937, 93 F.2d 79, this Court said: 62 "The cost of an article to a person is what the person pays for the same." (At page 82.) 63 In the case of an exchange the cost is the property which goes from one to the other. The $20,000.00 loan was not a part of what the new corporation paid for the assets of its predecessor. Hoboken Land & Improvement Co. v. Commissioner, 3 Cir., 1943, 138 F.2d 104, 110. 64 There remains the question then whether the exchange was "solely" for stock under the wording of Section 112 (g) (1) (B), 26 U.S.C., so as to amount to a "reorganization". "Solely for" means "exclusively for". It "leaves no leeway". Helvering v. Southwest Consolidated Corp., 1942, 315 U.S. 194, 198, 62 S.Ct. 546, 550, 86 L.Ed. 789. 65 The clause was enacted in order to overcome the ruling of the Supreme Court in United States v. Hendler, 1938, 303 U.S. 564, 58 S.Ct. 655, 82 L.Ed. 1018. In that case there had been a merger or reorganization of the Borden Company and the Hendler Creamery Company, Inc. resulting in gains of over $6,000,000.00 to the Hendler Company. 66 Pursuant to a plan of reorganization the Borden Company assumed and paid $534,297.40 bonded indebtedness of the Hendler Company. Reversing the lower court which had held that because the Hendler Company did not actually receive the money with which the Borden Company discharged its indebtedness, Hendler's gain of $534,297.40 was not taxable, the court said: 67 "The transaction, however, under which the Borden Company assumed and paid the debt and obligation of the Hendler Company is to be regarded in substance as though the $534,297.40 had been paid directly to the Hendler Company. The Hendler Company was the beneficiary of the discharge of its indebtedness. Its gain was as real and substantial as if the money had been paid it and then paid over by it to its creditors. The discharge of liability by the payment of the Hendler Company's indebtedness constituted income to the Hendler Company and is to be treated as such." 303 U.S. at page 566, 58 S.Ct. at page 656. (Emphasis added.) 68 The Supreme Court in a subsequent case, Helvering v. Southwest Consolidated Corp., 1942, 315 U.S. 194, 62 S.Ct. 546, 86 L.Ed. 789, stated distinctly that the amendment "was made to avoid the consequences of United States v. Hendler, 303 U.S. 564, 58 S.Ct. 655, 82 L.Ed. 1018." 315 U.S. at page 199, 62 S.Ct. at page 550. The Tax Court in the case before us was of the view that the sum of $25,655.77 paid by the taxpayer into the escrow at the time it acquired the assets of Lindley Patrick did not constitute an additional cash consideration paid to Patrick by the taxpayer for the property. The property acquired by the taxpayer was acquired subject to the payment of the principal sum of secured indebtedness, the total amount of which was the sum of $128,153.62. The existence of this indebtedness appeared in the escrow instructions and in the many other preliminary documents which formed a part of the transaction. The price to be paid for the property was given as "$25,655.77 and 599 shares of the capital stock of this corporation". 69 Concededly the sum of $25,655.77 was to be paid on the accrued interest on the indebtedness and unpaid taxes, as appears from the letter of instruction from Lindley Patrick dated October 24, 1936, already reproduced, which contained directions to the escrow agent as to the cash and its disposition. 70 It is the taxpayer's contention that the Tax Court was wrong in holding that because the money was disbursed to pay accumulated interest and unpaid taxes, it was not a cash payment to Lindley Patrick. 71 As the taxpayer and the Government seem to draw different conclusions from the few cases which have construed the clause introduced into section 112(g) (1) (B), 26 U.S.C. by the 1939 amendment, it will be necessary to analyze them in great detail in order to see them in true perspective. When this is done, it will be seen that only when a debt, although originating in the obligation of the transferor, is of such character that its nature and amount are determined and fixed in the reorganization, will the Courts disregard its liquidation by cash as a part of the reorganization. And conversely, when the nature and amount of a debt arising from a pre-existing obligation are determined and fixed prior to the reorganization, the payment of cash to liquidate it is treated as a payment on a liability assumed. In Helvering v. Southwest Consolidated Corp., supra, the indenture securing bonds of an insolvent corporation was foreclosed and its properties were transferred to a new corporation pursuant to a plan of reorganization evolved by the creditors, in exchange for common stock and stock purchase warrants of the new corporation. The common stock went mostly to bondholders of the old corporation. But a small portion of it, together with part of the warrants, went to the old corporation's participating unsecured creditors, the other warrants going to the old corporation's preferred and common stockholders. Its non-participating security holders were paid cash, which was obtained in the course of the transaction by means of a loan from a bank which the new corporation later assumed and paid. The Court held that the payment of cash to security holders who had declined to take the stock made the 1939 amendment inapplicable. The reason for the ruling is contained in the following paragraph: 72 "The requirement to pay cash arose out of the reorganization itself. It derived, as did the requirement to pay stock, from the plan pursuant to which the properties were acquired. It was a necessary incident of the court decree which wiped out the liability of the old corporation and substituted another one in its place. Though the liability assumed had its origin in obligations of the transferor, its nature and amount were determined and fixed in the reorganization. It therefore cannot be labelled as an obligation of the `other' or predecessor corporation within the meaning of the 1939 amendment. Nor can the property be said to have been acquired `subject to' that liability within the purview of that amendment. The words `subject to' normally connote in legal parlance an absence of personal obligation. That seems to be the case here, for the preceding clause of the amendment covers the case of `assumption'." 315 U.S. at page 200, 62 S.Ct. at page 550. (Emphasis added.) 73 In Central Kansas Telephone Co. v. Commissioner, 10 Cir., 1944, 141 F.2d 213, a new company, pursuant to reorganization, acquired the assets of an old company from a bondholders' committee for the voting stock of the old company. The sum of $22,470.34 cash was to be paid to a special master appointed to sell and convey the property and who was to use the money to satisfy the demands of the outstanding bondholders of the old company who had declined to participate in the reorganization. The new company borrowed the funds with which to make the payment and later repaid the loan. It also paid $7,690.14 as expenses of the committee and the receiver's claim of $622.98. The Court held that the payment of cash to liquidate the debt of the bondholders prevented the application of the section, that the debt arising from prior obligations only became determined and fixed in the reorganization as would also the expenses incurred in effecting the reorganization, saying: 74 "Here, the new company, pursuant to the plan of reorganization, paid $22,470.34 in cash to the Special Master appointed to sell and convey the assets. Pursuant to the plan, the new company acquired the assets in exchange for its stock and cash. On authority of Helvering v. Southwest Corp., supra, we hold that, while the obligation to pay the cash had its origin in obligations of the old company to the nondepositing bondholders, its nature and amount were determined and fixed in the reorganization and that the new company, in agreeing to pay such cash, did not assume an obligation of the old company or acquire the assets subject to a liability of the old company within the meaning of the statutes referred to above." 141 F.2d at page 215. (Emphasis added.) 75 A like ruling was made in Adwood Corp. v. Commissioner, 6 Cir., 1952, 200 F.2d 552. The taxpayer seems to find in some of the language in this opinion relating to payments to "a creditor in its own right" (at page 555) an intimation that the payment of a pre-existing debt in cash, if achieved in the process of reorganization, is a cash payment whether the obligation originated in the reorganization or not. It will, therefore, be necessary to go, with some detail, into the factual background of the case. For the statements of the opinion must be read against it. 76 Harry L. Pierson and Harriet P. Taylor, who are referred to as the Piersons, owned property in Detroit which they leased for ninety-nine years to Ray Spitzler and Paul L. Kamper, the lessees agreeing to build a hotel building on it. On October 20, 1925, the lessees assigned to a corporation known as the Savoy Hotel Company. Savoy and the Piersons later executed a trust indenture to secure first mortgage bonds in the principal sum of $1,450,000.00. The lease provided that upon default, the Piersons could, after notice and the lapse of three months, declare the lease terminated, in which event they could take possession and all improvements on the property would belong to them. The trust indenture provided that upon default in carrying out the terms of the mortgage, the trustee could, by a thirty-day notice to Savoy and the Piersons, declare the principal of the mortgage due immediately. 77 There were several defaults by Savoy. The Piersons served notice and took possession of the premises on January 6, 1930. In the litigation which ensued over the possession the State courts confirmed the title of the Piersons. 78 A bondholders' committee was formed which began negotiations with the Piersons concerning a possible reorganization. On May 20, 1930, the trustee served notice on Savoy and the Piersons declaring the principal of all bonds payable immediately, and began foreclosure proceedings in June, 1930. A decree was entered on October 26, 1931, authorizing a sale of the premises forthwith unless the debt was paid. There being no adequate bid at the time the sale was continued and finally made on June 11, 1941. The property was, in the meantime, operated by the Piersons, later by the Trustee, and then by a hotel management company and the Trustee and the Piersons advanced large sums for taxes and operating expenses which became liens on the mortgaged premises prior to the lien of the first mortgage. Ten years after the foreclosure, a plan of reorganization was developed by the bondholders' committee in conjunction with the Piersons and the Trustee which was approved by the Public Trust Commission on April 18, 1941. It provided for the organization of a corporation which was to purchase the property at the foreclosure sale for the benefit of the bondholders. The trustee agreed to accept $110,000.00 in settlement of its advances and to surrender for cancellation $50,000.00 face amount of first mortgage bonds which it owned. The Piersons agreed to accept in satisfaction of their advances $65,000.00 and 2700 shares of the petitioner's stock. A deed to the hotel property was finally delivered to the petitioner, who borrowed $200,000.00 on a mortgage and paid the Trust Company and the Piersons. The holders of $6500.00 of the total bonds outstanding objecting to the plan, were paid in cash. The Tax Court found that the property was not acquired by the petitioner as a part of a reorganization. Upholding this view, the Court of Appeals for the Sixth Circuit held that the payments to the Piersons and the Trust Company were cash payments, saying: 79 "Moreover, the exchange here was not only for voting stock but also for cash paid to the Piersons and the Detroit Trust Company, a creditor in its own right, as well as trustee for bondholders. That section requires that the exchange be solely for voting stock, Helvering v. Southwest Consol. Corporation, 315 U.S. 194, 62 S.Ct. 546, 550, 86 L.Ed. 789, declares the term `solely' to be significant and holds that the fact that cash is also paid takes the case outside the operation of the section. 80 "The petitioner claims, however, that the cash payments were pursuant to an assumption of liability of the predecessor corporation and, therefore, should be disregarded. But even were we to assume that Savoy was the transferor, the nature and amount of the obligation was not determined and fixed until the plan of organization of the petitioner was adopted and put into effect by the agreement between the bondholders, the Piersons and the Detroit Trust Company, Helvering v. Southwest Consol. Corporation, supra. There, the Court said, `Though the liability assumed had its origin in obligations of the transferor, its nature and amount were determined and fixed in the reorganization.'" 200 F.2d at pages 555-556. (Emphasis added.) 81 So it is quite evident that this portion of the opinion read as a whole follows the gloss of the other cases in holding that cash paid on obligations, the nature and amount of which is determined only in the reorganization, is additional consideration. And so, whether we are dealing with (1) stockholders or bondholders who do not consent to reorganization, (2) creditors who have unliquidated claims, the nature and extent of which were not definitely determined until the reorganization, or (3) debts incurred as expenses of reorganization, we are dealing with liabilities which, in the language of Helvering v. Southwest Consol. Corporation, supra, although they had their "origin in obligations of the transferor, [their] nature and amount were determined and fixed in the reorganization." 315 U.S. at page 200, 62 S.Ct. at page 550. 82 But here the cash paid into the escrow ($25,655.77) was applied to the payment of obligations of Lindley Patrick, the extent and amount of which were fixed prior to the reorganization. The interest he owed upon his indebtedness, he designated in his instructions to the escrow agent. The exact amount was given and the provision added "all interest to be paid on October 24, 1936". The amounts arrived at were the result of mathematical calculations based upon the amount of each indebtedness, the rate of interest and the period during which it remained unpaid. So the indebtedness as to interest was the liquidation of a debt the nature and extent of which was fixed prior to the reorganization. It did not arise in the reorganization. It was a pre-existing obligation which did not require the reorganization to acquire certainty. The same is also true of the taxes. The obligation to pay taxes existed by reason of the ownership of the property by Lindley Patrick. A part of it had been sold to the State. It was necessary, therefore, to redeem from the sale. Other taxes had accrued and had not been paid. Under the law of California, taxes on real property are liens against the property assessed. California Revenue and Taxation Code, § 2187. A tax on improvements is a lien on the land on which they are located if they are assessed to the same person to whom the land is assessed. Upon nonpayment of taxes and the publication of notice of delinquencies by the Tax Collector, the property is sold to the State by operation of law and the declaration of the Tax Collector. California Revenue and Taxation Code, § 3436. After the sale, the property passes to the State and may be redeemed by the payment of the delinquencies to the State. California Revenue and Taxation Code, § 3520 et seq. The escrow letter indicated that there was a lien on the property for the first installment of State and County taxes for the year 1936-1937 in the sum of $575.26, and that there was needed, to redeem property from tax sales, the sum of $3767.36. Clearly, then, the payment of taxes was a payment of an obligation of Lindley Patrick to redeem property sold to the State and to release the lien for the current taxes. When this was done by the transferee with the money paid into escrow, it was not necessary that there be formal agreement to that effect or assumption of the debts. No clear title could be obtained to the property without the liquidation of these taxes. The language of Helvering v. Taylor, 2 Cir., 1942, 128 F.2d 885, is apposite here. A corporate reorganization was made necessary by the default on bonds, the reorganization plan providing that the new company would assume some of the debts of the old company. New bonds were to be, and were actually, issued. But it was argued because there was no direct assumption of the outstanding bond issue, there was no direct reorganization. The Court of Appeals approved the language of the Tax Court which, in effect, held that the bonds of the new company were substituted for the old and that, therefore, there was, in reality, an assumption of liability: 83 "`A mere statement by the new company that it assumed the obligation of the old company on its bonds would have been insufficient because they would have remained in default. Thus, a new bond issue had to be substituted for the old issue. That was one of the chief purposes and one of the chief accomplishments of the plan. The new company in effect did assume the bonded indebtedness of the old company, since it put itself in the place of the old company and agreed to pay the amount of principal and interest owed by the old company to the very same creditors, the holders of the old bonds. Thus, unless there is some magic in the use of the word "assume", the present case comes within the statute.'" (At page 886.) (Emphasis added.) 84 So here, the delinquent taxes on property which had to be redeemed from the State, and the current taxes which were a lien upon it, were obligations on the land transferred which the corporation assumed and paid in the escrow. 85 It follows (1) that the payment of interest and taxes in the escrow was the payment of an obligation of the taxpayer's predecessor, the extent and nature of which was fixed prior to the reorganization, (2) that the Tax Court was right in holding that the cash ($25,655.77) was not additional consideration to the seller, (3) that, consequently, the property was acquired by the taxpayer in a tax-free reorganization, 26 U.S.C. § 112(g) (1) (B), and (4) that the taxpayer's basis for its real property was the same as that of its transferor. 26 U.S.C. § 113(a) (7) (B). IV The Purpose For Which Property Was Held 86 The conclusion reached upon the question of reorganization makes it necessary that we determine the correctness of the other finding of the Tax Court, that the real property was held by the taxpayer primarily for sale to customers in the ordinary course of business within the meaning of Section 117(j) (1) (B), 26 U.S.C., with the result that taxpayer's gain on the disposition of the real property is taxable as ordinary income and not as capital gain. 87 As stated in the outset, the scope of our review is limited. 26 U.S.C. § 1141. We cannot substitute our judgment as to facts for that of the Tax Court, and can only upset the findings if there is no substantial evidence to support them. What is and what is not trade or business and when property is or is not held for sale to customers are questions of fact. 88 Provisions similar to the one under discussion have been part of our tax statutes for many years. Courts have sought to evolve criteria by which to determine whether a person or an association was engaged in business. More particularly, they have tried to establish criteria by which to determine whether real property is held for investment or sale to customers in the ordinary course of business. Many tests have been proposed by this and other courts. Among them are: (1) the nature of the acquisition of the property, (2) frequency and continuity of sales over a period of time, (3) the nature and extent of the taxpayer's business, (4) the activity of the seller about the property, such as the extent of his improvements or his activity in promoting sales, (5) the extent and substantiality of the transactions and the like. Richards v. Commissioner, 9 Cir., 1936, 81 F.2d 369, 372-373; Snell v. Commissioner, 5 Cir., 1938, 97 F.2d 891, 892; Burkhard Inv. Co. v. United States, 9 Cir., 1938, 100 F.2d 642, 645-646; Commissioner of Internal Revenue v. Boeing, 9 Cir., 1939, 106 F.2d 305, 309-310; Miller v. Commissioner, 9 Cir., 1939, 102 F.2d 476, 479-480; Ehrman v. Commissioner, 9 Cir., 1941, 120 F.2d 607, 610; Gruver v. Commissioner, 4 Cir., 1944, 142 F.2d 363, 367-368; Harriss v. Commissioner, 2 Cir., 1944, 143 F.2d 279, 280-281; White v. Commissioner, 5 Cir., 1949, 172 F.2d 629, 631; Dunlap v. Oldham Lumber Co., 5 Cir., 1950, 178 F.2d 781, 784; Rollingwood Corp. v. Commissioner, 9 Cir., 1951, 190 F.2d 263, 265-266; Palos Verdes Corp. v. United States, 9 Cir., 1952, 201 F.2d 256, 258-259. 89 But, in the last analysis, each case must be determined upon its own specific facts, for none of these incidences are present in all cases. And, in reviewing a finding one way or the other by the Tax Court, we must determine whether, in the light of the facts before the court, and the inferences it was free to draw from oral testimony and written documents, the conclusion is warranted. 90 Most of the property of the taxpayer was disposed of through a condemnation proceeding in 1945, after which only a small parcel remained which was sold for $15,000.00. 91 The acquisition of private property by condemnation is a forced sale. 29 C.J.S., Eminent Domain, § 2, p. 780; United States v. Becktold Co., 8 Cir., 1942, 129 F.2d 473, 476-477; Pedrotti v. Marin County, 9 Cir., 1946, 152 F.2d 829, 831. This Court has held a condemnation to be a "sale" under the revenue laws. Hawaiian Gas Products, Limited v. Commissioner, 9 Cir., 1942, 126 F.2d 4, 5. 92 We advert to the facts found by the Tax Court as to the activity of the corporation over the course of years. When the taxpayer acquired the property there had been some hope that gas and oil might be obtained on it, from tests that had previously been made. 93 In November, 1937, the taxpayer entered into an oil and gas lease with certain persons who thereafter assigned their interest to Utilities Petroleum Corporation. This lease provided for an in-kind royalty of 20 per cent to the taxpayer as lessor. It remained in effect with extensions until December 10, 1941. A well was drilled in 1941, but neither oil nor gas was found. In 1938 the taxpayer received $5,000.00 in cash income from Utilities Petroleum Corporation in connection with an extension of the lease, which it reported in its return for that year as rental income. No sale or exchange was involved. 94 The taxpayer did not farm its land but leased them to farmers for agricultural purposes, including grazing. It received rentals both in crop payments and in cash. The amount received by the taxpayer as rents from agricultural tenants, as shown on its income tax returns, were as follows: 95 1936 ..... 100.00 1937 ..... 4,268.01 1938 ..... 6,319.70 1939 ..... 6,663.23 1940 ..... 6,231.09 1941 .... 10,251.63 1942 .... 11,861.35 1943 .... 12,925.66 1944 ..... 8,331.44 1945 ..... 1,694.04 96 The taxpayer, upon its organization, received much publicity from the local newspapers with respect to the development of its properties for industrial uses. In 1937 it joined other organizations and individuals in honoring a citizen of a nearby community by inserting in a newspaper, the Byron Times, a display advertisement, which read as follows: 97 "Best Wishes to a Great Builder on his Diamond Birthday. 98 "In our efforts to boost the Port of Stockton throughout the years we have come to appreciate your work the more through difficulties we have encountered. Our efforts are now concentrated on developing Rough and Ready Island, across the heart of which travels great Borden Highway. 99 "Mr. Albert Lindley, who has owned the land for 25 years; Mr. E. L. Wilhoit, president of Stockton Savings and Loan Bank; Stuart A. (sic) Rawlings, director of Bank of California, Pacific Telephone and Telegraph Company, etc., and William Wallace Mein, noted mining engineer, president of Calaveras Cement Company and director of International Nickel Company, are financially interested in the work. 100 "Mr. Lindley is personally retaining his fine home on the tip of the island as well as some 400 acres adjoining the municipal wharves. Mr. Wilhoit, by adding this project to his other Delta holdings — including about 5,400 acres in Byron Tract — has again demonstrated his faith in the lands. All of us look with confidence at the future of Port Stockton. 101 "And we know that future will bring you the happiness your splendid efforts have earned. 102 "Stockton Harbor Industrial Company, Manufacturing, Industrial, Wharf and Warehouse Sites. Albert Lindley, General Manager, Rough and Ready Island, Stockton, California." 103 In the left-hand corner of the advertisement there was a map on which was shown the Port of Stockton and the following holdings on or adjoining the island: 104 "A. Oil refinery and storage tanks. 105 B. Proposed town site. 106 C. Belt Line Railroad. 107 1. Port Stockton Oil District and wharf. 108 2. Grant B. Shipley holdings. 109 3. Residential tract, Stockton Harbor Industrial Co. 110 4. Industrial tract, Stockton Harbor Industrial Co. 111 5. Albert Lindley holdings." 112 In the latter part of 1939 the taxpayer engaged an attorney as its agent to effectuate the sale of part of its property for purposes of locating a shipyard thereon, to be operated by the Kaiser interests. The agent's efforts were unsuccessful but in early 1941 he interested Rheem Manufacturing Company of San Francisco and Richmond, California, in shipbuilding and attempted to effectuate the sale of the taxpayer's property for a shipyard, to be operated by Rheem. Beginning with March 4, 1941, the taxpayer from time to time, granted the agent assignable options to purchase a part of its property and entered into written agreements with him as to the compensation he was to receive for his efforts. These written agreements were in substance the same as the prior oral agreements under which the agent had worked. In the course of his efforts, the agent concluded that the prospects for leasing a part of the taxpayer's lands for use as a shipyard were better than for sale, and, with the taxpayer's approval, he attempted to lease the property for this purpose. All of the agent's efforts to create a shipyard on the island were fruitless. 113 The taxpayer used stationery, the letterhead of which was as follows: 114 "Stockton Harbor Industrial Company Wharf, Warehouse and Manufacturing Sites Stockton, California 115 E. L. Wilhoit, President; Stuart L. Rawlings, Executive Vice-Pres.; Albert Lindley, Vice-Pres., Gen. Mgr., Rough and Ready Island, Stockton, California." 116 On the back of the stationery, there was a map of the island and adjoining property, including the City of Stockton and the deep water channel. It showed property owned by the taxpayer, Albert Lindley and others. Above the map was the following statement: 117 "Stockton Harbor Industrial Company Two Miles of Water Frontage Visited Daily by Ocean-Going Vessels and Served by Three Transcontinental Railways." 118 Below the map appeared the following statement: 119 "Shown above is the Company's 1,000 Acres of Manufacturing, Industrial and Warehouse Sites — California's Inland Harbor, Center of Production and Distribution — Solid Level Land, Unlimited Free Fresh Water, No City Taxes or Regulation, No Engineering Problem — For Information Address Albert Lindley, General Manager, Rough and Ready Island, Stockton, California." 120 This type of stationery was used by the taxpayer until it sold its property to the Navy. 121 Part of the island, between the channel and the Belt Line Railroad, was covered by a deep overlay of sand and gravel fill which was pumped on the island when the deep water channel was being dredged in the years immediately before 1930. The fill area was unusual among delta lands for its ability to support heavy structures without need for pilings and therefore was unusually well suited to industrial, dockage and warehouse uses. The balance of the land was capable of supporting heavy structures with pilings driven to a depth of 38 feet. 122 In a letter to the Internal Revenue Agent in Charge, dated September 25, 1942, the taxpayer, protesting against a proposed income tax deficiency for 1939 and 1940, stated in part: 123 "The corporation was organized October 16, 1936, for the purpose of holding title to real property adjacent to the Port of Stockton and with frontage extending along the San Joaquin River deep water channel. Said real property was to be offered for sale in parcels for industrial purposes. * * * 124 "* * * The real properties of the corporation are held primarily for sale, and in event of other than a cash transaction, profit or loss would be `accrued' upon a sale or sales of real property." 125 Neither Lindley Patrick nor the taxpayer subdivided the land into sites or tracts. Lindley Patrick had considered laying out the property into defined lots for sale, but preferred to treat it as all for sale and to locate individual industries, from point to point, in accordance with their respective requirements and without permitting any haphazard or destructive selections. The taxpayer continued that policy. 126 In March 1942 Albert Lindley, then a director, vice-president and general manager of the taxpayer, and who operated from his residence on the island, exhibited the taxpayer's property on the island to two real estate brokers of Stockton for the purpose of acquainting them with the property and informing them of the prices at which various parcels were available for sale. It was understood that if the brokers were instrumental in bringing about the sale of any part of the properties they would receive the usual real estate agent's commission. Lindley informed them that the taxpayer was primarily interested in selling rather than leasing parcels of the property, but that consideration would be given to prospects for leases on mutually satisfactory terms. 127 In the normal course of events, it would take a number of years to dispose of such a large acreage as the taxpayer's island property for industrial and water frontage purposes, considering the industrial potentiality of the Stockton area. 128 Prior to 1942 any sales or leases of the taxpayer's property were made by direct contact between Lindley and the prospect. The taxpayer made the following sales: 129 "1937 — 13,028 acres to General Petroleum Company for $15,000.00. 1940 — 13.03 acres to Shell Oil Company, for $25,000.00. 1937 — 1.69 acres to State of California. 1940 — 1.78 acres to State of California." 130 The first two listed sales were of property fronting on the Stockton Deep Water Channel for use as oil storage and distribution facilities. The other two sales were to permit improvements by the State of California in the width and depth of the channel. 131 In 1943 the taxpayer sold an islet comprising 4.77 acres for $2,500.00. Selling expenses were $147.45. On April 14, 1944, the taxpayer sold 213.83 acres of land to P. Baldocchi for $42,000.00, less selling expenses of $1,139.20. 132 Prior to the sale to Baldocchi, the taxpayer had discussed the sale of its lands on the island to the Navy and had quoted a price of $509,550.00, in which the land later sold to Baldocchi was included at a price of $69,550.00. On August 1, 1944, an order granting the United States immediate possession was entered. The taxpayer and the United States eventually settled the fair value issue by agreeing to a price of $415,000.00 and a stipulation to that effect was filed on January 2, 1945. Judgment was entered in accordance with the stipulation and the taxpayer received payment in 1945. The taxpayer welcomed and encouraged the Navy to acquire its property on the island. 133 On May 23, 1945, the taxpayer sold the remainder of its real property to Albert Lindley for $15,000.00 this property consisted principally of a roughly triangular section of land across the channel from the island and adjacent to the Stockton Golf and Country Club. 134 After selling its property, the taxpayer's directors on July 13, 1945, adopted a resolution to dissolve. The resolution recited that the taxpayer's assets had been converted into cash and instructed the officers to make a distribution in liquidation of $200.00 a share at once and to distribute the balance after the taxpayer's tax liabilities should be determined and paid. The taxpayer has not been dissolved. 135 In addition to these facts, most of which were undisputed, the Tax Court had before it the deposition of E. L. Wilhoit, the chairman of the board and one of the officers of the taxpayer. He had conducted negotiations for the acquisition of the property, and was instrumental in organizing the corporation for the purpose of taking over the Lindley Patrick properties. 136 On direct examination by counsel for the Commissioner, Mr. Wilhoit was asked the following questions: 137 "Q. Well in relation to the formation of the Corporation could you place it in relation to events that occurred at that time? A. I think they investigated it before we formed the Corporation. 138 "Q. You are not certain of that though, are you? A. No, I wouldn't know, I am quite sure they did. 139 "Q. Well, wasn't the primary purpose of the Corporation to develop this property and sell it for industrial sites? A. Well, it was to farm and I suppose of course we would figure, we figured we would sell it of course like any other property we had or I had. 140 "Q. In the disposal of the property how was it contemplated this property would be disposed of? A. Well, that we hadn't determined at the time we bought it of course. 141 "Q. Well, at the time the Corporation was formed there wasn't any expectation was there on the part of the organizers that this entire property would be sold all at once was there in a lump? A. Oh no, no. 142 "Q. It was anticipated at the formation of the corporation, was it not, that it would take several years to sell this property? A. Yes. 143 "Q. And sell it in parcels to industrial concerns? A. Different people, yes. 144 * * * * * * 145 "Mr. Marcussen: Just to clarify the question, now wasn't the purpose in farming this land merely to get what revenue it was possible to get pending the sale of the property, Mr. Wilhoit? A. Well not particularly, the purpose of farming it was to of course to get an income from it, that was our idea, of course we thought it would pay an income. 146 "Q. You didn't buy the property to hold it for the purpose, however, of operating it as farm property? A. Well, as farm property and of course one of the main things was of course this: we thought if we could get the gas or oil on it that would be — it was near town, you know, and it would be very valuable, a very valuable proposition for us if we could get gas or oil because it was so near to pipe it to town, you know. It was right on the margin of the City of Stockton. 147 "Q. Am I correct in saying, however, that the primary purpose of the Corporation was to acquire this land and dispose of it and sell it was it not? A. Oh I suppose it was, yes, probably in some future time probably, yes, if we could. 148 "Q. Well, was it not available for sale at all times from 1936 on when the Corporation was formed? A. It was for sale, oh, I suppose it was yes. 149 "Q. And in fact the Corporation itself made positive efforts did it not to sell this property right from the beginning of its formation? A. Well, I don't know that we did from the beginning, of course we sold because we had to sell when the time came and the Navy wanted it. 150 "Q. When the Navy took it, but of course there had been preceding sales of various parcels from time to time? A. Oh yes, there had been a few pieces sold. 151 "Q. And these had been willingly entered into by the Corporation, were they not? A. Yes." 152 Mr. Wilhoit was the manager of the taxpayer although he referred to Lindley also as manager. 153 While properties were not listed with other brokers, he stated that if a sale had been made the regular commission would have been paid. He also identified advertisements, some of which are referred to in the summary of facts earlier given, which, at the time of the organization of the company, stated its purpose to develop the property as industrial property and to sell it as such as the needs of the growing community warranted. 154 These facts indicate that the purpose of the organization of the corporation was to deal in real estate. Its property was to be developed as industrial property. Minor farming operations were conducted while waiting, as Mr. Wilhoit correctly stated, for the ultimate sale which was the object of the acquisition of the property. The fact that the final sale did not occur for many years afterwards, when the Navy acquired the property, does not invalidate the conclusion of the Tax Court that the property was held for sale to customers in the ordinary course of trade. White v. Commissioner, 5 Cir., 1949, 172 F.2d 629. 155 In a matter of this character, where the purpose for which the property is acquired and held, the course of conduct and the representations and admissions of the corporation, over a period of years, show that the property was held for future development as industrial sites, it would be unrealistic to hold that the leasing of property or a portion of it for agricultural purposes, pending the development or awaiting the needs of the community, changed the entire complexion of the corporation so that it could be asserted that the property was held not for sale, but as a long term investment. 156 The fact that in the Articles of Corporation the right to lease was given along with the right to sell does not change the complexion of the situation. A corporation permitted to own real estate has the statutory right to lease property even if its Articles do not so provide. California Corporations Code, §§ 802, 803; McQuaide v. Enterprize Brewing Co., 1910, 14 Cal.App. 315, 319-320, 111 P. 927; Sarmento v. Bay City Land & Cattle Co., 1949, 94 Cal.App.2d 343, 347, 210 P.2d 754. 157 A corporation organized for the purpose, among others, of developing large tracts of land, has the right to use the land for other legitimate purposes, such as farming, pending the ripening of the market for which it was intended. Under California corporation law such acts would be considered incidental to the transaction of its business and the attainment of its corporate purposes. California Corporations Code, § 802; Bates v. Coronado Beach Co., 1895, 109 Cal. 160, 162, 41 P. 855; Woods Lumber Co. v. Moore, 1920, 183 Cal. 497, 501-503, 191 P. 905, 11 A.L.R. 549; Rabbitt v. Union Indemnity Co., 1934, 140 Cal.App. 575, 582-584, 35 P.2d 1066. 158 The fact that no subdivision was attempted has no significance. While it is the practice in California and elsewhere to subdivide property held for residential purposes or for mixed residential and business purposes, large industrial sites may derive their chief value from their availability in an undivided and unmapped tract. And it can be seen readily that it might be better business policy to keep a tract of over nine hundred acres, located on an island at Stockton Harbor, ready to satisfy the needs of large industrial plants and allow them to make their own selections, rather than relegate them to choosing from predetermined sites in a subdivided tract. Hence the failure to subdivide and break up the holdings is consistent with the purpose for which the property was held. 159 Indeed, in Albert Lindley's conversations in 1945 with Captain Ernest E. Williams, the real estate agent of the Twelfth Naval District, which led to the acquisition by the Navy, and which he related to the Tax Court, Lindley "emphasized that it was industrial property and that is why he was holding it" and that "it was available for sale in parcels". Similar admissions were made in correspondence with the Bureau of Internal Revenue in 1942. And, no doubt, the amount of the acreage and the fact that all or most of it was available in its natural state made it very desirable from the standpoint of the Navy. 160 In what precedes we have indicated some of the facts, representations and admissions in the record which support the conclusion of the Tax Court that the property was held primarily for sale to customers in the ordinary course of business. 26 U.S.C. § 117(j) (1) (B). Our review cannot go beyond such inquiry. Gillette's Estate v. Commissioner, 9 Cir., 1950, 182 F.2d 1010, 1013-1014; Rollingswood Corp. v. Commissioner, 9 Cir., 1951, 190 F.2d 263, 265; Rider v. Commissioner, 8 Cir., 1952, 200 F.2d 524, 525. 161 The decision of the Tax Court is affirmed. Notes: 1 (Author's Note.) The language just quoted was used before the 1948 amendment to 26 U.S.C. § 1141(a) which gave to the findings of the Tax Court the same force as those of the decisions of District Courts in civil cases tried without a jury. But, in essence, it states the law as it is today. For whatever change the amendment may have intended in the attitude of reviewing courts towards the findings of the Tax Court, the principle that the findings of the Tax Court based on contradictory evidence will be respected, still obtains,as it did before. Indeed, this appears from the decisions of the Courts of Appeals cited in the text, all of which were decided since the change. And see, Builders Steel Co. v. Commissioner of Internal Revenue, 8 Cir., 1952, 197 F.2d 263, 264; Gillette's Estate v. Commissioner of Internal Revenue, 9 Cir., 1950, 182 F.2d 1010, 1014; National Brass Works, Inc., v. Commissioner of Internal Revenue, 9 Cir., 1953, 205 F.2d 104, 107. Of course, where the facts are not in dispute and wrong legal conclusions are attached to them, the reviewing court is not bound to respect the erroneous conclusions, but can draw different and correct ones of its own. Hypotheek Land Co. v. Commissioner of Internal Revenue, 9 Cir., 1952, 200 F.2d 390, 392; Gensinger v. Commissioner of Internal Revenue, 9 Cir., 1953, 208 F.2d 576, 583; McGah v. Commissioner, 9 Cir., 1954, 210 F.2d 769, 771. So the gloss stated in the quotation from Commissioner of Internal Revenue v. Sunnen, supra, has continuity. 162 CHAMBERS, Circuit Judge (concurring in part and dissenting in part). 163 I think, as to the ordinary income or capital gains question, under the evidence the Tax Court would have been justified in finding that the property either was or was not "property used in the trade or business of the taxpayer" and "held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business." We should not disturb the finding on this question reached upon competent evidence. 164 On the question of whether the Tax Court was correct in its conclusion that the transaction by which Rough and Ready Island went into Stockton Harbor Industrial Company was a tax free reorganization, I dissent from the majority opinion. While I attach no importance to the collateral transaction of the simultaneous loan made by a stockholder of the new company to Lindley Patrick Farms, Inc., I do think the manner of handling the cash payment through escrow to pay up delinquencies on the mortgage on the property for the account of Lindley Patrick Farms, Inc., spoils the reorganization as a tax free reorganization, and that upon reorganization Rough and Ready Island was entitled to a new tax basis for the computation of gain.

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-30474 Summary Calendar YORAM RAZ, Plaintiff-Appellant, versus JOE STOREY; BRANDON HUCKABY; RODNEY WARREN; GLENN CHOATS; ALANZO ALFORD; BOBBY L. CONLY; ADRIAN BATCHELOR; ROYALENE PERMENTER; WALTER FRANCIS PETERSON, also known as Pete Peterson; LEROY A. BIRNBROOK; MIKE FERRIS; RICHARD PERMENTER, Defendants-Appellees. -------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 99-CV-1850 -------------------- March 18, 2002 Before DeMOSS, PARKER and DENNIS, Circuit Judges. PER CURIAM:* Yoram Raz appeals the district court’s dismissal of his 42 U.S.C. § 1983 action for failure to prosecute. Raz argues that the district court abused its discretion in dismissing his action for failure to comply with the scheduling order, in not giving him notice prior to dismissal, and in finding that his conduct was contumacious. He also argues that the district court judge was biased against him because he had dismissed a previous case * 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. 01-30474 -2- filed by Raz as frivolous. The district court was not required to provide notice prior to dismissing the action. See Rogers v. Kroger, 669 F.2d 317, 319-20 (5th Cir. 1982). The district court found that Raz attempted several times to have the court modify the scheduling order and after these attempts failed, he failed to comply with the scheduling order; that the imposition of a $1000 sanction had no effect on Raz’s compliance with the scheduling order; and that the delays were attributable to Raz’s conduct alone. Therefore, the district court did not abuse its discretion in dismissing Raz’s 42 U.S.C. § 1983 action for failure to prosecute. See Dorsey v. Scott Wetzel Serv., Inc., 84 F.3d 170, 171 (5th Cir. 1996); Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992). Raz has not shown that the district court judge was biased against him because he had dismissed a prior case filed by Raz as frivolous; adverse rulings alone do not call into question a judge’s impartiality. See Liteky v. United States, 510 U.S. 540, 555 (1994). Raz’s motion for leave to supplement the record excerpts with a copy of his motion to disqualify Magistrate Judge Payne is DENIED because the motion is already included in the appellate record. AFFIRMED; MOTION DENIED. 

255 B.R. 669 (2000) REPUBLIC OF RWANDA v. Aloys and Emma UWIMANA. Civ.A. No. DKC 2000-CV-763. United States District Court, D. Maryland. November 22, 2000. *670 *671 *672 Edward S. Wisneski, Patton Boggs, David J. Farber, Patton & Boggs, L.L.P., Washington, DC, for Republic of Rwanda. Jeffrey A. Vogelman, Christopher S. Moffitt, Alexandria, VA, for Aloys and Emma Uwimana. MEMORANDUM OPINION CHASANOW, District Judge. This case is before the court on cross appeals[1] from the order of Bankruptcy Judge Paul Mannes, determining that the debtor, Aloys Uwimana, is indebted to the Republic of Rwanda in the amount of $17,475, and that the debt is not subject to discharge because it resulted from a defalcation by a fiduciary. Oral argument is deemed unnecessary because the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument. See Bankr.Rule 8012. For the reasons set forth below the court will AFFIRM the decision of the bankruptcy court. I. Background Aloys Uwimana served as ambassador to the strife-ridden country of Rwanda from October 1987 to July 1994. In April 1994, Rwanda's president was killed, and a transitional government took over the country until July 4, 1994. Between the months of April and July 1994, Rwanda was marked by mass killings and torture, apparently by members of the deceased president's party. The Rwandan Patriotic Front ("RPF"), gained control of the country on July 4 and was sworn in as the country's official government on July 19. On July 8, 1994, then Rwandan Ambassador Aloys Uwimana signed a Memorandum of Understanding for which $28,000 was transferred on July 13, 1994 into a trust account of attorney Robert W. Johnson.[2] Johnson served as counsel for the Rwandan Working Group ("RWG"). Under the Memorandum of Understanding, the money was meant to fund the RWG in its efforts to perform lobbying and public relations services for Rwanda. Paper no. 7, Appellant's exhibit C1. Because of mass killings and other violence transpiring in Rwanda, the U.S. Department of State, on July 15, 1994, issued a Note Verbale, which, among other things, ordered official Rwandan embassy functions in the United States to cease by July 22, 1994. Paper no. 7, Appellant's exhibit C14. The Note Verbale also ordered Uwimana, his family and others at the embassy, who were neither citizens nor permanent legal residents of the United States, to leave the country by July 22. Johnson wrote a letter to Uwimana on July 21, both relating to the work done under the earlier Memorandum of Understanding, and, pursuant to the Note Verbale, outlining new "projects" to be undertaken in light of the imminent shut down of the embassy. On July 22, Uwimana authorized an additional $55,000 to be paid to Johnson. Johnson was to use $30,000 to hire immigration attorneys to help Uwimana, his family and other personnel at the embassy and their families obtain asylum in the United States.[3] Transcript at 82. *673 The other $25,000 was to go to Johnson directly as a "fee" for his services in securing lawyers who would oversee the asylum process and for assisting with winding up the embassy business. Uwimana testified that the Prime Minister of Rwanda had authorized his use of the funds for purposes of seeking asylum. Id. at 83-84. The bankruptcy court found that Uwimana's testimony on that issue lacked credibility. Indeed, at trial, Rwanda's current Ambassador Joseph Mutaboba testified that the country considers it high treason to use government funds to "defect" without the government's prior knowledge. Id. at 57-58. However, Uwimana testified, and the court found, that had Uwimana returned to Rwanda he would have been killed because spending the funds for asylum was considered a crime of high treason, which carries a punishment of death. Id. at 108; Paper no. 7, Appellant's exhibit B (hereinafter "Ruling") at 6. Uwimana also testified that had he returned to Rwanda he feared that he would have suffered the same "fate" as members of his family and his wife's family. Transcript at 107. He failed to elaborate on exactly what he meant with respect to the "fate" these other people suffered. As it turned out, the entire $30,000 earmarked for the immigration services was not needed. For some reason not evident in the record, Boniface Karani and Jean-Baptiste Rwakazina, the other two diplomats for whom Uwimana had sought asylum, found favor with the new Rwandan government. Under the new regime, Karani acted as interim charge d' affaires for several months in 1994 after Uwimana left office. One of Karani's duties was to request that Uwimana and Johnson return some part of the $30,000 that Uwimana had authorized for the asylum matters. A letter dated September 6, 1994, from Karani to Johnson specifically requested that Johnson return to the Rwandan government the $30,000 less money spent for Uwimana's immigration and another diplomat's related medical expenses. The letter failed to mention Johnson's $25,000 legal fee. The total amount Karani requested was $17,475. No money was ever returned. The September 6 letter was instrumental in the bankruptcy judge's decision. It reads in full: I am writing to confirm the termination of the project "Projects for the Embassy" as for our discussions of September 6, 1994. By that decision a refund is requested for legal fees related to the immigration business since necessary steps have been taken for only one diplomat family. Therefore the requested amount is $30,000 less $10,760 legal fees estimated for the said diplomat family and less $1,765 refund to another diplomat for medical expenses related to TPS [temporary protected status] application. The check to be paid to the Embassy will be of $30,000 - $10,760 - $1,765 = $17,475. Paper No. 7, Appellant's exhibit C4. On appeal, Appellant asserts that Uwimana committed defalcation when he transferred the $55,000 to "facilitate his and other's defection, as this transfer was to advance his own interest and not that of the Republic." Paper No. 8 at 12. Next, Appellant argues that the bankruptcy court erred in finding that Karani's September 6 letter "constituted official acknowledgment that Uwimana's transfer of all $55,000 of the Republic's monies was legitimate." Id. Finally, the government argues that Judge Mannes erred in holding that Karani's letter placed the $25,000 to Johnson "beyond the reach of the court's jurisdiction." Id. Uwimana argues on appeal that Rwanda should be precluded from recovery because as a "persecuting regime" the country has unclean hands. Paper no. 14 at 9. He also argues that his use of the funds was a valid exercise of his power as ambassador. *674 Id. at 10. Uwimana argues that the bankruptcy court made two clearly erroneous factual errors. The court found that "there was $17,475 in `funds remaining' from the $55,000 that Uwimana had transferred to Johnson," and that "Uwimana had not accounted for the government of Rwanda's funds...." Id. at 10. Finally, Uwimana argues that he was "blindsided" because Judge Mannes determined that he mishandled the funds after the transfer to Johnson, while Rwanda's complaint focused instead on the initial transfer of the $55,000 as the basis for the defalcation.[4] As a preliminary matter, Appellant moves to strike from the record four documents not admitted into evidence at trial but that Appellee requests this court to consider on appeal. Paper no. 16. Appellee filed an opposition motion. Paper no. 19. The court finds that it need not consider two of the documents to review this case.[5] For reasons explained later, the court will deny the motion with respect to the U.S. Department of State's Human Rights Report. It will grant the motion with respect to the trust fund accounting maintained by Uwimana's counsel, Robert Johnson. II. Standard of Review The district court sits as an appellate court when reviewing a bankruptcy court's decision. Berman v. Forti, 232 B.R. 653, 655 (D.Md.1999). The district court reviews questions of law de novo, but may set aside factual findings only if they are clearly erroneous. Id. (citations omitted). III. Analysis The parties appear to accept Judge Mannes' finding that Uwimana was a fiduciary at the time the $55,000 was transferred to Mr. Johnson.[6] Rwanda contends that the bankruptcy court erred, however, in finding that transfer not to be a "defalcation." Uwimana, in turn, contends that the court erred in finding that the later failure to return $17,475 was a defalcation, arguing that he lacked a fair opportunity to prove that the money had all been spent by the time of the demand for its return. He does not, however, seem to contest the finding that he was still a fiduciary at that time because he exercised continuing control over the funds. Whether a fiduciary capacity exists is a question of federal law. However, many courts have looked to state law to address the issue. In re Heilman, 241 B.R. 137, 156 (Bankr.D.Md.1999). Although not pertinent to its ruling, this *675 court finds that the bankruptcy court was correct in concluding that Uwimana was still a fiduciary with respect to those funds belonging to Rwanda that he had in his possession or control after he left office on July 22, 1994. See e.g., Unnamed Attorney v. Attorney Grievance Commission of Maryland, 349 Md. 391, 409 708 A.2d 667, 676 n. 10 (1998) (explaining that under the state rules of professional responsibility, attorneys who have been terminated maintain the duty to return any files to the client still in the attorney's possession that rightly belong to the client). Thus, the issue before this court is whether, as a fiduciary, during his tenure as ambassador or after, Uwimana committed defalcation. "A defalcation under § 523(a)(4) is a `misappropriation of trust funds or money held in any fiduciary capacity; [or the] failure to properly account for such funds.'" In re Ansari, 113 F.3d 17, 20 (4th Cir.1997) (quoting In re Niles, 106 F.3d 1456, 1460 (9th Cir.1997)). "[A] defalcation for purposes of the statute does not have to rise to the level of `fraud,' `embezzlement' or even `misappropriation.'" Id. (citations omitted). Appellants argue that Uwimana committed a defalcation when he transferred the $55,000 to Johnson in the first instance. Judge Mannes, however, held that Uwimana, in his capacity as ambassador, transferred the $55,000 for legitimate government functions, i.e., to seek asylum for himself and other diplomats at the embassy. Ruling at 7-9. Moreover, Judge Mannes found that $25,000 of the total was "payment to Johnson for what turned out to be 10 to 20 hours service in shutting down the Embassy." Id. at 10. This court affirms Judge Mannes' ruling with respect to the $25,000. A. The bankruptcy court correctly determined that Johnson's $25,000 fee was beyond its province. It is undisputed that the Note Verbale ordered Uwimana to leave the country by July 22 and ordered that the embassy cease operations. Judge Mannes found that as ambassador, Uwimana had authority to contract with Johnson to help in his efforts to wind up embassy business. See Ruling at 9-10 (explaining that Uwimana ordered the $55,000 check issued at the very last minute that he had authority to do so, and that $25,000 of that amount was for shutting down the embassy). This court agrees with Judge Mannes' legal conclusion that as ambassador, Uwimana had authority on July 22, 1994 to contract with Johnson for legal services to assist with winding down the embassy business. See Eileen Denza, Diplomatic Law, A Commentary on the Vienna Convention on Diplomatic Relations 250-51 (2d ed.1998) (explaining that an ambassador may enter into "ordinary contracts incidental to life in the receiving State, such as purchas[ing] ... legal ... services" without being subject to civil suits related to those contracts); see also Tabion v. Mufti, 73 F.3d 535, 537 (4th Cir.1996) (explaining that under the Vienna Convention an ambassador is immune from most civil suits unless such suits relate to "commercial activity" performed outside of his official functions, and defining commercial activity as "trade or business activity engaged in for personal profit"). Appellants assert that the bankruptcy court incorrectly held that the $25,000 was outside of its province as this amount was used to aid Uwimana with his asylum matters. Paper 8 at 25. However, the record supports Judge Mannes' factual finding that the $25,000 was to pay Johnson for 10 to 20 hours of work concerning shutting down the embassy.[7] Ruling at 10; Paper *676 no. 7, Appellant's exhibit C2 at 2 (Johnson's July 21 letter to Uwimana explaining some of the projects to be performed by Johnson); Appellant's exhibit C4 (letter from Karani to Johnson referring to the $30,000 and not the $25,000 as "legal fees related to the immigration business...."); Transcript at 114-15 (Uwimana explaining that the $55,000, among other things, was to be used for asylum and "for helping the embassy"); id. at 137 (Johnson describing some of "winding down" duties he was to perform in the wake of the Note Verbale, which included ensuring embassy bank accounts would not be frozen, paying off embassy debts, and taking care of housekeeping matters).[8] There is no evidence that Uwimana personally benefitted or profited from these particular funds. To the contrary, there was ample evidence presented at trial to support Judge Mannes' conclusion that the money went to Johnson as a legal fee for overseeing various aspects of the imminent embassy shut down. Thus, with respect to the $25,000, this court concludes that the bankruptcy court's findings of facts were not clearly erroneous and that it applied the law correctly. B. Uwimana committed a defalcation when he used the $30,000 without the government's permission to finance his and other's asylum requests. The other $30,000 of the $55,000 was to be used exclusively for immigration matters, and Uwimana's use of the funds for those purposes presents a more difficult legal question. The bankruptcy court determined that Uwimana was justified in using the money to obtain asylum for himself, his family and staff because anyone "confronted with a recall to Rwanda and a charge for high treason, the penalty for this offense being death," would have acted as he did. Ruling at 6. Obviously, as ambassador, Uwimana had a right to administer the government's funds over which he was entrusted. Rwanda admits as much. See Transcript at 54 (Rwandan Ambassador Mutaboba explaining that one of the duties of an ambassador is to manage the country's funds). The question is whether Uwimana had a right to administer the $30,000 to protect himself and others at the embassy. The problem with the reasoning of the bankruptcy court on this issue is that the record lacks support for its conclusion that Uwimana used the funds so that he and the other diplomats would not have to return to Rwanda and face death. Uwimana testified that his country was at war and he sought asylum to protect himself and others at the embassy. Aside from this testimony, however, no where in the record is there any clear evidence that had Uwimana returned to Rwanda before he used the funds earmarked for the asylum concerns, he would have faced death.[9] The record instead supports Appellant's argument that Uwimana used the funds for asylum purposes and because he did so, he committed high treason, the punishment for which is death. Ruling at 6; Transcript at 57-58 (Ambassador Mutaboba testifying that use of government funds for purposes of defection is considered high treason); id. at 108 (Uwimana acknowledging that use of the funds was *677 considered by Rwanda to be high treason, the penalty for which is death). Appellee requests that this court take judicial notice of the U.S. Department of State's 1994-1998 Human Rights Reports to support his position that he used the $30,000 and refused to return to Rwanda because he would have faced death. Appellant has moved to strike these documents from the record. Paper no. 19. Although these government reports were not presented as evidence at trial, the court will take judicial notice of the 1994 report. See Ivezaj v. Immigration and Naturalization Service, 84 F.3d 215, 218 (6th Cir.1996) (taking judicial notice on appeal of material regarding changed political conditions in Yugoslavia not contained in the record); Clemmons v. Bohannon, 956 F.2d 1523, 1532 n. 2 (10th Cir.1992) (Seymour, J., dissenting) (en banc) (taking judicial notice of federal government reports on appeal although the reports were not part of the record); see also Pueblo of Sandia v. United States, 50 F.3d 856, 861 n. 6 (10th Cir.1995) (taking judicial notice of letters on appeal not contained in record and citing with approval Judge Seymour's opinion in Clemmons for support). Upon the death of the Rwandan president in April 1994, the country was marked by widespread torture and political and ethnic killings by members of his party. U.S. Department of State Human Rights Report on Rwanda, 1994, at 1. Uwimana apparently served as ambassador under this government, and the barbaric acts described in the state department's reports are likely what led the department to issue the Note Verbale. According to the report, the RPF, which took over in July 1994, called for "national reconciliation" and agreed to work peacefully with the United Nations. Id. at 1-2. The report does indicate, however, that some supporters of the RPF participated in extrajudicial killings. Id. at 3. However, the report also states that "[t]here is no evidence that the new Government condoned or sanctioned these acts." Id. Nevertheless, the president under which Uwimana served was killed under "suspicious circumstances." Id. at 1. Uwimana himself was a political leader of a government that was overthrown by a party whose members had suffered mass killings under the former regime. Thus, it is not unreasonable to conclude that Uwimana may have had cause to fear for his life had he returned to Rwanda.[10] As noted previously, an ambassador has authority to administer the funds of his or her country. However, just because an ambassador possesses authority does not mean that every exercise of that authority is valid. First Fidelity Bank v. Government of Antigua & Barbuda, 877 F.2d 189, 192 (2d Cir.1989). In First Fidelity, the Second Circuit addressed the issue of whether Antigua was bound by the actions of its ambassador, which included borrowing $250,000 to build a casino, and after failing to repay the loan, entering into a consent order on the country's behalf. The court determined that "an ambassador's actions under color of authority do not, as a matter of law, automatically bind the state that he represents. The facts of a given case must be examined, and the agency law of developed states ... provides the proper framework for that examination." Id. at 193. Thus, this court will turn to Maryland law to determine whether, assuming he feared for his life, Uwimana breached his fiduciary duty and committed a defalcation when he used the $30,000 for asylum purposes. Under Maryland law, "[a]n agent has a duty to his principal to act solely for the benefit of the principal in all matters connected with his agency." Green v. H & R Block, Inc., 355 Md. 488, *678 517, 735 A.2d 1039, 1055 (1999). It is inherent in the principal-agent relationship that the agent must avoid any conflict of interest between his or her own interest and that of the principal. Id. (citation omitted). Moreover, the agent must not "permit himself to be placed in a position where his own interest or those of any other person whom he has undertaken to represent may conflict with the interests of his principal." Id. at 518, 517, 735 A.2d at 1056 (citation omitted). An agent breaches his or her fiduciary duty when he or she fails to disclose to the principal any information the latter reasonably may want to know; this is especially true in situations involving conflicts of interest. Id. (citation omitted). "If the agent is to receive any benefit from a transaction in which he is serving his principal, the agent must fully disclose any interest he has in the transaction and receive the consent of his principal to proceed, even if the principal ultimately was to benefit from the transaction." Id. at 519-20, 735 A.2d at 1056 (quoting Gussin v. Shockey, 725 F.Supp. 271, 275 (D.Md.1989), aff'd, 933 F.2d 1001, 1991 WL 82059 (4th Cir.1991)). The bankruptcy court rejected Uwimana's testimony that he had been authorized to enter into the July 21 agreement by his country's prime minister. Transcript at 84; Ruling at 7-8. The court found that Uwimana's decision was his own, and that as ambassador he had authority to administer the entire $55,000. Appellant's argument that Uwimana committed a defalcation at the moment he transferred the funds, at least with respect to the $30,000, has merit. Uwimana acted without the authority of the new government in diverting the funds for his and other's asylum. Admittedly, this case is difficult because Uwimana presumably lacked funds outside of the embassy's funds to finance the asylum requests. Yet, had he gone back to his country he may have faced death. Moreover, there is no evidence that he pocketed the money, but rather the record is clear that he used the funds to seek asylum for himself, his family and others at the embassy. Finally, as Judge Mannes observed, this case would not be before this court had the government under which Uwimana served remained in power. His use of the funds or his authority to use them would not be at issue. Ruling at 6. Nevertheless, obtaining asylum certainly was a benefit to Uwimana and others who were then under his charge. Further, as Appellants point out, there is no "`fear of life' exception" under the defalcation provision of the bankruptcy code. At the moment he authorized the transfer of the funds, Uwimana knew the government had changed hands. Ruling at 8. Moreover, it is doubtful that he failed to realize that had he sought the new government's permission to use government funds for the asylum requests, such permission would have been denied. Transcript at 35-36 (Ambassador Mutaboba explaining that Rwanda would never allow anyone including an ambassador to use public funds to finance his or her own "personal defection.").[11] Uwimana breached his fiduciary duty by using the funds without the authority of and in conflict with the interests of Rwanda. Thus, this court holds that at the moment of the transfer Uwimana committed defalcation with respect to the $30,000. See Ansari, 113 F.3d at 20 (defalcation is misappropriation of trust funds or money held in any fiduciary capacity).[12] C. Karani's letter ratified Uwimana's use of the funds. Even if Uwimana lacked authority to transfer the $30,000, the bankruptcy *679 court correctly held that under agency principles Karani's letter ratified the use of the funds. See Restatement (Second) of Agency § 82 (1958) ("Ratification is the affirmance by a person of a prior act which did not bind him but which was done ... on his account, whereby the act ... is given effect as if originally authorized by him."); see also id. at § 83 (describing affirmance as "a manifestation of an election by one on whose account an unauthorized act has been done to treat the act as authorized...."). Ratification is only applicable where the original agent, in this case Uwimina, was without actual or apparent authority to bind the principal in the first instance. Integrated Consulting Serv. v. LDDS Communications, Inc., 176 F.3d 475, 1999 WL 218740 at *6 (4th Cir.1999) (citing Citizens Bank of Maryland v. Maryland Indus. Finishing Co., 338 Md. 448, 659 A.2d 313, 320 n. 9 (1995)). Thus, any argument of ratification must serve as an alternative to that of Uwimana possessing authority to administer either the $25,000 and/or the $30,000. Ratification provides that a contract made by an agent without authority may, by words, conduct or silence subsequently be approved by the principal. See Bruffey Contracting Co., Inc. v. Burroughs, 522 F.Supp. 769, 774 (D.Md.1981), aff'd, 681 F.2d 812 (4th Cir.1982). The principal must also manifest an intent to ratify the transaction, and can do so by action or silence. LDDS, 176 F.3d 475, 1999 WL 218740 at *6. The bankruptcy court found that as Rwanda's charge d' affaires, Karani had authority to ratify Uwimana's use of the $55,000. Ruling at 9-11 (explaining that charge d'affaires "requires accreditation by one country to the foreign ministry of another."). As explained previously, this court finds that Uwimana had authority to pay for legal services with respect to the embassy shut down. However, the $30,000 is a different matter. Until this appeal, the parties did not appear to dispute that Karani, as charge d' affaires, had authority to write the September 6 letter or to bind Rwanda. Thus, Judge Mannes relied, appropriately, on Karani's letter to find that he had legitimatized the transfer of the $30,000 and put the $25,000 beyond the reach of the court. Karani knew that the total amount involved was $55,000, as he signed the check issued to Johnson. Yet, he failed altogether to mention the $25,000 fee in his September 6 letter, and focused instead on the $30,000 allotted for immigration purposes. Karani's letter does not state that the original transfer of the $30,000 was unauthorized, neither does it demand return of all the money. Appellant does not appear to argue that Rwanda was unaware of Karani's September 6 letter. It instead argues that Karani, as Uwimana's "co-conspirator," could not ratify the latter's use of the funds for the immigration matters. Nowhere in the record does the Rwandan government allege that Karani acted improperly with respect to the September 6 letter.[13] After Uwimana's departure, Karani was left in charge of winding up the embassy business. Further, as noted above he found his way back into the good graces of the Rwandan government and no longer needed to utilize the portion of the $30,000 that was set aside to help him obtain asylum in the United States. Ambassador Mutaboba testified that when he arrived at the embassy in September, he worked with Karani and another diplomat for five months on *680 embassy matters. Transcript at 37. Appellant cannot now be heard to argue that Karani acted improperly or without the government's knowledge in writing the September 6 letter. Cf. Integrated Consulting, 176 F.3d 475, 1999 WL 218740 at *6-7 (explaining that a communications company could not ratify a contract purportedly entered into on its behalf by an independent contractor who was without authority to do so when, among other things, evidence showed that the company was unaware of the agreement during the time that ratification could have taken place). Thus, the bankruptcy court correctly concluded that Karani's letter ratified Uwimana's use of the $30,000.[14] D. Judge Mannes' finding that $17,475 was non-dischargeable debt was not clearly erroneous. The court rejects Appellee's argument that the bankruptcy court had no basis for finding that $17,475 was non-dischargeable debt. Judge Mannes again relied on Karani's letter in reaching his conclusion. That letter clearly shows that Karani subtracted from the $30,000 the $10,760 used for Uwimana and his family's immigration, and $1,765 for medical expenses also related to immigration matters, leaving $17,475 as non-dischargeable debt. Transcript at 38 (showing that the September 6, letter from Karani was admitted into evidence). Whether in fact Uwimana had the $17,475 in hand or in the trust account at the time Johnson received Karani's letter is irrelevant. Uwimana had no authority to transfer the $30,000 in the first place, and he committed a defalcation upon doing so. As explained above, Karani's letter ratified Uwimana's use of the funds for the immigration matters. Consequently, Judge Mannes correctly found that of the $30,000, Uwimana properly allocated all but $17,475, and that he owed that amount to the Rwandan government. Moreover, Judge Mannes was not clearly erroneous in determining that the only numbers before him with respect to the handling of the $30,000 were those found in Karani's letter. Uwimana asks this court to consider Johnson's trust fund accounting of the $55,000, submitted as a pretrial exhibit by Rwanda. That document was neither entered into evidence nor presented to the bankruptcy court for its consideration. Thus, this court will not consider it on appeal. See 16A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3956.1 (3d ed.1999) (explaining that only matters presented to the trial court are considered part of the record on appeal, excluding "matters ... merely lodged with the clerk or never offered into evidence"). Consequently, this court finds that based on the documents presented to the bankruptcy court, Karani's letter, Judge Mannes correctly determined that Uwimana has failed to account for $17,475 of Rwanda's funds. IV. Conclusion For the foregoing reasons, the court shall AFFIRM the Order of the bankruptcy court. A separate Order will be entered. NOTES [1] While this case involves cross appeals, for the sake of clarity, throughout this opinion, "Appellant" refers to Rwanda and "Appellee" refers to Mr. Uwimana. Although Mrs. Uwimana is also a named party, Mr. Uwimana is the central figure in this matter, and the court refers only to him throughout the opinion. [2] On appeal, Rwanda appears to have dropped its claim to the $28,000 and only challenges the bankruptcy court's decision to refuse to exempt from discharge $55,000, which was transferred into Johnson's trust account in late July 1994. [3] According to Uwimana's deposition testimony taken in a prior proceeding but read by his attorney during the bankruptcy proceeding, Uwimina claimed that "I had the obligation to protect the Embassy personnel and their families. We had nowhere to go, our country was in war, most of the population had fled the country so I had an obligation [to] protect, to secure the personnel and their families." Paper no. 7, Appellant's exhibit A (hereinafter "Transcript") at 89-90. [4] The court rejects this argument. As explained later Judge Mannes rendered a partial discharge based on the evidence presented at trial, and Uwimana has pointed to no authority precluding him from doing so. [5] The court need not consider counsel for Appellant's declaration regarding his diligence with respect to the $1.9 million dischargeability claim. That claim is not before this court on appeal. Further, this court need not consider Uwimana's declaration regarding his diplomatic career to review this case. [6] Judge Mannes found that as ambassador, Uwimana was "charged with management" of Rwanda's funds. Ruling at 7. Judge Mannes determined that the law is silent as to whether this charge made Uwimana a fiduciary for purposes of 11 U.S.C. 523(a)(4). Id. ("One cannot even find even the suggestion in the legal encyclopedia as to the answer."). Nevertheless, the bankruptcy court found that "the ambassadorial office creates a pre-existing trust as mandated as a prerequisite for liability under [§ 523(a)(4)]." Id. This court's independent research on the issue has revealed no case on point concerning whether an ambassador serves in a fiduciary capacity for purposes of liability under § 523(a)(4). Nevertheless, this court finds that for purposes of § 523(a)(4) he in fact did serve in such a capacity. Compare In re Hayes, 183 F.3d 162, 168 (2d Cir.1999) (attorney-client relationship falls within defalcation exception as attorneys must maintain confidentiality, avoid conflicts of interest and safeguard client's property) with Transcript at 16, 61 (ambassador occupies one of the country's highest positions of trust and duties include managing the country's funds and guarding its secrets). [7] Appellants point out that the Note Verbale gave Karani until August 14 to wind up embassy business and therefore there was no need for Uwimana to perform this function. Paper no. 8 at 18 n. 22. However, just because the U.S. state department allowed Karani additional time beyond Uwimana's mandated departure date to wind up the embassy does not mean that Uwimana lacked authority while ambassador to procure legal services to begin the winding up process. [8] Johnson also testified that he only received as a fee $10,000 of the $25,000 to secure immigration attorneys that would help Uwimana and the others with their asylum plans. The other $15,000 was spent "on other aspects of the projects." Transcript at 138-39. Johnson failed to explain at trial on what projects specifically he spent the $15,000. [9] Uwimana testified that had he returned to Rwanda he feared that he would have suffered the same fate as members of his family and his wife's family. He failed to elaborate on exactly what he meant with respect to the fate these other people suffered. Transcript at 107. [10] The court rejects Uwimana's argument that Rwanda should be precluded from recovery because of unclean hands. The state department report clearly states that there is no proof the RPF sanctioned extrajudicial killings. [11] The bankruptcy court allowed Mutaboba to testify in his capacity as ambassador, similar to an official testifying on behalf of a government agency, pursuant to Fed.R.Civ.P. 30(b)(6). Transcript at 35. [12] This holding differs from the bankruptcy court's. Judge Mannes held that Uwimana remained a fiduciary after leaving office on July 22 and committed defalcation when he failed to return $17,475 of the $30,000 as Karani directed him to do in the September 6 letter. Ruling at 12. [13] Ambassador Mutaboba testified that Rwanda would never allow use of government funds to finance one's defection. Transcript at 34-35. The ambassador arrived at the embassy sometime in September, the same month that Karani sent the letter to Johnson. Mutaboba testified that he was aware of the September 6 letter, yet he failed to disavow it. Id. at 38. Moreover, he took office as ambassador on September 21 but claims that he had "read the letters before, long before." Id. at 48. Ambassador Mutaboba did, however, send a letter to Johnson on November 14, requesting the entire $55,000. Paper no. 7, Appellant's exhibit C8. [14] While Karani's letter ratified Uwimana's use of the $30,000, it did so for purposes of the immigration requests. Thus, to the extent any portion of the $30,000 was not spent for those purposes, those funds are owed to Rwanda.

288 U.S. 52 (1933) HAWKS ET AL. v. HAMILL ET AL. No. 147. Supreme Court of United States. Argued December 9, 1932. Decided January 9, 1933. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. *53 Messrs. W.C. Lewis, Assistant Attorney General of Oklahoma, and Purman Wilson, with whom Mr. J. Berry King, Attorney General, was on the brief, for petitioners. Mr. Charles B. Cochran, with whom Mr. Lessing Rosenthal was on the brief, for respondents. MR. JUSTICE CARDOZO delivered the opinion of the Court. The respondents, claiming to be the owners of a perpetual franchise to collect tolls for the use of a bridge across the Canadian River, brought suit in the United States District Court against the members of the State Highway Commission of Oklahoma, the Attorney General of that State, the County Attorneys of McClain and Cleveland Counties, and other persons, residents of the neighborhood, to restrain a threatened interference with the maintenance of the bridge or the collection of tolls. The jurisdiction of the federal court was invoked upon the ground of diversity of citizenship. The defendants (petitioners in this court) made a motion, without answering, to dismiss the complaint. The complainants moved at the same time for an injunction pendente lite. The District Court denied the motion for an injunction, and granted the motion to dismiss. The Circuit Court of Appeals for the Tenth Circuit reversed the decree and directed judgment in favor of the complainants for the relief demanded in the complaint. 58 F. (2d) 41. A writ of certiorari brings the case here. The facts exhibited in the bill are these. On April 22, 1911, the County Commissioners of McClain County, Oklahoma, adopted a resolution whereby there was granted to Carter and Halsell, or their assigns, a franchise to construct and operate a toll bridge across the Canadian River at the City of Purcell, the bridge to be erected within the time prescribed by law. The tolls enumerated in a *54 schedule were not to be increased "by the bridge company," though they might be reduced. By the terms of the resolution, the grant was to be "perpetual," subject only to such limitations as were provided by law. The grantees were to be at liberty to transfer their rights and privileges to "any individual or corporation," with the same effect as if the grant had been made to the assigns directly. On May 16, 1911, the County Commissioners of Cleveland County on the other side of the Canadian River adopted a like resolution for the grant of a like franchise to the same grantees. On May 18, 1911, Carter, one of the grantees, together with Walling and Hamill, the present respondents, caused a corporation, known as the Purcell-Lexington Toll Bridge Company, to be organized under the laws of Oklahoma, with a corporate life of twenty years. Thereafter in December, 1911, while the bridge was in course of construction, the grantees of the franchises, together with the respondents, conveyed the bridge, its approaches and all the rights and privileges embraced within the franchises or either of them to the Purcell-Lexington Toll Bridge Company, its successors and assigns. The corporate life of the Purcell-Lexington Toll Bridge Company was to expire, as we have seen, on May 18, 1931. Before that time, and on April 2, 1931, the bridge company conveyed to the respondents and to Carter, and their assigns, the bridge and the accompanying franchises, the respondents receiving afterwards from Carter an assignment of his interest, whatever it might be. Thereupon the defendants, who are the petitioners here, gave notice that on May 18, 1931, the bridge would become a free bridge and part of the free highway system of the State of Oklahoma. The members of the State Highway Commission, the Attorney General, the County Attorneys, as well as the neighboring residents, who, it seems, are also the County Commissioners, announced a purpose to prevent the collection of tolls by the respondents, *55 and to cause the bridge to be kept open for free and unimpeded passage. This suit for an injunction followed. The District Court held that the County Commissioners were without authority to grant a franchise to individuals except in trust for a corporation organized under the bridge law; that the term of the corporate life was also the limit of the duration of the privilege to charge and levy tolls; that a perpetual franchise, if intended, would be void under Article II, § 32 of the Constitution of Oklahoma, prohibiting "perpetuities"; and that the bill should be dismissed. The Circuit Court of Appeals, in reversing this judgment, held that the franchises were not invalid because granted to individuals; that upon assignment to a corporation organized for a term of twenty years, the franchises were not cut down in respect of their duration, but continued in full force when conveyed by the assignee to others; that the term "perpetuities" as used in Article II, § 32 of the Constitution of Oklahoma had in view the creation of future estates and did not limit the enjoyment of a privilege or franchise; and that the complainants should have an injunction as prayed for in the bill. Article II, § 32 of the Constitution of Oklahoma provides: "perpetuities and monopolies are contrary to the genius of a free government and shall never be allowed, nor shall the law of primogeniture or entailment ever be in force in this state." Construing that provision the Court of Appeals said: "We do not doubt that the word `perpetuities' . . . was not intended to mean or be equivalent to perpetual franchises, but was intended to limit the power to pass titles that would vest in futuro." But the Supreme Court of Oklahoma has not circumscribed the word so narrowly. It has said that a forbidden perpetuity is created when there is granted to an individual or corporation a perpetual privilege or franchise *56 It has gone farther: it has said that a privilege or franchise is perpetual if indefinite in duration, though it be subject to revocation at the pleasure of the legislature. The question came before the court in Okmulgee v. Okmulgee Gas Co., 140 Okla. 88; 282 Pac. 640. The legislature of Oklahoma had passed an act whereby a public service corporation holding a franchise from a municipality for a fixed term of years was to be at liberty to exchange it for a revocable permit. The court said that such a permit, if viewed as a grant from the municipality, was forbidden by Article XVIII, § 5a, which provides in effect that no franchise shall be granted by a municipal corporation for a longer term than twenty-five years. On the other hand, if the permit could be viewed as one proceeding directly from the state, the court said that it would then be a perpetuity within the prohibition of Article II, § 32. The permit was not saved by the reservation to the legislature of a power to revoke it. In the view of the court (p. 98), a franchise "not limited in its existence to a fixed and definite period of years" is to be classified as "a perpetual franchise," and hence an unlawful perpetuity. To avoid misapprehension the court at the end of its opinion summarized its conclusions (p. 100). "Any act of the legislature which provides for issuing a license, revocable permit, indeterminate permit, or other instrument in the nature of a franchise which is not limited as to its time of existence, violates section 32 of Article II of our Constitution." See, to the same effect: In re Okmulgee Gas Co., 141 Okla. 98; 284 Pac. 70; In re Oklahoma Power Co., 141 Okla. 100; 284 Pac. 12. We do not now determine what meaning we would give to the Oklahoma Constitution if the question were before us as an original one, unhampered by any pronouncement of the courts of that state. Much can be said in support of the respondents' position that the perpetuities denounced are those arising from the creation of future *57 estates or from restraints upon alienation without reasonable limit. The question is one distinctively local in origin and content. The prohibition is embodied in the local Constitution. Not only that, but it is designed to give effect to "the genius" of the government, an impalpable existence that can best be apprehended and defined by perceptions and experiences sharpened and developed through the associations of the vicinage. "In a case involving local history, as this does, we should be slow to overrule the decision of courts steeped in the local tradition, even if we saw reason for doubting it." Jackman v. Rosenbaum Co., 260 U.S. 22, 32; cf. Diaz v. Gonzalez, 261 U.S. 102, 105, 106. To define a "perpetuity" for a young and developing community there must be recourse to something more than the pages of a dictionary. The word to be defined, in common with words generally, will have a color and a content that will vary with the setting. Towne v. Eisner, 245 U.S. 418, 425; International Stevedoring Co. v. Haverty, 272 U.S. 50; Surace v. Danna, 248 N.Y. 18, 21; 161 N.E. 315. It comes down to its interpreters freighted with subtle implications, with the "tacit assumptions," the "unwritten practices," the "thousand influences" and "values" that "logic and grammar never could have got from the books." Diaz v. Gonzalez, supra. Out of two or more meanings that were possible and plausible, the State of Oklahoma has picked the one comporting best in the thought of her official spokesmen with the "genius" of her history. The mists of our own uncertainties are scattered when pierced by this authentic evidence of the law of the locality. Chicago, M., St. P. & P.R. Co. v. Risty, 276 U.S. 567, 570; Sioux County v. National Surety Co., 276 U.S. 238; cf. Porter v. Investors Syndicate, 287 U.S. 346. We are urged by the respondents to exert a power of independent judgment though the law to be interpreted be a constitution or a statute, and not merely the form of *58 law which has come to be spoken of as general. Cf. Burgess v. Seligman, 107 U.S. 20. The power, we are told, exists because at the grant of these franchises in 1911, the Courts of Oklahoma had not yet spoken as to the meaning of the Constitution by defining the "perpetuities" within the zone of its restraints. Kuhn v. Fairmont Coal Co., 215 U.S. 349; Moore-Mansfield Construction Co. v. Electrical Installation Co., 234 U.S. 619, 625; Edward Hines Trustees v. Martin, 268 U.S. 458, 463. Obedience is due to the courts of the state if the decisions claiming fealty are so many and unequivocal as to make out a "rule of property." Edward Hines Trustees v. Martin, supra, at pp. 463, 464. As to this there is no denial. The argument is that the fetters of obedience are released when there is only a single state decision, and this subsequent to the transaction out of which rights and duties have developed. Kuhn v. Fairmont Coal Co., supra; Edward Hines Trustees v. Martin, supra. One hurdle, it is said, will be overlept if there are no barriers beyond. Choice is not so free as the argument assumes. If the single decision interpreting a constitution or a statute is clear and unequivocal, submission to its holding has developed in these days into a practice so nearly uniform that there is little need to consider whether under pressure of extraordinary circumstances there is a privilege to deviate. Whatever doubt as to the practice may have prevailed in days gone by has been dispelled by recent judgments. Chicago, M., St. P. & P.R. Co. v. Risty, supra; Sioux County v. National Surety Co., supra. Indeed the radiating potencies of a decision may go beyond the actual holding. A wise comity has decreed that deference shall at times be owing, though there may be lacking, in the circumstances, a strict duty of obedience. Cf. Sim v. Edenborn, 242 U.S. 131, 135. An opinion may be so framed that there is doubt whether the part of it invoked as an authority is to be ranked as a definitive holding *59 or merely a considered dictum. What was said in Okmulgee v. Okmulgee Gas Co., supra, as to the meaning of perpetuities was probably intended to be a definitive holding. Cf. 141 Okla. 98; 141 id. 100. To be sure there is room for argument that limiting distinctions will have to be drawn in the future. We must leave it to the courts of Oklahoma to declare what they shall be. But the result will not be changed though the definition of perpetuities be something less than a decision. At least it is a considered dictum, and not comment merely obiter. It has capacity, though it be less than a decision, to tilt the balanced mind toward submission and agreement. Cf. Sim v. Edenborn, supra; Lankford v. Platte Iron Works, 235 U.S. 461, 474. No controversy is here as to the impairment of the obligation of a contract in violation of the restraints of the federal constitution. We are not to confuse the standards of independent judgment appropriate in such conditions (Coombes v. Getz, 285 U.S. 434, 441; Shriver v. Woodbine Bank, 285 U.S. 467, 475) with those appropriate where the only basis of jurisdiction is diversity of citizenship. The Oklahoma decision as to the validity of a grant in perpetuity is not an act of legislation, and would not have impaired the contract embodied in the grant though it had overruled a contrary decision previously rendered. Tidal Oil Co. v. Flanagan, 263 U.S. 444; Fleming v. Fleming, 264 U.S. 29; Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358. What is at issue in this case is not an actual or even a claimed impairment of any right or privilege assured to the respondents by the Constitution of the nation. What is at issue is the validity of a privilege or claim of privilege to obstruct a bridge across a public stream. The case does not call for a decision as to the ownership of the structure of the bridge or the right of the complainants to tear it down hereafter. Cf. State v. Lawrence Bridge Co., 22 Kan. 438, 463. The decision that is called for is one as to *60 the privilege of the complainants, while maintaining an obstruction of navigable waters, to exact payments from the public. The statutes of Oklahoma are explicit that tolls may never be collected unless permitted by a franchise (Wagon Road Act, Consolidated Oklahoma Statutes, § 5627; Toll Bridge Corporations Act, Consolidated Oklahoma Statutes, § 5367). In controversies so purely local, little gain is to be derived from drawing nice distinctions between dicta and decisions. Disagreement with either, even though permissible, is at best a last resort, to be embraced with caution and reluctance. The stranger from afar, unacquainted with the local ways, permits himself to be guided by the best evidence available, the directions or the counsel of those who dwell upon the spot. The case thus far has been considered from the viewpoint of the substantive law, the basic rights and duties contested by the litigants. There is another path of approach that brings us to the same goal, an approach along the line of the law of equitable remedies. Caution and reluctance there must be in any case where there is the threat of opposition, in respect of local controversies, between state and federal courts. Caution and reluctance there must be in special measure where relief, if granted, is an interference by the process of injunction with the activities of state officers discharging in good faith their supposed official duties. In such circumstances this court has said that an injunction ought not to issue "unless in a case reasonably free from doubt." Massachusetts State Grange v. Benton, 272 U.S. 525, 527. The rule has been characterized as an "important" one, to be "very strictly observed." 272 U.S. at 527, 529. Compare Gilchrist v. Interborough Rapid Transit Co., 279 U.S. 159; Cavanaugh v. Looney, 248 U.S. 453, 456. It is such interference by the process of injunction with the activities of state officers that the respondents now seek. The members of the State Highway Commission believe it to be *61 their official duty to take possession of the bridge, and propose to act accordingly. The Attorney General of the state is about to institute proceedings at law and in equity to vindicate the public rights or what he believes to be such rights. The County Attorneys of McClain and Cleveland Counties propose to sue for fines and penalties. All these activities the respondents ask us to enjoin. Indeed all have been enjoined by the decree under review. Only a case of manifest oppression will justify a federal court in laying such a check upon administrative officers acting colore officii in a conscientious endeavor to fulfill their duty to the state. A prudent self-restraint is called for at such times if state and national functions are to be maintained in stable equilibrium. Reluctance there has been to use the process of federal courts in restraint of state officials though the rights asserted by the complainants are strictly federal in origin. Massachusetts State Grange v. Benton, supra; Stratton v. St. Louis S.W. Ry. Co., 284 U.S. 530; Matthews v. Rodgers, 284 U.S. 521. There must be reluctance even greater when the rights are strictly local, jurisdiction having no other basis than the accidents of residence. The need is clamant in such circumstances for cautious hesitation. If there were to be a concession arguendo that the meaning of "perpetuities" is still an unsettled question after the decisions in Oklahoma, there is surely no room for a contention that a meaning in opposition to those decisions is reasonably free from doubt. Our process does not issue unless the path is clear. What has been written has had its basis in the assumption that an indeterminate franchise is a perpetuity within the meaning of the Constitution of Oklahoma, or at the very least that state officers acting in that belief are not subject to an injunction at the instance of the federal courts. The case for the respondents would be beset, however, with other doubts and difficulties if all these were *62 to be removed. There would still remain the uncertainty whether the franchise granted by the county was to the grantees for their own use or for the use of a corporation to be organized thereafter; whether the corporation was to be one under the "Wagon Road" law, with an indeterminate duration, or under the "Bridge Companies" act, with a duration of twenty years; and whether the public policy of Oklahoma, disclosed by her statutes and decisions, and irrespective of decisions elsewhere, sets a limit upon the toll right, or what is known as the secondary franchise, coterminous with the primary franchise to exist and engage in business in a corporate capacity. By the statement of these questions we convey no hint as to the answer. We do no more than emphasize the complexities of law as well as of policy in which the respondents' title is involved, and the unwisdom of superseding the official acts and powers of the agents of the vicinage by writ out of a federal court. The decree of the Circuit Court of Appeals must be reversed, and the judgment of the District Court dismissing the complaint affirmed. Reversed.

551 F.2d 310 U. S.v.Mattes No. 76-1963 United States Court of Appeals, Fourth Circuit 2/9/77 1 E.D.Va. AFFIRMED

FILED United States Court of Appeals Tenth Circuit PUBLISH August 19, 2014 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT ALBERTO MARTINEZ MOLINA; CRISTINA RAMIREZ RIVERA, Petitioners, v. No. 13-9573 ERIC H. HOLDER, JR., United States Attorney General, Respondent. PETITION FOR REVIEW OF FINAL DECISION ISSUED BY THE BOARD OF IMMIGRATION APPEALS Jennaweh Leyba, Joseph Law Firm, P.C., Aurora, Colorado, for Petitioners. Stuart F. Delery, Assistant Attorney General, Carl McIntyre, Assistant Director, and Jeffrey J. Bernstein, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent. Before HARTZ, McKAY, and BACHARACH, Circuit Judges. 1 BACHARACH, Circuit Judge. 1 The Court determined that oral argument would not provide material assistance in the determination of this appeal. See 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.  A husband and wife, Mr. Alberto Martinez Molina and Ms. Cristina Ramirez Rivera, are Mexican citizens subject to final orders of removal from the United States. After an immigration judge declined to cancel their removal orders, Mr. Martinez and Ms. Ramirez filed a motion to reopen based on ineffective representation of counsel. With the motion, Mr. Martinez and Ms. Ramirez submitted evidence that they had resided in the United States in 1998. The Board of Immigration Appeals denied the motion, reasoning that the couple had not shown prejudice because the evidence that they submitted: (1) could not overcome discrepancies in their testimony, and (2) was the same or substantially similar to the evidence considered by the immigration judge. The spouses filed a petition for review, arguing that: (1) the Board abused its discretion in rejecting their claim for ineffective representation, and (2) the immigration judge failed to consider the entire record. For Ms. Ramirez, we affirm. The Board acted within its discretion in rejecting her ineffective-representation claim, and Ms. Ramirez did not exhaust her claim involving failure of the immigration judge to consider the entire record. For Mr. Martinez, we remand to the Board. Mr. Martinez did not exhaust his claim involving failure to consider the entire record. But he did exhaust his ineffective-representation claim, and the Board abused its discretion when it mistakenly concluded that the newly submitted evidence was the same or substantially similar to the evidence considered by the immigration judge. 2 I. 1998: An All-Important Year The government began removal proceedings on October 16, 2008. Though the spouses conceded removability, they applied for cancellation of removal. To obtain this relief, the couple had to prove continuous residence in the United States from October 16, 1998, to October 16, 2008 (with allowances for certain temporary departures). See 8 U.S.C. § 1229b. At a 2008 hearing, the couple’s first attorney (Gita Kapur) submitted documentary evidence, which included: (1) paystubs showing that Mr. Martinez had worked in the United States in 1998, and (2) records showing that the couple’s minor child had been vaccinated in the United States throughout 1998. The couple then relocated and obtained a second hearing with new counsel (David Senseney). At the second hearing, Mr. Senseney presented evidence of residence from 1999 to 2010, but he did not present any evidence from 1998 or refer to the 1998 evidence previously submitted by Ms. Kapur. The immigration judge denied relief, relying in part on discrepancies in the testimony. But the immigration judge also relied on a factual finding that the documentary evidence had not “address[ed] [Mr. Martinez’s] presence in October of 1998.” R. at 418. Mr. Senseney appealed to the Board of Immigration Appeals, but did not challenge any of the immigration judge’s rulings. Without any argument based on the immigration judge’s decision, the Board dismissed the appeal. 3  Thereafter, the couple hired a third attorney (Jennaweh Leyba), who filed a motion to reopen based on ineffective representation of counsel. The couple argued that their second attorney, Mr. Senseney, had performed ineffectively by failing to submit evidence of continuous residence since October 16, 1998. The Board denied the motion, stating that the evidence “regarding [the couple’s] physical presence in the United States between 1997 and 1998 appear[ed] to be the same or substantially similar to the evidence considered by the Immigration Judge.” Id. at 3. II. The Petitioners’ Arguments & Our Conclusions In their petition, the spouses argue that the Board should have granted the motion to reopen based on: ● the immigration judge’s failure to consider all of the evidence, including the evidence submitted by their first attorney (Ms. Kapur) at the 2008 hearing, and ● ineffective representation. We decline to consider the couple’s first argument because we lack jurisdiction. On the couple’s second argument, we affirm the Board’s decision with respect to Ms. Ramirez, finding no abuse of discretion. With respect to Mr. Martinez, however, we remand for clarification regarding whether his testimonial discrepancies provide a sufficient basis for denial of relief. III. Exhaustion 4  We must address a threshold issue: jurisdiction. In immigration cases, our jurisdiction extends only to issues that have been exhausted before the Board of Immigration Appeals. 8 U.S.C. § 1252(d)(1); see Ribas v. Mukasey, 545 F.3d 922, 930-31 (10th Cir. 2008). The couple submits two issues for our review: (1) failure of the immigration judge to consider the entire record, and (2) ineffective representation of counsel. The first issue was not raised in the couple’s motion to reopen or in any other document filed with the Board of Immigration Appeals. Consequently, the argument is unexhausted; and without exhaustion, we lack jurisdiction. See Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999) (per curiam) (stating that appellate jurisdiction was absent when an alien failed to file a motion to reopen based on the legal theory later raised in our Court). The second issue, however, was presented to and reviewed by the Board; thus, the second issue was exhausted and subject to our jurisdiction. IV. Claims Involving Ineffective Representation of Counsel Mr. Martinez and Ms. Ramirez argue that: (1) their former counsel, Mr. Senseney, ineffectively argued for cancellation of removal,2 and (2) a reasonable likelihood exists 2 The couple also argues that Mr. Senseney failed to raise any material arguments on appeal to the Board, “eliminat[ing] the possibility of future relief . . . based on the merits of the case.” Appellant’s Opening Br. at 41. With regard to this argument, however, the couple makes no attempt to establish a reasonable likelihood that the outcome would have been different with the additional arguments. We therefore deem this argument waived. See, e.g., United Transp. Union v. Dole, 797 F.2d 823, 827 5 that, but for Mr. Senseney’s ineffectiveness, the outcome would have been different. We agree for Mr. Martinez and disagree for Ms. Ramirez. A. Right to Effective Representation Aliens in removal proceedings enjoy a Fifth Amendment right to effective representation by their retained counsel. Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir. 2003). For a due-process claim based on ineffectiveness, an alien must show that: (1) retained counsel was ineffective, and (2) the ineffectiveness resulted in a “fundamentally unfair proceeding.” Id. A proceeding is “fundamentally unfair” only if it causes prejudice to the alien. United States v. Aguirre-Tello, 353 F.3d 1199, 1207-09 (10th Cir. 2004). To establish prejudice, an alien must show a “reasonable likelihood” that the outcome would have been different but for the attorney’s deficient performance. Id. B. The Abuse-of-Discretion Standard Because ineffective representation was raised in a motion to reopen, we review the Board’s decision under an abuse-of-discretion standard. See Galvez Pineda v. Gonzales, 427 F.3d 833, 838 (10th Cir. 2005). The Board abuses its discretion when it fails to provide a rational explanation, inexplicably deviates from established policies, lacks any reasoning, or contains only conclusory explanations. Id. In contrast, the Board does not (10th Cir. 1986) (failure to thoroughly develop arguments in a brief generally results in waiver). 6 abuse its discretion when “its rationale is clear, there is no departure from established policies, and its statements are a correct interpretation of the law.” Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004). C. The Couple’s Arguments Mr. Martinez and Ms. Ramirez argue that the Board relied on a mistaken belief that the evidence accompanying the motion to reopen was the same or substantially similar to the evidence considered by the immigration judge. According to the couple, the motion-to-reopen evidence differed because it included documentation from 1998. We agree with respect to the evidence submitted on behalf of Mr. Martinez. With respect to Ms. Ramirez, however, we find no abuse of discretion. D. Mr. Martinez For Mr. Martinez, the immigration judge identified two inadequacies in the proof: (1) testimonial inconsistencies regarding the duration of his residence in the United States, and (2) the absence of any documentary evidence establishing his presence in October 1998. Thus, we know that the immigration judge denied Mr. Martinez’s application based, at least in part, on a perceived lack of evidence from October 1998. With his motion to reopen, Mr. Martinez submitted evidence from 1997 and 1998. Nonetheless, the Board found that the newly submitted evidence “regarding [the couple’s] physical presence in the United States between 1997 and 1998 appear[ed] to be the same or substantially similar to the evidence considered by the Immigration Judge.” 7 R. at 3. For Mr. Martinez, this finding is inaccurate because: (1) the motion to reopen included his paystubs for a job in Colorado in October 1998,3 and (2) we know that the immigration judge did not consider these paystubs based on her reference to “the absence of any documentary evidence to prove entry in October of 1998.”4 These paystubs filled a perceived gap in the evidence that had led the immigration judge to deny relief, and the Board erred in concluding that the proffered evidence was the same or substantially similar to the evidence relied on by the immigration judge. The resulting question is whether the Board’s error materially affected the outcome. The Board partially relied on its erroneous belief in denying the motion to reopen. See id. at 4 (“without a showing that the . . . evidence [accompanying the motion to reopen] might have changed the result in their case, we do not find that any action or inaction by prior counsel caused [the couple] prejudice”). But the Board also noted that “[t]he Immigration Judge [had] based her decision, in large part, on the [couple’s] discrepant testimony regarding their physical presence in the United States.” Id. at 3-4. In light of discrepancies in the testimony, the Board might have reached the same outcome even if the immigration judge had not relied on the absence of evidence from October 1998. But, the Board might have reached a different result if it determined that the immigration judge had weighed the discrepancies less heavily than the perceived 3 R. at 205. 4 Id. at 418. 8 absence of evidence from October 1998. Because we do not know whether the error affected the outcome, we must remand for further findings by the Board. See Onwuamaegbu v. Gonzales, 470 F.3d 405, 411-12 (1st Cir. 2006) (remanding to the Board of Immigration Appeals because the Court of Appeals could not determine whether the Board abused its discretion by summarily affirming when the immigration judge’s rationale was subject to “alternative interpretations”); see also Lam v. Holder, 698 F.3d 529, 536 (7th Cir. 2012) (remanding to the Board of Immigration Appeals when the Court of Appeals concluded that the immigration judge had made an error and it was unclear whether the immigration judge’s determination would stand without the error). On remand, the Board should reconsider based on recognition that the October 1998 evidence was not considered by the immigration judge. E. Ms. Ramirez For Ms. Ramirez, the Board denied relief based on: (1) the similarity between the motion-to-reopen evidence and the evidence considered by the immigration judge, and (2) discrepancies in her testimony. With her motion to reopen, Ms. Ramirez submitted vaccination records, which purport to establish her presence in the United States in February, March, April, June, and September 1998. R. at 208-09.5 But the vaccination 5 The records show vaccinations of the child in the United States. According to the couple, the records prove Ms. Ramirez’s presence in the United States on the theory that in 1998, “she was the primary caregiver of [her] children.” Appellant’s Opening Br. at 39. For the sake of argument, we can assume that the immunization records conclusively establish Ms. Ramirez’s presence in the United States during these months. 9 records were already in the record. And without contrary evidence, we must assume that the immigration judge reviewed the records when she denied Ms. Ramirez’s application. See Batalova v. Ashcroft, 355 F.3d 1246, 1252 (10th Cir. 2004) (we presume that the Board of Immigration Appeals thoroughly reviews the record before adopting or affirming the decision of an immigration judge). The immigration judge said nothing to suggest a failure to consider the child’s 1998 vaccination records. Indeed, the judge made only one reference to Ms. Ramirez’s documentary evidence. That reference involved her alleged entry date (1996), not her presence in the United States in 1998. R. at 419. The Board did not abuse its discretion when it concluded that the motion-to- reopen evidence from 1997-1998 was the same or substantially similar to the evidence considered by the immigration judge. V. Conclusion We affirm the Board’s decision as it pertains to Ms. Ramirez and grant the petition for Mr. Martinez. For his application, we remand and direct the Board to clarify whether discrepancies in the testimony provide a sufficient basis for denial of relief. 10 

665 F.2d 1038 Appalachian Power Co.v.General Electric Co. 81-1150, 81-1165 UNITED STATES COURT OF APPEALS Fourth Circuit 11/5/81 W.D.Va., 508 F.Supp. 530 AFFIRMED

421 F.3d 655 UNITED STATES of America, Appellant,v.Constantino GARCIA-JUAREZ, Appellee. No. 04-3730. United States Court of Appeals, Eighth Circuit. Submitted: June 22, 2005. Filed: August 29, 2005. John E. Beamer, AUSA, argued, Des Moines, IA, for appellant. Timothy S. Ross-Boon, FPD, argued, Des Moines, IA, for appellee. Before MURPHY, BYE, and SMITH, Circuit Judges. SMITH, Circuit Judge. 1 Constantino Garcia-Juarez pleaded guilty to being found in the United States after a prior deportation in violation of 8 U.S.C. § 1326(a). At sentencing, over the government's objection, the district court determined that Garcia-Juarez's prior conviction for Lascivious Acts With a Child in violation of Iowa Code § 709.8 was an aggravated felony, but not a crime of violence under U.S.S.G. § 2L1.2(b)(1)(B). We conclude that Garcia-Juarez's conviction constitutes a crime of violence under § 2L1.2(b)(1)(B) and reverse. I. Background 2 In 1994, Garcia-Juarez, then in his mid-thirties, enticed a fourteen-year-old girl to come inside his Des Moines, Iowa, apartment. Once inside, Garcia-Juarez took the young girl into his bedroom. While lying on top of the girl, Garcia-Juarez rubbed his genitals against the girl's fully clothed genital area until he ejaculated. Garcia-Juarez was arrested and charged with Sexual Abuse in the Third Degree. Garcia-Juarez eventually pleaded guilty to Lascivious Acts With a Child and his five-year sentence was suspended. On November 22, 2000, the government deported Garcia-Juarez to Mexico. 3 On June 19, 2004, the Des Moines Police Department arrested Garcia-Juarez for vehicle and traffic violations. After learning of Garcia-Juarez's prior removal from the United States, the Des Moines Police Department notified the Bureau of Immigration and Customs Enforcement. The government then charged Garcia-Juarez with illegally being in the United States following deportation in violation of 8 U.S.C. § 1326(a). 4 After pleading guilty to § 1326(a), but prior to sentencing, the district court ordered that a presentence investigation report (PSR) be prepared. The PSR indicated that Garcia-Juarez had been convicted of Lascivious Acts With a Child in violation of Iowa Code § 709.8 prior to his deportation. In the PSR, the probation officer recommended that Garcia-Juarez's base offense level be increased by 16 levels under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (conviction for a crime of violence). Garcia-Juarez objected to characterizing his conviction for Lascivious Acts With a Child as a "crime of violence" and argued that he should only receive an 8-level increase under U.S.S.G. § 2L1.2(b)(1)(B) (conviction for an aggravated felony). 5 The district court conducted a sentencing hearing and agreed with Garcia-Juarez. Accordingly, the district court applied an 8-level enhancement in lieu of the 16-level enhancement urged by the government. With only an 8-level enhancement, the Guidelines sentencing range dropped from 41-51 months to 15-21 months. The district court sentenced Garcia-Juarez to 15 months' imprisonment, the bottom of the Guidelines range, and the government appealed. II. Discussion 6 The sole issue on appeal is whether an Iowa conviction for Lascivious Acts With a Child can be properly characterized as an "aggravated felony" but not a "crime of violence" under U.S.S.G. § 2L.1.2(b). Although the Guidelines have recently become advisory, see United States v. Booker, ___ U.S. ___, ___, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 (2005), a sentence imposed as the result of an incorrect application of the Guidelines requires a remand for resentencing unless the error was harmless. United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir.2005) (citing 18 U.S.C. § 3742(f)(1)). One example of a harmless error is when the resulting sentence lies in an overlap between the correct and incorrect Guidelines ranges. Id. We review the interpretation and application of the Guidelines on appeal de novo. Id. 7 The government argues that Garcia-Juarez's prior conviction for Lascivious Acts With a Child qualifies as a "crime of violence" under § 2L1.2(b)(1)(A)(ii). The thrust of the government's argument is that the crime of Lascivious Acts With a Child constitutes "sexual abuse of a minor," which is an enumerated crime of violence under the commentary to § 2L1.2(b)(1)(A)(ii). Garcia-Juarez contends that because the Iowa legislature has seen fit to differentiate between "sexual abuse" and "lascivious acts with a child" by making them two separate crimes, the United States Sentencing Guidelines, which has some overlap, must follow suit by creating a narrow definition and a broad definition of the term "sexual abuse of a minor." 8 Under § 2L1.2(a), Unlawfully Entering or Remaining in the United States, a defendant's base offense level starts at 8. However, subpart (b) provides for an increase in offense level in certain circumstances, and states in pertinent part: 9 (1) Apply the Greatest: 10 If the defendant previously was deported, or unlawfully remained in the United States, after — 11 (A) a conviction for a felony that is . . . (ii) a crime of violence; . . . increase by 16 levels 12 * * * * * * 13 (C) a conviction for an aggravated felony, increase by 8 levels; . . . 14 U.S.S.G. § 2L1.2(b). The Application Notes to subpart (A)(ii) explains that a "crime of violence" includes "sexual abuse of a minor." The Application Notes to subpart (C) cross-references 8 U.S.C. § 1101(a)(43), which defines, in part, an "aggravated felony" as a " murder, rape, or sexual abuse of a minor." 8 U.S.C. § 1101(a)(43)(A). 15 A careful reading of the Guidelines reveals that the phrase "sexual abuse of a minor" is a key that fits the locks of both a "crime of violence" and an "aggravated felony." Specifically, both subpart (A) and subpart (C) contain a specific reference to "sexual abuse of a minor." Garcia-Juarez argues that the overlap indicates Congress intended to create a narrow definition and a broad definition of the term "sexual abuse of a minor" as used in § 2L1.2(a). However, Garcia-Juarez points to no reference in the Congressional Record or otherwise to support his contention. To the contrary, Garcia-Juarez's contention belies the text of the Guideline which requires a sentencing court to "Apply the Greatest" offense enhancement. See U.S.S.G. § 2L1.2(a)(1). This statement directs application of the greater enhancement when there is overlap. 16 Garcia-Juarez also argues that the Guidelines should follow the case-law interpreting actual state statutes. In Iowa, the crime of "sexual abuse" is separate and distinct from "lascivious acts with a child." State v. Graves, 491 N.W.2d 780, 782 (Iowa 1992) ("The plain language of these sections indicates a legislative intent to provide for three individual crimes of sexual abuse and a separate crime of lascivious acts with a child."). Thus, in Iowa, the crime of "lascivious acts with a child" is not a "forcible felony" as defined by Iowa state law. However, in Graves, the Supreme Court of Iowa compared the elements of the crime of lascivious acts with a child to the specific elements of sexual abuse. The Guidelines do not attempt to enumerate each state crime by name; rather the Guidelines prescribe a general approach in defining a crime of violence. United States v. Nation, 243 F.3d 467, 473 (8th Cir.2001) (citation omitted). Also, the Iowa definition of "forcible felony" does not track either the definition of "aggravated felony" or "crime of violence" as used by the Guidelines. 17 We have yet to determine whether Lascivious Acts With a Child in violation of Iowa Code § 709.8 constitutes "sexual abuse of a minor" as contemplated by U.S.S.G. § 2L1.3(b)(1)(A)(ii). In United States v. Rodriguez, 979 F.2d 138 (8th Cir.1992), we held that the commission of lascivious acts with a child in violation of Iowa Code § 709.8 qualified as an "aggravated felony" as set forth in U.S.S.G. § 2L1.2(b)(2), app. n. 7. At the time Rodriguez was decided, an "aggravated felony," as defined by § 2L.1.2, carried a 16-level enhancement. Since Rodriguez was decided, the Guidelines have been modified to differentiate between general aggravated felonies, and those "crimes of violence" specifically enumerated. See United States v. Gomez-Hernandez, 300 F.3d 974, 977 n. 2 (8th Cir.2002).1 This modification created a two-tiered enhancement schedule — now an "aggravated felony" carries an 8-level enhancement and a "crime of violence" carries a 16-level enhancement. Accordingly, Rodriguez provides little guidance. 18 We have explained that "[u]nless the sentencing guidelines provide a special definition of the particular term whose meaning is in issue, we give the language of the guidelines its ordinary meaning." United States v. Anton, 380 F.3d 333, 335-36 (8th Cir.2004) (citations omitted). Other circuits have concluded that similar state law crimes constitute "sexual abuse of a minor" under U.S.S.G. § 2L1.2(b)(1)(A)(ii). For example, in United States v. Orduno-Mireles, 405 F.3d 960, 961-62 (11th Cir.2005), the Eleventh Circuit held that a felony conviction for unlawful sexual activity with certain minors qualified as sexual abuse of a minor warranting application of the 16-level enhancement. The Fifth Circuit held that the offense of taking indecent liberties with a child, under North Carolina law, constituted "sexual abuse of a minor." United States v. Izaguirre-Flores, 405 F.3d 270 (5th Cir.2005). Likewise, in the Ninth Circuit, a California crime involving the sexual touching of a child under 14 years of age constituted the "sexual abuse of a minor." United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir.1999). 19 Nonetheless, Garcia-Juarez contends that because his Iowa conviction does not meet the criminal elements of sexual abuse of a minor under 18 U.S.C. § 2243(a), which ostensibly requires the intentional touching, not through the clothing, of a minor under the age of 16, it cannot be "sexual abuse of a minor" as contemplated by the Guidelines. However, the Eleventh Circuit has explained that "the word `sexual' in the phrase `sexual abuse of a minor,' [as used in the Guidelines], indicates that the perpetrator's intent in committing the abuse is to seek libidinal gratification." United States v. Padilla-Reyes, 247 F.3d 1158, 1163 (11th Cir.2001). 20 We find the reasoning employed by a consensus of our sister circuits persuasive. We hold that achieving sexual gratification by unlawfully touching a child as prohibited by Iowa Code § 709.8 constitutes sexual abuse of a minor.2 Accordingly, the district court erred in declining to apply a 16-level enhancement to Garcia-Juarez's Guidelines calculation. In addition, because application of the 16-level enhancement would have significantly increased Garcia-Juarez's Guidelines range, the error was not harmless. 21 For the foregoing reasons, we reverse and remand for resentencing not inconsistent with this opinion. Notes: 1 Amendment 658, effective on November 1, 2003, was intended in part to clarify the definition of "crime of violence," as used in § 2L1.2, and to "make[ ] clear that the enumerated offenses are always classified as `crimes of violence,' regardless of whether the prior offense expressly has as an element the use, attempted use, or threatened use of physical force against the person of another."United States Sentencing Guidelines Manual, app. C (2003). 2 Iowa Code § 709.8 makes it "unlawful for any person eighteen years of age or older to perform any of the following acts with a child with or without the child's consent unless married to each other, for the purpose of arousing or satisfying the sexual desires of either of them": 1 Fondle or touch the pubes or genitals of a child 2 Permit or cause a child to fondle or touch the person's genitals or pubes 3 Solicit a child to engage in a sex act or solicit a person to arrange a sex act with a child 4 Inflict pain or discomfort upon a child or permit a child to inflict pain or discomfort on the person Iowa Code § 709.8.

865 F.2d 262 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.Yun Kil MOON, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 88-3620. United States Court of Appeals, Sixth Circuit. Dec. 19, 1988. 1 Before BOYCE F. MARTIN, Jr., and NATHANIEL R. JONES, Circuit Judges, JOHN FEIKENS, Senior District Judge.* ORDER 2 Petitioner seeks review under Section 106(a) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1105a, of an order of the Board of Immigration Appeals affirming the denial of a stay of deportation pending adjudication of the petitioner's motion to reopen deportation proceedings. Petitioner's motion to reopen is presently pending before the Board. The Immigration and Naturalization Service now moves to dismiss this petition for lack of appellate jurisdiction. The petitioner opposes the motion. 3 Under Section 106(a) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1105a, the courts of appeals have exclusive jurisdiction to review final orders of deportation entered under deportation proceedings pursuant to 8 U.S.C. Sec. 1252. The denial of a motion to stay deportation pending a ruling on a motion to reopen is an interim order not reviewable by an appellate court under 8 U.S.C. Sec. 1105(a). Reid v. INS, 766 F.2d 113, 115 (3rd Cir.1985); Ramirez-Osorio v. INS, 745 F.2d 937 (5th Cir.1984); Diaz-Salazar v. INS, 700 F.2d 1156, 1159 (7th Cir.), cert. denied, 462 U.S. 1132 (1983); Kemper v. INS, 705 F.2d 1150 (9th Cir.1983); see also Cheng Fan Kwok v. INS, 392 U.S. 206, 216 (1968); Andres v. INS, 460 F.2d 287 (6th Cir.1972). Accordingly, 4 It is ORDERED that the motion is granted and this petition for review is dismissed. * The Honorable John Feikens, U.S. Senior District Judge for the Eastern District of Michigan, sitting by designation

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON HORATIO RICE v. DAVID MILLS, WARDEN (STATE OF TENNESSEE) Direct Appeal from the Circuit Court for Lauderdale County No. 5903 Joe H. Walker, III, Judge No. W2004-02517-CCA-R3-HC - Filed April 12, 2005 The Petitioner, Horatio L. Rice, appeals the lower court’s denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to establish that his convictions are void or that his sentence has expired. Accordingly, we grant the State’s motion and affirm the judgment of the trial court. Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of the Court of Criminal Appeals ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID G. HAYES and J.C. MCLIN , JJ. joined. Horatio Rice, pro se. Paul G. Summers, Attorney General & Reporter; Blind Akrawi, Assistant Attorney General, for the appellee, the State of Tennessee. MEMORANDUM OPINION On November 4, 1998, the Petitioner pled guilty in the Marshall County Circuit Court to one count of theft of property, a class C felony, one count of aggravated assault, a class D felony, one count of theft of property, a class D felony, and one count of burglary of an automobile, a class E felony. For these convictions, the trial court imposed an effective sentence of eight years in the 1 Department of Correction. The Petitioner is currently confined at West Tennessee State Penitentiary in Henning, Tennessee. On September 16, 2004, the Petitioner filed, pro se, a petition for writ of habeas corpus relief in the Lauderdale County Circuit Court. As grounds for relief, he alleged that the trial court was without jurisdiction to sentence the Petitioner to more than an effective six-year sentence. Petitioner asserts that the effective eight-year sentence imposed by the trial court “violates the sentencing range of all four classes; D, D, E, & C per T.C.A. 40-2-101 dealing the classes of felonies. . . .” On September 20, 2004, the trial court denied habeas corpus relief. In denying relief, the trial court found that “[P]etitioner’s sentence has not expired and the court had jurisdiction to sentence the defendant to such sentence. Each sentence was within the range, they were run consecutive.” Petitioner filed a timely notice of appeal on October 7, 2004. The State has filed a motion requesting that this Court affirm the decision of the lower court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The State contends that the Petitioner has failed to allege a ground which renders his convictions void. The grounds upon which habeas corpus relief may be granted in this state are narrow. Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004) (citations omitted). Relief will be granted if the petition establishes that the challenged judgment is void. Id. A judgment is void “only when ‘[i]t appears upon the face of the judgment or the record of the proceedings upon which the judgment is rendered’ that a convicting court was without jurisdiction or authority to sentence a defendant, or that a defendant’s sentence of imprisonment or other restraint has expired.” Hickman, 153 S.W.3d at 20 (quoting State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000) (citations omitted)). The petitioner bears the burden of establishing either a void judgment or an illegal confinement by a preponderance of the evidence. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). If the petitioner carries this burden, he is entitled to immediate release. Id. However, if the habeas corpus petition fails to demonstrate that the judgment is void or that the confinement is illegal, neither appointment of counsel nor an evidentiary hearing are required and the trial court may properly dismiss the petition. Hickman, 153 S.W.3d at 20 (citations omitted). Petitioner contends that the trial court lacked jurisdiction to impose the effective eight-year sentence. He asserts that the trial court could only impose an effective six-year sentence. In support of his position, Petitioner relies solely upon section 40-2-101, Tennessee Code Annotated. Petitioner’s reliance upon this code section is misplaced. Section 40-2-101, Tennessee Code Annotated, relates to the limitations of prosecutions, and not to the minimum or maximum range of sentence for different classes of felonies. The judgments of conviction are not void on their face. Neither has the effective eight-year sentence expired. The Petitioner has failed to meet his burden of proof entitling him to the immediate release from confinement. 2  Accordingly, it is ordered that the State’s motion is granted. The judgment of the trial court is affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals. ___________________________________ ALAN E. GLENN, JUDGE 3 

187 F.2d 610 WEISS,v.UNITED STATES. No. 192, Docket 21936. United States Court of Appeals Second Circuit. Argued Feb. 16, 1951.Decided March 7, 1951. Sidney Morse, of Brooklyn, N.Y., for plaintiff-appellant. Thomas E. Walsh, Atty., Dept. of Justice, of Washington, D.C. (Frank J. Parker, U.S. Atty., and Nathan Borock, Asst. U.S. Atty., both of Brooklyn, N.Y., Newell A. Clapp, Acting Asst. Atty. Gen., and D. Vance Swann, Atty., Dept. of Justice, of Washington, D.C., on the brief), for defendant-appellee. Before AUGUSTUS N. HAND, CHASE, and CLARK, Circuit Judges. CLARK, Circuit Judge. 1 The plaintiff, Adele Weiss, is the sister of a veteran Eugene Morse who, while serving in the Armed Forces of the United States, took out two certificates of level premium term National Service Life Insurance, each for $5,000, naming her as beneficiary. He was honorably discharged on December 7, 1945, and died on August 27, 1948, having failed to pay the premiums after March 31, 1947- a period of some seventeen months. She brought suit for the proceeds, the government moved for a dismissal on the ground that, as the complaint disclosed, the insurance had lapsed, and the district court granted the motion. She now appeals. There is no dispute in these underlying facts and the case is to be decided upon the basis of the governing statute and the regulations issued thereunder. The plaintiff does not deny, indeed herself pleaded, the non-payment of the premiums; rather for the keeping in force of the insurance she relies upon (1) the existence of an insurance reserve based upon unearned premiums or undeclared dividends sufficient and effective for the purpose or (2) the insured's total disability for injuries during the period and consequent waiver of the premiums as provided by law. The government's defense is that the regulations issued pursuant to law explicitly prohibit such an interpretation of the obligations which were placed upon it in the issuance of veterans' insurance. 2 In accord with the district judge we think this defense complete and unanswerable and regard the plaintiff's contentions as based upon a form of governmental contract which, however equitable it might be considered, would be distinctly other than was actually proffered. The learned judge first wrote a reasoned opinion and then a supplemental opinion after he had given opportunity to the parties to submit later rulings, if any, of the Administrator of Veterans' Affairs. 92 F.Supp. 322. We agree with his rationale and find little more to say. Before turning to the statute and regulations, we may note that the appeal is in form from four district court orders: the dismissal of the complaint for failure to state a claim upon which relief can be granted, the denial of a motion for reargument, the denial of leave to amend, and the denial of an order compelling delivery of certain regulations to the plaintiff. The second and third appeals are but iterations of the main point of law to which we shall now address ourselves. As to the fourth, whether or not there was any improper denial to plaintiff of the governing literature of the case, we now have all the material presented to us and this particular side issue has obviously become moot. 3 The National Service Life Insurance Act, passed in 1940, provided for the granting to persons in active service, upon application and payment of premiums, of insurance on the five-year level premium term plan. 38 U.S.C.A. § 802(a). The Act went on to provide, inter alia, for the setting of premium rates upon 'the net rates based upon the American Experience Table of Mortality and interest at the rate of 3 per centum per annum,' Sec. 802(e); for the privilege of conversion of the term insurance into other plans upon payment of the difference in reserve within the five-year-term period, Sec. 802(f); for the establishment of a permanent trust fund in the United States Treasury, known as the National Service Life Insurance Fund, to receive the premiums paid in, together with interest, to be available 'for the payment of liabilities under such insurance, including payment of dividends and refunds of unearned premiums. Payments from this fund shall be made upon and in accordance with awards by the Administrator,' Sec. 805(a); and for the power to the Administrator 'to make such rules and regulations, not inconsistent with the provisions of this chapter, as are necessary or appropriate to carry out its purposes,' Sec. 808.1 Regulations, 38 CFR, 1941 Supp., Secs. 10.3414-10.3416, provided for grace periods of 31 days for the payment of any premium, cited the method of computation of the period, covering such matters as its expiration on Sunday or a legal holiday, and concluded in Sec. 10.3416: 'If any premium be not paid when due, the National Service Life Insurance policy shall cease and become void, except as otherwise provided in the policy.' 4 With respect to dividends the Act in the subdivision cited above providing for conversion into other form of life policies then stated: 'All five year level premium term policies shall cease and terminate at the expiration of the five year term period. Provisions for cash, loan, paid up, and extended values, dividends from gains and savings, refund of unearned premiums, and such other provisions as may be found to be reasonable and practicable, may be provided for in the policy of insurance or from time to time by regulations promulgated by the Administrator.' Sec. 802(f). No dividends were, however, declared for many years. Indeed this delay in the declaration of dividends is made one of the grounds of complaint by the plaintiff. It was explained by defendant on the ground that for the duration of the war the government's liability could not be accurately determined and thereafter it was placed in doubt by the decision in Zazove v. United States, 7 Cir., 162 F.2d 443, which threatened to enlarge it 'by billions' until reversal on June 14, 1948, in United States v. Zazove, 334 U.S. 602, 68 S.Ct. 1284, 92 L.Ed. 1601. A regulation promulgated in the spring of 1949, 38 CFR, 1949 Ed., Sec. 8.26a, provided: 'Any special National Service life insurance dividend that may be declared shall be paid in cash only. Such special dividends shall not be accepted to accumulate on deposit. Unpaid special dividends shall not be available to pay premiums.' An earlier regulation, 38 CFR, 1949 Ed., Sec. 8.26, had provided that dividend accumulations and unpaid dividends should not be available for the payment of insurance premiums except at the written request of the insured made before default in payment of a premium- a request, of course, never made by this insured.2 5 The plaintiff discounts these clear indications of administrative policy by saying that she is not relying upon declared and accumulated dividends, but rather upon the Administrator's breach of duty in failing to declare dividends. Her contention is that there had been built up in the National Service Life Insurance Fund a reserve on these certificates of the basis of premiums paid in which, not having been declared as dividends, must now be treated as applicable upon these certificates to render them fully paid-up policies for a period beyond the time of the death of the insured. This theory appears to have been developed because of the Administrator's present program of paying certain dividends in cash upon all policies, even those which had lapsed. In view of this there may perhaps be some fireside equity in the concept that instead of cash payments available now the money should have been used to keep the main policies alive so long as possible. Be that as it may, we do not see how that can be made a compulsion upon the government when the regulations under the statute, having the force of law because quite consistent with it, are so obviously based on the contrary principle. Provisions as to lapse are necessary if the scheme of requiring premiums from the veterans for their insurance is to be given any force at all. The further restriction upon the use of dividends is a natural and perhaps a necessary bookkeeping development under the circumstances under which dividends were contemplated and were eventually granted. Presumably the Administrator could not have undertaken the responsibility of declaring dividends even when he did if his act was to have the effect of reviving innumerable policies already lapsed. Nor is there anything apparent in the legislation requiring the earlier declaration of dividends while the liability of the government was thus inchoate. The cases arising after World War I, and to date after the last war, seem quite clear that payments, including dividends, on veteran policies are to be only as the governing regulations provide and that the United States cannot be held estopped into other or greater payments. United States v. Huie, 5 Cir., 73 F.2d 305; James v. United States, 4 Cir., 185 F.2d 115; United States v. Norton, 5 Cir., 77 F.2d 731; Wilber Nat. Bank of Oneonta, Adm'r, v. United States, 294 U.S. 120, 55 S.Ct. 362, 79 L.Ed. 798. Several recent unreported cases in the district courts have also been cited to us. We have therefore no doubt but that the plaintiff's contention cannot be supported. 6 Her second ground of suit, namely, that the insurance was in force at the insured's death because of waiver of premiums for disability, stands in no better shape. The allegations of the complaint fall far short of meeting the conditions set in the Act itself, Sec. 802(n), as amended, of continuous total disability of the insured, 'which continues or has continued for six or more consecutive months' subsequent to his application and 'while the insurance was in force under premium-paying conditions,' and of application by the insured within the times specified. These conditions are not in any way removed or nullified by the provisions of Sec. 807(b) for the bearing of the cost by the United States beyond the amount of reserve of the policy. 7 Affirmed. 1 Several of the provisions cited here and below have been expanded or elaborated by amendments, notably in 1946 and 1947; since the changes do not affect the substance of the issues here involved, citation of detail appears unnecessary 2 See also the provisions of 38 C.F.R., 1947 Supp., Sec. 10.3426 that dividends 'will be paid in cash except that at the request of the insured they may be left to accumulate on deposit provided the policy is in force on a basis other than extended term insurance or level premium term insurance'- a distinction made between different types of insurance which is carried into Secs. 10.3428-10.3430

992 P.2d 383 (2000) 2000 OK CR 1 James Patrick MALICOAT, Appellant, v. STATE of Oklahoma, Appellee. No. F-98-151. Court of Criminal Appeals of Oklahoma. January 7, 2000. Rehearing Denied February 8, 2000. Kindanne C. Jones, Oklahoma City, Oklahoma, Michael Wilson, Capital Trial Division Indigent Defense System, Norman, Oklahoma, Attorneys for Defendant at trial. Robert E. Christian, District Attorney, Bret T. Burns, Assistant District Attorney, Grady County Courthouse, Chickasha, Oklahoma, Attorneys for the State at trial. Julie L. Gardner, Jamie D. Pybas, Capital Direct Appeals Division, Norman, Oklahoma, Attorneys for Appellant on appeal. W.A. Drew Edmondson, Attorney General Of Oklahoma, Jennifer B. Miller, Assistant Attorney General, Oklahoma City, Oklahoma, Attorneys for Appellee on appeal. *391 OPINION CHAPEL, Judge: ¶ 1 James Patrick Malicoat was tried by jury and convicted of First Degree Murder in violation of 21 O.S.1991, § 701.7(C), in the District Court of Grady County, Case No. CF-97-59.[1] The jury found two aggravating circumstances: (1) that the murder was especially *392 heinous, atrocious or cruel, and (2) the existence of a probability that Malicoat would commit criminal acts of violence constituting a continuing threat to society. In accordance with the jury's recommendation the Honorable Joe Enos sentenced Malicoat to death. ¶ 2 At about 8:25 p.m. on February 21, 1997, Malicoat and his girlfriend, Mary Ann Leadford, brought their thirteen-month-old daughter, Tessa Leadford, to the county hospital emergency room. Staff there determined Tessa had been dead for several hours. The child's face and body were covered in bruises, there was a large mushy closed wound on her forehead, and she had three human bite marks on her body. Tessa had two subdural hematomas from the head injury, and severe internal injuries including broken ribs, internal bruising and bleeding, and a torn mesentery. After an autopsy the medical examiner concluded the death was caused by a combination of the head injury and internal bleeding from the abdominal injuries. ¶ 3 Tessa and Leadford began living with Malicoat on February 2, 1997. Malicoat, who was severely abused as a child, admitted he routinely poked Tessa hard in the chest area and occasionally bit her both as discipline and in play. Malicoat worked a night shift on an oil rig and cared for Tessa during the day while her mother worked. Malicoat initially denied knowing how Tessa got her severe head injury; he later suggested she had fallen and hit the edge of the waterbed frame, then admitted he hit her head on the bed frame one or two days before she died. Malicoat admitted punching Tessa twice in the stomach, hard, about 12:30 p.m. on February 21, while Leadford was at work. Tessa stopped breathing and he gave her CPR; when she began breathing again, he gave her a bottle and went to sleep next to her on the bed. When he awoke around 5:30 p.m., she was dead. He put Tessa in her crib and covered her with a blanket, then spoke briefly with Leadford and went back to sleep in the living room. Leadford eventually discovered Tessa and they brought her to the emergency room. Malicoat explained he had worked all night, had car trouble, took Leadford to work, and was exhausted. He hit Tessa when she would not lie down so he could sleep. He said he sometimes intended to hurt Tessa when he disciplined her, but never meant to kill her. His defense was lack of intent; he claimed he had suffered through such extreme abuse as a child that he did not realize his actions would seriously hurt or kill Tessa. ISSUES RELATING TO JURY SELECTION ¶ 4 Malicoat complains in Proposition II that he was denied a fair and impartial jury when the trial court passed the jury for cause over objections by the defense. Malicoat's first trial ended in a mistrial after four days of voir dire. The record indicates that officials were not prepared for a death penalty voir dire and all apparently panicked at the lengthy process. This atmosphere was communicated to the jury panel, some of whom expressed resentment toward defense counsel (who were allowed to ask far-reaching questions). All parties appeared very aware of this during the second trial. The trial court conducted an extensive voir dire before allowing the attorneys to question the panel. The court routinely reprimanded both sides for asking questions previously answered in the jury questionnaires, and prevented both sides from asking questions on issues not relevant to any issue in this case. The trial court also routinely stopped both sides from asking the same question of each individual juror when the question could easily be asked of the entire panel. Malicoat complains that he was denied the opportunity to fully voir dire the jury panel on child abuse because the trial court (1) did not allow individual voir dire on that issue, and (2) directed that non-capital group voir dire be finished by 5:00 p.m. on the first day of questioning. ¶ 5 On the contrary, the record reveals the trial court was appropriately exercising its discretion to expedite the proceedings.[2]*393 The trial court initially asked the entire jury panel general questions about child abuse, and did not prevent counsel from asking any particular question on that issue. Malicoat incorrectly complains he was prohibited from asking jurors whether a person's history of child abuse would have a bearing on their decision. The trial court merely told counsel to ask this question of the entire panel collectively and follow up particular responses if warranted, rather than repeating it in general voir dire with each individual juror. The trial court's characterization of this tedious process as repetitive was not an abuse of discretion. We note that counsel did not follow the trial court's suggestion and ask this general question of the entire panel. Malicoat lists several jurors whom he claims were never questioned about child abuse at all. The record shows counsel was not prevented from asking any juror a further or different question than those asked by the trial court or contained in the jury questionnaire. We disagree with Malicoat's suggestion that the trial court's limits on questioning prevented the jurors from considering any particular mitigating factors. ¶ 6 The manner and extent of voir dire, as well as the decision to conduct individual voir dire, are within the trial court's discretion.[3] The voir dire process allows attorneys to see when a challenge for cause exists and permit the intelligent use of peremptory challenges.[4] This Court looks not at whether any specific question was allowed but at whether the overall questioning gives the defendant sufficient opportunity to discover grounds to excuse any particular juror.[5] The record shows that, despite the trial court's imposition of a time limit on general voir dire, counsel had the opportunity to determine whether each juror had feelings about or experience with child abuse which would warrant the juror's removal for cause or with a peremptory challenge. Malicoat was not denied a fair and impartial jury and this proposition is denied. ¶ 7 Malicoat argues in Proposition III that the impaneled jury was not impartial and his death sentence must consequently be vacated. Malicoat claims the trial court erred in failing to excuse for cause six jurors who indicated they would automatically impose the death penalty for first degree murder. Malicoat removed five of the jurors with peremptory challenges but was unable to remove the sixth. A careful review of the record shows no error in the court's decisions as to prospective jurors Davis, Smiley, Davidson and Ladd. Each of these jurors initially indicated either that a person who intentionally killed someone deserved the same, or that the age of the victim in this case would incline them to the death penalty. However, on further questioning each juror stated he or she could consider all three punishments equally. That is all the law requires.[6] Juror Wyatt appeared confused by a defense question regarding who had the burden to "prove" Malicoat should receive the death penalty in second stage. The record does not support Malicoat's claim that Wyatt's view showed an unalterable position. Wyatt stated she did not lean towards any particular punishment and said she could follow the law; the trial court did not err in failing to excuse her for cause. None of these jurors' answers indicated their views would prevent or substantially impair the performance of their duties in accordance with the instructions and their oath.[7] *394 ¶ 8 However, as the trial court noted, prospective juror Berkshire gave "conflicting answers on just about every point." Berkshire said she leaned toward the death penalty but could consider other options, and that her inclination would interfere with her ability to fairly consider all three options. These answers were ambiguous. Jurors who would automatically vote for or against the death penalty cannot fulfill their oaths because they will fail to consider all the evidence presented.[8] The trial court had the opportunity to view Berkshire and determined her ambiguous response did not indicate her views would substantially impair her ability to sit as a juror. We will not substitute our judgment for the trial court,[9] and find no error in the decision not to remove Berkshire for cause. This proposition is denied. ISSUES RELATING TO FIRST STAGE PROCEEDINGS ¶ 9 In Proposition I Malicoat argues his Sixth and Fourteenth Amendment rights were violated when the trial court forced defense counsel to reserve opening statement until the State had presented its entire case. During a pretrial hearing the trial court announced the order of trial: the State would open its case and offer evidence in support, then Malicoat would be allowed to open his case and present evidence. The trial court denied Malicoat's objection, but promised to reconsider the order before trial began. On the first day of trial the court again overruled Malicoat's objection and Malicoat was not allowed to give an opening statement until after the State rested its case-in-chief. At that time Malicoat rested without making an opening statement or offering evidence. Counsel stated the defense had made the strategic decision to rest because they were afraid that after hearing the State's graphic evidence the jury would be angered if Malicoat tried to put on a defense. Counsel noted that, had the defense made an opening statement before the State's case, they could have prepared the jury for their defense as elicited through cross-examination of State witnesses. Malicoat now repeats his trial claim that he was prejudiced because he could not (1) explain to the jury what he intended to show through State witnesses or (2) prepare the jury, through opening statement, for his interpretation of the State's evidence. ¶ 10 The trial court relied on 22 O.S.1991, § 831, which directs that, after the jury is sworn the district attorney must read the indictment or Information, open the State's case and offer evidence, after which the defense may open its case and offer evidence. We have held the order of trial is within the trial court's discretion, and it is not reversible error to refuse to allow the defendant to open his case before the State's case-in-chief.[10] In urging us to disregard these cases Malicoat cites cases in which counsel was restricted in strategic decisions concerning when or whether to call defense witnesses, including the defendant.[11] We reject this analogy. Neither Section 831 nor the trial court burdened counsel's strategic decisions concerning testimony. Opening *395 statements are intended to show the jury what the parties intend to present and expect the evidence to prove, and to prepare jurors' minds for the evidence that will be presented.[12] We will not join Malicoat's speculation that, in the absence of an opening statement, jurors were unable to understand or grasp the import of counsel's cross-examination of State witnesses. The trial court did not abuse its discretion in postponing Malicoat's opening statement and this proposition is denied. ¶ 11 In Proposition VI Malicoat claims Dr. Courtnay's opinion that Tessa suffered "intentional abuse" improperly invaded the province of the jury. Dr. Courtnay was the physician who examined Tessa's body at the emergency room. He described the body's appearance and the extent of the visible injuries. Over Malicoat's objection he gave his opinion that Tessa's injuries were consistent with intentional abuse rather than accident. We have held that, unless a defendant raises a cognizable defense such as voluntary intoxication or insanity, an expert should not offer an opinion on whether the defendant's actions were intentional.[13] Any error in admitting this testimony was harmless. We recently held that child abuse murder is a general intent crime.[14] Thus, any opinion regarding Malicoat's intent is irrelevant. This proposition is denied. ¶ 12 Malicoat claims in Proposition VIII that the trial court erred in failing to instruct the jury on the lesser included offense of second degree murder. The trial court denied Malicoat's repeated requests for an instruction on second degree depraved mind murder.[15] Malicoat argues this decision was error because (1) second degree depraved mind murder is a lesser included offense of child abuse murder, and (2) he is in any case entitled under settled law to instruction on any degree of homicide supported by the evidence. The State responds that this Court has recently held second degree depraved mind murder is not a lesser included offense of malice murder,[16] and should extend those rulings to child abuse murder. We find this unnecessary.[17] ¶ 13 Evidence did not support an instruction on depraved mind murder. Malicoat claims the evidence showed Tessa's death was the result of an "impulsive outburst of rage" brought on by lack of sleep, stress, and conditioned behavior learned through a cycle of abuse. However, that evidence was presented in second stage. *396 First stage evidence showed Malicoat told officers he did not intend to kill Tessa. However, he admitted biting her in play and anger, hitting her head on the bed rail, and punching her twice in the stomach while she screamed in pain. Medical evidence showed these injuries, especially the head and abdominal injuries, would have been very painful with obvious physical symptoms. Malicoat said Tessa had trouble eating after the head injury and he thought of taking her to a doctor, but did not because he was afraid authorities would take her away. Evidence showed Malicoat was exhausted and upset when he punched Tessa in the stomach, but suggested this was part of a pattern of intentional abuse (including the biting and head injury) rather than an impulsive outburst. Taken as a whole, this does not support a lesser included instruction on depraved mind murder. This proposition is denied. ¶ 14 In Proposition X Malicoat claims Oklahoma's child abuse murder statute is void for vagueness. Malicoat concedes this Court held in Drew v. State[18] that the child abuse murder statute is sufficiently clear and explicit for the understanding of ordinary persons. We decline to revisit this ruling here. We reject Malicoat's contention that the statute is vague as applied to him. We agree that persons of ordinary intelligence may disagree on what "ordinary force" and "unreasonable force" mean in the context of child punishment. However, Malicoat's action in punching Tessa twice in the stomach, hard enough to rip open her internal organs, is exactly the sort of extreme case on which all persons of ordinary intelligence agree. The statute afforded Malicoat fair warning of the nature of the proscribed conduct.[19] This proposition is denied. ISSUES RELATING TO PUNISHMENT ¶ 15 In Proposition XII Malicoat argues the evidence in this case was insufficient to support a sentence of death because the prosecution did not prove that he intended to kill Tessa, intentionally employed lethal force against her, or knowingly engaged in criminal activities known to carry a grave risk of death. In Fairchild[20] this Court held child abuse murder is a general intent crime. Malicoat argues a conviction based on a general intent, or an intent merely to injure, cannot render a defendant death-eligible. He claims that, under the Enmund/Tison[21] formula, to impose the death penalty the jury must find either (1) he intended life be taken or contemplated that lethal force would be used; or (2) he had substantial personal involvement in the underlying felony and exhibited reckless disregard or indifference to the value of human life. The trial court refused Malicoat's requested Enmund/Tison instructions. We found in Fairchild that these instructions are not necessary when the defendant himself "personally, willfully, commits an act which produces an injury upon a child resulting in the death of the child, or uses unreasonable force upon a child resulting in the death of the child."[22] We decline to revisit this finding here. Malicoat admitted hitting Tessa, causing the injuries which resulted in her death. This proposition is denied.[23] ¶ 16 Malicoat argues in Proposition XIII that his death sentence should be vacated because the State relied upon inadmissible, irrelevant and unreliable evidence to support the continuing threat aggravating circumstance. He also argues the remaining evidence was legally insufficient to support this circumstance. For the jury to validly *397 find that the defendant will probably commit criminal acts of violence posing a continuing threat to society, the State must present sufficient evidence of past convictions or unadjudicated crimes to show a pattern of criminal conduct that will likely continue.[24] This Court will uphold the jury's finding if, after reviewing the evidence in the light most favorable to the State, any rational trier of fact could find the charged aggravating circumstance beyond a reasonable doubt.[25] "In other cases in which this Court has found the evidence sufficient to support the continuing threat aggravating circumstance, the State has introduced evidence of prior criminal acts of violence, prior unadjudicated offenses, or evidence of criminal activity occurring after the crime."[26] The most common grounds alleged to prove the continuing threat aggravator include the defendant's history of violent conduct, the facts of the homicide at issue, threats made by the defendant, lack of remorse, attempts to prevent calls for help, mistreatment of family members and testimony of experts.[27] "Any relevant evidence showing the probability that the defendant will commit future acts of violence would support the finding that a defendant will be a continuing threat."[28] To support this circumstance the State relied on the circumstances of the crime and testimony of Toby Malicoat, Malicoat's estranged wife. ¶ 17 Malicoat first complains that Toby Malicoat's testimony was irrelevant, inadmissible and incompetent. Over Malicoat's objection, Toby testified that he did not pay child support, and that he once grabbed her wrist and fractured it during a fight. Toby said shortly before their marriage Malicoat told her he did not like nor want children, and when she became pregnant a month later he said if she did not get rid of the baby that he would when it got here. There was no evidence Malicoat ever harmed that child. Toby said that Malicoat threatened her and her child after he was jailed in this case. Toby's testimony and her interview with a police officer were internally inconsistent and inconsistent with each other. She admitted she said that Malicoat broke her wrist, that he beat her, that he did not beat her but left bruises, and that he never touched her. She did not tell police the story about Malicoat threatening their unborn child. Toby admitted she had bad feelings about Malicoat, because although they never divorced he left her and had a child with another woman. ¶ 18 The contradictions and inconsistencies in Toby Malicoat's testimony do not render it inherently unreliable, but go to the weight of the evidence.[29] The fact Malicoat paid no child support is completely irrelevant to the determination of whether he might commit continuing acts of violence, and should not have been admitted to support this aggravating circumstance. Toby's testimony that Malicoat fractured her wrist constitutes evidence of an unadjudicated crime, and is admissible to show continuing threat. Her testimony about Malicoat's threat to their unborn child, and his threat after being jailed in this case, are relevant to show a pattern of threats of violent conduct made by the defendant. This evidence was properly admitted.[30] ¶ 19 We also disagree with Malicoat's claim that the remaining evidence is insufficient to support this aggravating circumstance. The State relied on (1) Malicoat's brother's opinion that Malicoat was mean enough to have done the crime and liked to beat women; (2) a letter Malicoat wrote a friend, while jailed waiting trial, in *398 which he advised her to tell a third person that he, Malicoat, said to back off or else; (3) evidence that Malicoat had a temper and reacted to situations violently; (4) evidence Malicoat was a danger to children; and (5) the circumstances of the crime, including the intentional nature of the abuse and Malicoat's apparent lack of remorse at the time. Malicoat admits this Court has held the nature of the crime is sufficient to support this aggravating circumstance.[31] This evidence is sufficient to show a pattern of violent criminal conduct likely to continue. This proposition is denied. ¶ 20 Malicoat argues in Proposition XIV that his constitutional rights were violated by the use of inadmissible evidence in support of the especially heinous, atrocious or cruel aggravating circumstance. The especially heinous, atrocious or cruel aggravating circumstance is limited to cases in which the murder was preceded by torture or serious physical abuse.[32] The State must show conscious suffering, and evidence the victim was aware of the attack is sufficient to show torture.[33] We will review the record to see whether any competent evidence supports the jury's finding.[34] To support this aggravating circumstance the State incorporated the first stage evidence. ¶ 21 Malicoat first claims the trial court erred in allowing the medical examiner to testify regarding the pain and suffering Tessa would have experienced as a result of her head and abdominal injuries. Malicoat's repeated objections to this testimony were overruled, and the issue has been preserved for appeal. The medical examiner described the various and extensive internal and external injuries he found on Tessa's body, including injuries to organs with which laypersons are unfamiliar. He said the abdominal injuries were "non-survivable". In his medical opinion, Tessa's symptoms from the injuries would have included brief loss of consciousness, fussy behavior, poor eating, restlessness and eventually sleepiness sliding into a coma. He said the chest injuries would have been quite painful: bruises to the lungs could have caused difficulty breathing, the bruised diaphragm would have made every breath painful, and the broken ribs would have been very painful whenever Tessa breathed or moved. He said the ruptured mesentery and bleeding in the liver and kidneys would have been extremely painful when inflicted, and would have continued to cause cramping and probably a dull aching pain associated with the tearing and gradual loss of blood. This testimony was admissible as expert opinion evidence.[35] The average layperson is unfamiliar or only vaguely familiar with several of the organs injured here. Malicoat vigorously argues elsewhere that a reasonable person could not have known the particular injuries he inflicted would have resulted in Tessa's death. While we reject that argument, we agree that the medical examiner's opinion assisted the jury in determining the effects of the wounds Tessa received. The precise locations and consequences of these injuries are not readily appreciable by any ordinary person without the special skills or knowledge necessary to understand these facts and draw the appropriate conclusions.[36] We disagree with Malicoat's claim that pain is so subjective the medical examiner's opinion amounted to speculation. While the extent to which a particular person feels pain varies, we accept as fact the proposition that certain injuries will cause pain, and that it is possible to determine whether, as a general rule, that pain is more or less severe. This evidence assisted the jury in determining whether Tessa's death was heinous, atrocious or cruel. *399 The trial court did not err in overruling Malicoat's objections and admitting this testimony. ¶ 22 Malicoat also complains of evidence of injuries not contemporaneous with death, including the bites, shoving, pushing and poking. Evidence of biting was relevant because biting was charged in the Information. Evidence Malicoat caused Tessa's head injury by pushing her into the bed rail was relevant because the head injury contributed to her death. Much of the other "evidence" Malicoat complains of was actually contained in the State's closing argument. The trial court did not admit evidence that the abuse continued for nineteen days, although the jury certainly could have inferred that from evidence that was admitted. There was evidence that Malicoat poked Tessa both in anger and at play, and pushed her rather than spanking her, but there was no date given for these incidents. We have held evidence of extreme mental torture occurring before or separate from the events causing death is insufficient to support the heinous, atrocious or cruel aggravating circumstance.[37] However, Malicoat subjected Tessa to a continuing course of conduct, comprising intentional child abuse, which even he agreed could be described as torture. The trial court did not err in admitting this evidence. ¶ 23 The medical examiner testified regarding the extent of pain and suffering Tessa probably experienced as a result of her injuries. Other evidence showed Malicoat engaged in serious physical abuse and torture preceding Tessa's death. Malicoat told officers Tessa was conscious and screamed in pain as he hit her in the stomach, causing non-survivable injuries. Sufficient evidence supports the jury's finding of the heinous, atrocious or cruel aggravating circumstance and this proposition is denied. ¶ 24 Malicoat claims in Proposition XV that the State's reliance upon the same course of conduct to support both his conviction for child abuse murder and the especially heinous, atrocious, or cruel aggravating circumstance does not effectively narrow the class of murders for which the death penalty is appropriate. The State relied on evidence that Malicoat abused Tessa and beat her to death to gain a conviction for child abuse murder. The State introduced the same evidence to support the charge that the murder was especially heinous, atrocious or cruel (see Proposition XIV). Malicoat argues this use of the same evidence to prove guilt and an aggravating circumstance eviscerates the narrowing function necessary before the death penalty may be imposed. In capital cases, the sentencer's discretion must be narrowed by circumscribing the class of death-eligible persons.[38] Malicoat argues that the child abuse murder statute broadens the class of death-eligible homicides by requiring proof of abusive conduct toward a child resulting in death. He claims the proof of torture or serious physical abuse necessary for a murder to be heinous, atrocious or cruel merely duplicates the child abuse requirement of child abuse murder. He suggests that this double use of torture or serious physical abuse is being improperly used to both broaden and narrow the class of death-eligible defendants. ¶ 25 We disagree. Malicoat is incorrect when he claims a conviction for child abuse murder necessarily requires proof of physical abuse or torture. The statute requires only the death of a child resulting from one of several forms of abuse. A defendant may be convicted of child abuse murder although the victim did not consciously suffer before death. As conscious suffering is necessary for a valid finding that a murder is heinous, atrocious or cruel, that aggravating circumstance does not merely duplicate the elements of child abuse murder.[39] Rather, the heinous, atrocious or cruel *400 aggravating circumstance narrows the class of child abuse murders in which defendants are eligible for the death penalty. This proposition is denied. ¶ 26 In Proposition XVI Malicoat claims the trial court's misdefinition of the "especially heinous, atrocious or cruel" aggravating circumstance failed to adequately channel the jury's discretion. Malicoat correctly claims the trial court erred in instructing the jury a finding of "heinous, atrocious or cruel" required "serious abuse" rather than "serious physical abuse". In several recent cases this Court has found this omission to be error not requiring relief under the plain error standard as it does not alter the burden of proof.[40] We will not revisit that determination, but once again urge trial courts to instruct the jury correctly and use the phrase "serious physical abuse". The State argued that Tessa was seriously abused; the evidence, particularly the photographs, clearly showed that the abuse was physical in nature. This proposition is denied. ¶ 27 Malicoat argues in Proposition XVII that the aggravating circumstances in his case fail to narrow the jury's discretion and amount to standardless catch-alls which may be charged in each case. We have repeatedly rejected this claim for both the continuing threat[41] and heinous, atrocious or cruel[42] aggravating circumstances. We refuse the invitation to reconsider these decisions. This proposition is denied. ¶ 28 In Proposition XVIII Malicoat claims the trial court erred in refusing to instruct the jury on the meaning of life imprisonment without the possibility of parole. Malicoat acknowledges we have often held that the phrase is self-explanatory and this instruction is not required.[43] We decline his invitation to reconsider these cases. This proposition is denied. ¶ 29 In Proposition XIX Malicoat claims that mitigating factors outweighed the evidence presented in aggravation and asks this Court to reverse his death sentence. He argues this Court should review the evidence that Malicoat suffered severe and extended emotional and physical abuse as a child, reinforced by a history of abuse in his immediate family, culminating in a learned response pattern that dictated his inappropriate parental responses. The jury was instructed mitigating factors included: Malicoat had no significant history of prior criminal activity; his capacity to appreciate the criminality of his acts or conform his conduct to the law was impaired; he was under the influence of mental or emotional disturbance; he had remorse; he could be rehabilitated; he cooperated with authorities; his age; his emotional and family history, including chronic abuse as a child; and that he had the love and support of his family. We have determined through *401 independent review that the evidence supports the jury's finding of aggravating circumstances.[44] We find no error and will not substitute our own findings for the jury's.[45] In the mandatory sentence review we determine Malicoat's sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor. This proposition is denied. ISSUES RELATING TO BOTH STAGES ¶ 30 In Proposition IV Malicoat claims the prosecutor engaged in improper closing argument in first and second stage. "Both parties have wide latitude in closing arguments to discuss the evidence and reasonable inferences, and this Court will grant relief only where grossly improper and unwarranted argument affects the defendant's rights."[46] Most of the comments were not met with objection and are reviewed for plain error only. Although certain comments were error, and others approached the limits of impermissible argument, we cannot say that the arguments taken as a whole deprived Malicoat of a substantial right or went to the foundation of his defense.[47] This proposition is denied. ¶ 31 Malicoat first complains of the first stage closing argument in which the prosecutor delivered a two-page first-person account of Tessa Leadford's final hours. He made timely objection to this argument, preserving the issue for trial. While theatrical, we do not find this argument overly prejudicial. The prosecutor occasionally speculated as to Tessa's feelings and thoughts. The argument very nearly constitutes an improper solicitation of sympathy for the victim, but is largely based on the evidence presented.[48] The medical examiner testified as to the type and severity of pain probably caused by Tessa's injuries and several witnesses testified about Malicoat's account of Tessa's abdominal injuries and death, including her screams of pain. Taken as a whole, the argument does not manipulate or misstate the evidence and we find no error.[49] ¶ 32 Malicoat complains of several comments made during the second-stage closing. He first argues the prosecutor erred in a lengthy section in which he described Malicoat as a monster and called him evil. This Court has repeatedly looked with disfavor on this sort of name-calling and stated prosecutors should refrain from airing their personal opinions.[50] The State argues the "monster" references were in reply to defense counsel's closing argument question of whether monsters are born or created. While defense counsel used the word, the State's repeated use of the term as applied to Malicoat went beyond anything counsel may have invited. However, the comments do not constitute plain error. ¶ 33 Malicoat claims the prosecutor demeaned his mitigating evidence and misstated the law when he compared Malicoat's mitigating evidence to "excuses", suggested Malicoat was just blaming his family and saying his crime was everybody's fault, asked when Malicoat would accept responsibility for his acts, and told the jury to weigh Malicoat's excuses against his actions. When the jury is properly instructed on mitigating evidence, it is not improper for the State to comment negatively on that evidence.[51] The State's characterization of Malicoat's mitigating *402 evidence as an attempt to blame his family for the cycle of child abuse, which resulted in Tessa's death, is a reasonable inference from the evidence. The prosecutor did not encourage the jury to disregard Malicoat's mitigating evidence and we find no error. ¶ 34 Malicoat correctly argues the State attempted to elicit sympathy for the victim, and gave a personal opinion of his guilt and appropriate punishment. The State argued facts not in evidence, saying Tessa got her name from a (television) angel, and arguing that the family was present for Malicoat but the jury was there for Tessa. The State should refrain from eliciting sympathy for the victim, arguing facts not in evidence, and identifying the jury with the victim.[52] The State also (1) asked what justified the imposition of the death penalty more than the torture of a 13-month-old; (2) said several times Malicoat deserved the harshest possible punishment and nothing less; (3) the only just verdict was a death penalty; and (4) "we" needed the jury to give the death penalty for our system, for justice to Malicoat, and for Tessa. This Court has repeatedly warned prosecutors not to engage in these specific arguments or express personal opinions about the appropriateness of the death penalty.[53] However, these "improper and reprehensible" comments did not deprive Malicoat of a substantial right or go to the foundation of his defense.[54] ¶ 35 In Proposition V Malicoat argues the trial court erred by permitting the State to introduce evidence of other crimes. Malicoat was charged by Information with the child abuse murder of Tessa Leadford on February 21, 1997, specifically stating Malicoat "did physically abuse, strike and bite" the victim. Malicoat filed a Motion in Limine restricting the State from offering evidence of any other abuse than that causing death (the major head and abdominal injuries). Both parties admitted the State failed to file any Burks notice on the evidence of other child abuse. The trial court sustained this motion in part, ruling the State could only offer evidence of other injuries that were caused at the same time and as part of the injuries causing death.[55] Thus, the poking in the chest, miscellaneous bruises and biting were initially ruled inadmissible. In accordance with this ruling the State did not read aloud the part of the Information referring to bite marks in opening statement. The trial court sustained most of Malicoat's objections to pictures and testimony showing evidence of crimes through most of the State's case-in-chief. During one of several in camera hearings on the issue, well into the State's case, the trial court noticed that biting was charged in the Information. Based on this, the trial court ruled that, despite lack of a Burks notice, Malicoat could not claim surprise on this evidence and it would be admitted. The trial court reaffirmed its ruling regarding the injuries other than biting. Thereafter the trial court allowed limited testimony that Malicoat told officers he poked Tessa, and allowed pictures showing bites, bruises from poking, an abrasion to her nose, and a scratch as well as the more serious injuries. The trial court sustained Malicoat's objection to evidence he had abused Tessa since she moved in. ¶ 36 Malicoat first complains the trial court erred in ruling he was not surprised although no Burks notice was filed. The trial court relied on Wisdom v. State,[56] in which we held the purpose of the Burks notice requirement is to ensure against surprise and allow time for the defendant to be *403 heard regarding the other crimes evidence before it goes to the jury. This ruling was not error. Malicoat could not have been surprised by the evidence of biting, since it was charged in the Information. He obviously had the opportunity to be heard on all the other crimes evidence as his motion in limine was sustained in part and several hearings and bench conferences on the issue were held throughout trial. The trial court sustained the objection to evidence of other crimes which were not themselves significant factors in Tessa's death or intertwined with those acts. Malicoat complains that the trial court found only constructive notice under Wisdom without considering the other Burks factors. However, at trial he moved to restrict this evidence on notice grounds and, in second stage, on the grounds this evidence would be improper to support the charged aggravating circumstances. The trial court's ruling conformed to the scope of Malicoat's objection. This offers no reason for us to reconsider Wisdom, as this case says nothing about how Wisdom is applied in conjunction with other Burks issues not raised below. ¶ 37 Both parties waste effort arguing that the other crimes evidence was or was not admissible as part of the res gestae.[57] Evidence showed the incidents of poking, scratching and biting were separate and distinct from the acts of violence which led to Tessa's death. Based on this, the trial court correctly ruled those other crimes were not part of the res gestae of the crime, since they neither contributed to Tessa's death nor were intertwined with acts that did.[58] ¶ 38 The trial court did not err in admitting evidence of biting. The trial court did allow an isolated statement about poking, as well as pictures which incidentally showed a scratch, chest bruises and injury to Tessa's nose as well as the major injuries charged. We are satisfied beyond a reasonable doubt that any error in admitting this evidence did not contribute to Malicoat's conviction or sentence of death.[59] Malicoat admitted engaging in the conduct which resulted in Tessa's death, and the medical evidence showed the nature and extent of her injuries. The jury could have disregarded the improper other crimes evidence and convicted Malicoat of child abuse murder. Similarly, sufficient proper evidence was presented in aggravation to support the jury's finding of death absent any references to improper evidence of other crimes. This proposition is denied. ¶ 39 Malicoat claims in Proposition VII that the trial court erroneously admitted irrelevant and prejudicial evidence in the first and second stages of trial. Relevant evidence tends to make the existence of any fact that is of consequence to the determination of the case more or less probable.[60] Relevant evidence is admissible, but may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, or if it confuses the issues, misleads the jury, causes delay or needless presentation of cumulative evidence, or results in unfair and harmful surprise.[61] A thorough review of Malicoat's claims shows no error in the first stage evidence, and we conclude error in the second stage did not determine the outcome of the case. This proposition is denied. ¶ 40 Malicoat begins Proposition VII by alleging several errors during the first stage of trial. The State attempted to introduce evidence that Malicoat's house was filthy, smelled bad, and had dog feces on the floor and furniture. The trial court initially sustained Malicoat's objections to this evidence, noting this was not a neglect case and evidence of poor housekeeping had no causal connection to Tessa's death. On cross-examination defense counsel asked a police officer *404 whether Malicoat hadn't emphasized his sense of responsibility for taking care of Tessa. The trial court ruled the question of responsibility for the child's care opened the door to the house's condition, and overruled Malicoat's objection to a subsequent question about the state of the house. This was not clearly an abuse of discretion. While the evidence of poor housekeeping was not relevant to the charged offense it was relevant to the suggestion Malicoat accepted his parental responsibilities. ¶ 41 Malicoat complains about evidence that he had a bad temper, along with a picture of a hole he punched in the wall of his bedroom. The evidence shows Malicoat told officers he had a bad temper but tried to keep it under control around Tessa, and knew it was getting the better of him in the week before her death. Malicoat's mother testified that, during a visit shortly before Tessa's death, Tessa clung to her and did not want to go to Malicoat. She also saw Tessa back away when Malicoat tried to feed her. Malicoat's mother said these actions caused her to believe Tessa was afraid of Malicoat. This evidence was within the witness's personal knowledge,[62] and rationally based on her perceptions of the events she saw.[63] However, all this evidence could only be relevant to show whether Malicoat intended to commit child abuse. As child abuse is a general intent crime, this was irrelevant for this issue and should have been excluded.[64] However, we find admission of this evidence did not contribute to Malicoat's conviction or sentence. ¶ 42 Finally, Malicoat complains in first stage about the medical examiner's testimony regarding the probable extent of pain and suffering Tessa experienced as a result of her injuries. Pain is relevant to the jury's determination of use of unreasonable force. ¶ 43 Malicoat also complains in Proposition VII about evidence introduced during the punishment phase. As in the first stage, the trial court allowed a picture of Malicoat's unkempt house to counter his claim that he loved and cared for Tessa. The court also allowed the State to question Malicoat's mother about the condition of the house. The State questioned his mother about, but did not introduce, a picture of a poorly-stocked refrigerator which had no food appropriate for a 13-month-old. She testified Malicoat and Leadford did not have baby food and told her to mind her own business when she gave them advice on how to feed Tessa. Admission of this evidence was not clearly an abuse of discretion. It rebutted the defense characterization of Malicoat as a loving and concerned father. ¶ 44 Over Malicoat's objection the State introduced a photograph of Tessa taken two months before her death. Photographs of live victims are generally inadmissible, as they are irrelevant to any issues at trial.[65] This picture was irrelevant and should not have been admitted, and the State's use of it in closing argument compounded the error. However, we conclude beyond a reasonable doubt that admission of this picture did not contribute to Malicoat's death sentence. ¶ 45 Malicoat finally complains about two categories of improper evidence. Toby Malicoat was allowed to state that Malicoat failed to pay child support. This was irrelevant to any second stage issue and could only serve to prejudice Malicoat further in the eyes of the jurors. However, this isolated comment did not unduly prejudice Malicoat given the other evidence presented in aggravation. The State asked two successive questions to elicit a witness's opinion on whether Malicoat intentionally abused Tessa. The witness, an experienced investigator, answered "yes" both times before the trial court ruled on Malicoat's objections. This apparent example of bad-faith questioning did not determine the verdict. The trial *405 court sustained each objection, and admonished the jury once, curing the error.[66] ¶ 46 In Proposition IX Malicoat claims the trial court erred in admitting photographs of the victim. Malicoat objected to the admission in first stage of four photographs of Tessa taken at the emergency room. The trial court ruled at a motions hearing and again at trial that the photos were more probative than prejudicial. "Photographs of a corpse may be admissible, among other reasons, to show the nature, extent and location of wounds, to show the crime scene, or to corroborate the medical examiner's testimony."[67] The admission of photographs is within the trial court's discretion.[68] The photographs corroborate the medical testimony and show the nature, extent and location of Tessa's wounds. The photographs aided the jury in determining whether to believe Malicoat's claim that he did not realize he was inflicting serious and potentially deadly injuries. The trial court did not abuse its discretion in admitting these pictures. ¶ 47 Malicoat also claims the State improperly used the photographs during second stage closing argument. The prosecutor held up a photograph of Tessa while alive and compared it with the four post-mortem photos. We have already determined it was error to use the picture of Tessa while alive, and found that error requires no relief (see Proposition VII). However, the use of photos of Tessa's corpse was within the bounds of permissible argument. We find no error. This proposition is denied. ¶ 48 Malicoat claims in Proposition XI that he was denied effective assistance of counsel. In order to show ineffective assistance, Malicoat must show that counsel's performance was so deficient he did not have counsel as guaranteed by the Sixth Amendment, and his defense was prejudiced as a result of counsel's deficient performance by errors so serious as to deprive him of a fair trial with reliable results.[69] There must be a reasonable probability that, absent errors, the sentencer would conclude the balance of aggravating and mitigating circumstances did not support a sentence of death.[70] Counsel must act as an advocate and subject the State's case to adversarial testing.[71] Malicoat must overcome the strong presumption that counsel's conduct fell within a wide range of reasonable professional assistance and equaled sound trial strategy.[72] This Court will consider whether, viewing counsel's challenged conduct on the facts of the case as seen at the time, it was professionally unreasonable; if so, we will ask whether the error affected the jury's judgment.[73] The question is not whether the outcome would have been different absent counsel's actions, but whether the result of the proceeding was fundamentally unfair or unreliable.[74] ¶ 49 Malicoat first argues counsel was ineffective for failing to present a defense. Counsel neither made an opening statement nor presented evidence in the first stage of trial, but conducted vigorous cross-examination of State witnesses. In Proposition I we rejected Malicoat's claim that the trial court's announced order of trial induced ineffective assistance of counsel. We also reject his claim that counsel was ineffective for failing to give an opening statement and present evidence. On the record, counsel described the strategic decision to refrain from offering a defense after hearing the *406 State's evidence. We will not second-guess this apparently sound strategic decision.[75] The record shows counsel had intended to present an expert witness who would testify that Malicoat's history of abuse altered his perception of his own actions, and that he did not intend to injure or kill Tessa. The trial court had not ruled on whether this evidence would be admitted in first stage. As child abuse murder is a general intent crime, this evidence would be irrelevant to any first stage issue, and counsel cannot be ineffective for failing to present it.[76] ¶ 50 Malicoat argues that counsel failed to investigate his medical history and effectively prepare his medical expert. Appellate counsel asserts trial counsel should have discovered Malicoat's history of seizures. Counsel claims that this information would have changed the medical expert's diagnosis and potential first stage testimony. He argues this information could have been used in support of an instruction on second degree depraved mind murder. We have determined Malicoat was not entitled to an instruction on second degree murder. In addition, general information that Malicoat had suffered from seizures would not have entitled him to that instruction without some evidence that he suffered from a seizure while committing the acts of child abuse which resulted in Tessa's death. As Malicoat was not entitled to an instruction on second degree murder, he cannot show he was prejudiced by counsel's failure to use this information in first stage. Similarly, we find no prejudice in the absence of this information during second stage. We cannot agree with Malicoat's claim that counsel failed to present significant mitigating evidence. On the contrary, counsel presented a thorough and comprehensive picture of Malicoat's personal and family history, concentrating on his experience of severe abuse and resulting personality transformation. Appellate counsel has not shown the addition of evidence Malicoat suffered from seizures would have led the jury to conclude the balance of aggravating circumstances and mitigating factors did not support death. ¶ 51 Malicoat finally complains counsel was ineffective for failure to object to instances of prosecutorial misconduct. We determined in Proposition IV that some comments constituted error, but did not go to the foundation of Malicoat's case or take from him a substantial right. Failure to object to improper but nonprejudicial tactics does not amount to ineffective assistance.[77] ¶ 52 In summary, we will not second-guess counsel's strategic decision regarding first-stage evidence. We find Malicoat was not prejudiced by counsel's failure to find or use information regarding his past history of seizures. Counsel was not ineffective for failing to object to errors in the State's argument. This proposition is denied.[78] ¶ 53 Finally, in Proposition XX Malicoat claims he is entitled to relief due to the accumulation of error in the case. Malicoat has raised no issue which individually or in accumulation requires relief. We have determined that any individual errors were either cured or did not affect a substantial right or go to the foundation of Malicoat's defense. There is no cumulative error,[79] and this proposition is denied. MANDATORY SENTENCE REVIEW ¶ 54 In accordance with 21 O.S. 1991, § 701.13(C), we must determine (1) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and (2) whether the evidence supports the jury's finding of aggravating circumstances. Upon review of *407 the record, we cannot say the sentence of death was imposed because the jury was influenced by passion, prejudice, or any other arbitrary factor contrary to 21 O.S.1991, § 701.13(C). ¶ 55 The jury was instructed on and found the existence of two aggravating circumstances: (1) that the murder was especially heinous, atrocious or cruel, and (2) the existence of a probability that Malicoat would commit criminal acts of violence constituting a continuing threat to society. Malicoat presented evidence that he did not intend the victim's death, and that he suffered severe and extended emotional and physical abuse as a child. The jury was instructed on nine mitigating factors (see Proposition XIX). Upon our review of the record, we find the sentence of death to be factually substantiated and appropriate. ¶ 56 Finding no error warranting modification, the judgment and sentence of the District Court of Grady County is AFFIRMED. JOHNSON, J.: concurs. LUMPKIN, V.P.J., and LILE, J.: concur in results. STRUBHAR, P.J.: dissents. STRUBHAR, Presiding Judge, Dissenting: ¶ 1 In the recent case of Fairchild v. State, 1999 OK CR 49, ¶¶ 28 & 51, 992 P.2d 350 (opinion on rehearing), this Court chose to disregard established precedent and hold that child abuse and child abuse murder are general intent crimes requiring nothing more than a purpose or willingness to commit the act of abuse. Additionally, the Fairchild court erroneously concluded that a general intent crime is death eligible without any culpability instructions or assessment. Fairchild, 1999 OK CR 49, at ¶ 100, 992 P.2d 350. Inasmuch as the majority relies on these Fairchild holdings to dispose of the claims raised in the instant appeal, I must dissent. Consequently, I remain steadfast in my opinion that the specific intent to injure is an element of child abuse murder including child abuse murder committed by the willful use of unreasonable force. See Fairchild v. State, 1998 OK CR 47, 965 P.2d 391, 403 (Lane, J. dissenting joined by Strubhar, V.P.J.) (opinion withdrawn, 1999 OK CR 30, 992 P.2d 349, 1999 WL 604317 (1999)). See also Grady v. State, 1997 OK CR 67, 947 P.2d 1069; Bannister v. State, 1996 OK CR 60, 930 P.2d 1176; Hockersmith v. State, 1996 OK CR 51, 926 P.2d 793. I further believe a culpability assessment is required to maintain the constitutional validity of child abuse murder as a capital offense. As I stated on rehearing in Fairchild: the better solution is to follow our established precedent holding child abuse murder is a specific intent crime and avoid the culpability problem altogether. Barring the return to our prior holdings that child abuse murder is a specific intent crime, child abuse murder under 21 O.S.1991, § 701.7(C) can pass constitutional muster as a capital offense only if it is combined with our statutory aggravating circumstances (none of which concern the defendant's culpability for the murder) and the culpability requirements of Enmund/Tison.[[1]] Combining these factors in assessing punishment reasonably justifies the imposition of the more severe sentence of death on the defendant vis a vis others found guilty of murder thereby satisfying Zant.[[2]] Fairchild, 1999 OK CR 49, at ¶ 10, 992 P.2d 350 (Strubhar, P.J., dissenting). ¶ 2 As the majority relies on the erroneous holdings of Fairchild, I dissent. LUMPKIN, Vice-Presiding Judge: Concur in Results. ¶ 1 I concur with the Court's decision to affirm the conviction and death sentence in this case, however, I write separately to address the following issues. ¶ 2 In Proposition VI addressing expert witness testimony, the scope of expert testimony *408 is limited as set forth in White v. State, 973 P.2d 306, 314-15 (Okl.Cr.1998) (Lumpkin, J. specially concur). Further, Dr. Courtnay's opinion testimony went to the cause of the victim's injuries, not Appellant's guilt or innocence. Therefore, no error occurred. Revilla v. State, 877 P.2d 1143, 1150 (Okl.Cr. 1994), cert. denied, 513 U.S. 1096, 115 S.Ct. 764, 130 L.Ed.2d 661 (1995). ¶ 3 In Proposition XII, an Enmund/Tison analysis does not apply to Appellant's case as he was the actual perpetrator and the findings in Enmund and Tison concerned non-triggerman co-defendants. This is a significant distinction which renders the death qualifying language of Enmund and Tison inapplicable. See Wisdom v. State, 918 P.2d 384, 395 (Okl.Cr.1996). This finding is consistent with Cabana v. Bullock, 474 U.S. 376, 386, 106 S.Ct. 689, 697, 88 L.Ed.2d 704, 716 (1986), wherein the Supreme Court stated the Eighth Amendment is not violated by the execution of a person who "in fact killed, attempted to kill, or intended to kill." Id. The Oklahoma Constitution does not impose a higher standard than the Federal Constitution regarding the holdings of Enmund or Tison. ¶ 4 Addressing the sufficiency of the evidence to support the aggravator "especially heinous, atrocious or cruel" in Proposition XIV, this Court has found the mental torture experienced by the victim prior to the murder sufficient to support the aggravator. Hawkins v. State, 891 P.2d 586, 597 (Okl.Cr. 1995); Revilla, 877 P.2d at 1155. In reviewing the evidence offered in support of this aggravator, we look for proof that the death was preceded by torture or serious physical abuse. Revilla, 877 P.2d at 1155. This includes evidence which shows the infliction of either great physical anguish or extreme mental cruelty. Hain v. State, 919 P.2d 1130, 1146 (Okl.Cr.), cert. denied, 519 U.S. 1031, 117 S.Ct. 588, 136 L.Ed.2d 517 (1996). In the present case, the mental anguish experienced by the victim as a result of Appellant's repeated instances of abuse constituted extreme mental cruelty and is sufficient to support the mental torture aspect of the aggravator. ¶ 5 Finally, in footnote 78 the Court summarily denies the Application for Evidentiary Hearing on Sixth Amendment Grounds. In the application Appellant asserts that counsel was ineffective for not adequately developing and presenting Appellant's mental health history by failing to present: 1) testimony from Dr. Murphy at either stage of trial; 2) testimony from family members with knowledge of Appellant's history of seizures; and 3) testimony from Dr. Hopewell that Appellant suffered from organic brain damage. Appellant also argued trial counsel was ineffective in failing to: 1) present witnesses to rebut the continuing threat aggravator; 2) rebut the testimony of Toby Malicoat; 3) present witnesses showing that Appellant would not be a continuing threat in prison; and 4) present other mitigating witnesses. ¶ 6 Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (1998) allows an appellant to request an evidentiary hearing when it is alleged on appeal that trial counsel was ineffective for failing to "utilize available evidence... which could have been made available during the course of trial." Once an application has been properly submitted along with supporting affidavits, this Court reviews the application to see if it contains "sufficient evidence to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence." Rule 3.11(B)(3)(b)(i). While Appellant has provided a great deal of information in the affidavits accompanying his application, he has failed to set forth sufficient evidence to warrant an evidentiary hearing. He has failed to show by clear and convincing evidence a strong possibility that defense counsel was ineffective for failing to utilize or identify the complained-of evidence. While Appellant may have a history of seizures, the record is void of any evidence that his actions were caused by or related to a seizure. Accordingly, I would decline to grant Appellant's application for an evidentiary hearing. ¶ 7 I am authorized to state that Judge Lile joins in this concur in result. NOTES [1] Malicoat was tried in January 1998. His first trial, in September 1997, ended in a mistrial after four days of voir dire examination. [2] Jackson v. State, 1998 OK CR 39, 964 P.2d 875, 883, cert. denied, 526 U.S. 1008, 119 S.Ct. 1150, 143 L.Ed.2d 217 (1999). We have affirmed the importance of trial courts' discretion in use of time management techniques and jury questionnaires in Cohee v. State, 1997 OK CR 30, 942 P.2d 211. [3] Cheney v. State, 1995 OK CR 72, 909 P.2d 74, 84; Cannon v. State, 1995 OK CR 45, 904 P.2d 89, 97, cert. denied, 516 U.S. 1176, 116 S.Ct. 1272, 134 L.Ed.2d 219 (1996). [4] Walker v. State, 1994 OK CR 66, 887 P.2d 301, 307, cert. denied, 516 U.S. 859, 116 S.Ct. 166, 133 L.Ed.2d 108 (1995); Mitchell v. State, 1994 OK CR 70, 884 P.2d 1186, 1195, cert. denied, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995). [5] Walker, 887 P.2d at 307. [6] Salazar v. State, 1996 OK CR 25, 919 P.2d 1120, 1127 (Court will review entirety of juror's voir dire examination when reviewing a challenge for cause). [7] Knighton v. State, 1996 OK CR 2, 912 P.2d 878, 885, cert. denied, 519 U.S. 841, 117 S.Ct. 120, 136 L.Ed.2d 71. [8] Fitzgerald v. State, 1998 OK CR 68, 972 P.2d 1157, 1170. [9] Cannon, 904 P.2d at 98. [10] Porter v. State, 1983 OK CR 100, 666 P.2d 784, 786; Brown v. State, 50 Okl.Cr. 103, 297 P. 303, 305 (1931). [11] See, e.g., Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) (state may not impose per se rule against hypnotically refreshed evidence which prevents defendant from meaningful testimony); Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972) (state statute may not require defendant to testify first before calling other defense witnesses); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) (state may not forbid compulsory process for defense to call co-defendant or accomplice as witness). Malicoat also directs us to Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975). In Herring the United States Supreme Court found a state statute allowing the trial court to prohibit the defendant from making closing argument violated the Sixth Amendment right to effective counsel. The Court reasoned that the persuasive summation called for in closing argument was an important step in the adversarial process. Herring was specifically limited to closing argument. We find that opening statements, in which argument is not appropriate, do not serve the same purpose as closing argument, and are not persuaded by the analogy to Herring. [12] Hammon v. State, 1995 OK CR 33, 898 P.2d 1287, 1306; Ruckman v. State, 1954 OK CR 159, 276 P.2d 278, 279. [13] White v. State, 1998 OK CR 69, 973 P.2d 306, 311; Hooks v. State, 1993 OK CR 41, 862 P.2d 1273, 1278-79, cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 490 (1994). But see Revilla v. State, 1994 OK CR 24, 877 P.2d 1143, 1150, cert. denied, 513 U.S. 1096, 115 S.Ct. 764, 130 L.Ed.2d 661 (1995) (any error invited where qualified emergency room doctor, on re-cross examination, gave opinion child's injuries were "non-accidental trauma"). [14] Fairchild v. State, 1999 OK CR 49, 70 OBJ 3659, 3662, 992 P.2d 350, 357-358. 1999 WL 1138585. I dissented on this issue in Fairchild. [15] In reaching this conclusion the trial court conducted a version of the "strict elements" test, which requires a commonality of elements between the charged offense and the lesser included offense, except that the lesser included is missing an element existing in the charged offense. The trial court inexplicably found that depraved mind murder included all elements of child abuse murder except one, but was not a lesser included offense of child abuse murder. Although the trial court appears to have reasoned backwards, we will not disturb the result. [16] Welch v. State, 1998 OK CR 54, 968 P.2d 1231, 1241; Willingham v. State, 1997 OK CR 62, 947 P.2d 1074, 1081-82, cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998), overruled in part by Shrum v. State, 1999 OK CR 41, 991 P.2d 1032. [17] This Court has held that depraved mind murder is, in some cases, a lesser included offense of child abuse murder. Evans v. State, No. F-97-1215, April 8, 1999 (not for publication). However, I do not believe the evidence in this case supported an instruction for depraved mind murder. We need not decide whether Malicoat was entitled to this instruction as a matter of law. I note this Court recently held that child abuse murder is a general intent crime. Fairchild, 70 OBJ at 3662, 992 P.2d at 357-358, 1999 WL 1138585. Using the Fairchild analysis, one might conclude that second degree depraved mind murder cannot be a lesser included offense of child abuse murder; common sense shows a lesser included offense should not have an intent element greater than that of the charged offense. [18] 1989 OK CR 1, 771 P.2d 224, 228. [19] State v. Johnson, 1992 OK CR 72, 877 P.2d 1136, 1140; Howard v. City of Tulsa, 1986 OK CR 5, 712 P.2d 797, 798. [20] 70 OBJ at 3662, 992 P.2d at 357-358, 1999 WL 1138585. [21] Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). These cases set forth the minimum findings of intent or personal culpability necessary before capital punishment may be imposed. [22] Fairchild, 70 OBJ at 3673, 992 P.2d at 370, 1999 WL 1138585. [23] I believe an Enmund/Tison determination is necessary where the finding of guilt does not require a finding of personal culpability. See Fairchild, 70 OBJ at 3678-79, 992 P.2d at 375-377, 1999 WL 1138585 (Chapel, J., dissenting). [24] Ochoa v. State, 1998 OK CR 41, 963 P.2d 583, 603, cert. denied, 526 U.S. 1023, 119 S.Ct. 1263, 143 L.Ed.2d 358 (1999). [25] Salazar, 919 P.2d at 1123. [26] Ochoa, 963 P.2d at 603. [27] Charm v. State, 1996 OK CR 40, 924 P.2d 754, 762-63, cert. denied, 520 U.S. 1200, 117 S.Ct. 1560, 137 L.Ed.2d 707 (1997); Cannon, 904 P.2d at 106. [28] Charm, 924 P.2d at 763. [29] Ochoa, 963 P.2d at 596. [30] I continue to maintain that unadjudicated offenses should not be used to support this aggravating circumstance. See Hooper v. State, 1997 OK CR 64, 947 P.2d 1090, 1107 n. 55, cert. denied, 524 U.S. 943, 118 S.Ct. 2353, 141 L.Ed.2d 722 (1998). I yield my view to that of the majority. [31] Hooper, 947 P.2d at 1107. This Court has looked with disfavor on the use of the circumstances of the crime to support this aggravating circumstance. Perry v. State, 1995 OK CR 20, 893 P.2d 521, 536. I have disagreed with the use of circumstances of the crime to support this aggravating circumstance. Cannon, 904 P.2d at 106, n. 60. However, I yield my view to that of the majority. [32] Cheney, 909 P.2d at 80. [33] Le v. State, 1997 OK CR 55, 947 P.2d 535, 550, cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998). [34] Cheney, 909 P.2d at 80. [35] 12 O.S.1991, § 2702. [36] Gabus v. Harvey, 1984 OK 4, 678 P.2d 253, 255. [37] Cheney, 909 P.2d at 81-82. But see Hawkins v. State, 1994 OK CR 83, 891 P.2d 586, 597, cert. denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995) (mental torture during kidnapping preceding murder sufficient to support aggravating circumstance). [38] Zant v. Stephens, 462 U.S. 862, 878-79, 103 S.Ct. 2733, 2743-44, 77 L.Ed.2d 235 (1983). [39] For this reason we agree Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988) does not apply. There, the United States Supreme Court upheld a sentence of death where an aggravating circumstance exactly duplicated the elements of the offense, finding the narrowing function necessary for death-eligibility occurred at the guilt, rather than sentencing, phase. [40] Miller v. State, 1998 OK CR 59, 977 P.2d 1099, 1112-13; Turrentine v. State, 1998 OK CR 33, 965 P.2d 955, 975, cert. denied, 522 U.S. 1079 119 S.Ct. 624, 142 L.Ed.2d 562; Mollett v. State, 1997 OK CR 28, 939 P.2d 1, 14, cert. denied, 522 U.S. 1079, 118 S.Ct. 859, 139 L.Ed.2d 758 (1998); Johnson v. State, 1996 OK CR 36, 928 P.2d 309, 318; Richie v. State, 1995 OK CR 67, 908 P.2d 268, 278, cert. denied, 519 U.S. 837, 117 S.Ct. 111, 136 L.Ed.2d 64 (1996). [41] Cummings v. State, 1998 OK CR 45, 968 P.2d 821, 836, cert. denied, 526 U.S. 1162, 119 S.Ct. 2054, 144 L.Ed.2d 220 (1999); Bryan v. State, 1997 OK CR 15, 935 P.2d 338, 365, cert. denied, 522 U.S. 957, 118 S.Ct. 383, 139 L.Ed.2d 299; Malone v. State, 1994 OK CR 43, 876 P.2d 707, 715-16. [42] Cannon v. State, 1998 OK CR 28, 961 P.2d 838, 855; Le, 947 P.2d at 552-53. [43] See, e.g., Mollett, 939 P.2d at 11. I have consistently stated that the jury should be informed of the meaning of life without parole. See, e.g., Ochoa, 963 P.2d at 605 n. 100; Mollett, 939 P.2d at 15 (Chapel, J., concurring in result); Johnson, 928 P.2d at 321 (Chapel, J., specially concurring); Smallwood v. State, 1995 OK CR 60, 907 P.2d 217, 239, cert. denied, 519 U.S. 980, 117 S.Ct. 431, 136 L.Ed.2d 330 (1996) (Chapel, J., specially concurring); McGregor v. State, 1994 OK CR 71, 885 P.2d 1366, 1383 n. 59, cert. denied, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995) (concurring by reason of stare decisis). Our error in failing to require instruction as to the meaning of life without parole is of constitutional magnitude and has, in my judgment, resulted in death sentences for many who would otherwise have received the life without parole sentence. [44] Le, 947 P.2d at 551. [45] Bryan, 935 P.2d at 365. [46] Le, 947 P.2d at 554. [47] 20 O.S.1991, § 3001.1. [48] Hooper, 947 P.2d at 1110. [49] Darden v. Wainwright, 477 U.S. 168, 181-82, 106 S.Ct. 2464, 2471-72, 91 L.Ed.2d 144 (1986). [50] See, e.g., Le, 947 P.2d at 555 (State should refrain from unwarranted personal criticism or name-calling); Hammon, 898 P.2d at 1307 (prosecutor jeopardized case by arguing defendant was a thief, robber, possessor of stolen property, and murderer). [51] Hamilton v. State, 1997 OK CR 14, 937 P.2d 1001, 1010-11, cert. denied, 522 U.S. 1059, 118 S.Ct. 716, 139 L.Ed.2d 657 (1998). See also Le, 947 P.2d at 555 (argument that mitigating evidence does not show defendant's innocence is irrelevant and improper personal opinion, but does not tell jury to disregard mitigating evidence). [52] Powell v. State, 1995 OK CR 37, 906 P.2d 765, 776-77, cert. denied, 517 U.S. 1144, 116 S.Ct. 1438, 134 L.Ed.2d 560 (1996); Pickens v. State, 1993 OK CR 15, 850 P.2d 328, 342, cert. denied, 510 U.S. 1100, 114 S.Ct. 942, 127 L.Ed.2d 232 (1994). [53] Le, 947 P.2d at 555; McCarty v. State, 1988 OK CR 271, 765 P.2d 1215, 1220; Brown v. State, 1988 OK CR 59, 753 P.2d 908, 913. [54] Harjo v. State, 1994 OK CR 47, 882 P.2d 1067, 1076, cert. denied, 514 U.S. 1131, 115 S.Ct. 2007, 131 L.Ed.2d 1007 (1995). [55] The State never fully understood this ruling, continually returning to a time line. The trial court repeatedly emphasized that the ruling had nothing to do with when any injuries occurred, but focused on whether the injuries contributed to Tessa's death. [56] 1996 OK CR 22, 918 P.2d 384, 393. [57] The State appears to misunderstand the law on res gestae, directing this Court to a series of cases regarding election of offenses for child sexual abuse. These are completely irrelevant to whether the other crimes here were closely connected to the charged offenses. [58] Rogers v. State, 1995 OK CR 8, 890 P.2d 959, 971, cert. denied, 516 U.S. 919, 116 S.Ct. 312, 133 L.Ed.2d 215. [59] Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). [60] 12 O.S.1991, § 2401. [61] 12 O.S.1991, §§ 2402, 2403. [62] 12 O.S.1991, § 2602. [63] 12 O.S.1991, § 2701. [64] Fairchild, 70 OBJ at 3662, 992 P.2d at 357-358, 1999 WL 1138585. I would find this evidence properly admitted as it is relevant on the issue of intent to commit child abuse. [65] Cargle v. State, 1995 OK CR 77, 909 P.2d 806, 830, 835, cert. denied, 519 U.S. 831, 117 S.Ct. 100, 136 L.Ed.2d 54 (1996). [66] Turrentine, 965 P.2d at 974. [67] Livingston v. State, 1995 OK CR 68, 907 P.2d 1088, 1094. [68] Le, 947 P.2d at 548. [69] Hooper, 947 P.2d at 1111; Bryan, 935 P.2d at 361; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). [70] Bryan, 935 P.2d at 361. [71] United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 2045, 80 L.Ed.2d 657 (1984). [72] Bryan, 935 P.2d at 361; LaFevers v. State, 1995 OK CR 26, 897 P.2d 292, 306, cert. denied, 516 U.S. 1095, 116 S.Ct. 820, 133 L.Ed.2d 763 (1996). [73] Hooper, 947 P.2d at 1111; McGregor, 885 P.2d at 1381. [74] Lockhart v. Fretwell, 506 U.S. 364, 369-70, 113 S.Ct. 838, 842-43, 122 L.Ed.2d 180 (1993). [75] Bryan, 935 P.2d at 363. [76] Fairchild, 70 OBJ at 3662, 992 P.2d at 357-358, 1999 WL 1138585. I continue to maintain that child abuse murder is a specific intent crime, and believe evidence of intent would be relevant to defend against that charge. However, I believe counsel's decision not to present this evidence was sound strategy, given the evidence of intent already before the jury. [77] Valdez v. State, 1995 OK CR 18, 900 P.2d 363, 388, cert. denied, 516 U.S. 967, 116 S.Ct. 425, 133 L.Ed.2d 341. [78] Malicoat's Application for Evidentiary Hearing, filed March 1, 1999, is DENIED. [79] Bryan, 935 P.2d at 365-66. [1] Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). [2] Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983).

266 S.W.2d 804 (1954) ALFORD v. STATE. No. 4760. Supreme Court of Arkansas. March 15, 1954. Rehearing Denied and Dissenting Opinion Filed April 26, 1954. *805 Wiley A. Branton, Pine Bluff, for appellant. Tom Gentry, Atty. Gen., Thorp Thomas, Asst. Atty. Gen, for appellee. GEORGE ROSE SMITH, Justice. The appellant was convicted of rape and was sentenced to death. In our opinion there are two errors in the record which entitle the appellant to a new trial. Although it is contended that the evidence is insufficient to support the verdict we find this contention to be without merit. The prosecutrix, Mrs. Morman, testified that shortly after midnight on May 26, 1953, Alford entered the isolated railroad building in `which she was working as a telegrapher. When he revealed his purpose Mrs. Morman gave him her watch and money in the hope of dissuading him, but Alford threatened her with a hunting knife, dragged her from the building, and raped her. Two residents in the vicinity heard Mrs. Morman's screams. A physician who examined'her later in' the night "foVihd bruises on many parts of her body and s'emen within the vaginal tract The'watch was later found irt Alford's home. The defendant did not testify. We regard the testimony as' ample to support the conviction. We think, however, that the court was in error in failing to inform the jury of its option to impose either the death sentence or life imprisonment. Since this option lies entirely with the jury the court is under the affirmative duty of bringing the matter to the jury's attention, even though that action is not requested by the accused. Webb v. State, 154 Ark. 67, 242 S.W.' 380; Smith v. State, 205 Ark. 1075, 172 S.W.2d 248,249. In the case at bar the penalty for rape was not mentioned in the court's instructions. Nor is it shown that, when the forms of verdict were given to the jury by the court, any oral explanation of the forms was made. Two of these forms provided for a finding of guilty on the charge of rape, one fixing the punishment at death and the other at life imprisonment. It is of course possible—it is perhaps quite probable —that the members of the jury so thoroughly discussed these forms that each juror understood his choice in the matter.' But it' is also possible that the alternative punishments were not discussed and that all the jurors did not examine the forms. ` In the latter case it might be impossible to discover the error, for jurors cannot impeach their verdict. In a matter of such grave imp6rtance we think that even the possibility of misunderstanding should be avoided. The court should explain the penalties to the jury as a whole, so that the record will disclose with certainty that the information was received by all the jurors. Second, a Mrs. Austin was permitted to' testify that on a night during the first half' of May the defendant, by the use of a gun, forced her husband and her from their car, took her to a vacant house nearby, and attempted to rape her, although he at last yielded to her entreaties and desisted without having accomplished his purpose. The court instructed the jury, in substance, that *806 Alford could not be convicted upon Mrs. Austin's testimony, that evidence having been admitted only to show design, particular intention, knowledge, or good or bad faith. The appellant insists that the admission of this testimony was prejudicial error.-The State contends that proof of a recent offense of a similar nature is competent. This question of introducing proof of other offenses in criminal cases has been considered by us on more than a hundred occasions. In reviewing these opinions one notices that the results reached in the various cases have been harmonious to a high degree. There have occasionally been dicta that went beyond the requirements of the case under consideration, and with so many decisions to choose from it is of course possible to pluck sentences from their factual background and in that way to advance a plausible argument supporting either the reception or the exclusion of evidence concerning almost any prior offense. But when each statement of law is weighed in its, own, setting of fact the opinions may be readily reconciled with one another. No one doubts the fundamental rule, of exclusion, which, forbids, the prosecution, from;proving the commission of one crime; by proof of the commission of another. The State is not permitted to adduce evidence; of, other, offenses for the purpose of persuading, the jury that the accused is a criminal and is therefore likely to be guilty of the charge under investigation. In, short, proof of other crimes is never admitted when its only relevancy is to show that the prisoner is a man of bad character, addicted to crime. The rule Itself has been announced in some fifty decisions of this court and is so familiar that we need not discuss at length the reasons for its acceptance by every English and American court. Basically, the rule rests upon that spirit of fair play which, perhaps more than anything else, distinguishes Anglo-American law from the jurisprudence of other nations. Our theory is simply that a finding of guilty should rest upon proof, beyond a reasonable doubt, that the accused committed the exact offense for which he is being tried. We do not permit the State to bolster its appeal to the jury by proof of prior convictions, with their conclusive presumption of verity, and still less is there reason to allow the jury to be prejudiced by mere accusations of earlier misconduct on the part of the defendant. If the accused has committed other crimes, each may be examined separately in a court of law, and punishment may be imposed for those established with the required certainty. In this way alone can we avoid the elements of unfair surprise and undue prejudice that necessarily attend trial by accusation in place of trial upon facts demonstrated beyond a reasonable doubt. The rule is designed' to protect the innocent, but it is often invoked as a basis for excluding any evidence that tends to show the commission of another offense. We have repeatedly rejected unfounded appeals to the protection of the basic rule of exclusion. If other conduct on the part of the accused is independently relevant to the main issue—relevant in thcsense of tending to prove some material point rather than merely to prove that the defendant is a criminal—then evidence of that conduct may be admissible, with a proper cautionary instruction by the court. `"While the principle is usually spoken of as being an exception to the general rule, yet, as a matter of fact, it is not an exception;' for it is not proof of other crimes as crimes, but merely evidence of other acts which are from their nature `competent as showing knowledge, intent, or design, although they may be crimes, which is admitted. In other words, the fact that evidence shows the defendant was guilty of another crime does not prevent it being admissible when otherwise it would be competent on the issue under trial." State v. Dulaney, 87 Ark. 17, 112 S.W. 158, 160. Although, as stated in the above quotation, the instances of admissibility are not really exceptions to the exclusionary principle, most courts, including this one, have often found it convenient to catalogue examples of competent testimony as exceptions to the general rule of inadmissibility. The only disadvantage in this approach is *807 the possibility that incompetent evidence may be admitted under the guise of an exception or that competent proof may be ruled out for want of an exception that seems to fit the case. Stone, The Rule of Exclusion of Similar Fact Evidence: America, Si Harv.L.Rev. 988. The State contends that evidence of recent similar offenses is admissible in criminal cases. While that broad statement has appeared in a few opinions, it must on each occasion be read in context. Taken as a whole, our decisions do not support the view that the sole test of competency is the recency of the other offense and the similarity of its nature. Indeed, if that test were applied woodenly in each case the result would be to deprive the accused of much of the protection that the rule is intended to afford. Superficially similar to the case at bar are those decisions holding that in trials for incest or carnal abuse the State may show other acts of intercourse between the same parties. Adams v. State, 78 Ark. 16, 92 S.W. 1123; Williams v. State, 156 Ark. 205, 246 S.W. 503, 504. But obviously such testimony is directly relevant to the question at issue. As stated in the Williams case, such prior acts of intercourse show "the relation and intimacy of the parties, their disposition and antecedent conduct towards each other," and for that reason the evidence aids the jury in determining whether the offense was committed on the particular occasion charged in the indictment. Again, where the charge involves unnatural sexual acts proof of prior similar offenses has been received. Hummel v. State, 210 Ark. 471, 196 S.W.2d 594; Roach v. State, Ark., 262 S.W.2d 647. Such evidence shows not that the accused is a criminal but that he has "a depraved sexual instinct," to quote Judge Parker's phrase in Lovely v. United States, 4 Cir, 169 F.2d 386. Perhaps the most frequent resort to evidence of recent similar offenses occurs in the cases involving guilty knowledge. In such cases good faith would be a defense to the charge; the vital issue is whether the defendant knew his conduct to be wrongful. For example, it is not a crime to pass a forged check in the belief that it is genuine, but the same conduct is criminal when done with knowledge that the instrument is bogus. Since it is highly improbable that an innocent man would repeatedly come into possession of forged' checks, proof of recent similar offenses bears directly on the issue of guilty knowledge. In this category fall cases involving' forgery, counterfeiting, false pretenses, knowledge that an establishment is a gambling house, and many other situations. Cain v. State, 149 Ark. 616, 233 S.W. 779; Holden v. State, 156 Ark. 521, 247 S.W. 768; Mc-Coy v. State, 161 Ark. 658, 257 S.W, 386; Norris v. State, 170 Ark. 484, 280 S.W. 398; Wilson v. State, 184 Ark. 119, 41 S.W.2d 764; Sibeck v. State, 186 Ark. 194, 53 S.W. 2d 5. We need not take the time to review in detail the cases in which proof of other recent similar offenses is competent under other so-called exceptions to the general rule, as to show motive, Shufneld v. State, 120 Ark. 458, 179 S.W. 650, to rebut the plea of an alibi, Nash v. State, 120 Ark. 157, 179 S.W. 159, to prove the transaction as a whole, Autrey v. State, 113 Ark. 347, 168 S.W. 556, and so forth. The present case centers upon proof offered to show intent; so we turn to representative decisions on that point. The issue of intent is theoretically present in every criminal case, and for that reason it is here that we are most apt to overlook the basic requirement of independent relevancy. Professor Stone, in the article cited above, has cogently demonstrated how easy it is to reason in this manner: Evidence to prove intent is admissible, and since the present case involves intent the proof should be received. 51 Harv.L.Rev. 988, 1007. What has happened is that the emphasis has shifted from evidence relevant to prove intent to evidence offered for the purpose of proving intent, by showing that the defendant is a bad man. If this transfer of emphasis is permitted the exclusionary rule has lost its meaning. *808 Many of the cases involving intent are similar to those involving guilty knowledge, in that guilt involves a specific mental atti, tude on the: part of the defendant. For example, burglary is more than the mere breaking and entering, of the premises; the defendant must have intended to commit a felony therein. We have therefore held that, when the accused contended that his wrongful entry was a mere trespass without felonious purpose, the State could show that the defendant had on other occasions broken into the, same, store and committed larceny. Camp v. State, 144 Ark. 641 (mem.), 215 S.W. 170. The recent similar offense was directly pertinent to the issue of intent. "Similarly, upon a charge of unlawful possession of morphine the defendant contended that she `had the drug lawfully for her own use, upon a doctor's prescription. We held that the State could show that she also-had in her possession a quantity of cocaine, as bearing upon the question of whether the morphine was being kept for her own use or for Sale or administration to others. Starr v. State, 165 Ark. 511, 265 S.W. 54. Again, where the issue was whether the accused had burned a car to collect insurance,: proof that he had burned Other insured vehicles was competent. Casteel v. State, 205, Ark. 82, 167 S.W.2d 634. The same reasoning was followed in Jenkins v. State, 191 Ark. 625, 87 S.W.2d 78. A specific intent was involved in Davis v. State, 109 Ark. 341, 159 S.W. 1129, 1130. The statutory definition of a vagrant included a person going from place to place for the purpose of gaming. `The State was rightly'' allowed to prove that the defendant had gambled in other counties. "We think such testimony was competent, not for the purpose, of proving the commission of the same offense in another county, but to show the purpose of his wanderings, whether to pursue a lawful avocation or to habitually engage in the pursuit of gambling." The clause we have italicized states plainly enough that a recent similar offense is not for that reason alone competent. Quite evidently this category includes the many charges of assault with intent to commit a specified crime, for here the State must prove not merely the assault but also that it was made with a certain intent. Hence, since the accused's purpose is at issue, proof of other similar offenses is independently relevant. Stone v. State, 162 Ark. 154, 258 S.W. 116;, Hearn v. State, 206 Ark. 206, 174 S.W,2d 452; Gerlach v. State, 217 Ark. 102, 229 S.W.2d 37; Wigmore on Evidence (3rd Ed.), § 357. On the other hand, the reception of proof of recent similar offenses is prejudicial error when the evidence has no true relation to the issue of intent. In two of our cases the charge Was theft of horses, and the State was allowed to prove closely contemporaneous thefts of saddles or bridles. Both convictions were reversed and sent back for a new trial. Dove v. State, 37 Ark. 261; Endaily v. State, 39 Ark. 278. See also Mays v. State, 163 Ark. 232, 259 S.W. 398; Yelvington v. State, 169 Ark. 359, 275 S.W. 701. In Morris v. State, 165 Ark. 452, 264 S.W. 970, a conviction for assault with intent to kill was reversed because the State had been allowed to prove prior offenses by the accused, the State's theory being that these offenses tended to show the accused's motive in shooting at police officers. Judge Frank Smith put his finger on the point when he said: "There was no question about the motive of appellant in shooting at the officers." Thus our cases very plainly support the common-sense conclusion that proof of other offenses, is competent when it actually sheds light on the defendant's intent; otherwise it must be excluded. In the case at bar it seems to us idle to contend that there was any real question about Alford's intent, concerning which the jury needed further enlightenment. See Wigmore, § 357. If Alford overpowered his victim and ravished her, it is a quibble to contend that perhaps he intended something other than rape. The jury's problem was to determine whether the acts described by the prosecutrix took place; if so, their motivation *809 is not open to doubt. The earlier attack upon Mrs. Austin could have no conceivable pertinence except to brand Alford as a criminal, which is just what the State is not allowed to do. Williams v. State, 183 Ark. 870, 39 S.W.2d 295. Nor could this deadly prejudice be removed by the instruction confining Mrs. Austin's testimony to the issue of intent. If her evidence had no permissible relevancy to that issue, and we think it had none, then the jury could obey the instruction only by disregarding the evidence altogether—a result that is more surely accomplished by excluding the testimony in the first place. It is not without regret that we send this cause back for a new trial. But the issue goes to the very heart of fairness and justice in criminal trials; we cannot conscientiously sustain a verdict that may have been influenced by such prejudicial testimony. Reversed. GRIFFIN SMITH, C. J, and MILWEE, J., dissent. McFADDIN, J., dissents in part. On Petition for Rehearing. GEORGE ROSE SMITH, Justice. In connection with a petition for rehearing the State asks leave to amend the record by showing that the trial court in fact instructed the jury with respect to the alternative penalties for the crime of rape, this instruction having been omitted from the record by error. If this were the only reason for remanding the case for a new trial a ruling upon this motion would be necessary, as in Morton v. State, 208 Ark. 492, 187 S.W.2d 335; but since a new trial is necessary in any event we find it unnecessary to pass upon the State's, motion. See Smith v. State, 205 Ark. 1075, 172 S.W. 2d 248, 249. Rehearing denied. McFADDIN, Justice `(dissenting). 1. Failure to Instruct on Life Imprisonment I agree that the record in this case fails to show that the Jury was instructed regarding life imprisonment; and this case, on that point, is ruled by the cases of Webb v. State, 154 Ark. 67, 242 S.W. 380, and Smith v. State, 205 Ark. 1075, 172 S.W.2d 248, 249. Therefore, I am convinced we should do here as we did in the cited cases; and this should be our direction, as quoted from Webb v. State, supra 154 Ark. 67, 242 S.W. 384: "The sentence of death * * * will be set aside, and the sentence reduced to imprisonment for life in the state penitentiary at hard labor, unless the Attorney General elects within two weeks to have the judgment reversed' and the cause remanded for a new trial." II. Proof of Other Acts of a Similar Nature But I most earnestly dissent from all that part of the majority opinion which holds that the Trial Court committed error in admitting evidence of Alford's attempt to rape Mrs. Austin. Such evidence was entirely competent under the Instruction given by the Trial Court, as hereinafter quoted. The majority opinion correctly states that the prosecution in any criminal case cannot pr6ve the commission of the crime in question by the proof of the commission of other offenses of a similar nature; but such was not attempted to be done in the case at bar. That the evidence of the attack on Mrs. Austin was not admitted for such purpose is clearly shown by the instruction which the Trial Court gave to the Jury,'and which reads: "The Court has admitted testimony of another offense similar to the one charged in the information. You will not be permitted to convict the defendant upon such testimony. Evidence of another similar offense, if you believe another has been proven, is admitted solely for the purpose of Showing design, *810 particular intention, knowledge, good or bad faith, and you should consider such evidence for this purpose and for this purpose alone. The defendant is not on trial for any offense except the alleged offense against Mrs. Morman and the defendant cannot be convicted on Mrs. Austin's testimony of another possible offense." The majority opinion says: "If other conduct on the part of the accused is independently relevant to the main issue—relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal—then evidence of that conduct may be admissible, with a proper cautionary instruction by the Court." The instruction copied above shows that a "proper cautionary instruction" was given in the case at bar. The majority opinion admits that in some cases, proof of other acts of a similar nature is admissible as bearing on the "knowledge, intent, or design"; and the majority opinion cites at least eight situations in which other acts of a similar nature have been held to be admissible by our cases. I take these eight situations and cases from citations in the majority opinion: 1. "* * * in trials for incest or carnal abuse the State may show other acts of intercourse between the same parties. Adams v. State, 78 Ark. 16, 92 S.W. 1123; Williams v. State, 156 Ark. 205, 246 S.W. 503, 504." 2. "Again, where the charge involves unnatural sexual acts proof of prior similar offenses has been received. Hummel v. State, 210 Ark. 471, 196 S.W.2d 594; Roach v. State, Ark, 262 S.W.2d 647." 3. "* * * in the cases involving guilty knowledge * * * cases involving forgery, counterfeiting, false pretenses, knowledge that an establishment is a gambling house, and many other situations. Cain v. State, 149 Ark. 616, 233 S.W. 779; Holden v. State, 156 Ark. 521, 247 S.W. 768; McCoy v. State, 161 Ark. 658, 257 S. W. 386; Norris y. State, 170 Ark. 484, 280 S.W. 398; Wilson v. State, 184 Ark. 119, 41 S.W.2d 764; Sibeck v. State, 186 Ark. 194, 53 S.W.2d 5." 4. In those cases "* * * in that guilt involves a specific mental attitude on the part of the defendant * * *. Camp v. State, 144 Ark. 641 (mem.), 215 S.W. 170. The recent similar offense was directly pertinent to the issue of intent." 5. * * * possession a quantity of cocaine, as bearing upon the question of whether the morphine was being kept for her own use or for sale or administration to others. Starr v. State, 165 Ark. 511, 265 S.W. 54." 6. "Again, where the issue was whether the accused had burrted a car to collect insurance, proof that he had burned other insured vehicles was competent. Casteel v. State, 205 Ark. 82, 167 S.W.2d 634." 7. "The State was rightly allowed to prove that the defendant had gambled in other counties * * * to show the purpose of his wanderings, * * *." Davis v. State, 109 Ark. 341, 159 S.W. 1129. 8."* * * the many charges of assault with intent to commit a specified crime * * * Since the accused's purpose is at issue, proof of other similar offenses is independently relevant. Stone v. State, 162 Ark. 154, 258 S.W. 116; Hearn v. State, 206 Ark. 206, 174 S.W.2d 452; Gerlach v. State, 217 Ark. 102, 229 S.W, 2d 37". ' Now, in the above eight numbered categories, I have quoted directly from the majority opinion to show cases in which the majority opinion admits that evidence of other similar offenses was admissible in each instance. I submit that when the majority admits—as it has—that in the eight categories above, the evidence of other similar acts was admissible, then the majority cannot be heard to say—with any degree of consistency—that the evidence of a similar attempted rape was not admissible in the case at bar. In category 2 above, the majority admits that "where the charge involves unnatural *811 sexual acts proof of prior similar offenses has been received". I submit that rape falls in the same category as that quoted, because rape is forced sexual intercourse. In Needham v. State, 215 Ark. 935, 224 S.W.2d 785, in discussing rape and unnatural sexual intercourse, this Court (speaking through the writer of the majority opinion in the present case), said: "The argument now is that the accused may be a sexual pervert (he was so characterized by one witness for the defense) who did not either intend or accomplish an act of intercourse. The patent answer to this suggestion is that the proof still does not show the possibility of an assault with intent to rape; for one can intend to commit rape only if he intends to have sexual intercourse with his victim." Thus, in the Needham case, the words were "for one can intend to commit rape only if he intends to have sexual intercourse with his victim". (Italics our own.) The quoted language from the Needham case constitutes judicial recognition that intent has been recognized as being involved in the offense of rape. So, if "other acts of a similar nature" are admissible where intent is involved, then I fail to see why the attack on Mrs. Austin was not admissible in the case at bar': it was certainly another act of a similar nature to show the intent with which the appellant attacked Mrs. Morman, for which act he was being tried. Further, I point out that when the defendant was being tried for rape in the case at bar, he was also being tried for assault with intent to rape. At defendant's request, the Court gave Instruction No. 4, which reads: "The crime of assault with intent to rape is embraced in the information charging the crime of rape; whoever shall feloniously, wilfully, and with malice aforethought assault any person with intent to commit a rape shall on conviction thereof be imprisoned in the penitentiary not less than three nor more than twenty-one years." Now the majority opinion says in its category 8, (supra), that in cases Of assault with intent to commit a specific crime "* * * proof of other similar offenses is independently relevant". Appellant asked the Court to instruct the Jury on the crime of assault with intent to rape. How can the majority say, in the face of appellant's requested Instruction which was given, that evidence of other similar offenses was not admissible on the issue of intent? I submit that the majority opinion shows that the testimony about the attack on Mrs. Austin was correctly admitted by the Trial Court. Because I entertain the views herein expressed, I respectfully dissent.

277 F.Supp.2d 1169 (2003) SOUTHERN UTAH WILDERNESS ALLIANCE, et al., Plaintiffs, v. Gale NORTON, et al., Defendants. No. 2:02-CV-01118 PGC. United States District Court, D. Utah, Central Division. August 22, 2003. *1170 *1171 *1172 *1173 Heidi J. McIntosh, Stephen H.M. Bloch, Salt Lake City, UT, Susan D. Daggett, James S. Angell, Keith G. Bauerle, Denver, CO, for Plaintiffs. Carlie Christensen, Shawn Welch, Salt Lake City, UT, L. Poe Leggette, Brett *1174 Sumner, Washington, DC, J. Mark Ward, Salt Lake City, UT, for Defendants. ORDER AND OPINION CASSELL, District Judge. In this appeal, plaintiffs Southern Utah Wilderness Alliance, National Resources Defense Council, and The Wilderness Society (collectively "SUWA") challenge the BLM's October 4, 2002 Finding of No Significant Impact ("FONSI") and approval of Veritas DGC Land's proposal to conduct oil and gas exploration in the Uintah Basin (the "Veritas Project"). There are now three motions before the court: (1) defendant-intervenor Veritas' Motion to Supplement the Record (Doc. # 54-1); (2) the Federal Defendants'[1] Motion to Strike Extra-Record Evidence (Doc. # 69-1); and (3) SUWA's appeal of the BLM's FONSI on the Veritas Project. For the reasons explained below, the court GRANTS Veritas' Motion to Supplement, GRANTS IN PART and DENIES IN PART the Federal Defendants' Motion and DENIES SUWA's request to set aside the BLM's approval of the Veritas Project. Introduction The Veritas Project covers approximately 1.9 million acres, or 3,168 square miles, but directly affects 381 acres of land.[2] This land is located in what is commonly called the "Book Cliffs" region.[3] The purpose of the Project is to "determine the potential for occurrence of oil and gas resources in the Project area and to identify areas where drilling wells would have higher probability of finding commercial quantities of hydrocarbons than if such seismic data were unavailable."[4] The Project includes conducting two-dimensional seismic exploration along 17 seismic lines totaling approximately 457 miles.[5] The Project requires the identification of several locations for the seismic lines, but requires Veritas DGC (the entity performing the exploration) to avoid areas that are "environmentally sensitive."[6] Once the intervals are identified, shot-holes of approximately 330 feet long and 60 feet deep will be drilled.[7] Travel along the seismic lines will be completed within a 10-foot wide vehicle corridor created for the Project.[8] Drilling will be achieved by a number of different methods, depending on the nature and accessibility of the terrain where the holes are to be drilled.[9] After drilling is completed, a recording crew will lay out the cable and geophones to record the seismic data.[10] The holes will then be shot consecutively and the data recorded by walking crews.[11] In those areas affected by the Project, the BLM has developed two plans that govern land use decisions: the Book Cliffs Resource Management Plan and Environmental Impact Statement ("BCRMP") and the Diamond Mountain Resource Area Resource *1175 Management Plan and Environmental Impact Statement ("DMRMP"). These plans both authorize exploration as long as certain environmental conditions are met. The record reflects that there have been previous environmental impacts on the land caused by road and oil and gas development. On August 27, 2001, Veritas filed a Notice of Intent ("NOI") to obtain authorization to conduct oil and gas exploration in Uintah County with the BLM's Vernal Field Office ("BLM VFO").[12] After several months of analyzing the Project, allowing for public comments, and consulting with interested government agencies (such as the Fish and Wildlife Service and the Environmental Protection Agency), the BLM approved a FONSI and authorized the Veritas Project.[13] In doing so, the BLM evaluated two alternatives: the Project as proposed by Veritas and a "noaction" alternative.[14] The BLM concluded that the environmental impact of the Project would be minimal, and would "not appreciably add to the expected disturbance from previous oil and gas activities, grazing, recreation, and other uses in the area."[15] As part of the Project's authorization, the BLM imposed several conditions designed to minimize potential impacts. For example, the BLM required vehicles to drive slowly and not use chains that would likely cause surface ruts. It further required Veritas to hand-rake any ruts that would occur from carrying out the Project's purpose.[16] Signs of vehicle tracks must be covered within 50 feet of existing roads or trails to limit off-road or other recreational-use vehicles,[17] and shot-holes must be back-filled and plugged.[18] The BLM also specified time limits on the detonation of explosives so as not to interfere with the migration or birthing patterns of several animal species.[19] Similar mitigation measures were required to protect migratory birds and sensitive plant species indigenous to the area.[20] Despite these precautions, SUWA alleges that the BLM's approval of the Project violated federal law by failing to fully analyze the Project's environmental impacts. As explained below, the court rejects this contention. I. Veritas' Motion to Supplement the Record Before addressing the merits of SUWA's appeal, the court must consider Veritas' and the Federal Defendants' evidentiary motions. First, the court grants Veritas' motion to supplement the record (Doc. # 54-1) with photographs and other documents that have come into existence after the Project began. However, the court will only consider these materials to the extent that they demonstrate whether the BLM's evaluation of the remedial measures at issue was right or wrong. The Tenth Circuit has held that where "evidence comes into existence after the agency acted demonstrates the actions were right or wrong,"[21] the court may look to *1176 such evidence. Here, SUWA challenges the defendants' use of allegedly speculative mitigation measures. The post-decision evidence sheds light on this issue. In making this ruling, the court is mindful that the circumstances warranting consideration of extra-record materials are extremely limited. Moreover, the two cases cited by Veritas[22] to support its motion did not allow extra-record materials. However, the extra-record information at issue in those cases was of a different nature than at issue here. In those cases, the Tenth Circuit refused to allow "references in the briefs filed by industry petitioners to documents and reports not in the record,"[23] outside newspaper articles, a draft of a Generic EIS for Air Force Altitude Flying Operations, and other materials.[24] This type of evidence is wholly different than the type of evidence at issue in this case: on-the-ground, physical evidence, (including photographs) that shed light on whether the BLM appropriately evaluated the mitigation measures. On this basis, the court distinguishes these cases. The court notes that this ruling applies equally to all parties; therefore, evidence that demonstrates that the BLM acted appropriately in evaluating the remedial measures will be admitted along with evidence that it did not. At the April 9, 2003 hearing, the court invited SUWA to submit its own evidence to counter the defendants' evidence, which the court has now received and considered. II. Federal Defendants' Motion to Strike Extra-Record Evidence In the second evidentiary motion, the Federal Defendants ask this court to strike six exhibits from the record (Doc. # 69-1). For the reasons explained below, the court GRANTS the motion in part. A. SUWA's Exhibit 6 and 11 The court DENIES the motion to strike the maps attached as Exhibits 6 and 11 to SUWA's opening brief. However, these maps will be used for only two purposes: (1) as a graphic depiction of information already in the record, such as the location of seismic lines and the approximate Project boundary; and (2) to "adequately explain" the BLM's actions by illustrating the locations of pending and producing wells.[25] B. SUWA's Exhibit 10 The court GRANTS the motion to strike Exhibit 10, which is an EPA letter dated October 29, 2002. SUWA argues that it should be admitted since "the record is deficient because the agency ignored relevant factors it should have considered in making its decision."[26] SUWA argues that this letter provides evidence that the BLM did not adequately address the EPA's concerns. However, this letter is dated October 29, 2002-25 days after the October 4, 2002 BLM decision at issue was given. While it may be true that this letter reiterates unresolved concerns from the EPA's September 9, 2002 letter, SUWA can adequately address the EPA's comments by referencing the EPA's September 9, 2002 letter that is properly in the record. The court will not supplement the record to include the EPA's comments written after the BLM issued its FONSI. Therefore, the court strikes this letter *1177 from the record and will not consider it further. C. Veritas' Exhibit 1 The court DENIES the motion to strike Exhibit 1 — a map detailing seismic line configuration for the Project. However, the court will only review this exhibit for two limited purposes: 1) as an illustration of information already in the record, such as the location of existing oil and gas fields and wells; and 2) to "adequately explain" the BLM's actions by illustrating the locations of pending and producing wells.[27] D. Veritas' Exhibit 3 For the reasons stated above, the court DENIES the motion to strike Veritas' Exhibit 3 — which are the same photographs and other documents that the court considered in Veritas' Motion to Supplement the Record. As explained above, the court will consider these materials only to the extent that they demonstrate whether the BLM's evaluation of the remedial measures at issue was right or wrong. E. Veritas' Exhibit 4 The court GRANTS the motion to strike Exhibit 4 — which is Rick Trevino's Affidavit, describing the sequence of the Project. The court finds that this case is not so complex and the record is not so unclear that this Affidavit is necessary to enable the court to understand the issues at hand. For these reasons, the court GRANTS IN PART and DENIES IN PART the Federal Defendants' Motion to Strike (Doc. # 69-1). III. Appeal of the BLM's Finding of No Significant Impact on the Veritas Project In this appeal, SUWA argues that the BLM's approval of the Veritas Project violated the National Environmental Protection Act ("NEPA") and the National Historic Preservation Act ("NHPA") in several ways.[28] First, SUWA alleges that the BLM violated NEPA by failing to sufficiently consider alternative proposals to the Veritas Project. Second, SUWA alleges that the BLM violated NEPA by failing to analyze the Project's indirect effects on soils, vegetation, wildlife, and archeological resources. Third, SUWA claims that the BLM failed to take into account the "cumulative effects" of the Project on soils, vegetation and wildlife, when considered in combination with other Projects occurring in and around the Project area. Fourth, SUWA alleges that the BLM violated NEPA by incorrectly relying on various mitigation measures designed to lessen environmental impacts in the Project area. Fifth, SUWA contends that the BLM violated the NHPA by failing to complete the requirements of Section 106 of that Act. Sixth, SUWA argues that the BLM violated the NHPA by arbitrarily narrowing the "Area of Potential Effects." Finally, SUWA argues that the BLM acted arbitrarily and capriciously by failing to properly assess the adverse effects on historic properties in and around the Project. Because of these alleged defects in the BLM's analysis, SUWA asks this court to remand the Project's Environmental Assessment ("EA") for further study, and the stop the Project until this study is completed.[29] For the reasons stated below, the court DENIES SUWA's request. *1178 Standard of Review Under the Administrative Procedures Act ("APA"), the court may overturn an agency's administrative decision only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law."[30] This is a narrow and deferential standard, and the "court is not empowered to substitute its judgment for that of the agency."[31] As explained by the Tenth Circuit, federal courts "are limited to determining whether the agency substantially complied with statutory and regulatory procedures, whether substantial evidence supports its factual determinations, and whether its action was an abuse of discretion."[32] An agency's legislative interpretation may be disregarded only when it is contrary to the plain and unambiguous statutory language, or if it is not a permissible interpretation of ambiguous statutory language.[33] Moreover, an "agency's interpretation of its own regulations, including its procedural rules, is entitled to great deference."[34] Finally, agency decisions are entitled to a presumption of regularity,[35] and the burden of proof is on SUWA, who is challenging the agency's decision.[36] A. The BLM did not Violate NEPA SUWA alleges that the BLM violated NEPA on four grounds: (1) by inadequately considering the range of alternatives in an independent analysis; (2) by inadequately analyzing the Project's indirect effects; (3) by inadequately analyzing the Project's cumulative effects; and (4) by relying on speculative mitigation measures in issuing its FONSI. For the reasons explained below, the court finds that the BLM did not violate NEPA in issuing its FONSI and approving the Project. 1. The BLM's Analysis Independently and Adequately Considered a Reasonable Range of Alternatives The court finds that the BLM conducted an adequate independent analysis of the proposed Project and that SUWA has failed to show that the BLM failed to consider reasonable alternatives. SUWA first challenges the FONSI on the basis that the BLM failed to conduct its own evaluation of the proposed Project. Under NEPA, the BLM must "independently evaluate" applicant-prepared NEPA documents, and make its "own evaluation" of the environmental issues discussed therein.[37] Here, the BLM resource specialist reviewed the proposed Project,[38] prepared independent reports,[39] reviewed multiple drafts of the EA,[40] and consulted various federal and state agencies and members of the public to determine the Project's impact.[41]*1179 The court finds that these efforts constitute a sufficient independent evaluation under NEPA. SUWA next contends that the BLM failed to adequately consider reasonable alternatives to the Project. Under NEPA, the range of alternatives that an agency must consider is narrower when the agency has found (as the BLM found here) that a Project will not have a significant environmental impact.[42] The law requires the BLM to only consider reasonable alternatives, which are limited to those that SUWA has shown will accomplish the purpose of the Project.[43] In this case, the Project's purpose is to: determine the potential for the occurrence of oil and gas resources in the underlying formations and to identify areas where drilling wells would have a higher probability of finding commercial quantities of hydrocarbons than if such seismic data were unavailable.[44] In its letter dated September 3, 2002, SUWA advised the BLM of several alternatives that the BLM should have considered. SUWA wrote that to "comply with the letter and spirit of NEPA, the EA must fully analyze at least the following additional alternatives: (1) using shot-holes on existing roads and trails; (2) the use of existing seismic data in place of the proposed action; (3) not conducting any seismic activities in proposed wilderness areas; and (4) limited exploratory drilling."[45] The BLM acknowledged receiving SUWA's letter, but submits that SUWA has not and cannot meet its burden of demonstrating that these alternatives are feasible in light of the Project's purpose.[46] The court agrees with the BLM on this point. At the April 9, 2003 hearing, SUWA acknowledged that its strongest argument is that the BLM should have considered the first alternative: limiting seismic exploration to existing roads and trails. However, SUWA has failed to demonstrate that using existing roads, which are not straight, meets the Project's purpose, which requires configuring shot-holes in straight lines at 330-foot intervals. Instead, SUWA points to a recent case, SUWA v. Norton,[47] where the District Court for the District of Columbia held that the BLM was not permitted to rely on an applicant's self-serving statement that keeping to existing roads would not meet the Project's purposes.[48] However, the D.C. case is distinguishable on two grounds. First, in that case, the BLM was faced with a public comment that specifically questioned the accuracy of evidence that the project's goals could not be met by using existing roads and trails.[49] Specifically, the BLM in that case had not questioned the statements of the project's applicants and reasoned that it was "justified in relying upon the admittedly self-serving statements of the applicant because [he] was a scientist."[50] In contrast, *1180 the BLM in this case was not faced with a specific challenge to evidence that existing roads could be used and still meet the Project's goals. Rather, the BLM was only faced with the general statement that this option should be considered. Second, the D.C. case is distinguishable because there the court specifically noted that "the public commenter asserted that he had twenty years of experience with seismic mapping and that he was well acquainted with seismic equipment, terminology, and survey methods."[51] In stark contrast, SUWA has not asserted any such expertise. On these two bases, the D.C. case is distinguishable. Accordingly, the court finds that, in this case, SUWA has not met its burden of showing that its proposed alternatives are feasible or that the BLM improperly rejected these alternatives as impractical. In terms of the remaining three alternatives, the court finds that SUWA has failed to meet its burden of establishing that any of these alternatives are reasonable considering the Project's objectives. SUWA failed to cite anything in the Administrative Record from which the court could conclude that the BLM's assessment not to analyze these alternatives was inaccurate, ill-considered, or otherwise in violation of the law.[52] Accordingly, the court finds that it was sufficient under NEPA for the BLM to analyze the proposed Project and the no-action alternative.[53] 2. The BLM Adequately Analyzed the Reasonably Foreseeable Indirect Effects of the Project SUWA next alleges that the BLM failed to take a "hard look" at the environmental consequences of the Project by failing to analyze the indirect effects of increased recreational offhighway vehicle ("OHV") use on sensitive species and other resources.[54] SUWA bears the burden of pointing to record evidence to dispute the reasonableness of the BLM's analysis.[55] Here, the court finds that SUWA has not met its burden. The record contains evidence that the BLM considered the reasonably foreseeable impacts of increased OHV use in the Project area and properly concluded that such impacts were not significant. In determining whether a proposed action will have significant impacts, the federal regulations and case law make clear that this court must consider both the context of the impacts as well as their intensity.[56] Thus, an impact that could be significant in isolation may be insignificant when compared to other impacts in the affected locale.[57] The applicable regulations and case law also make clear that while agencies must consider the indirect effects of a proposed action that are "reasonably foreseeable," they need not consider "highly speculative or indefinite" potential effects.[58] Thus, the BLM is under no duty to speculate about all conceivable impacts *1181 of the Project, but must only evaluate its reasonably foreseeable effects.[59] In this case, the EA and the DR/FONSI considered the reasonably foreseeable impacts of increased OHV use, and concluded that such impacts were not significant in light of the scope of the Project, the existing uses of the Project area, and the mitigation measures put in place. a. Soils, Vegetation and Archaeological Sites The EA recognizes that the Project will likely cause certain impacts to biological soil crusts, vegetation, and archaeological sites. However, SUWA alleges that the EA does not sufficiently analyze the extent of these indirect effects and thus the BLM could not reasonably conclude that they are insignificant.[60] After reviewing the parties' briefs, the administrative record, and the relevant law, the court finds that the EA adequately considered the scope of the Project, the existing uses in the Project area, and the mitigation measures, and properly concluded that both the Project's impacts and the impacts of subsequent OHV use would be insignificant. To begin, the BLM described the environment affected by the Project and by subsequent OHV use.[61] As to soils, the EA states that most soil surfaces in the Project area that receive direct sunlight are likely to have a biological soil crust, but that such crusts would not be present or would be present in areas that have been previously disturbed.[62] As to vegetation, the EA identifies the different types of vegetation in the Project area and the effects of a four-year drought on vegetation.[63] Finally, as to archeological resources, the EA identifies the location of fossils within the Project area in relation to specific seismic lines.[64] After identifying the affected environment for soils, vegetation and archeological resources, the EA discusses the Project's potential impacts on these three resources.[65] Regarding the potential impacts on soils and vegetation, the EA states that the Project will result in surface disturbance caused by truck-and-buggy-mounted drills and other types of vehicles,[66] and that such surface disturbances will result in increased soil erosion and sediment yields, increased soil compaction, loss of soil and vegetative productivity, and the long-term loss of soil crusts.[67] The EA also states while impacts to vegetation in areas where heli-portable drilling can be utilized will be minimal,[68] in areas where drilling will be done by using truck-and-buggy-mounted drills and ATVs, there will be crushing and flattening of grass, forb, and shrub species. Regarding the potential impacts on archaeological resources, the BLM again acknowledges that since vehicles associated with the Project will drive through the Project area, there will likely be some palentological resources inadvertently damaged.[69] Although the EA acknowledges these various disturbances, it goes on to require several mitigation measures designed to *1182 minimize these impacts. Specifically, the BLM required that all signs of vehicle tracks must be removed by raking out tread imprints and restoring tracks to their original contours, that soil compacted during the Project must be hand-raked, that certain areas must be seeded with a mixture of native plants, that waterbars must be constructed where appropriate, and that seismic lines must be closed to vehicle travel with signs and barricades as necessary.[70] For archaeological reasons, the DR/FONSI requires that a qualified paleontologist either survey two segments along seismic line 14 to collect fossils and related locational data, or accompany the seismic and support crews during the drilling phase of the Project along that seismic line and advise crews on avoidance of archaeological resources.[71] After reviewing the Project's effects in light of these mitigation measures, the BLM concluded that the Project's effects on soils, vegetation, and archaeological resources are insignificant. The BLM reached this conclusion after considering the substantive comments it received, the current information on the rate of recovery of cryptobiotic crusts and soils and vegetation from humancaused disturbances,[72] the BLM's previous observations of the recovery of soils and vegetation from another geophysical exploration Project in the area,[73] and the past, present, and future impacts in the Project area from authorized uses of this land (including oil and gas exploration and drilling, mining, livestock grazing, on-and-off-road vehicle use, and other recreation).[74] Based on this information, the BLM issued its DR/FONSI for several reasons. For one thing, the amount of surface disturbance is very small in comparison to the Project area — only 0.02%.[75] Also, the impacts to biological soil crusts will be further limited to only those areas where biological crusts occur — which is only a portion (the exact percentage is unknown to the BLM at this time) of the area generally affected by the Project.[76] Moreover, the vegetation affected by the Project is expected to recover. The grasses and forbs are expected to recover within one to three years following the surface disturbance, and the shrub species are expected to recover within three to five years following surface disturbance, or longer if existing drought conditions continue. For smaller stature red shrubs, such as the Wyoming sagebrush, the crushing of plants combined with four years of drought, is expected to result in a high probability of mortality.[77] In addition, while the impacts of subsequent OHV use is acknowledged, the EA concludes that this impact is insignificant given the current level of OHV use within the Project area, the potential for increased OHV use in the area regardless of the Project, and the mitigation measures put in place. Specifically, the EA reports that registration and sales for ATVs and dirt bikes increased 294% in the State of Utah in the last five years. Further, approximately 34,000 machines were registered in Utah in 1997 and over 100,000 were registered in 2001.[78] This increase in *1183 the area of the state encompassing the Project has been confirmed through recent monitoring conducted by the Utah Division of State Parks and the BLM's Vernal Field Office.[79] Moreover, 60% of the Project's land is currently open to cross-country OHV use.[80] Hunting by use of pickup trucks and ATVs already totals approximately 4,000 user days (any portion of a calendar day) per year.[81] Further, travel routes exist through the Project area as a result of continued oil and gas development, wood cutters, sheep herders, recreationists and fire fighting crews.[82] Consequently, although the possibility exists that some of the Project's seismic lines could lead to new travel routes for OHVs in the future, travel routes already exist throughout the Project area and could increase regardless of the Project. Moreover, the mitigation measures required by the DR/FONSI would further limit unwanted OHV use in sensitive areas and prevent the proliferation of unwanted OHV trails by prohibiting cross-country travel between seismic lines during the acquisition of seismic data, obliterating OHV trails associated with the Project where they cross existing roads and trails, and installing additional signs or barriers to prevent future OHV travel on routes used during geophysical operations.[83] After reviewing the BLM's analysis of the Project's affected area, the potential impacts on this area, and the minimizing effect of certain mitigation measures, the court finds that SUWA has failed to demonstrate that the BLM's FONSI regarding soil, vegetation, and archaeological sites violated NEPA.[84] In reaching this conclusion, the court is unpersuaded by SUWA's argument that the Environmental Protection Agency's ("EPA") warning that indirect impacts from the Project should be expected due to the increase in OHV use in the Uintah Basin is a basis for reversing the BLM's FONSI. NEPA does not require the BLM to agree with the EPA's view-point, but only requires the BLM to consider it and respond to it if it is submitted within the public comment period.[85] In this case, the EPA's comment letter is dated September 9, 2002, six days after the close of the comment period.[86] Further, the EPA letter does not contradict the BLM's analysis, but expresses the same concerns as the BLM expressed about OHV use.[87] Thus, the EPA's concerns do not detract from the BLM's analysis. b. Sensitive Bird Species SUWA also claims that the EA fails to analyze the indirect effects of subsequent OHV use on a number of sensitive bird species, namely raptors, bald eagles, Mexican spotted owls and mountain plovers.[88] Specifically, SUWA claims that OHV use can fragment habitat and harass, displace, and even kill wildlife, and that the BLM has ignored the year-round impact of OHV use on these species.[89] The court finds *1184 that the BLM properly considered the reasonably foreseeable impacts of increased OHV use on sensitive bird species and reasoned that such impacts were not significant given the existing uses within the Project area and the mitigation measures designed to reduce the potential for damage. The BLM's analysis of the Project's effects on sensitive bird species relies partly on the Biological Assessment ("BA") which was prepared by BLM biologists and the Concurrence Letter prepared by the FWS on the impacts of the Project on threatened, endangered, proposed, candidate and sensitive species. Like the BA and the Concurrence Letter, the EA begins its analysis with a discussion of the status of various bird species and the habitat present in the Project area.[90] As to raptors, the EA states that a number of raptor species nest within the Project area and approximately 65 raptor nests are known to occur within one-half mile of most of the proposed seismic lines.[91] Bald eagles are also present in the Project area during winter; however, no bald eagles' nests occur within the Project area.[92] While the Mexican spotted owl has been recorded in the southern portion of the Book Cliffs and potential habitat exists in the Book Cliffs portion of the BLM Vernal Field Office, no critical habitat exists within approximately 10 miles of proposed seismic lines.[93] The mountain plover has also been observed within the Project area within one mile of seismic line two.[94] The record also indicates that plover habitat includes short-grass and shrub-steppe landscapes, dry-land, cultivated farms, and prairie dog towns and that usual nest sites within the shrub-steppe are on active prairie dog towns. Nests have also been found on oil and gas well pads.[95] Although it is unclear, the EA appears to rely on the BA and the Concurrence Letter in discussing the Project's environmental consequences on these species. The EA acknowledges the vulnerability of several bird species and the risks involved in the Project. Specifically, as to raptors, the EA states that Project activities along the seismic lines would disrupt breeding activities.[96] In addition, nest abandonment, nest destruction, and/or loss of chicks or adults could occur due to the use of helicopters, pickup trucks, truck mount drills, buggies, portable drills, ATVs and foot travel traversing seismic lines.[97] The EA acknowledges that the loss of an individual in any raptor species would result in a loss of local population viability due to the low population numbers in northeastern Utah.[98] As to bald eagles, the EA states that Project activities along portions of the seismic line occupied by wintering bald eagles would result in disruption of foraging activities and displacement.[99] In addition, the EA acknowledges that Project activities during the breeding season could disrupt breeding.[100] With respect to the Mexican spotted owl, Project activities may disrupt breeding activities and result in nest abandonment and/or loss of chicks.[101] The EA states that the loss of *1185 an individual owl would result in a loss of local population viability due to the low population number of the species in northeastern Utah.[102] Project activities would similarly disrupt the mountain plover. The EA states that Project activities may disrupt breeding activities and result in nest abandonment, nest destruction and/or loss of young or adults.[103] Similarly, loss of an individual would result in a loss of local population viability due to the low population number of the species in northeastern Utah.[104] However, although the EA acknowledges these risks, the BLM carefully considered these risks and concluded that in light of the low levels and temporary nature of habitat disturbances, there would be no or very minimal habitat fragmentation for any of these species.[105] SUWA also argues that impacts from subsequent OHV use will include: for bald eagles, disruption of winter roosting sites, which may preclude nesting;[106] for the Mexican spotted owl, disturbance of potential nesting habitat, reduction in habitat suitability, and increased habitat fragmentation;[107] and for mountain plovers, increased habitat fragmentation, reduction of suitable habitat and forage, and a potential increase in nest destruction or reproductive failure.[108] However, the EA reasoned that, as with other resources, impacts on sensitive bird species will be insignificant given the long-term activities within the Project area, including oil and gas development, cattle grazing, increased recreational OHV use, and drought.[109] The BLM's analysis is supported by the Fish and Wildlife Service, the agency charged with protecting and promoting the recovery of species found to be threatened or endangered, which concurred with the BLM's determination that the Project would not adversely affect these species.[110] Finally, the EA recommends and the DR/FONSI requires implementation of several mitigation measures to ensure no significant adverse Project impacts sensitive bird species.[111] These measures include complete avoidance of bald eagle winter roost areas from November 1 to March 15 and complete avoidance of active bald eagle nests from January 1 to August 15;[112] seasonal avoidance of the ten miles of the Mexican Spotted Owl's potential breeding habitat from March 1 to August 31;[113] and seasonal avoidance of the eight miles of mountain plover habitat from May 1 to June 15.[114] The EA also recognizes that certain special conditions and other mitigation requirements would reduce impacts to sensitive bird species.[115] Specifically, these mitigation measures include prevention of the proliferation of unwanted OHV use in sensitive areas by prohibiting cross-country travel between seismic lines during acquisition of data, obliterating OHV trails resulting from the Project where they cross existing roads and trails, and installing additional signs and barriers to prevent *1186 future OHV travel on routes used during Project operations.[116] While the court acknowledges the various risks that the Project may have on sensitive bird species, in reviewing the EA, this court is "limited to determining whether the agency substantially complied with statutory and regulatory procedures, whether substantial evidence supports its factual determinations, and whether its action was an abuse of discretion.[117] After reviewing the EA, the parties' briefs and the relevant law, the court finds that the BLM adequately considered the reasonably foreseeable indirect impacts of the Project on sensitive bird species and properly concluded that such impacts were not significant given existing uses within the Project area and the mitigation measures designed to limited unwanted OHV use. Therefore, the court finds that the BLM has met NEPA's requirement to analyze the Project's indirect impacts. 3. The BLM Adequately Analyzed the Cumulative Effects of the Project While SUWA argues that the BLM failed to adequately analyze the cumulative effects of other projects on the Veritas Project area, the record reflects that the BLM sufficiently met the Tenth Circuit's test for analyzing cumulative effects. NEPA requires the BLM, when determining whether a Project requires a full Environmental Impact Statement ("EIS"), to consider the cumulative environmental impacts of the Project. The Counsel on Environmental Quality ("CEQ") Regulations define a "cumulative impact" as, "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonable foreseeable future actions regardless of what agency or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time."[118] In its appeal, SUWA argues that the BLM inadequately analyzed the impacts of several existing and reasonably foreseeable projects which are in the same geographic region as the Veritas Project. In determining the test for what must be analyzed as "cumulative impact," SUWA argues that the Tenth Circuit has "typically analyzed NEPA's cumulative effects requirements in the context of segmented agency action, in which the NEPA question went to the scope of the action that must be considered in the NEPA review, rather than the nature of the impacts that must be disclosed."[119] Therefore, SUWA concludes that the Tenth Circuit case which the BLM relies on, Park County Resource Council, Inc., v. United States Dept. of Agric.,[120] is not "particularly instructive" as to the nature of the analysis required when considering cumulative impacts in this case, and argues that the court should adopt language from the D.C. Circuit. The court finds no language in the Tenth Circuit's decisions cited by SUWA to suggest that Park County Resource is not the controlling law on cumulative effects analysis. In Park County Resource, the Circuit held that "the benchmark *1187 signaling the need for a cumulative impact EIS" is whether projects are "so interdependent that it would be unwise or irrational to complete one without the others."[121] Similarly, in Airport Neighbors Alliance, Inc. v. United States,[122] the Circuit reemphasized that the test for whether particular actions could be considered cumulative impacts is whether the actions were "so interdependent that it would be unwise or irrational to complete one without the others."[123] Most important, the Tenth Circuit does not rely, as SUWA claims, on 40 C.F.R. § 1508.25, which deals with the scope of an EIS. Instead, the issue in Airport Neighbors Alliance was similar to the issue here—a challenge to the issuance of a FONSI after an EA had been performed. Therefore, the Tenth Circuit's test-whether the actions are so interdependent that it would be unwise or irrational to complete one without the others —is the correct test to apply to SUWA's allegation. Under this test, the court finds that the BLM has adequately analyzed the cumulative effects of the Project. The record does not support SUWA's allegation that upholding the BLM's actions and arguments would in effect "write the cumulative effects analysis out of NEPA in most instances."[124] To the contrary, the BLM acknowledged that there are "numerous oil and gas leases" in these areas, and that "future development could affect wilderness characteristics that may occur at present."[125] However, the BLM concluded that "compared to the major developments in the area such as roads, Gilsonite mines, and oil and gas fields, cumulative impacts from the 381 acres of surface disturbance would represent 0.02% of the Project area" which justified its FONSI.[126] SUWA alleges that the BLM should have specifically considered the following seven projects or actions in its EA: 1) RDG Uintah Basin Natural Gas Project — This project occurs entirely within the boundaries of the Veritas Project and involves the development of 420 new gas wells in addition to the 64 that already exist. 2) Castle Peak and Eightmile Flat Expansion Project—This project is immediately adjacent and overlapping with the northwest boundary of the Veritas Project. 3) Wolf Point Pipeline Project—This project overlaps the boundaries of the Veritas Project on the southwest border. No final decision has been issued on whether this project will go forward. 4) Horse Point 3-D Seismic Project— This project is south of the Veritas boundary and is currently on-going. 5) Stone Cabin 3-D Seismic Project— This project is to the west of the Veritas Project. The BLM is currently preparing an EA of this project. 6) Wells Draw 2-D Seismic Project— This project was completed in July 2000 and is located west of the Veritas Project boundary line. 7) Existing Oil and Gas Wells—There are currently 3000 oil and gas wells in the project area and approximately 5000 in Unitah and Duschene Counties overall.[127] *1188 The court disagrees with SUWA that the BLM was required to individually analyze these projects because none of them are so interdependent with the Veritas Project that it would be "unwise or irrational" to complete Veritas without also completing them. While the Veritas Project is a large-scale seismic exploration that would be useful in potential oil and gas resources, oil and gas may never be developed in the Project area. It is just as plausible that the results of the Veritas Project will reveal that drilling wells or developing oil and gas would not be productive. If the court were to adopt SUWA's requirements, the BLM would have to run a full cumulative impact EIS on speculative projects that might never be pursued, a result that would lead to an impermissible "gross misallocation of resources."[128] This conclusion is supported by Airport Neighbors Alliance,[129] where the Tenth Circuit held that while an airport runway extension was part of an overall master plan for the city of Albuquerque, the runway's upgrade did not "necessarily signal a commitment to proceed" with the rest of the master plan.[130] Similarly, in this case, SUWA has not shown that any of the projects they have put forward are connected to Veritas because they "cannot or will not proceed" unless the Veritas Project proceeds.[131] Nor has SUWA shown that proceeding with the Veritas Project is necessarily a commitment to the other projects it references. Since none of the projects cited by SUWA are specifically related to the Veritas Project, any of them could be abandoned without detracting from the Project's purpose. For these reasons, the court finds that the BLM adequately considered the cumulative effects of other projects and did not violate NEPA's requirements on this issue. 4. The BLM Appropriately Relied on Mitigation Measures SUWA alleges that the BLM's mitigation measures were not sufficient to allow it to issue a FONSI. After reviewing the administrative record and hearing oral argument on this issue, the court disagrees. As part of its environmental assessment, the BLM imposed several measures designed to mitigate the potential environmental effects of the Veritas Project. To mitigate impacts to soils and vegetation, the BLM proposed: (1) removing signs of vehicle tracks by raking out tread imprints where visible from existing roads and trails, (2) raking out vehicle ruts and restoring them to their original contour, (3) scarifying compacted areas by hand raking, (4) reseeding scarified areas, (5) installing waterbars where necessary, (6) raking in biological crusts on areas where tracks are made, and (7) closing seismic lines to post-Project vehicle travel with signs and barriers as it becomes necessary to prevent seismic lines from use by future off-road vehicles.[132] The BLM also proposed to mitigate environmental effects on wildlife and birds by imposing seasonal restrictions on drilling and explosive detonations. First, there could be "[n]o drilling and no explosives [ ] detonated between May 10 and June 1 in the Monument Ridge migration corridor, in order to protect the migration of mule deer."[133] The agency also ruled that "no drilling would occur or explosives *1189 be detonated in elk or mule deer crucial winter range between November 15 and April 15 or in elk or mule deer crucial calving/fawning range between May 15 and June 30" without an exception granted by BLM.[134] Finally, the EA further noted that "[b]lack bears would be afforded some of the benefits associated with big game mitigation,"[135] and "complete mitigation for raptors would be seasonal avoidance of raptor nests, a list of which is found in the EA at Table 2.2 in Section 2.1.5.8."[136] Furthermore, BLM proposed mitigation measures for a significant number of threatened and endangered wildlife, including the bald eagle, the southwestern willow flycatcher, the western yellow-billed cuckoo, the Mexican spotted owl, the mountain plover, and young ferrets.[137] Regarding endangered plants, the EA provides that "[a]voidance of delineated suitable habitat and populations would be done instead of individual plants. Potential habitat areas would be surveyed . . . occupied and suitable habitat would be delineated and avoided."[138] To mitigate the effects of the Veritas Project on proposed wilderness lands, the EA requires shot-holes in those areas to be drilled with heli-portable equipment to minimize disturbance to soils and vegetation in those areas.[139] Considering all the available information, the EA concluded that "wilderness values would be completely restored through natural processes."[140] SUWA alleges that the BLM failed "to describe their proposed mitigation measures in sufficient detail to ensure that environmental consequences have been fairly evaluated."[141] Further, SUWA cites to the Tenth Circuit's previous holding that an agency's analysis of mitigation measures "must be `reasonably complete' in order to `properly evaluate the severity of the adverse effects' of a proposed [p]roject prior to making a final decision."[142] However, SUWA has the burden of proving that the BLM's assessment of its mitigation measures was arbitrary and capricious.[143] While it is true that an EIS must include a discussion of possible mitigation measures, and that an agency's consideration of those measures must be reasonably complete in order to "properly evaluate the severity of the adverse effects" of a proposed Project,[144] NEPA does not require that an EA include the full and "reasonably complete" discussion of mitigation strategies required by an EIS.[145] Rather, an EA is only "a brief and concise public document" which provides "sufficient evidence" for either going through with the EIS process or issuing a FONSI. SUWA's proposed standard would require the BLM to create "a fully developed plan" before issuing a FONSI, a step which NEPA does not require.[146] *1190 Further, the Tenth Circuit has held that the BLM or another administrative agency may take mitigation measures into account when deciding to issue a PONSI, especially where those mitigation measures reduce environmental impacts below the level of impact that would trigger the EIS process.[147] Though mitigation measures can justify the BLM's decision not to prepare an EIS, the agency must do more than make "a perfunctory description or mere listing of mitigation measures."[148] It must develop the record to a reasonable degree, and show that the environmental consequences of the Project have been "fairly evaluated."[149] While it is true that NEPA does not require agencies to propose mitigation factors at all, the BLM has done so here. To the extent that those factors have been relied upon in the decision to issue the FONSI in this case, the BLM is required to reasonably discuss those factors; if it has done so, the court must determine whether those measures are discussed in a manner that fairly and thoroughly evaluated the Project's environmental consequences. Though Robertson v. Methow Valley Citizens Council concerned an EIS, its holding was broad, and stated that "NEPA itself does not mandate particular results, but simply prescribes the necessary process."[150] Most important, the BLM may decide that "the adverse environmental effects of [a] proposed action . . . outweigh the environmental costs."[151] In Methow Valley, the Forest Service considered granting a permit for a new downhill skiing slope in Colorado. The Supreme Court held, "if the Forest Service, after complying with the Act's procedural requisites, had decided that the benefits to be derived from downhill skiing at Sandy Butte justified the issuance of a special use permit, notwithstanding the loss of 15 percent, 50 percent, or even 100 percent of the mule deer herd" habitat, then the Forest Service could do so.[152] It concluded, "NEPA merely prohibits uninformed-rather than unwise" agency action.[153] Mitigation measures are designed to reduce only those impacts which can be mitigated, and the EA discusses those impacts. It is clear that SUWA opposes the BLM's policy choices in granting the FONSI. But even if SUWA is correct from a policy standpoint, the court cannot overturn the BLM's decision as long as the BLM considered the environmental impacts of the Project in a manner consistent with the procedures set out by NEPA. The BLM correctly notes that even if this court found that it needed to prove the efficacy of its mitigation measures, it can do so by reviewing the record. Veritas conducted a prior seismic test similar to that being proposed here.[154] The BLM used the environmental impacts of that test to help determine its EA analysis.[155] These mitigation *1191 techniques have also been made mandatory upon issuance of the FONSI. The BLM Compliance Officers are required to monitor the Project, and will be in a position to halt the Project if mitigation measures are not being followed.[156] Therefore, the court disagrees with SUWA's basic contention that the BLM failed to discuss the efficacy of its mitigation measures, and therefore it was simply submitting a list of mitigation measures which is insufficient even to support an EA.[157] In fact, as detailed above, the Administrative Record shows that in submitting those measures, the BLM took into account environmental impacts to soil, vegetation, and wildlife that not only would be mitigated by those measures, but appropriately determined those impacts that would not be affected by mitigation. The court need not pass judgment on whether the BLM's actions were unwise. Instead, it only needs to decide whether the BLM's actions were arbitrary and capricious in light of the mitigation proposed by the agency. In this case, SUWA has not met its burden of proof to show that the BLM acted in such a manner. SUWA next argues that the BLM failed to provide factual support for the effectiveness of its mitigation measures regarding soil and vegetation impacts. SUWA contends that the proposed effects of such mitigation are "speculative" and "illusory," and therefore an EIS is required to determine the full effect of the Project. To support this argument, SUWA claims that the BLM failed to back its FONSI assertion that "[r]esidual impacts to soils and vegetation would essentially disappear within 3 to 5 years."[158] It claims that language in the EA to the effect that "long term loss of soil crusts" would result from the Project flatly contradict the FONSI's conclusion.[159] However, the EA recognizes that biological soil crusts will be affected by the Project and that opportunities for future damage by subsequent OHV use will increase. Despite this, the EA anticipates that a full recovery will be "dependent on numerous factors," and lists those factors.[160] Since recovery times "vary considerably," the EA cites several studies to contrast the effects on soil crusts as a result of other projects with the effects on soil crusts as a result of the Project.[161] Those recovery times, according to the studies cited, range from 14 years to hundreds of years.[162] Overall, the EA concludes that the Project "is expected to result in increased soil erosion and sediment yields, increased soil compaction, loss of soil and vegetative productivity, and the long-term loss of soil crusts."[163] Such a conclusion directly contradicts SUWA's allegation that the "agency failed to consider whether there would be significant impacts to the soils and their ecosystem functions."[164] While SUWA argues that the reference to "residual effects" has no backing in the EA, the use of the word "residual" suggests that the effects referred to by the FONSI are the kinds of aesthetic effects referred to in the EA's discussion of the Grand Canyon study. Either way, the record reflects the BLM's thorough awareness of the environmental impacts of the Project—it took a hard look at environmental *1192 impacts. Several points lead the court to conclude that the BLM appropriately relied on mitigation measures in this case. First, the EA and its suggested mitigation methods show that the BLM gave adequate consideration to the environmental effects, both in terms of direct recovery time and residual effects, of the Project. The BLM relied on a previous seismic study in the same area which found that soils would appear normal the following Spring.[165] Aesthetic impacts are among the impacts that the BLM must consider, and its proposed mitigation methods suggest that it considered those aesthetic impacts. Second, SUWA also complains that the BLM's requirement that "no vehicles will be operated during periods of saturated soil conditions or when surface ruts are deeper than four inches" will be insufficient because it has been "routinely ignored" on another project.[166] It is hard to see how a private actor's compliance on another project is relevant to the efficacy of mitigation on this Project, especially where SUWA presents nothing to this court that overcomes the Court's presumption that the agency will monitor and enforce its requirements. Therefore, the court cannot find that the BLM acted arbitrarily in relying on its own enforcement capability to ensure mitigation techniques are followed. Third, there is sufficient evidence in the record to show that the BLM took a hard look at the effects of increased OHV traffic as a result of the Project, and neither arbitrarily nor capriciously decided that such effects would be insignificant. In its brief, SUWA admits that the BLM took such effects into consideration. For instance, the BLM noted that "[t]he subsequent use of the seismic lines for OHV use would increase the opportunities for damage to and vandalism of cultural resources."[167] Thus, it appears that the BLM has taken into account the environmental effects of offroad use, and found that without proper mitigation, the opportunity for further damage might occur. The mitigation measures proposed by the BLM are specifically designed to decrease those opportunities for damage that are caused by the Veritas Project, not the damage caused by offroaders itself. Specifically, the BLM has required Veritas to literally cover its tracks, thereby discouraging future off-roaders from following on those tracks. OHV use in the Project area is growing regardless of the Veritas Project, and while the BLM acted rationally in looking at increased OHV use that could fairly be attributed to the seismic Project in question, the increase in OHV use not related at all to the Veritas Project is not counted against the Project. Fourth, SUWA incorrectly states that the agency has not presented any facts to show that raking out vehicle tracks will be an effective mitigation technique.[168] The EA states that "crusts crushed/buried in place with vehicles and foot traffic, are expected to recover much faster [than other damaged crusts] because adjacent crusts are available to provide inoculant sources to crusts crushed/buried by Project-related activities, thus facilitating recovery."[169] The BLM drew this conclusion based on all the information it had available to it, the resources cited in the EA itself.[170] Thus, there is support for this particular mitigation technique. *1193 As a result of taking these environmental factors into account, the BLM has proposed specific mitigation methods designed to minimize, but not totally ameliorate, the effects of the Veritas Project on soil and vegetation. In addition, it has provided a reasonable evaluation and explanation of how those mitigation efforts will mitigate potential environmental impact. The same holds true for the BLM's analysis of mitigation measures regarding wildlife. SUWA argues that the EA is insufficient because it fails to discuss what it means by "partial" mitigation. In fact, the EA does distinguish between those environmental effects that mitigation measures are designed to minimize, and those that cannot be mitigated at all. The mitigation here is designed to minimize displacement of wildlife at crucial mating and migration times. Adverse impacts will be limited during those times. Otherwise, the EA provides that during seismic testing, "temporary displacement of big game and black bears would be unavoidable."[171] Since these effects will occur only in a very small portion of the overall Project area, the BLM decided that such effects, as partially mitigated, did not call for the further preparation of an EIS. SUWA has not met its burden to convince this court otherwise. The EA also notes that temporary displacement will lead to "increased interspecific and intra-specific competition, reproductive failure, mortality and increased stress" among wildlife species.[172] The EA even contemplates a possible "direct loss of wildlife" in affected areas.[173] The specificity of the environmental impacts contemplated by the EA, in addition to the reasonable consideration of possible mitigation for such effects, show that the BLM did take a "hard look" at environmental impacts, and that its issuance of the FONSI was not procedurally unsound. The BLM has taken the environmental effects of the Project into account and made its decision based on all available information. Therefore, this court finds that the BLM adequately discussed and analyzed the mitigation measures to fairly and thoroughly evaluate the Project's environmental consequences. IV. The BLM Did Not Violate the National Historic Preservation Act SUWA's final argument is that the BLM violated the National Historic Preservation Act[174] (NHPA) in analyzing and approving the Project. The court disagrees. The NHPA is a procedural statute designed to ensure that federal agencies assess the impacts on historic properties of proposed projects before such projects are approved. Under Section 106 of the NHPA, a federal agency must first identify the area potentially affected by the undertaking.[175] Then the agency must identify properties within the potentially affected area that may be eligible for inclusion in the National Register of Historic Places.[176] The agency must then evaluate whether the project will have adverse effects on those potentially historical places. Where an agency concludes that the undertaking may have adverse impacts on historic properties, it must determine ways of avoiding, minimizing or mitigating those adverse impacts.[177] If the agency determines that there will be *1194 no such effects, it may then propose a finding of no adverse effect to all consulting parties, including the state historic preservation officer (SHPO), relevant Native American Tribes, and the Advisory Council on Historic Preservation (Council). Unless the SHPO or the Council disagree with the ruling and intervene in the process, the agency may continue. Before determining whether the BLM complied with Section 106, it is necessary to determine what the BLM actually did. The BLM determined the area of potential effects ("APE") for the Veritas Project, then conducted file searches in the BLM Vernal Field Office and the Utah State Historical Society in Salt Lake City for further information.[178] These searches located 121 prior surveys and 33 recorded historic sites in the Project area.[179] Of those 33 sites, 11 were considered eligible for inclusion on the NRHP. Following the file searches, the BLM surveyed 12 of the 17 seismic lines proposed by the Veritas Project, conducting Class III cultural resource surveys on each of the 12 lines. All sites located by those searches were marked and their status determined. Those sites deemed historic were evaluated for eligibility on the NRHP. Those sites near proposed shotholes were moved to ensure that the sites would not be adversely affected by the Project. The BLM submitted copies of the draft EA to the Council, with a finding of no significant impact. The Council did not respond, which the BLM inferred to mean that it concurred in the BLM's conclusion. The BLM also submitted the draft EA to the Utah SHPO, who advised the BLM that it concurred with its determination.[180] As part of the FONSI's issuance, the BLM also imposed conditions to ensure that Section 106 review would be completed before seismic work began on the five lines not yet completed. On the five non-cleared lines, the BLM required Veritas to conduct cultural resource surveys, and submit reports of those studies to the BLM, before beginning work on those lines.[181] Veritas responded by dropping the five unsurveyed lines from the Project.[182] SUWA alleges that the BLM violated NHPA in three ways: (1) inappropriately approving work on 12 out of 17 lines under phases approached; (2) failing to accurately identify the Veritas Project's area of potential effects, and (3) acting arbitrarily and capriciously in issuing its FONSI. A. The BLM's Approval of Work on 12 of the 17 Lines Complies with Section 106 SUWA first challenges the BLM for only completing the Section 106 process on 12 of the 17 seismic lines proposed by the Veritas Project. The BLM argues that it properly followed Section 106, which permits a "phased identification and evaluation" of projects in certain circumstances.[183] The relevant regulations provide that "where alternatives under consideration consist of corridors or large land areas, or where access to properties is restricted, the agency official may use a phased process to conduct identification and evaluation efforts."[184] SUWA contends that "this regulation allows for phased evaluations only in situations where the agency is considering a number of alternatives and has not yet determined where the Project's impacts will actually *1195 occur."[185] This is not the case. The regulations clearly permit "deferral of final identification and evaluation if provided for in an agreement with the SHPO/THPO or other circumstances."[186] The SHPO's FONSI concurrence in this case appears to constitute such an agreement. Even if such an agreement is lacking, the statute does not require a cramped interpretation of agency powers. The BLM may consider phased evaluation in appropriate circumstances. The Section 106 standard that the BLM must follow in this regard is one of "a reasonable and good faith effort ... to identify properties" and that "the level of effort [] in the identification process depends on numerous factors including, among others listed, the nature of the undertaking and its corresponding potential effects on historic properties."[187] Here, there are numerous factors for the BLM to consider, including the size of the Project involved, the nature of the potential historical sites at risk (particularly those that might be at risk because Section 106 analysis has not been performed), and the opportunity to complete Section 106 analysis before work begins. The BLM committed itself to complete the Section 106 process on the remaining five lines before beginning work on those lines. Furthermore, Veritas subsequently dropped those five lines from the Project, suggesting that even if the BLM had erred in continuing to work on the twelve lines, such error was harmless. Since the Veritas Project is a linear Project spread over a very large area (though affecting only a very small part of that area), it is a good candidate for the flexibility implied by the statute and discussed by the Council. Other courts have deferred to similarly flexible approaches.[188] As such, this court cannot find fault with the BLM's decision to proceed with its FONSI issuance, particularly since it was specifically conditional upon Section 106 compliance. 1. The BLM's Determination of the APE Complies with the NHPA SUWA next argues that the BLM inappropriately narrowed the Veritas Project's area of potential effects by excluding previously uninventoried roads, trails and staging areas. The essence of this argument is that the law required the BLM to construe the APE broadly, which in turn required inclusion of these uninventoried areas. However, determining the APE is a fact-intensive process, and the court relies heavily on the expertise of the BLM. Furthermore, the BLM is entitled to a presumption of validity in performing its discretionary duties such as establishing the APE.[189] In its EA, the BLM required Veritas to employ a "qualified archaeological firm to conduct Class I and Class III cultural surveys" on "all access routes, staging areas, vehicle parking areas, etc., not previously cleared...."[190] There is no *1196 factual evidence that Veritas did not do so, particularly in light of the Utah SHPO's concurrence with the resulting FONSI. In fact, the BLM reports that "a Class III (100%) [survey] was conducted on all portions of the Project within the Areas of Potential Effect. As such, cross-country travel routes have also been inventoried for cultural resources."[191] In the absence of contrary evidence, the court presumes that the BLM performed such an analysis, and that it correctly exercised its expertise regarding the size and subsequent analysis of the APE in this case. 2. The FONSI is not Arbitrary or Capricious in Violation of the NHPA Finally, SUWA argues that the BLM's FONSI was arbitrarily issued because historic properties would be affected by the Project. Specifically, SUWA points to language in the EA which states that future OHV use in the Project area "would increase the opportunities for damage to and vandalism of cultural resources."[192] The court declines to accept this argument for several reasons. First, SUWA failed to raise this argument to the BLM when the BLM released the draft EA for comment. Arguments that have not been raised as part of the Administrative Record are not properly presented here.[193] Second, even if there is a finding of an effect on eligible property, the next step in the administrative process is for the parties to consult on possible mitigation techniques. Here, the BLM had already implemented mitigation methods designed to reduce Project impacts. Finally, SUWA's proposed standard would, in practical application, force a Section 106 analysis of every acre within the Project boundaries, whether or not the area will be directly affected by the Project. Given the BLM's compliance with NHPA and the mitigation measures it required, it is not reasonable to require a Section 106 analysis of two million acres, when only 381 of those acres will be directly affected.[194] For these reasons, the court concludes that the BLM complied with the requirements of the NHPA. Other Causes of Action As a final point, SUWA has now waived its Second, Fourth, Eighth, and Ninth causes of action.[195] The Federal Defendants and Veritas argue that the court should find that SUWA involuntarily waived these causes of actions, which deal with alleged violations of the Endangered Species Act, because it failed to raise them in its opening brief. Since SUWA is not seeking to assert the claims in question, the court does not need to reach the question of whether those claims were voluntarily or involuntarily waived. The court does take note, however, that Olenhouse v. Commodity Credit Corp.,[196] cited by the government to support its argument that dismissal should be involuntary, is distinguishable from this case because it dealt with the correctness of filing a summary judgment motion in an administrative appeal, which is not at issue in this case. Conclusion For all these reasons, the court GRANTS Veritas's Motion to Supplement the Record (Doc. #54-1), GRANTS IN PART and DENIES IN PART the Federal Defendants' Motion to Strike (Doc. *1197 # 69-1), and DENIES SUWA's appeal of the DR/FONSI and its request to stop the Project and until further study is completed. SO ORDERED. NOTES [1] The "Federal Defendants" include the following: Gale Norton, Secretary of the Department of the Interior, the United States Department of the Interior, Kathleen Clarke, the Director of the Bureau of Land Management ("BLM"), Sally Wisely, the Utah State Director of the BLM, David Howell, the Vernal Field Office Manager, and Stephen Williams, the Director of the U.S. Fish and Wildlife Service ("FWS"). [2] See Administrative Record ("AR") at 34. [3] Plaintiff's Opening Brief on the Merits ("Plaintiff's Brief") at 1. [4] AR at 28. [5] Id. at 34. [6] Id. at 36. [7] Id. at 34. [8] Id. at 37. [9] AR at 36. [10] Id. [11] Id. [12] Id. at 244. [13] See id. at 3, 158-219, 225, 227, 295, 339-340., 537-573. [14] See id. at 34-45. [15] AR at 223. [16] See id. at 81, 234, 259. [17] See id. [18] See id. [19] AR at 92, 261. [20] Id. [21] Custer County Action Assoc. v. Garvey, 256 F.3d 1024, 1028 n. 1 (10th Cir.2001), cert. denied, 534 U.S. 1127, 122 S.Ct. 1063, 151 L.Ed.2d 967 (2002). [22] Id.; American Mining Congress v. Thomas, 772 F.2d 617 (10th Cir.1985), cert. denied, 476 U.S. 1158, 106 S.Ct. 2275, 90 L.Ed.2d 718 (1986). [23] Id. at 626. [24] Custer County, 256 F.3d at 1029. [25] See American Mining Congress, 772 F.2d at 626. [26] American Mining Congress, 772 F.2d at 626. [27] Id. [28] Plaintiffs' Brief at 1. [29] Plaintiffs' Brief at 2. [30] 5 U.S.C. § 706(2)(A); see also Custer County Action Ass'n v. Garvey, 256 F.3d at 1029. [31] Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-16, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). [32] Burke v. Board of Governors, 940 F.2d 1360, 1365 (10th Cir.1991); cert. denied, 504 U.S. 916, 112 S.Ct. 1957, 118 L.Ed.2d 559 (1992)(citing 5 U.S.C. § 706(2)(A), (2)(D), 2(E)). [33] Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Quivira Min. Co. v. U.S. Nuclear Regulatory Com'n, 866 F.2d 1246, 1249 (10th Cir.1989). [34] Bar MK Ranches v. Yuetter, 994 F.2d 735, 738 (10th Cir.1993). [35] Citizens to Preserve Overton Park, 401 U.S. at 415, 91 S.Ct. 814. [36] Park County Resource Council, Inc. v. U.S. Dept. of Agriculture, 817 F.2d 609, 621 (10th Cir.1987). [37] 30 CFR 1506.5(a) and (b). [38] See AR at 274-94. [39] See id. at 1353-75. [40] See id. at 391-95, 404-06. [41] See id. at 31, 120-21, 225-26. [42] See Central South Dakota Co-op. Grazing Dist. v. Secretary of the U.S. Dept. of Agriculture, 266 F.3d 889, 897 (8th Cir.2001); Mt. Lookout — Mt. Nebo Property Protection Ass'n v. F.E.R.C., 143 F.3d 165, 172 (4th Cir.1998). [43] Custer County Action Ass'n, 256 F.3d at 1041. [44] See AR at 28. [45] See id. at 958 (internal references and emphasis omitted). [46] See Federal Defendants' Opposition Brief at 22. [47] 237 F.Supp.2d 48 (D.D.C.2002). [48] See id. at 54. [49] See id. at 52. [50] See id. at 53. [51] Id. [52] See Custer County Action Ass'n., 256 F.3d at 1041. [53] See AR at 45; Federal Defendants' Opposition Brief at 19-21. [54] Plaintiff's Brief at 21-22. [55] See Custer County Action Ass'n. 256 F.3d at 1041. [56] See 40 C.F.R. § 1508.27(a) ("Significance varies with the setting of the proposed action."). [57] See e.g. Hanly v. Kleindienst, 471 F.2d 823, 831 (2nd Cir.1972), cert. denied, 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1973); State of N.C. v. F.A.A., 957 F.2d 1125, 1134 (4th Cir.1992); Coalition on Sensible Transp. v. Dole, 642 F.Supp. 573, 586 (D.D.C.1986); Kisner v. Butz, 350 F.Supp. 310, 323 (N.D.W.Va.1972). [58] 40 C.F.R. § 1508.8(b); Presidio Golf Club v. National Park Service, 155 F.3d 1153, 1163 (9th Cir.1998); Sierra Club v. Marsh, 976 F.2d 763, 768 (1st Cir.1992). [59] See Dubois v. U.S. Dept. of Agric., 102 F.3d 1273, 1286 (1st Cir.1996), cert. denied, 521 U.S. 1119, 117 S.Ct. 2510, 138 L.Ed.2d 1013 (1997); Sierra Club, 976 F.2d at 773. [60] Plaintiffs' Brief at 23-24. [61] AR at 46-48. [62] Id. at 48. [63] Id. [64] Id. [65] Id. at 78-85. [66] Id. at 78. [67] AR at 81. [68] Id. [69] Id. at 84. [70] Id. at 81, 234. [71] Id. at 84-85, 235. [72] AR at 79-80, 122. [73] Id. at 78, 249-50. [74] Id. at 46, 118-19. [75] Id. at 78, 80. [76] Id. at 80. [77] Id. [78] AR at 77. [79] Id. [80] AR at 76. [81] Id. [82] AR at 77, 113. [83] Id. at 234. [84] Custer County Action Ass'n., 256 F.3d at 1041. [85] 40 C.F.R. § 1503.4. [86] AR at 1305-10. [87] Id. at 1396. [88] Plaintiffs' Brief, at 22. [89] Id. [90] AR at 60-61, 164-65, 1358. [91] Id. at 51, 89-90. [92] Id. at 60, 93, 164, 1358. [93] AR at 60-61, 95, 164, 1358. [94] Id. at 61, 95, 138. [95] Id. at 95, 169, 1358. [96] Id. at 89. [97] Id. [98] Id. at 90. [99] AR at 93-94, 171, 1365. [100] Id. at 171, 1365. [101] Id. at 95, 168, 1363. [102] Id. at 95, 168, 1364. [103] Id. at 95, 175, 1364. [104] Id. [105] AR at 93. [106] Id. at 171, 1365. [107] Id. at 171, 1364. [108] Id. at 176, 1365. [109] Id. at 168-69, 176, 1364-1365. [110] Id. at 178. [111] AR at 105, 165. [112] Id. at 105, 177, 1369. [113] Id. at 106, 165, 177, 1367. [114] Id. at 106, 178, 13668. [115] Id. at 106. [116] Id. at 227, 234. [117] Burke v. Board of Governors, 940 F.2d at 1365 (citing 5 U.S.C. § 706(2)(A), (2)(D), 2(E)). [118] CFR 1508.7; see Airport Neighbors Alliance, Inc. v. United States, 90 F.3d 426, 430 (10th Cir.1996). [119] Plaintiffs' Brief at 31. [120] 817 F.2d 609 (10th Cir.1987), overruled on other grounds by Village of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970, 973 (10th Cir.1992), cert. denied, 506 U.S. 817, 113 S.Ct. 59, 121 L.Ed.2d 27 (1992). [121] Id. at 623. [122] 90 F.3d 426 (10th Cir.1996). [123] Id. at 426. [124] See SUWA's Reply Brief at 19. [125] See AR at 118-119. [126] AR at 119, 143-44. [127] See Plaintiff's Brief at 32-33. [128] Airport Neighbors Alliance, 90 F.3d at 431. (citing Park County, 817 F.2d at 624). [129] 90 F.3d 426 (10th Cir.1996). [130] Id. [131] Id. at 431 n. 5 [132] AR at 81, 83. [133] Id. at 92. [134] Id. [135] Id. [136] See id. at 42-44. [137] Id. at 105. [138] AR at 106. [139] Id. at 114. [140] Id. [141] See 40 C.F.R. §§ 1508.25(b), 1502.14(f), 1502.16(h), 1505.2(c). [142] Colorado Environmental Coalition v. Dombeck, 185 F.3d 1162, 1173 (10th Cir. 1999). [143] See Custer County Action Ass'n, 256 F.3d at 1029. [144] Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). [145] Akiak Native Community v. U.S. Postal Service, 213 F.3d 1140, 1147 (9th Cir.2000). [146] See Robertson, 490 U.S. at 359, 109 S.Ct. 1835. [147] Park County, 817 F.2d at 621-622; see also National Audubon Society v. Hoffman, 132 F.3d 7, 17 (2nd Cir.1997); Tillamook County v. U.S. Army Corps of Engineers, 288 F.3d 1140, 1144 (9th Cir.2002). [148] Plaintiffs' Brief at 37-38 (citing Neighbors of Cuddy Mountain v. U.S. Forest Service, 137 F.3d 1372, 1380 (9th Cir.1998)). [149] Robertson, 490 U.S. at 352, 109 S.Ct. 1835. [150] Id.; see also Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978); Sierra Club-Black Hills Group v. U.S. Forest Service, 259 F.3d 1281, 1287 (10th Cir.2001). [151] Robertson, 490 U.S. at 350, 109 S.Ct. 1835. [152] Id. at 351, 109 S.Ct. 1835. [153] Id. [154] See AR at 31. [155] See id. [156] See id. at 230, 232. [157] See Plaintiffs' Brief at 39 (citing Dombeck, 185 F.3d at 1173). [158] AR at 223. [159] Id. [160] Id. [161] Id. [162] Id. at 54. [163] Id. [164] Plaintiffs' Brief at 34. [165] AR at 249. [166] Plaintiff's Brief at 42. [167] AR at 107 (emphasis added). [168] Plaintiffs' Brief at 43. [169] AR at 80. [170] See id. [171] Id. at 92. [172] Id. at 85. [173] Id. [174] 16 U.S.C. §§ 470-470x6. [175] See 36 C.F.R. §§ 800.4(a)(1); 800.16(d). [176] See id. at § 800.4(a)-(c). [177] See id. at § 800.5(b). [178] See AR at 1848-1875. [179] Id. [180] Id. at 1294-1296. [181] Id. at 238. [182] See Veritas' Brief at 41. [183] 36 C.F.R. § 800.4(b)(2). [184] Id. [185] Plaintiffs' Brief at 51. [186] 65 Fed.Reg. 77,697, 77,719. [187] Id. at 77,719 (emphasis added). [188] City of Grapevine, Texas v. Department of Trans., 17 F.3d 1502, 1508 (D.C.Cir.1994), cert. denied, 513 U.S. 1043, 115 S.Ct. 635, 130 L.Ed.2d 542 (1994); U.S. v. 162.20 Acres of Land, More or Less, Situated in Clay County, State of Miss., 733 F.2d 377, 380 (5th Cir. 1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 920 (1985); City of Alexandria, Virgina v. Slater, 198 F.3d 862, 872-873 (D.C.Cir.1999), cert. denied, 531 U.S. 820, 121 S.Ct. 61, 148 L.Ed.2d 27 (2000). [189] See Udall v. Washington, Va., & Md. Coach Co., 398 F.2d 765, 769 (D.C.Cir.1968), cert. denied, 393 U.S. 1017, 89 S.Ct. 620, 21 L.Ed.2d 561 (1969); Duesing v. Udall, 350 F.2d 748, 751-52 (D.C.Cir.1965), cert. denied, 383 U.S. 912, 86 S.Ct. 888, 15 L.Ed.2d 667 (1966). [190] AR at 238. [191] Id. at 125. [192] Id. at 115. [193] See Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515 (10th Cir.1992). [194] See National Indian Youth Council v. Watt, 664 F.2d 220, 228 (10th Cir.1981). [195] See Consolidated Post-Hearing Supplemental Reply Brief at 2-3. [196] 42 F.3d 1560, 1580 (10th Cir.1994).

48 Wn. App. 432 (1987) 739 P.2d 1177 STEVE ANDERSON, Appellant, v. DREIS & KRUMP MANUFACTURING CORPORATION, Respondent. No. 7561-3-III. The Court of Appeals of Washington, Division Three. July 9, 1987. R. Bruce Owens and Howard & Owens, for appellant. *434 Frederic G. Fancher and Richter-Wimberley, P.S., for respondent. MUNSON, J. Steve Anderson brought this products liability action to recover damages for personal injuries received while operating a Chicago Press Brake (press) manufactured by Dreis & Krump Manufacturing Corporation. Mr. Anderson alleged Dreis was liable under theories of breach of warranty, negligence, and strict liability. The trial court entered summary judgment for Dreis, dismissing the action. On appeal, Mr. Anderson's numerous assignments of error may be reduced to four basic issues; these are whether: (1) the breach of warranty claims were properly dismissed for lack of privity; (2) the warnings on the press were inadequate; (3) the press was defectively designed; and (4) modification of the press' activating system after the press left Dreis' control was the sole proximate cause of Mr. Anderson's injury. We remand for trial. Mr. Anderson was injured on July 3, 1979,[1] while operating a press owned by his employer, Comet Corporation. The press was manufactured by Dreis, an Illinois corporation in the business of designing and manufacturing such industrial equipment. Dreis sold the press to Niblock Machine, Inc., a distributor who, in turn, sold the press to Comet. Comet installed the press in its Spokane facility. Neither Comet nor Niblock is a party to this action. A detailed description of the press is necessary for an understanding of our ruling. It was designed as a general purpose or "multifunctional" press, capable of performing a variety of functions. Comet used the press for corrugating metal.[2] During operation, the press' "ram," or vertically *435 movable upper section, would descend upon the "bed" or lower section. Shaping tools or "dies" are attached to the ram as well as the bed. When the ram descends, the metal is bent into the desired shape by the upper die pressing the metal against the lower die. The area between the ram die and the bed die is referred to as the "point of operation." The press, as originally designed, manufactured, and sold to Comet, could be activated by either of two means: the first was a 2-button control located at shoulder level above the ram. These buttons had to be pressed simultaneously, using both hands, to start the press, causing the ram to descend. The 2-button system was also the press' principal safety feature because the operator's hands were on the buttons, and thus prevented from entering the point of operation when the ram descended. The second means of activation was by depressing a foot treadle connected to a rod which ran along the base of the press. The treadle's position could be moved right and left along the length of the press to accommodate the position of the operator. This movement allowed the treadle to be positioned so the operator was within arm's reach of the point of operation. Accidental depression of the treadle could be prevented by engaging a "treadle lock"; however, that device apparently was not automatic, but rather had to be manually engaged. Dreis provided no accompanying safety device to prevent the operator's hands from entering the point of operation when the press was activated by the treadle. The operator could choose either the 2-button control or the treadle by flipping a lever on the side of the press. When the press was delivered, Comet received safety and operator manuals provided by Dreis, instructing prospective operators how to use the press safely. One of these safety manuals instructed purchasers never to eliminate or bypass any safety device installed on the press. Moreover, that manual requested purchasers to contact Dreis with respect to the continued use of the press after any modification. *436 Additionally, Dreis attached the following warning sign to the front of the press near the point of operation: When delivered, the 2-button device was the operational activation system. Thereafter, Comet disconnected that control and rewired the press so that it could be activated by pushing a single button attached to the end of a long, flexible electric cord. This flexible cord, like the adjustable treadle, allowed the operator to move along the length of the press' bed. Because this method of activation required the use of only one hand, the operator's other hand was left free to enter the dangerous point of operation. After modifying the activation system, Comet did not install "point-of-operation" guards.[3] Comet was aware of *437 the danger to operators from use of the unguarded press and discussed these dangers at company meetings prior to the accident. Additionally, the Washington State Department of Labor and Industries inspected the press prior to the accident and found the press to be unsafe. Although not clear from the record, Dreis contends Comet was fined for lack of point-of-operation safety devices on the press. This accident occurred when Mr. Anderson reached into the point-of-operation area to brush away small circles of aluminum that had accumulated during the stamping process. He was leaning into the die area when his stomach accidently hit the single button activator, the cord of which had been laid nearby. As a result, the ram cycled downward, severely injuring one of his hands. In moving for summary judgment, Dreis argued: (1) the press was not defective as manufactured and sold since the press included the 2-button (activator) safety feature; (2) adequate warnings were attached to and accompanied the press when it was sold; and (3) Comet's modification of the activation system was the superseding cause of Mr. Anderson's injury. In response, Mr. Anderson argued the press was designed to be used with the treadle activator. Because use of the treadle allowed the operator to place his hands within the point-of-operation area, the press should have included corresponding point-of-operation or barrier-type guards. He asserted the single button activator, though a modification, did not cut off Dreis' liability because that activation method was no more dangerous than the foot treadle, and the kind of harm which occurred, i.e., accidental injury to hands, was no different than the kind of harm which would have occurred if the treadle had been used. Mr. Anderson's arguments were supported by three experts familiar with this type of industrial equipment. These experts stated the press was defectively designed *438 because of lack of point-of-operation guards and inadequate warnings. The Superior Court granted summary judgment, dismissing the action, primarily because of Comet's modification; Mr. Anderson appeals. Additional facts will be incorporated below as necessary. A BREACH OF WARRANTY [1] Mr. Anderson initially contends the court erred in dismissing his claims for breach of express and implied warranty for lack of privity. His assertion is not well taken. The press was sold by Dreis to Niblock; Niblock sold to Comet who, in turn, employed Mr. Anderson. Because contractual privity does not exist between Mr. Anderson and Dreis, the court properly dismissed the breach of warranty action. RCW 62A.2-318; Baughn v. Honda Motor Co., 107 Wn.2d 127, 151, 727 P.2d 655 (1986). B DUTY TO WARN Mr. Anderson next contends the court erred in dismissing his strict liability and negligence claims relating to Dreis' duty to warn operators of the serious harm possibly resulting from hands or other body parts being placed in the die area. He argues the warnings, as given, inadequately informed Mr. Anderson of the full extent of the dangers associated with the press. He maintains his experts' affidavits raise genuine issues of material fact as to the adequacy of the warnings. We disagree. [2] Under strict liability, a product may be found defective, though faultlessly designed and manufactured, if it is not reasonably safe when placed in the hands of the ultimate operator by the manufacturer because of the manufacturer's failure to provide adequate warnings on how to use the product safely. Baughn, at 137; Teagle v. Fischer & Porter Co., 89 Wn.2d 149, 155, 570 P.2d 438 (1977). Likewise, a manufacturer may be negligent for failure to provide adequate warnings with respect to dangers involved in a product's use which are, or should be, known to the manufacturer. *439 Baughn, at 137; Restatement (Second) of Torts § 388 (1965). However, under either theory, no warning need be given where the danger is obvious or known to the operator. Baughn, at 138-39, 140; Mele v. Turner, 106 Wn.2d 73, 78-80, 720 P.2d 787 (1986). See Restatement (Second) of Torts §§ 388, comment k, 402A, comment j (1965). Two of Mr. Anderson's experts state the warnings attached to the press and in the manuals accompanying the press at the time of delivery were inadequate because they failed to inform the operator of the consequences of placing a hand or other body part within the point-of-operation area. We agree the warnings in the maintenance and safety manuals sent to Comet along with the press had little efficacy with respect to Mr. Anderson; there is no indication he saw those manuals. See Balido v. Improved Mach., Inc., 29 Cal. App.3d 633, 105 Cal. Rptr. 890, 899 (1972). Nonetheless, the warning attached to the machine was, by itself, sufficient to "catch the attention of persons who could be expected to use the product [and] apprise them of its dangers and... advise them of the measures to take to avoid those dangers" (footnote omitted). Baughn, at 139. The warning's contents, combined with the obviousness of the press' dangerous characteristics, indicate that any reasonable operator would have recognized the consequences of placing one's hands in the point-of-operation area. See Plante v. Hobart Corp., 771 F.2d 617, 620 (1st Cir.1985). Dreis satisfied its duty to warn under both negligence and strict liability theories; the court did not err in granting summary judgment on those issues. C DESIGN DEFECT Mr. Anderson next contends the court erred in not permitting a jury to decide whether the press was reasonably safe as designed under theories of strict liability and negligence. We agree. A manufacturer is required under both strict liability and negligence principles to design and produce a reasonably safe product. Seattle-First Nat'l *440 Bank v. Tabert, 86 Wn.2d 145, 149, 154, 542 P.2d 774 (1975) (applying strict liability principles); Restatement (Second) of Torts § 395 & comment k (1965); Reusch v. Ford Motor Co., 196 Wash. 213, 218, 82 P.2d 556 (1938) (applying negligence principles). In Capasso v. Minster Mach. Co., 532 F.2d 952, 954-55 (3d Cir.1976) on facts similar to those here, the court held: Although the press was designed with a hand control safety feature, the adequacy of which is not challenged, it was also designed to permit operation by use of a foot control. Moreover, a device to permit such operation was a part of the original purchase order. Nevertheless, Minster provided no comparable safety device to prevent the operator's hands from becoming entangled in the operation area when the machine was operated by the foot switch. Given the testimony of plaintiff's experts, we think the issue of a defect in the press at the delivery date was for the jury, other defenses apart ... [3] We find the Capasso court's reasoning persuasive and likewise agree that whether (1) the press was defective because it lacked point-of-operation guards and/or (2) Dreis negligently failed to design a reasonably safe press given the lack of guards both are questions properly resolved by a jury. Dreis contends, however, its installation of point-of-operation guards or other safety devices, such as interlocks, was not feasible because installation of those devices on the multipurpose press would have unduly restricted the myriad uses for which the press was designed. We are not persuaded. First, Dreis presented no evidence demonstrating that barrier guards or interlock devices would actually have interfered with the press operation as used here. Second, a manufacturer cannot delegate to the buyer its responsibility to equip an otherwise dangerous machine with safety guards. Parkins v. Van Doren Sales, Inc., 45 Wn. App. 19, 29, 724 P.2d 389 (1986); see also Pust v. Union Supply Co., 38 Colo. App. 435, 561 P.2d 355, 359-60 (1976), aff'd, 196 Colo. 162, 583 P.2d 276, 2 A.L.R.4th 245 (1978); Scott v. Dreis & Krump Mfg. Co., 26 Ill. App.3d 971, 326 N.E.2d *441 74, 85 (1975); Balido, 105 Cal. Rptr. at 899; Bexiga v. Havir Mfg. Corp., 60 N.J. 402, 290 A.2d 281, 286 (1972); Finnegan v. Havir Mfg. Corp., 60 N.J. 413, 290 A.2d 286, 291-92 (1972). But see Gordon v. Niagara Mach. & Tool Works, 574 F.2d 1182, 1190 (5th Cir.1978). We conclude whether the press was defective and/or Dreis negligent in designing and selling a press without point-of-operation safety devices are questions of fact for the jury.[4] D EMPLOYER'S MODIFICATION The court held Comet's modification from the 2-button device to the single button switch was the superseding cause of Mr. Anderson's injury thereby relieving Dreis of liability as a matter of law. Consequently, the crucial issue is whether the trial court was correct in passing on superseding cause as a matter of law or whether a jury should do so as a matter of fact. Proximate cause is an essential element of both negligence and products liability theories; it consists of two elements: (1) factual or "but for" causation and (2) legal causation. Baughn, at 142; Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985). Factual causation is established between a defendant's act and a subsequent injury only where it can be said the injury would not have occurred "but for" the defendant's act. W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Torts § 42, at 273 (5th ed. 1984). As noted in Baughn, at 142: "Cause in fact refers to the ... physical connection between an act and an injury." The existence of factual causation is generally a question of fact for the jury. Baughn, at 142. Dreis does not question the existence of *442 factual causation here. Assuming Dreis' failure to equip the press with point-of-operation guards can be said to be a factual cause of Mr. Anderson's injury, such a determination does not necessarily lead to the conclusion Dreis' failure was also the legal cause of the injury. W. Keeton, D. Dobbs, R. Keeton, & D. Owen, at 272-73. Unlike factual causation, legal causation "hinges on principles of responsibility, not physics", Van Buskirk v. Carey Can. Mines, Ltd., 760 F.2d 481, 492 (3d Cir.1985), and the determination of legal causation rests on policy considerations as to how far the legal consequences of a defendant's act should extend. Baughn, at 146. Consequently, the existence of legal causation between two events is determined "on the facts of each case upon mixed considerations of logic, common sense, justice, policy and precedent." W. Prosser, Torts § 42, at 249 (4th ed. 1971) (quoting 1 T. Street, Foundations of Legal Liability 110 (1906)). [4] The doctrine of superseding cause, however, limits the situations in which legal causation can be held to exist between two events. The doctrine applies where the act of a third party intervenes between the defendant's original conduct and the plaintiff's injury such that the defendant may no longer be deemed responsible for the injury. Campbell v. ITE Imperial Corp., 107 Wn.2d 807, 813, 733 P.2d 969 (1987); Restatement (Second) of Torts § 440 (1965). Superseding cause thus prevents a determination of legal causation between a defendant's actions and a plaintiff's injuries where the intervening act breaks the otherwise natural and continuous causal connection between events. See Pratt v. Thomas, 80 Wn.2d 117, 119, 491 P.2d 1285 (1971). Whether an act may be considered a superseding cause sufficient to relieve a defendant of liability depends on whether the intervening act can reasonably be foreseen by the defendant; only intervening acts which are not reasonably foreseeable are deemed superseding causes. Campbell, *443 at 813 (and cases cited therein).[5] The foreseeability of an intervening act, unlike the determination of legal cause in general, is ordinarily a question of fact for the jury. Kennett v. Yates, 41 Wn.2d 558, 564-65, 250 P.2d 962 (1952); see also Petersen v. State, 100 Wn.2d 421, 435-36, 671 P.2d 230 (1983); W. Kimble & R. Lesher, Products Liability § 251, at 276 (1979 & Supp. 1985). However, foreseeability is a flexible concept, and a defendant will not be relieved of responsibility simply because the exact manner in which the injury occurred could not be anticipated. Rikstad v. Holmberg, 76 Wn.2d 265, 269, 456 P.2d 355 (1969); Smith v. Acme Paving Co., 16 Wn. App. 389, 396, 558 P.2d 811 (1976). Rikstad, at 269 (quoting McLeod v. Grant Cy. Sch. Dist. 128, 42 Wn.2d 316, 321-22, 255 P.2d 360 (1953)) provides: It is not, however, the unusualness of the [intervening] act that resulted in injury to plaintiff that is the test of foreseeability, but whether the result of the act is within the ambit of the hazards covered by the duty imposed upon defendant. ... ... ... It is literally true that there is no liability for damage that falls entirely outside the general threat of harm which made the conduct of the actor negligent. The sequence of events, of course, need not be foreseeable. The manner in which the risk culminates in harm may be unusual, improbable and highly unexpectable, from the point of view of the actor at the time of his conduct. And yet, if the harm suffered falls within the general danger area, there may be liability, provided other requisites of legal causation are present. (Italics ours.)[6]See also W. Keeton, D. Dobbs, R. Keeton, & *444 D. Owen, at 316. In this context our Supreme Court has held that generally an intervening act is not a superseding cause where the intervening act (1) does not bring about a different type of harm than otherwise would have resulted from the defendant's conduct; and (2) does not operate independently of the situation created by the defendant's conduct. Campbell, at 813-14; Herberg v. Swartz, 89 Wn.2d 916, 927-28, 578 P.2d 17 (1978); Restatement (Second) of Torts §§ 442-445 (1965). The above principles are equally applicable to negligence and strict products liability theories. Campbell, at 814. Dreis primarily contends Comet's deactivation of the 2-button device and installation of an alternative activation system destroyed the efficacy of the press' safety features. Dreis maintains, and the court found, the deactivation of this safety feature was unforeseeable and constituted a superseding cause of the accident as a matter of law. We disagree. Contrary to Dreis' argument, a jury could find it was reasonably foreseeable to Dreis that a purchaser of the press would choose an alternative method of activation given the press' myriad uses, see Jiminez v. Dreis & Krump Mfg. Co., 736 F.2d 51 (2d Cir.1984), and because an alternative activation system, i.e., the treadle, was designed into the press and delivered with it to Comet. Obviously, use of an alternative activation method, such as the treadle, rendered the 2-button activation system superfluous and its safety features ineffective since the press operator's hands were no longer occupied. We are cognizant that the activation method chosen by *445 Comet was not originally designed into the press by Dreis and thus the precise manner in which this accident occurred may not have been foreseeable to Dreis. See Rikstad, at 269; Restatement (Second) of Torts § 442B, comments a, b (1965). However, the single button switch, like the treadle, foreseeably allowed the press to be accidently activated while the operator's free hands were in the unguarded point-of-operation area. Under these circumstances, a jury could find the accidental activation of the press, while Mr. Anderson's hand was in the die area, was within the foreseeable scope of danger created by Dreis' failure to incorporate guards around the point-of-operation area. In the absence of any evidence that Comet's modification enhanced the danger of accidental activation above that found in the treadle,[7] we decline to hold that Comet's modification constitutes a superseding cause as a matter of law. Accord, Jiminez, at 55; Merriweather v. E.W. Bliss Co., 636 F.2d 42, 44-45 (3d Cir.1980); Dennis v. Ford Motor Co., 471 F.2d 733, 735 (3d Cir.1973); Hales v. Green Colonial, Inc., 490 F.2d 1015, 1020-21 (8th Cir.1974); Capasso v. Minster Mach. Co., supra; Dorsey v. Yoder Co., *446 331 F. Supp. 753, 764 (E.D. Pa. 1971), aff'd sub nom. Yoder Co. v. General Copper & Brass Co., 474 F.2d 1339 (3d Cir.1973); Balido v. Improved Mach., Inc., 29 Cal. App.3d 633, 105 Cal. Rptr. 890, 901 (1972). Two additional considerations bolster our conclusion that a jury should properly determine whether Comet's alteration of the press was a superseding cause of Mr. Anderson's injury. First, the modification did not result in a different type of harm than otherwise would have occurred from Dreis' failure to supply point-of-operation guards with the press. The harm caused by this deficiency, i.e., injury to hands or other body parts, remained the same regardless of the alternative activation method chosen. Second, the intervening modification cannot be said to have operated independently from Dreis' failure to equip the press with guards. Rather, if the guards had been present, Mr. Anderson's hand could not have entered the die area while the press cycled, no matter which activation method was employed. See Rhoads v. Service Mach. Co., 329 F. Supp. 367, 377 (E.D. Ark. 1971). Thus, a jury could determine that Comet's intervening alteration, rather than superseding Dreis' failure to supply guards, instead concurred with that failure to bring about the harm. As Smith v. Acme Paving Co., supra at 396, notes: There may, of course, be more than one proximate cause of an injury, and the concurring negligence of a third party does not necessarily break the causal chain from original negligence to final injury. Where a defendant's original negligence continues, and contributes to the injury the mere fact another's intervening negligent act is a further cause of the accident does not prevent defendant's act from constituting a cause for which he is liable. (Citations omitted.) We conclude reasonable persons could disagree as to whether Comet's modification broke the causal chain between Dreis' design choice and Mr. Anderson's injury. Consequently, the court erred in holding the modification of the activation system was a superseding cause of Mr. *447 Anderson's injury as a matter of law. E COMET'S FAILURE TO SUPPLY GUARDS Notwithstanding the foregoing analysis, Dreis argues, relying on Campbell v. ITE Imperial Corp., supra, that Comet had actual, specific knowledge of the danger created by the press' lack of guards and thus had a duty to itself supply such guards. Dreis argues Comet's failure to supply such guards was a negligent act sufficient to constitute a superseding cause as a matter of law. We disagree. [5] The Restatement (Second) of Torts § 449, at 482 (1965) provides the negligence of a third party does not constitute a superseding cause "[i]f the likelihood that a third person may act in a particular manner is ... one of the hazards which makes the [original] actor negligent". See also Campbell, at 814-15. This court has previously held it is foreseeable a small company which purchases dangerous industrial machinery will not install guards on that machinery when the manufacturer delivers that equipment without them. Parkins v. Van Doren Sales, Inc., 45 Wn. App. 19, 29, 724 P.2d 389 (1986); Note, Products Liability — Manufacturer May Be Held Strictly Liable to Employee of Purchaser for Failure To Install Safety Devices Despite Expectation That They Would Be Installed by Purchaser — Bexiga v. Havir Mfg. Corp., 60 N.J. 402, 290 A.2d 281 (1972), 86 Harv. L. Rev. 923, 927 (1973). Not only is the manufacturer's duty to supply safety guards on dangerous industrial equipment nondelegable, Bexiga v. Havir Mfg. Corp., supra, but the failure of the purchaser to supply guards is so likely that it constitutes one of the hazards which makes a manufacturer's failure to supply such guards negligent. Restatement (Second) of Torts § 449 (1965). Moreover, the public interest in assuring that appropriate safety devices be installed on industrial machinery would be undermined if installation was left to the "haphazard conduct of the ultimate purchaser." Bexiga, at 410. *448 We further note Dreis' reliance on the "actual, specific knowledge" language in Campbell, at 817, is misplaced; it is both factually and procedurally distinguishable. In Campbell, the issue was whether a Public Utility District had a duty, in the absence of a warning by the manufacturer of electrical switchgear, to warn its employees that such switchgear could remain electrified. See also Little v. PPG Indus., Inc., 92 Wn.2d 118, 594 P.2d 911 (1979). In contrast, this case involves the question of whether Comet had the significantly more burdensome duty to supply point-of-operation devices. Also, the question in Campbell related to whether the jury should have been instructed that the PUD's failure to warn its employees of the danger constituted a superseding cause. Here, the issue is whether the case should go to the jury.[8] Thus, we hold a question of fact exists as to whether Comet's failure to supply guards was a negligent act sufficient to relieve Dreis of responsibility. F COMET'S CONTINUED USE OF THE PRESS AFTER THE DEPARTMENT OF LABOR AND INDUSTRIES WARNING Dreis further contends Comet's continued use of the guardless press after being warned by the Department of Labor and Industries that the press was dangerous without guards constitutes a superseding cause of the injury. To the extent this argument is related to the one set out immediately above, we need not address it further. Notwithstanding, Rhoads v. Service Mach. Co., supra, is particularly apt here. [6] In Rhoads, the press, like the one in question here, had been shipped with dual hand controls and a warning *449 sign; it possessed no point-of-operation guards. Prior to the accident, the Arkansas Department of Labor ordered the purchaser (employer) to install safety guards on the press. The purchaser failed to install the guards, deactivated the dual hand control, and installed an alternative activation device. That device was accidentally activated, resulting in the plaintiff's injury. The court rejected the contention such conduct on the part of the purchaser-employer amounted to a superseding cause, immunizing the manufacturer from liability as a matter of law; the court declared at page 376: While the defendant may have thought that Al-Craft would have taken adequate precautions to protect its employees, or that it would be required to do so by its workmen's compensation insurance carrier or by regulatory agencies of the State of Arkansas, the Court does not think that as a matter of law defendant had a right to assume that protective devices would be provided. Accord, Balido, at 647 ("an owner's lack of compliance with a state safety order does not release a manufacturer from liability for injuries attributable to deficient safety design"); Bexiga v. Havir Mfg. Corp., supra; Finnegan v. Havir Mfg. Corp., 60 N.J. 413, 290 A.2d 286 (1972). We agree with the reasoning manifested in those decisions and likewise hold Comet's failure to heed the Department's warning does not immunize Dreis as a matter of law.[9] *450 G SUMMARY In conclusion, we affirm the trial court's summary judgment on the issues of breach of warranty and breach of the duty to warn. We reverse the trial court's determination that the press was not defectively designed as a matter of law and that Dreis' design was not the legal cause of Mr. Anderson's injury as a matter of law. Therefore, we reverse and remand for trial. McINTURFF, C.J., concurs. GREEN, J. (dissenting) In my view the trial judge was correct in ruling the modification of the activation mechanism of the press was the intervening proximate cause of Mr. Anderson's injuries and dismissing the complaint. The press was designed to be activated by the use of two buttons or a foot treadle. When the buttons were used, it was impossible for the operator's hands to be under the press. The purchaser, Comet, elected to activate the press by use of the buttons. However, instead of using the two buttons as the machine was designed, Comet not only modified the press so it could be activated by one button, but placed that button in a position where it could be accidently activated by the operator's body rubbing against it. That is what happened here. The operator, while removing metal from beneath the press, rubbed against the dangling button setting off the press and injuring his hand. It is apparent that the sole and proximate cause of this accident was Comet's negligent modification of the button activation system, creating the danger of accidental activation. If the accident had happened while using the foot treadle, then the issue of defective design as the proximate cause of the injury would create a question for the trier of *451 fact. Here, the treadle was not used and the question of defective design for treadle use is not an issue. I would affirm. Review denied by Supreme Court October 6, 1987. NOTES [1] The provisions of RCW 7.72 (relating to product liability actions) are inapplicable; this injury occurred prior to the effective date of that chapter, i.e., July 26, 1981. See Gates v. Standard Brands, Inc., 43 Wn. App. 520, 719 P.2d 130, review denied, 106 Wn.2d 1017 (1986). [2] As utilized by Comet, sheets of aluminum, approximately 100 inches long, were fed into the press from the back of the press moving through the point of operation toward the operator. [3] The record indicates that several types of point-of-operation guards were available, including: (a) barrier guards, and (b) "light curtains." Either of these guards would have prevented the press from cycling while the operator's hands were in the point-of-operation area. [4] Gasdiel v. Federal Press Co., 78 Ill. App.3d 222, 396 N.E.2d 1241 (1979), Coleman v. Verson Allsteel Press Co., 64 Ill. App.3d 974, 382 N.E.2d 36 (1978), and Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 403 N.E.2d 440, 426 N.Y.S.2d 717 (1980) cited by Dreis on this issue are distinguishable; in those cases, the plaintiffs were unable to present sufficient facts demonstrating that a question of fact existed as to whether the presses were defective at the time they left the manufacturers' control. [5] See Restatement (Second) of Torts § 440 (1965) which provides other considerations useful in determining whether an intervening act constitutes a superseding cause. [6] Likewise, Restatement (Second) of Torts § 442B, comment a (1965) provides "that the fact that the [original] actor neither foresaw nor could have foreseen the manner in which a particular harm is brought about does not prevent his liability ..." Comment b to that section continues: If the actor's conduct has created or increased the risk that a particular harm to the plaintiff will occur, and has been a substantial factor in causing that harm, it is immaterial to the actor's liability that the harm is brought about in a manner which no one in his position could possibly have been expected to foresee or anticipate. (Italics ours.) [7] Cf. Hanlon v. Cyril Bath Co., 541 F.2d 343, 345 (3d Cir.1975). In Hanlon, the plaintiff's employer modified the press activation mechanism from a treadle which required 65 pounds of downward pressure before activation to an electric switch at the end of a flexible cable. The court, at page 346, held this modification caused the accident, stating: Clearly, the substitution of the easily depressed mobile electrical foot switch for the original fixed elevated mechanical treadle that was responsive only to some 65 pounds of downward pressure removed a safeguard against accidental activation that had been incorporated in the original structural design and would have been adequate to prevent this accident. Here, however, no evidence was presented indicating the necessary pressure needed to depress the foot treadle. In fact, there is no evidence comparing the respective risks of accidental activation created by these two activation methods. An affidavit of one of Mr. Anderson's experts provides "the thumb operated control provided a safer control for the intended [activation] function than would a foot activator." Because this court is required to consider the pleadings, depositions, admissions, and affidavits in the light most favorable to the nonmoving party, Turngren v. King Cy., 104 Wn.2d 293, 312, 705 P.2d 258 (1985), we conclude on the facts before the trial court that the modification did not unforeseeably increase the risk of accidental activation as a matter of law. [8] Even if Campbell and Little apply in this context, the record is conflicting as to the extent Comet was aware the press was unsafe because of lack of safety guards. Although the record reveals supervisory personnel at Comet believed the unguarded press was a "serious problem," they also believed its operation was "safe." Like the circumstances in Campbell, there is no evidence other accidents had occurred involving the press. [9] We briefly address two other issues: (1) In light of the warning on the press, did Mr. Anderson assume the risk of injury such that his conduct was a superseding cause as a matter of law? (2) Does the presence of a warning on an otherwise deficiently designed press absolve the manufacturer from liability? First, we decline to hold Mr. Anderson deliberately and voluntarily assumed the risk of the press' accidental activation as a matter of law. Notwithstanding, if he can be said to have assumed the risk, in a products liability case, that defense operates as a damages reducing factor only, not a complete bar to recovery. Campbell, at 820. Second, the warning notice on the press does not immunize Dreis from liability for its deficient design. Rhoads v. Service Mach. Co., supra; Balido v. Improved Mach., Inc., supra; cf. Lamon v. McDonnell Douglas Corp., 19 Wn. App. 515, 523-24, 576 P.2d 426 (1978), aff'd, 91 Wn.2d 345, 588 P.2d 1346 (1979); Palmer v. Massey-Ferguson, Inc., 3 Wn. App. 508, 510, 476 P.2d 713 (1970). A manufacturer which produces a machine which is otherwise defective because of the absence of safety features or guards should not escape liability for defective design as a matter of law simply by warning of a dangerous condition which reasonably could have been avoided by a safer design. Schell v. AMF, Inc., 567 F.2d 1259 (3d Cir.1977).

613 S.W.2d 450 (1981) Judith Alice MURPHY, Petitioner-Appellant, v. Russell William MURPHY, Respondent-Respondent. Nos. 41552, 41634. Missouri Court of Appeals, Eastern District, Division Two. February 24, 1981. Theodore S. Schecter, Clayton, for petitioner-appellant. Armstrong, Teasdale, Kramer & Vaughan, Walter M. Clark, Richard B. Scherrer, St. Louis, for respondent-respondent. GUNN, Judge. On appeal from a dissolution case, the appellant wife raises six points of alleged trial court error: (1) in limiting the award of maintenance to her for a period of five years; (2) in awarding maintenance and child support payments that were inadequate in light of the factors enumerated in *451 § 452.335.2 and § 452.340.3; (3) in equally dividing an income tax savings escrow account of $4223, rather than awarding it in whole to the wife; (4) in finding that the family residence was separate, non-marital property belonging to the husband; (5) in failing to award the wife sufficient maintenance in gross to permit her to purchase a home for her and her children and allow them to maintain their standard of living; (6) in failing to make a determination and award regarding the husband's retirement plan. We affirm as to all issues except the five-year maintenance limitation, and we modify the judgment to that extent. The husband and wife were married in 1971. At the time of the proceedings in 1979, their two children were five and six years of age. The husband was senior vice president of a St. Louis bank with an annual gross salary of $45,000. He also possessed non-marital stocks having a value of $124,825, having inherited most of them before the marriage. Prior to the marriage the husband had purchased a house in St. Louis County valued by the court at $100,000 and an unimproved eleven acre lot valued at $10,000. The husband testified that the house was not purchased in contemplation of the marriage; the wife said it was. He testified that additions to the house were done at his own expense using non-marital funds. The wife testified that while not participating financially, she had contributed her time and talents to the additions. The husband said, not so. The husband offered that the wife had a penchant for wanton profligacy, that she had telephoned his superiors at the bank to complain of his alleged parsimony, and that her spending exceeded his monthly earnings from his work, necessitating his dipping into financial reserves and borrowing to meet expenses. He also testified as reason for not placing assets in her name that within a month of the marriage the wife had suggested breaking the matrimonial ligatures. The wife admitted the telephone calls to her husband's superiors, her suggestion of divorce shortly after the marriage and the expenses exceeding earnings from his employment. The wife urged the latter as evidence of the standard of living to which the family had become accustomed. At the time of the dissolution proceedings, the husband was forty years of age. The evidence was that if his association with his bank terminated at age forty his pension fund would pay him $90.75 per month at the age of sixty-five. The wife, who was given custody of the two children, possessed a B.S. degree in education and had been qualified to teach elementary school in New York prior to the marriage. She was not, however, qualified to teach in Missouri. The trial court found that the house was non-marital property, having been purchased before the marriage, and it was awarded to the husband. The wife was awarded maintenance of $350 per month for five years and the husband ordered to pay the sum of $240 per month for each of the two children. An escrow account of $4223, which was the result of tax savings from a joint income tax return, was divided equally. The husband was ordered to pay certain outstanding bills and the wife's attorney's fees of $7500. In addition to the house in St. Louis County, the trial court found the stocks, the eleven-acre lot and certain personalty to be the separate property of the husband. Household furnishings and a 1970 Volvo were awarded to the wife, and the husband was awarded a 1970 Volkswagen and a $600 interest in an investment club. We first address the wife's complaints concerning the sufficiency of the amounts of the award of maintenance and child support. We are not disposed to slip into the miry bog of judicial second guessing of the trial court, supplanting our determination of what amounts should be awarded in place of the trial court's judgment. There has been a fulsome volley of judicial rubric holding that the trial court is vested with substantial discretion in this regard, e. g., McKenna v. McKenna, 607 S.W.2d 464 (Mo.App.1980); White v. White, 601 S.W.2d 464 (Mo.App.1980). The judgment of the *452 trial court regarding awards of maintenance and child support is to be affirmed if it is supported by substantial evidence, is not against the weight of the evidence and no error or misapplication of the law appears. Dempsey v. Dempsey, 605 S.W.2d 513 (Mo.App.1980); Coughlin v. Coughlin, 613 S.W.2d 143 (Mo.App.1980). Our review of the record discloses no basis for overruling the trial court with regard to the amounts awarded or division of the assets, including the escrow account. In so doing we have given consideration to the couple's standard of living and the statutory factors. The evidence also supports the trial court's declaration that the house was non-marital property, belonging to the husband, and there was no error in so finding. McKenna v. McKenna, 607 S.W.2d at 466, 467. The trial court did not err in making no disposition of the husband's pension plan. At the time of the proceedings the husband was 40 years old. Under the provisions of the pension plan, if he left his employment he would receive nothing until he reached 65 years, and his monthly benefit would then be 25% of $363, or $90.75 per month. Inasmuch as the pension would not come into being for 25 years and then only for $90.75 a month, it is de minimis and too speculative to be considered as marital property requiring disposition. In re Marriage of Faulkner, 582 S.W.2d 292 (Mo.App. 1979). See Delay v. Delay, 612 S.W.2d 391 (Mo.App.E.D. 1981). The five year limitation placed by the trial court on the maintenance for the wife is another matter. The record is extremely sketchy as to why such a stricture should be imposed. While apparently physically in good health, the wife was under psychiatric care. Although she taught elementary school in New York state in 1970, she was not qualified to teach in Missouri. The only other employment she had prior to marriage was as a service representative for a telephone company. She had not worked during the eight years of marriage, and she bears the responsibility of raising two small children—not a particularly propitious circumstance in which to commence seeking meaningful work. The record in this case does not appear to support the imposition of the five year maintenance restriction. There was no circumstantial evidence of the wife's future abilities to provide for her reasonable needs nor is there evidence of or reasonable expectation that her circumstances will be different in the future. See In re Marriage of Wofford, 589 S.W.2d 323 (Mo.App.1979); Poague v. Poague, 579 S.W.2d 822 (Mo.App.1979); C. B. H. v. R. N. H., 571 S.W.2d 449 (Mo.App. 1978); In re Marriage of Valleroy, 548 S.W.2d 857 (Mo.App.1977). The five year restriction on the maintenance must therefore be lifted, and the judgment is thereby modified to that extent. Ruth v. Ruth, 560 S.W.2d 897 (Mo.App.1978); In re Marriage of Cornell, 550 S.W.2d 823 (Mo.App.1977); LoPiccolo v. LoPiccolo, 547 S.W.2d 501 (Mo. App.1977); In re Marriage of Powers, 527 S.W.2d 949 (Mo.App.1975). Cf. S.W.2d 949 (Mo.App.1975). Cf. Pederson v. Pederson, 599 S.W.2d 51 (Mo.App.1980) (record supported rehabilitative maintenance, as wife was acquiring special educational training for employment); Hebron v. Hebron, 566 S.W.2d 829 (Mo.App.1978) (maintenance to cease on emancipation of youngest child; full time employment of wife possible as she possessed realtor's license). Judgment affirmed as modified. PUDLOWSKI, P. J., and WEIER, J., concur.

473 P.2d 248 (1970) Aaron WILLIAMS, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error. No. A-15307. Court of Criminal Appeals of Oklahoma. July 1, 1970. Don Anderson, Public Defender, for plaintiff in error. G.T. Blankenship, Atty. Gen., W. Howard O'Bryan, Jr., Asst. Atty. Gen., for defendant in error. *249 BUSSEY, Judge: Aaron Williams, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Oklahoma County for the crime of Assault and Battery With Intent to Kill. The punishment was left to the court and the court fixed punishment at 12 years in the penitentiary, 6 years to be served and the last 6 years to be suspended. From said judgment and sentence, he appeals. Briefly stated, the facts adduced on the trial reveal that on August 9, 1967, Robert Burris arrived alone about 9:00 or 10:00 p.m. at the Ebony Club, described by one of the waitresses as a "tough joint," on Stiles Circle. About 15 people were present. Burris testified that as he entered defendant passed in front of him "pretty well under the way * * * intoxicated" (R45) and offered him a drink. On Burris's refusal, defendant uttered an epithet. Burris ordered a sandwich and drink and on the way to a booth defendant bumped into him and spun him around saying, "why don't you watch where you're going?" (R58). At the invitation of Joe James, Burris joined him and Shirley Freeman at another booth. Defendant shortly returned to this booth and uttered another epithet and threat, whereupon as Burris testified, "I seen this knife coming and I started out of the booth * * * that's when he caught me right here," (R49) stabbing Burris with a knife in the chest. Burris testified he then got up and left, walking about two blocks, and then being pursued about two more blocks by defendant where he fainted and remembers being put in an ambulance. Burris denied having any quarrel with defendant or anyone else, and denied striking any blows or seeing anyone else strike defendant. Although Burris knew defendant by name the evening this took place, he did not name defendant to the officers until after he had been shown some mug shots. When the court asked Burris why he had to look at pictures to tell who it was, Burris replied, "Well, I was for sure then that was him." (R65). Shirley Freeman testified that she was a waitress at the Ebony Club, but at the time in question was off duty. She was sitting in a booth with Joe James a little before 10:00 p.m. when Burris joined them upon invitation. She testified defendant entered the place and started to the bar at the rear then returned by their booth "and then I seen him hit Robert Burris in the chest but I didn't see any knife or anything so Robert Burris was fixing to get up and *250 so he got on up and then I seen him grab his chest and I seen blood * * *." She denied having heard Burris say anything or offer provocation, or strike at defendant. Defendant testified he entered the club about 9:30 and went to a table about two or three feet from Burris's booth and in use by Ned Johnson and about nine others. Johnson was standing by Burris's booth and called defendant over, complaining loudly that someone had cut his pockets and taken his wallet and inquired what defendant knew about it. He was very disturbed and profane and "I was facing him and he was standing beside Mr. Burris and the two of them got engaged in a conversation about this because he had accused them of cutting his pockets." (R77). * * * "as I turned, Mr. Burris was swinging a bottle and I got hit between the eyes with it and I fell back and the next thing I knew I was going out the door." (R78). Defendant denied having a knife and denied having any words with Burris. Officers picked him up and offered to take him to the hospital, but he refused (R78). Ronny Taylor testified that he was there and "saw a bottle go up and I saw Aaron fall." (R91). He did not see defendant strike anybody and was sure defendant did not have a knife. He confirmed that police picked defendant up just outside the club and took him home. Lonnie Walker testified to substantially the same and in addition that he saw "some big dude" with his pocket cut, apparently asleep. "I figured he was laying there for somebody to try it again." When asked if this person said anything, Walker replied: "Things were happening too fast for that." (R128). Joe James testified that he was sitting in the booth with Shirley and Burris that evening and saw defendant walk up to the table. "I didn't hear him say anything. Then I saw Robert grab his chest like that and he just fell over the table like that and then I seen all that blood." (R102). He saw no knife and heard no words of provocation. Dr. Honaker testified defendant had a puncture wound of the left upper chest and was hospitalized ten days, six of which were in the intensive care unit. On appeal it is first contended that the evidence is insufficient to support the verdict of the jury. From the foregoing recital of facts, it is readily apparent that the evidence offered on behalf of the State, although in sharp conflict with the evidence offered on behalf of defendant was sufficient, if believed, to support the verdict of the jury. We have repeatedly held that where there is competent evidence in the record from which the jury could reasonably conclude that defendant was guilty as charged, the Court of Criminal Appeals will not interefere with the verdict even though there is a sharp conflict in the evidence and different inferences may be drawn therefrom, since it is the exclusive province of the jury to weigh the evidence and determine the facts. See Music v. State, Okl.Cr., 396 P.2d 894 and Hudson v. State, Okl.Cr., 399 P.2d 296. In accordance with the authority above set forth, we are of the opinion that this assignment of error is without merit. It is next contended that the punishment imposed is excessive. We need only observe that the punishment imposed was well within the range provided by law, the record is free of any error which would justify modification or reversal and under such circumstances we are of the opinion that the judgment and sentence appealed from should be, and the same is hereby, affirmed. BRETT, P.J., and NIX, J., concur.

CORRECTED COPY UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before CAMPANELLA, HERRING, and PENLAND Appellate Military Judges UNITED STATES, Appellant v. Sergeant STEVEN E. WOLPERT United States Army, Appellee ARMY MISC 20160437 Headquarters, 10th Mountain Division S. Charles Neill, 1 Military Judge Lieutenant Colonel John J. Merriam, Staff Judge Advocate For Appellee: Colonel Mary J. Bradley, JA; Lieutenant Colonel Melissa R. Covolesky, JA; Captain Ryan T. Yoder, JA (on brief). For Appellant: Colonel Mark H. Sydenham, JA; Major Jihan Walker, JA; Captain Carling M. Dunham, JA (on brief). 22 September 2016 ----------------------------------------------------------- OPINION OF THE COURT AND ACTION ON APPEAL BY THE UNITED STATES FILED PURSUANT TO ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE ----------------------------------------------------------- CAMPANELLA, Senior Judge: In this case, we analyze personal jurisdiction over appellee, a member of the reserve component, who allegedly committed criminal acts between periods of inactive-duty training (IDT). We conclude jurisdiction under Articles 2(a)(3) and 2(c), Uniform Code of Military Justice [hereinafter UCMJ] does not exist. Appellee was charged with one specification of maltreatment, three specifications of sexual assault, one specification of abusive sexual contact, and one 1 Corrected WOLPERT—ARMY MISC 20160437 specification of fraternization in violation of Articles 93, 120, and 134 UCMJ, 10 U.S.C. §§ 893, 920, 934 (2012). On 16 June 2016, the military judge dismissed all charges and specifications for lack of personal jurisdiction. The government filed a motion for reconsideration on 19 June 2016, which the military judge denied on 20 June 2016. This case is before this court pursuant to a government appeal of the military judge’s ruling in accordance with Article 62, UCMJ, and Rule for Courts-Martial [hereinafter R.C.M.] 908(a). BACKGROUND Appellee is a member of the reserve component assigned to a unit in Brockton, Massachusetts. His unit conducted IDT on 17-19 October 2014 at Fort Devens, Massachusetts. The unit scheduled five “unit training assembly” (UTA) periods for that weekend. A three-and-a-half-hour UTA (1800-2130) was conducted Friday; two four-hour UTAs (0800-1200, 1300-1700) were conducted Saturday; and two four-hour UTAs (0800-1200, 1300-1700) were conducted Sunday. According to the government’s key witness on this interlocutory question, reserve personnel receive one day of pay and one retirement point for each UTA period attended. A sign-in and sign-out roster was used at the beginning and end of each day for accountability and pay purposes. Appellee attended all five UTAs and signed in and out at the beginning and end of each day. Because the unit was training away from its home station, the unit paid for lodging, with unit funds, for those whose home of record was more than fifty miles away from the UTA location. As a result, appellee’s unit provided lodging-in-kind at a motel in Leominster, Massachusetts, which appellee used. Appellee’s unit provided motel rooms because the Fort Devens barracks were full. The unit also made breakfast, lunch, and dinner available for members on Saturday, 18 October 2014. It is unclear from the record whether appellee received transportation compensation or whether his unit provided transportation, or neither. On 18 October 2014, after the afternoon UTA period had ended and appellee had signed out on the unit accountability roster, appellee allegedly sexually assaulted an enlisted soldier in his unit at the motel where unit members were being housed by their reserve unit. At the time of the alleged offenses, appellee was the acting first sergeant of the unit. The Army asserted jurisdiction over appellee and initiated court-martial proceedings. At appellee’s court-martial, defense counsel challenged the Army’s 2 WOLPERT—ARMY MISC 20160437 personal jurisdiction over appellee. The military judge dismissed all charges and specifications against appellee for lack of jurisdiction. STANDARD OF REVIEW Jurisdiction is a legal question we review de novo. United States v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006). When reviewing matters under Article 62(b), UCMJ, we “will take action only with respect to matters of law,” and we are “bound by the military judge’s factual determinations unless they are unsupported by the record or clearly erroneous.” R.C.M. 908(c)(2); United States v. Gore, 60 M.J. 178, 185 (C.A.A.F. 2004). The burden is on the government to prove jurisdiction by a preponderance of the evidence. United States v. Oliver, 57 M.J. 170, 172 (C.A.A.F. 2002); see also R.C.M. 905(c)(2)(B). MILITARY JUDGE’S FINDINGS OF FACT AND CONCLUSIONS OF LAW After a hearing on this topic, the military judge issued written findings of fact and conclusions of law. The military judge found that on 17-19 October 2014, the accused’s unit conducted scheduled weekend IDT, and the training was comprised of five separate and discrete UTAs. He also found the appellee was not on orders during this period and that appellee signed out before he allegedly committed the crimes of which he is accused. The military judge further found that after the conclusion of UTA on Saturday at 1700, 18 October 2014, the IDT period ended until the next morning when appellee signed back in. Lastly, the military judge found no unit policy purporting to confer jurisdiction over a soldier using lodging- in-kind. We find the military judge’s factual determinations are supported by the record before us and are not clearly erroneous. In his conclusions of law, the military judge held that appellee signed out at 1700 on 18 October 2014, and was no longer on IDT when he allegedly committed the charged offenses. He also held that appellee was not ordered into active duty status for any period during the 17-19 October 2014 drill weekend. Based on these findings, he concluded appellee was not subject to military jurisdiction. ANALYSIS Personal Jurisdiction “Since 1987 it has been clear that an inquiry into court-martial jurisdiction focuses on the person’s status, i.e., whether the person is subject to the UCMJ at the time of the offense.” United States v. Ali, 71 M.J. 256, 261 (C.A.A.F. 2012) (citing Solorio v. United States, 483 U.S. 435 (1987)); see also United States v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006) (“military jurisdiction over the person continues as 3 WOLPERT—ARMY MISC 20160437 long as military status exists.”). “Both the Supreme Court of the United States and [the Court of Appeals for the Armed Forces] have insisted that courts-martial not exercise jurisdiction beyond that granted by the applicable statutes.” Willenbring v. Neurauter, 48 M.J. 152, 157 (C.A.A.F. 1998). That the statutory grants of personal jurisdiction are limited and specific is consistent with the principle that we are a system of limited jurisdiction. The applicable statute, 10 U.S.C. § 802, lists “persons subject” to the UCMJ; it includes: (a)(1) Members of a regular component of the armed forces, including . . . other persons lawfully called or ordered into, or to duty in or for training in, the armed forces, from the dates when they are required by the terms of the call or order to obey it; [...] (a)(3) Members of a reserve component while on inactive- duty training; and [...] (c) a person serving with an armed force (who submitted voluntarily to military authority; met mental competency and minimum age at the time of voluntary submission to military authority; received military pay or allowances; and performed military duties). 1. Article 2(a)(1)—On Orders Pursuant to Article 2(a)(1), UCMJ, persons under a call or order for duty or training are subject to the UCMJ from the dates when they are required by the terms of the order to obey it. This means that reserve component soldiers ordered to annual training (AT), active duty for training (ADT), or other forms of active duty are subject to the UCMJ. Id. See also R.C.M. 202 discussion (2)(A)(i) (2012); Duncan v. Usher, 23 M.J. 29, 34 (C.M.A. 1986)(“under Article 2(a)(1), Congress granted jurisdiction over Reserves who are on active duty.”). 2 2 10 U.S.C. § 101(d)(1) defines “active duty” as “full-time duty in the active military service of the United States” that “includes full-time training duty, annual training duty . . . .” 4 WOLPERT—ARMY MISC 20160437 Here the government produced the appellee’s unit training calendar indicating scheduled training dates throughout the year. The government also produced evidence that appellee had a contractual obligation to attend a certain amount of training each year. The government did not, however, produce evidence that appellee was ordered or obligated to attend the 17-19 October UTAs. Mr. Bouchard, a staff operations training specialist in his civilian capacity and the deputy battalion commander of appellee’s reserve unit, testified that appellee was not “under a call or order for duty or training.” He explained that with a supervisor’s approval, a member of the unit could miss some of the UTAs as long as he or she still fulfilled the forty-eight UTA per year obligation. Based on the record before us and the fact that Article 2(a)(3) specifically covers periods of IDT, we agree with the military judge’s conclusion that no jurisdiction exists under Article 2(a)(1), UCMJ. 2. Article 2(a)(3)—On Inactive-Duty Training Article 2(a)(3), UCMJ, covers “[m]embers of a reserve component while on inactive-duty training.” The question before this court is whether IDT includes periods before signing in and after signing out of an IDT drill period, while away from home station and not on orders, and while receiving in-kind lodging and provided meals. The Court of Appeals for the Armed Forces (CAAF) recently acknowledged Article 2(a)(3), UCMJ, has not been the subject of much analysis but “little analysis is required to conclude that the operative statutory language refers to, and thus is limited to, a ‘member[] of a reserve component’ ‘while on inactive-duty training.’” United States v. Morita, 74 M.J. 116, 120 (C.A.A.F. 2015). See 10 U.S.C. § 101(d)(7). 3 3 The Air Force Court of Criminal Appeals (Air Force Court) has decided two cases concerning IDT. In 1992, a reservist challenged Article 2(a)(3) jurisdiction over his mid-afternoon larceny for three reasons: 1) he only signed into the morning session but did not sign out of the afternoon session due to his apprehension; 2) he was not present during the afternoon session; and 3) he was not paid for the afternoon session. United States v. Wall, ACM 29002, 1992 CMR LEXIS 642 (A.F.C.M.R. 1992). The court found jurisdiction because the reservist, who was still in uniform, had not departed from IDT at noon during any prior drill weekend and did not request permission to do so on the date of his offenses. Additionally, it was his apprehension that prevented him from signing the afternoon sheet. More recently, the same court found a reservist “was in military status and thus subject to military jurisdiction” pursuant to Article 2(a) for the entire IDT weekend, not just during each of the “four-hour blocks[s] of training, duty or instruction.” (continued . . .) 5 WOLPERT—ARMY MISC 20160437 Here, the government attempted to prove jurisdiction through Mr. Bouchard’s testimony. Mr. Bouchard agreed with the military judge’s reading of Army Reg. 140-1, Army Reserves Mission Organization and Training [hereinafter AR 140-1], para. 3-4 (20 Jan. 2004), in that a reservist who shows up to a four hour UTA gets one day’s pay or one retirement point or both. Mr. Bouchard also agreed that on 18 October 2014, the period from first formation at 0800 until a break at 1200 would constitute a completed UTA period. Similarly, from 1300 until 1700 constituted the second UTA. The purpose of signing out at the end of the UTA was to certify the soldier’s presence for the full day for pay purposes. Mr. Bouchard also indicated a reservist would have no additional duties the rest of the duty day after signing out. 4 The military judge’s finding that the IDT period ended when appellee signed out of the second UTA on Saturday at 1700, 18 October 2014, is not clearly (. . . continued) United States v. Morita, 73 M.J. 548, 552 n. 3, 558-59 (A.F. Ct. Crim. App. 2014). The CAAF disagreed with the Air Force Court’s finding of jurisdiction because the documents introduced by the government that showed the dates of the IDT time frames were possibly forged and therefore could not place a reservist in a military status that would confer UCMJ jurisdiction. Morita, 74 M.J. at 121-22. The Navy-Marine Corps Court of Criminal Appeals has also addressed Article 2(a)(3): “Clearly, this jurisdictional qualification limits UCMJ jurisdiction over a reservist to those times when he or she is actually serving on inactive duty training.” United States v. Spradley, 41 M.J. 827 (N.M. Ct. Crim. App. 1995). Spradley, however, was limited to determining that the appellee’s separation from active duty terminated UCMJ jurisdiction over crimes he committed while on active duty. 4 While it is unclear how reservists are provided meals and lodging when they have no military status during periods outside the UTA, the government provides no evidence to support a different conclusion. Authority also exists to find a service member in the line of duty due to an injury, illness, or disease incurred or aggravated while remaining overnight immediately before the commencement of inactive-duty training, or while remaining overnight, between successive periods of inactive-duty training, at or in the vicinity of the site of the inactive-duty training. 37 U.S.C. § 206. Likewise, a reservist is eligible for death gratuity payments if he or she: 1) dies while on IDT; 2) assumed an obligation to perform IDT and dies while traveling directly to or from that IDT; or 3) dies while staying at his or her residence during the period of such IDT or between successive days of IDT. 10 U.S.C. § 1475. These statutes, however, do not confer jurisdiction. 6 WOLPERT—ARMY MISC 20160437 erroneous nor unsupported by the record. Based on the evidence before us, we conclude there was not jurisdiction under Article 2(a)(3). 5 3. Article 2(c)—Serving with an Armed Force Reserve component servicemembers are only explicitly subject to UCMJ jurisdiction when performing active duty or IDT under Article 2(a)(3), UCMJ. Appellee argues that the application of Article 2(c) under these circumstances would render Article 2(a)(3) superfluous. In United States v. Phillips, however, the CAAF held UCMJ jurisdiction could attach to reserve servicemembers by applying Article 2(c), UCMJ. 58 M.J. 217 (C.A.A.F. 2003). In applying Article 2(c), UCMJ to this case, appellee does not meet the Phillips factor we find most important–specifically, he was not ordered to active duty or on orders of any kind. In interpreting statutes, where one reading would cause a redundancy and another would avoid it, we will not adopt the reading that causes a redundancy. Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307-08 (1961). If a member of the reserve component is subject to UCMJ jurisdiction under Article 2(c) for the entire IDT weekend, there would be no need for Article 2(a)(3). We, therefore, conclude he was not serving with the armed forces for purposes of personal jurisdiction. We find the government did not prove the court-martial had Article 2(c) jurisdiction over appellee. CONCLUSION Based upon our review of the record, the appeal of the United States is DENIED. 5 At the Secretary of Defense’s direction, the General Counsel of the Department of Defense established the Military Justice Review Group (MJRG) to conduct a comprehensive review of the military justice system. Recently, the MJRG recommended amendments to Article 2(3)(a), UCMJ, to provide a basis for personal jurisdiction over reservists performing inactive-duty training (IDT) in certain circumstances. Specifically, the MJRG was concerned about jurisdictional gaps when misconduct by a reserve component member is carried out: 1) while en route from their home to their IDT drill site, 2) while berthed in military housing or contract commercial berthing, 3) during periods between successive IDTs (i.e. meal breaks and Saturday evenings), or 4) while en route from the IDT site to their home. Military Justice Review Group, Dep’t of Defense, Report of the Military Justice Review Group Part I: UCMJ Recommendations 154 (2015). However, while amendments to Article 2, UCMJ, are currently pending before Congress, they are not law and have no effect on this case. 7 WOLPERT—ARMY MISC 20160437 Judge HERRING and Judge PENLAND concur. FOR THE COURT: FOR THE COURT: MALCOLM H. SQUIRES, JR. Clerk of Court MALCOLM H. SQUIRES, JR. Clerk of Court 8 

471 F.Supp. 397 (1979) UNITED STATES of America v. Claude HELTON, Roy Haygood, Maxine Lawrence, Charles McKinney, Richard Helton, Calvin Griffin, Robert Lewis Pinson, Marie Louise Byron, Altagracia Velez, Defendants. No. 79 Crim. 288 (VLB). United States District Court, S. D. New York. June 5, 1979. *398 Robert B. Fiske, Jr., U.S. Atty., Southern District of New York, by Richard Lawler, Asst. U.S. Atty., New York City, for plaintiff. Jerry Feldman, Goldberger, Feldman & Dubin, New York City, for defendant Claude Helton. Lawrence Dubin, Goldberger, Feldman & Dubin, New York City, for defendant Richard Helton. MEMORANDUM VINCENT L. BRODERICK, District Judge. I In this action, the government charges all defendants with conspiracy to violate the federal narcotics laws. Various defendants *399 are also charged with substantive narcotics violations. Trial is scheduled to begin July 9, 1979. The government made a pre-trial motion seeking the disqualification of either Mr. Jerry Feldman or Mr. Lawrence Dubin, defense counsel for Mr. Claude Helton and Mr. Richard Helton, respectively, who are members of the same firm;[1] the government argued that the joint representation by the Feldman-Dubin firm of co-defendants in this case is impermissible because of potential conflicts of interest. I instructed the government and defense counsel to submit briefs on the issue of joint representation. After receipt of the briefs, I held a hearing on May 31, 1979 with the government, defendants, and defense counsel. At the hearing, the government argued that by the very nature of the charges against the defendants, and the different nature and degree of their alleged involvement in the crimes charged, joint representation of the two defendants will entail conflict of interest. Defense counsel responded that the government's predictions of conflict are unfounded and designed to obstruct defendants' choice of counsel. Defense counsel represented that they had fully advised their clients of potential conflicts, and that their clients wish to proceed with them as counsel and waive any conflict claims. Claude Helton is charged in six counts of the indictment, with conspiracy to violate the federal narcotics laws, with engagement in a continuing criminal enterprise, and with four counts of distributing and possessing with intent to distribute narcotics. He is characterized in the indictment as the ringleader of the conspiracy. Richard Helton is charged with conspiracy to violate the federal narcotics laws, and with one count of distributing and possessing with intent to distribute narcotics. Richard Helton is described in the indictment as one of Claude Helton's "lieutenants". Claude and Richard Helton are named together in one of the alleged overt acts of the conspiracy, and in an apparently related substantive count. Richard Helton is likely to have defenses or defense tactics available to him which are inconsistent with or may undermine defense postures taken by Claude Helton, and vice versa.[2] The Government represented that the defendants, who are brothers, have very different backgrounds. Claude Helton has previously been convicted of a felony whereas Richard Helton apparently has no convictions. The Government plans to file a second offender information with respect to Claude Helton. On the basis of the above, I found that it was impossible for Claude and Richard Helton to make a knowing and effective and intelligent waiver of their right to effective assistance of counsel. To insure their Sixth Amendment right to effective assistance of counsel, I directed that Claude Helton and Richard Helton be represented by attorneys who are independent of each other. II Analytically, there are three possible approaches to a conflict of interest stemming from joint representation. One is the approach which I have taken in this case. Another approach is the invocation of a per se rule against joint representation of co-defendants in any criminal trial. Although *400 defendants, at the May 31 hearing, sought to characterize my ruling as a per se rule, that ruling was made in the context of this case and does not operate as or under any per se rule. A third approach is that suggested by defendants, who urged that certain opinions of the Court of Appeals in this Circuit divest the trial court of power to prohibit joint representation of defendants in criminal cases where the defendants, after being advised of the danger of actual and potential conflicts of interests, choose to proceed with jointly retained counsel.[3] III The problems associated with joint representation have long been recognized in this Circuit. For that reason, the Court of Appeals has established certain rules with respect to joint representation. Before joint representation can be permitted, the trial court must hold a hearing to ferret out actual and potential conflicts; defendants must satisfy the trial judge that they knowingly and intelligently waive any claims which might arise from counsel's conflict of interest. In Re Taylor, 567 F.2d 1183 (2d Cir. 1977). Then, if joint representation does occur, on appeal a conviction will be overturned only if defendant can show prejudice resulting from the joint representation. Salomon v. LaVallee, 575 F.2d 1051 (2d Cir. 1978). Defendants cite to In Re Taylor, 567 F.2d 1183, 1191 (2d Cir. 1977) for their argument that the trial court cannot, consistent with the Sixth Amendment, order separate counsel if defendants state that they are aware of possible conflict and yet choose to proceed with the counsel of their choice: Once the court is satisfied, however, that such a client knowingly and intelligently wishes to proceed with joint representation, the court's responsibility is met, and it is without power unilaterally to obstruct the choice of counsel. See Abraham v. United States, 549 F.2d 236 (2d Cir. 1976); United States v. Armedo-Sarmiento, 524 F.2d 591 (2d Cir. 1975). Defendants assert that whenever a defendant states that he or she wishes to proceed with joint representation, the court necessarily must be satisfied that the defendant's choice is "knowingly and intelligently" made and must, under the Sixth Amendment, permit the joint representation. That is not so. The Court of Appeals recognized in In Re Taylor, supra, 567 F.2d at 1186, that defendants do not have a Sixth Amendment claim to joint representation: Although two or more defendants are not entitled to have the same lawyer as a matter of right, Abraham v. United States, supra, . . . each suspect or accused may knowingly and intelligently waive any claims which might arise from counsel's conflict of interest. United States v. Armedo-Sarmiento, 524 F.2d 591 (2d Cir. 1975). In Abraham v. United States, 549 F.2d 236 (2d Cir. 1976), the Court held that defendants had knowingly and intelligently waived any claims from conflict of interest by their attorney. The Court pointed out that while choice of counsel should not be unnecessarily obstructed by the trial court, in an appropriate case the trial court can preclude joint representation despite defendants' choice to proceed with joint representation. Choice of counsel should not be obstructed unnecessarily by the court. We wish to stress, however, that defendants are not entitled to joint representation as a matter of right. If a district judge perceives the strong likelihood of a conflict of interest, he has a duty to assure himself that the accused understands the *401 potential threat to his Sixth Amendment rights. And, in an appropriate case, the court may order that the defendant be represented by independent counsel. Id., 549 F.2d at 239 [citations omitted]. Thus in an appropriate case the trial court may find, as I have found, that defendants cannot "knowingly and intelligently [wish] to proceed with joint representation." Such a finding may be indicated 1) where, as in this case, the indicia of conflict are too strong at the threshold to permit a knowing and intelligent choice of joint representation; 2) where important "knowledge" indicating the ineffectiveness for at least one of the defendants of joint representation is likely to surface at trial despite its absence as of the hearing date,[4] or 3) where there is a combination of the two. The approach taken by me affords fairness to the defendants, insures the integrity of the trial process, and comports with Sixth Amendment law in this area. It is consistent with the policy of the Code of Professional Responsibility, to the effect that joint representation should not occur unless it is obvious that defendants will receive adequate representation. [A] lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each. Disciplinary Rule 5-105(C) [Emphasis supplied]. It does not mandate that joint representation will always be disallowed. There may be cases, albeit difficult to foresee, where special circumstances indicate that joint representation is proper. This approach also forecloses the danger of automatic joint representation whenever defendants express their wish for it, despite the presence of actual or potential conflicts which, in the sensitive judgment of the trial judge, threaten a fair trial.[5] NOTES [1] Most cases in this area concern joint representation of co-defendants by one attorney. The same principles apply where the joint representation is by two members of the same firm. See, e. g., Abraham v. United States, 549 F.2d 236, 238 n.3 (2d Cir. 1977). [2] Defendants argue that there is no possibility of conflict in this case because the co-defendants are brothers. Defendants assert that their familial relationship precludes any possibility that one would maintain a position which is inconsistent with or might undermine the position of the other. Query, however, whether the existence of familial ties among defendants does not militate in the other direction, toward independent counsel who can take stances independent of family ties in advising their clients? [3] At the May 31 hearing I heard from the government and defense counsel. I did not receive statements from defendants themselves as to their understanding of potential conflict and their choice to retain counsel because I found on the facts of this case that defendants cannot "knowingly and intelligently" choose to retain joint counsel. See Section III, infra. The defendants and the Government requested that the briefs they filed on this matter be deemed a part of the record. They will be so deemed. [4] See United States v. DeFillipo, 590 F.2d 1228, 1238 (2d Cir. 1979), "[C]onflicts can arise that no one can anticipate, . . . when a defendant takes the stand to testify." [5] See also Rule 44(c), Fed.R.Cr.P. as amended, effective August 1, 1979: (c) Joint representation—Whenever two or more defendants have been jointly charged pursuant to Rule 8(b) or have been joined for trial pursuant to Rule 13, and are represented by the same retained or assigned counsel or by retained or assigned counsel who are associated in the practice of law, the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of his right to the effective assistance of counsel, including separate representation. Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant's right to counsel.

573 F.2d 1020 UNITED STATES of America, Appellee,v.Mario S. REED, Appellant. No. 77-1928. United States Court of Appeals,Eighth Circuit. Submitted March 13, 1978.Decided April 7, 1978. Richard H. Ulrich, Shifrin, Treiman, Bamburg & Dempsey, St. Louis, Mo., for appellant; David L. Baylard, St. Louis, Mo., on the brief. Frederick Buckles, Asst. U. S. Atty., St. Louis, Mo., for appellee; Robert D. Kingsland, U. S. Atty., St. Louis, Mo., on the brief. Before LAY and BRIGHT, Circuit Judges, and VAN SICKLE, District Judge.* BRIGHT, Circuit Judge. 1 Mario S. Reed appeals from an order revoking his probation and sentencing him to three years' imprisonment. For reasons stated below, we vacate the order and remand this case to the district court for further proceedings. I. 2 In 1974, Reed, then age twenty-two, pleaded guilty to a charge of forging an endorsement on a United States Treasury check in violation of 18 U.S.C. § 495 (1976). The district court suspended imposition of sentence and placed Reed on probation for five years. In addition to the usual conditions of probation,1 the court required that "(r)estitution be made during the period of probation," that Reed "shall be regularly and gainfully employed and failure to be gainfully employed shall be a basis for revocation of probation," and that Reed report "(e)ach month as directed by Probation Officer." 3 Reed apparently satisfied the conditions of his probation until early 1977 when he failed to report to his probation officer on several occasions as directed and to satisfy the employment requirement. On November 14, 1977, his probation officer sought a probation violator's warrant on the following grounds: 4 Failure to maintain employment. 5 Failure to notify of address change. 6 Failure to report as directed. 7 The court ordered Reed arrested and conducted an evidentiary hearing. The probation officer's testimony at the hearing indicated that Reed had failed to report precisely as directed during 1977. On June 16, 1977, the probation officer had mailed the following letter: 8 Dear Mr. Reed:A review of your file shows that you have missed the last four scheduled office visits on April 18, 1977; May 16, 1977; May 26, 1977 and June 1st, 1977. You last reported to this office on April 27, 1977, and as it was not scheduled I was out of the office. You subsequently failed to call as instructed. Repeated home visits have largely been unsuccessful in contacting you and during a home visit on May 23, 1977, I advised you that several employment leads were available but you failed to contact me for specific details. As you have been unemployed for some time this indicates you are not interested in working. It is, however, noted on your May report you claim to be employed now. You are instructed to report to the probation office on Monday, June 20, 1977, between the hours of 10:00 o'clock A.M. and 12:00 noon or 2:30 P.M. to 6:30 P.M. Bring your check stubs, if any, and confirmation of starting date. Continuation of missed appointments is not acceptable. 9 Reed appeared as directed on June 20 and claimed he had obtained employment with the St. Louis Housing Authority. He could not, however, verify his employment, and the probation officer did not call the employer to verify Reed's claim for fear of jeopardizing the job opportunity. Reed promised to bring in check stubs as verification of employment but failed to do so. 10 The next visit between Reed and the probation officer occurred on August 29, 1977, again at the probation office. The probation officer advised Reed that he was not meeting the conditions of his probation because he was unemployed and had repeatedly missed office visits. At that time the officer directed Reed to report to the probation office at least every other week until further notice and also referred Reed to the Ex-Offenders Clearing House for employment possibilities, leads, or job training. Reed did not report again to the probation office. On September 27, after several attempts to visit Reed at his apartment, the probation officer learned from the apartment manager that Reed had been evicted a week earlier and had left no forwarding address. Shortly thereafter, the probation officer petitioned the district court for the probation violator's warrant. 11 At the close of the probation officer's direct testimony, the district judge asked whether Reed had made any restitution. The probation officer testified as follows: 12 The initial amount of the restitution was $561.92. The remaining balance is $462.92 with the last payment being made September 18, 1976. 13 Reed's testimony offered explanations for each of the apparent deficiencies in meeting the conditions of his probation. He testified that he had attempted to obtain employment and, indeed, had obtained a job as a salesman, but he had failed to earn any money on a commission basis. He admitted that he had not reported to the Ex-Offenders Clearing House, but the referral was not, as he understood it, mandatory. Some of his failures to report to the probation officer were due to illness and transportation problems. He denied receiving the June 16th letter, possibly because a recent change of address by his wife may have affected his own mail. He further testified that the apartment manager had attempted to evict him because of his activities in organizing a tenants' group, but he nevertheless still received mail and slept at his apartment. He called a witness who testified that he saw Reed at the apartment after the probation officer had attempted to locate him there. 14 At the close of the hearing, the court made the following statement: 15 THE COURT: All right. The probation will be revoked for the reason that the defendant has not made restitution that he should have made during the period of probation; his failure to report; his failure to advise the office and respond to their requests for his appointment to be made. 16 The court then entered an order revoking probation and sentencing Reed to three years' imprisonment.II. 17 On this appeal, Reed first argues that the district court erred in basing the revocation on a reason not charged against him by his probation officer, i. e., failure to make restitution. 18 In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Supreme Court held that parole revocation is subject to due process protections, including a hearing and notice of the charges against the parolee. The Court later incorporated these same procedural protections into state probation revocation proceedings in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Rule 32(f) of the Federal Rules of Criminal Procedure incorporates due process requirements into federal probation revocation proceedings: 19 The court shall not revoke probation except after a hearing at which the defendant shall be present and apprised of the grounds on which such action is proposed. (Fed.R.Crim.P. 32(f).) 20 In addition to notice and a hearing, due process requires adequate proof of the alleged violations of the conditions of probation. United States v. Strada, 503 F.2d 1081, 1085 (8th Cir. 1974); United States v. Garza, 484 F.2d 88, 89 (5th Cir. 1973). 21 Reed did not receive prior notice that he was charged with failure to make restitution. The probation officer did not list failure to make restitution as a violation of the conditions of Reed's probation. Not until the district court raised the question of restitution during the hearing did Reed have notice that his failure to have made full restitution could result in loss of his liberty. 22 In addition, and even more importantly, the record shows no substantive violation of the restitution condition. The sentence entered on December 20, 1974, required restitution "during the period of probation," which was to last five years. Because the probation period has not yet ended, Reed's failure to make full restitution does not constitute a violation of the conditions of his probation. 23 For these reasons, the trial court erred in revoking probation on grounds of Reed's failure to make restitution. III. 24 Reed also contends that he had attempted in good faith to comply with the reporting requirements of his probation and that his failure to report, therefore, did not constitute adequate independent grounds for revocation. 25 The decision to place an offender on probation or parole represents a conclusion by the sentencing judge that the offender will benefit from a program of supervision and treatment designed to aid that individual in becoming a constructive member of society. These programs, if successful, benefit not only the individual offenders but also society as a whole, for the cost of maintaining a prisoner in a federal prison has been calculated at ten times that of supervising an offender in a community-based program.2 The Supreme Court's comments on the nature of parole and the parole officer's duties apply to probation as well: 26 (P)arole is an established variation on imprisonment of convicted criminals. Its purpose is to help individuals reintegrate into society as constructive individuals as soon as they are able, without being confined for the full term of the sentence imposed. It also serves to alleviate the costs to society of keeping an individual in prison. * * * 27 The parole officers are part of the administrative system designed to assist parolees and to offer them guidance. The conditions of parole serve a dual purpose; they prohibit, either absolutely or conditionally, behavior that is deemed dangerous to the restoration of the individual into normal society. And through the requirement of reporting to the parole officer and seeking guidance and permission before doing many things, the officer is provided with information about the parolee and an opportunity to advise him. The combination puts the parole officer into the position in which he can try to guide the parolee into constructive development. (Morrissey v. Brewer, supra, 408 U.S. at 477-78, 92 S.Ct. at 2598-99.) 28 Because the probation and parole programs are such valuable components of the federal criminal justice system, the decision to revoke should not be undertaken lightly: 29 Typically, a parolee will be counseled to abide by the conditions of parole, and the parole officer ordinarily does not take steps to have parole revoked unless he thinks that the violations are serious and continuing so as to indicate that the parolee is not adjusting properly and cannot be counted on to avoid antisocial activity. * * * 30 Implicit in the system's concern with parole violations is the notion that the parolee is entitled to retain his liberty as long as he substantially abides by the conditions of his parole. The first step in a revocation decision thus involves a wholly retrospective factual question: whether the parolee has in fact acted in violation of one or more conditions of his parole. Only if it is determined that the parolee did violate the conditions does the second question arise: should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation? The first step is relatively simple; the second is more complex. The second question involves the application of expertise by the parole authority in making a prediction as to the ability of the individual to live in society without committing antisocial acts. This part of the decision, too, depends on facts, and therefore it is important for the board to know not only that some violation was committed but also to know accurately how many and how serious the violations were. Yet this second step, deciding what to do about the violation once it is identified, is not purely factual but also predictive and discretionary. (Id. at 479-80, 92 S.Ct. at 2599-2600.) 31 These comments relating to parole apply with even greater force to probation, for the chances of successful rehabilitation are substantially greater for the offender who is granted probation than for the offender who is imprisoned and then released early on parole.3 32 The decision to revoke probation should not merely be a reflexive reaction to an accumulation of technical violations of the conditions imposed upon the offender. That approach would be inconsistent with and detrimental to the goals of the probation program: 33 While presumably it would be inappropriate for a field agent never to revoke, the whole thrust of the probation-parole movement is to keep men in the community, working with adjustment problems there, and using revocation only as a last resort when treatment has failed or is about to fail. (Gagnon v. Scarpelli, supra, 411 U.S. at 785, 93 S.Ct. at 1761, quoting F. Remington, D. Newman, E. Kimball, M. Melli & H. Goldstein, Criminal Justice Administration, Materials and Cases 910 (1969).) 34 Rather, probation should be revoked only in those instances in which the offender's behavior demonstrates that he or she "cannot be counted on to avoid antisocial activity." Morrissey v. Brewer, supra, 408 U.S. at 479, 92 S.Ct. at 2599. 35 We do not know whether the district court considered Reed's other violations of his probation conditions as serious enough to justify revocation. Reed had successfully fulfilled his probation obligations for more than two years. The decision to revoke his probation was based not on commission of a new crime or other egregiously antisocial behavior, but merely on Reed's failure to report, to give notice of an address change, to find employment, and to make restitution. The sua sponte interjection of the failure of restitution issue into the hearing could suggest that the district court considered the grounds asserted in the petition to revoke probation to be of insufficient import to require revocation of Reed's probation. 36 We therefore remand the case to the district court to consider whether, apart from the restitution question, Reed's probation should be revoked. On remand, the district court may wish to reevaluate whether Reed's chances of becoming a useful citizen would be better if he successfully completes his probation than if he is imprisoned, and whether probation may yet be successful if Reed is provided additional in-the-field supervision,4 more intensive counseling to assist with his personal problems, and more rigorous guidelines on the terms of his probation. In making these comments, we in no way intend to imply that Reed did not receive adequate guidance and supervision by his probation officer. The record indicates that the probation officer made unusual efforts to keep in contact with Reed. 37 Under these circumstances, we think it appropriate to vacate the order revoking probation and sentencing Reed to three years of imprisonment. We remand the case to the district court for a further probation revocation hearing or other proceedings consistent with this opinion.5 Let our mandate issue forthwith. * BRUCE M. VAN SICKLE, United States District Judge, District of North Dakota, sitting by designation 1 (1) You shall refrain from violation of any law (federal, state, and local). You shall get in touch immediately with your probation officer if arrested or questioned by a law-enforcement officer (2) You shall associate only with law-abiding persons and maintain reasonable hours. (3) You shall work regularly at a lawful occupation and support your legal dependents, if any, to the best of your ability. When out of work you shall notify your probation officer at once. You shall consult him prior to job changes. (4) You shall not leave the judicial district without permission of the probation officer. (5) You shall notify your probation officer immediately of any change in your place of residence. (6) You shall follow the probation officer's instructions. (7) You shall report to the probation officer as directed. 2 Annual Report of the Director of the Administrative Office of the United States Courts 181 (1970). According to information from the United States Bureau of Prisons, the cost of care and maintenance of a single inmate in a federal prison in fiscal year 1977 averaged $21 per day or $7,665 per year. This figure does not include capital costs 3 The Report to the Congress by the Comptroller General of the United States, Probation and Parole Activities Need To Be Better Managed 6 (1977) (hereinafter cited as "Report "), indicates a success rate of 71% for probationers and 59% for parolees. The Report was based on studies by the General Accounting Office of five district probation offices considered to be representative of the Nation as a whole: California Central, Georgia Northern, Illinois Northern, Washington, D. C., and Washington Western 4 Need exists for greater supervision and improved rehabilitative services in the federal probation system. In his Report, the Comptroller General made the following observations: Probation officers have numerous duties which detract from their ability to provide adequate supervision. Supervision must be emphasized more so that probation officers can better assure that probation or parole conditions are met and needed rehabilitation services are provided. Contacting offenders more frequently may require added resources, but first an attempt should be made to improve the allocation of the probation officer's time among his various duties. We recognize that probation officers have duties other than supervision to perform. However, we believe that supervision must be emphasized more than it is now. While achieving higher levels of supervisory contact may require more resources, before additional resources are requested CUSPOs (Chief United States Probation Officers) should be required to evaluate how probation officers are using their time and how they can improve the level of supervision being given to offenders. Innovative techniques being used by certain districts which improve effectiveness should be evaluated for possible use in other districts. Probationers and parolees often have particular problems family, medical, academic, vocational, etc. which need to be professionally treated. Studies done in this area show that such treatment can help probationers and parolees move out of the criminal justice system. However, not enough professional treatment is being provided in Federal supervision programs. We found that some probation officers were not devoting the time necessary to plan for offenders to receive needed professional help. Also, rehabilitation services often were not available in the community from public service organizations or Government programs. (Report at 9, 16, 23.) The Administrative Office of the United States Courts, under whose aegis the Probation Division operates, concurred wholeheartedly in these recommendations. (Id. App. II at 58.) 5 Because we are remanding the case for further proceedings, we need not reach a third issue raised by Reed: that the three charges listed on the probation violator's warrant did not provide adequate notice of the charges against him. He argues, for example, that he could not adequately prepare a defense because he was not notified of the dates when he allegedly failed to report. We doubt that this contention carries much merit, but in any event, any such defect in the original notice has now been cured, for the probation officer's testimony at the first hearing has apprised him in detail of the charges against him

Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 5-19-2008 Sarwar v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 07-3126 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Sarwar v. Atty Gen USA" (2008). 2008 Decisions. Paper 1201. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1201 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. IMG - 069 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 07-3126 ___________ MUHAMMAD SARWAR, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES ____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A97-141-311) Immigration Judge: Honorable Mirlande Tadal ____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) MAY 7, 2008 Before: SLOVITER, STAPLETON AND COWEN, Circuit Judges (Opinion filed May 19, 2008 ) ___________ OPINION ___________ PER CURIAM Muhammad Sarwar, a native and citizen of Pakistan, petitions for review of a final order of the Board of Immigration Appeals (“BIA”). For the following reasons, we will deny the petition for review.  I. Sarwar entered the United States in October 1998 at JFK International Airport in New York City. On March 14, 2003, he applied for adjustment of status under INA 245(i), 8 U.S.C. § 1255(i).1 His application stated that he had entered the United States without inspection. Sarwar attended an adjustment of status interview on October 19, 2004, with his attorney. The interviewing officer informed Sarwar that as a Pakistani national, he had to register under the National Security Entry/Exit Registration System (“NSEERS”) program. Sarwar attempted to register under NSEERS on November 23, 2004, without his attorney. During the registration process, special agent Michael Riccitelli interviewed Sarwar for about two and a half hours. Sarwar, whose first language is Urdu, did not request an interpreter, and his interview was conducted in English. As indicated in his application, he first told Riccitelli that he had entered the United States without inspection, but after Riccitelli informed him that he was ineligible to adjust his status under section 245(i), he stated that he had entered with someone else’s passport. At the conclusion of the interview, Sarwar signed an affidavit and was detained, and a notice to appear charging him as removable under 8 U.S.C. § 1 Section 245(i) allows undocumented persons who entered the country illegally a one-time chance to apply for lawful permanent resident status. The Attorney General may grant the adjustment of status if, “(A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and (B) an immigrant visa is immediately available to the alien at the time the application is filed.” 8 U.S.C. § 1255(i)(2) (emphasis added). 2 1182(a)(6)(A)(i) (entry without inspection) and 8 U.S.C. § 1182(a)(6)(C)(i) (fraud or willful misrepresentation) was issued the same day. On November 23, 2005, Immigration Judge (“IJ”) Tadal found Sarwar removable as charged, and denied his application for adjustment of status. The IJ found that Sarwar was inadmissible because he entered the United States using a fraudulent passport,2 and that he was thus ineligible to adjust his status. The IJ also denied Sarwar’s motion to suppress the affidavit from the NSEERS interview. In the motion, Sarwar claimed that the interview violated his Fourth and Fifth Amendment rights because he was deprived of his right to counsel, was not allowed to read the affidavit before he signed it, and was not given an interpreter. After considering Sarwar’s and Riccitelli’s testimony, the IJ found that Sarwar did not make the required prima facie case necessary to suppress the evidence, and that the NSEERS affidavit was thus “inherently trustworthy and admissible as evidence.” Sarwar appealed to the BIA, which adopted and affirmed the IJ’s decision. The BIA also stated that the IJ properly denied motion to suppress because Sarwar did not show that the circumstances surrounding his NSEERS interview “were so egregious that 2 At his removal hearing, Sarwar again claimed that he had entered without inspection. However, the IJ found that he had entered with a fraudulent passport. The IJ based her finding on Sarwar’s statement in the NSEERS interview and on the testimony of Kenneth Rosenstein, Deputy Chief Officer at Newark International Airport for Customs and Border Protection, who testified regarding the immigration procedures at JFK airport in 1998 and stated that it was “highly, highly unlikely” that Sarwar would have been able to enter without inspection at the airport. 3 to rely on the evidence would offend the fifth amendment fundamental fairness requirement.” Furthermore, the BIA rejected Sarwar’s claim that IJ Tadal improperly considered testimony from Rosenstein—who testified before a different IJ—because Sarwar did not object to the IJ, and because he did not show that he was prejudiced. Sarwar, through counsel, now files a petition for review challenging: (1) the denial of the motion to suppress; (2) the propriety of his detention after his NSEERS interview; (3) whether the IJ properly considered Rosenstein’s testimony; and (4) whether there was enough evidence to find him inadmissible and to deny his application for adjustment of status. The government opposes the petition. II. We have jurisdiction to review a final order of removal of the BIA under 8 U.S.C. § 1252(a)(1). Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir. 2001). “[W]hen the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). While the BIA’s and IJ’s factual finding are reviewed for substantial evidence, we review the legal conclusions de novo, subject to the principles of deference articulated in Chevron U.S.A., Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837, 844 (1984). Briseno-Flores v. Attorney Gen., 492 F.3d 226, 228 (3d Cir. 2007). 4  Sarwar first argues that the denial of the motion to suppress was incorrect because the IJ did not shift the burden of proof to the government after he presented a prima facie case, as required by Matter of Barcenas, 19 I. & N. Dec. 609, 611 (BIA 1988). This argument fails. Documentary evidence in deportation proceedings is admissible if it is probative and if its use is fundamentally fair. Barcenas, 19 I. & N. Dec. at 611; see also INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984). To make a prima facie case that evidence is inadmissible, the movant must establish that the information is erroneous, or that the evidence was obtained by coercion or duress. Barcenas, 19 I. & N. Dec. at 611. If the movant meets this burden, the government will “assume the burden of justifying the manner in which it obtained the evidence.” Id. Here, citing to Barcenas, the IJ found that Sarwar did not make a prima facie case of inadmissibility and that the NSEERS affidavit was “inherently trustworthy and admissible as evidence.” Thus, the IJ correctly did not require the government to justify how it obtained the evidence. To the extent that Sarwar argues more generally that the decision to deny his motion to suppress was incorrect, substantial evidence supports the IJ’s and BIA’s decisions. See Briseno-Flores, 492 F.3d at 228. The record does not compel us to reject the IJ’s factual determinations that Sarwar: (1) chose to attend his NSEERS registration without his attorney; (2) was advised of his right to counsel;3 (3) was not prejudiced by 3 Sarwar also complained that he was not read his warnings under Miranda v. Arizona, 384 U.S. 436 (1966). However, Special Agent Riccitelli testified that he read the warnings to Sarwar, and that Sarwar signed the affidavit stating that the warnings 5 the interview being conducted in English; and (4) was aware of the contents of the affidavit before he signed it. Given these findings, the IJ properly denied Sarwar’s motion to suppress. See Barcenas, 19 I. & N. Dec. at 611. Moreover, as the BIA adopted the IJ’s findings, substantial evidence supports its determination that the circumstances surrounding the interview did not constitute an egregious violation of the Fifth Amendment.4 See Lopez-Mendoza, 468 U.S. at 1050-51 (suggesting that evidence in the immigration context may be excluded where there are “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained”). Second, Sarwar argues that the government violated 8 C.F.R. § 287.8(c) by arresting him without a warrant after his NSEERS interview. The government asserts that we do not have jurisdiction to consider this argument because Sarwar did not exhaust his administrative remedies by raising this issue before the BIA. We agree. A petitioner were read to him. Nevertheless, we note that “Miranda warnings are not required in the deportation context, for deportation proceedings are civil . . . in nature, and the Sixth Amendment safeguards are not applicable.” Bustos-Torres v. INS, 898 F.2d 1053, 1056- 57 (5th Cir. 1990). 4 At the end of Sarwar’s brief, he argues that the IJ’s decision should be reversed because, even if he did waive his right to counsel in the NSEERS interview, the waiver was not knowing and voluntary because it was allegedly predicated on Riccitelli’s “implied promise of the grant of permanent residence if [Sarwar] ‘changed his story.’” It appears that this argument is actually part of the claim that the denial of the motion to suppress was incorrect. Preliminarily, as stated above, the Sixth Amendment right to counsel does not attach to immigration proceedings. See Fadiga v. Attorney Gen., 488 F.3d 142, 157 n.23 (3d Cir. 2007). Rather, only Fifth Amendment due process protections attach. See id. at 155. 6 must exhaust all administrative remedies available to him as of right before the BIA as a prerequisite to raising a claim before this Court. 8 U.S.C. § 1252(d)(1); Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005). After reviewing Sarwar’s appeal to the BIA, we conclude that he did nothing to alert the BIA that he wanted it to consider the legality of his arrest. See Joseph v. Attorney Gen., 465 F.3d 123, 126 (3d Cir. 2006) (noting that the “liberal exhaustion policy” was not fulfilled when the petitioner did not alert the BIA to an issue he wished to appeal). Accordingly, we lack jurisdiction to review this issue. Third, Sarwar argues that IJ Tadal should not have considered Rosenstein’s testimony because Rosenstein testified before a different IJ. The BIA rejected this argument because Sarwar failed to object to the IJ, and because he did not show that any prejudice resulted. We first note that the IJ’s decision to consider the testimony is not before us; only the BIA’s decision is subject to our review. See Abdulai, 239 F.3d at 547. Federal regulations grant the BIA the authority to prescribe its own procedural rules. 8 C.F.R. § 1003.1(d)(4). And the BIA has held that matters not raised before the IJ are waived. See, e.g., In re R-S-H, 23 I. & N. Dec. 629, 638 (BIA 2003) (“[T]he record does not reflect that the respondent raised any objections . . . at the hearing. Therefore, the respondent waived his opportunity to pursue this issue on appeal.”). It has been recognized that this waiver rule “is wholly consistent with [the BIA’s] rules of practice” as an appellate body. Torres de la Cruz v. Maurer, 483 F.3d 1013, 1023 (10th Cir. 2007); see Pinos-Gonzalez v. Mukasey, --- F.3d ----, 2008 WL 583677, at *2-*3 (8th Cir. Mar. 5, 7 2008). Accordingly, the BIA properly rejected Sarwar’s appeal on this basis. Finally, Sarwar argues that the decision determining that he was inadmissible and denying his adjustment of status was incorrect because there was no evidence to support it. He claims, among other things, that the IJ weighed Rosenstein’s and Riccitelli’s testimony too heavily, that the decision was based on speculation and conjecture, and that the IJ was “predisposed” to find against him. These arguments are meritless. Sarwar sought a discretionary adjustment of status under 8 U.S.C. § 1255, and we may not review denials of discretionary relief under 8 U.S.C. § 1252(a)(2)(B)(i). However, the IJ denied Sarwar’s application for adjustment of status because she determined Sarwar was statutorily inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i). Because admissibility is a prerequisite for an adjustment of status, this is not a discretionary denial, and we have jurisdiction to review it. See Singh v. Gonzales, 413 F.3d 156, 160 n.4 (1st Cir. 2005). The IJ’s legal conclusions as to admissibility are reviewed de novo, and findings of willful misrepresentation and fraud “are reviewed under the substantial evidence standard.” See id. at 160. The IJ’s decision that Sarwar was inadmissible because he entered the United States on a fraudulent passport and visa is supported by substantial evidence in the record. As discussed above, Sarwar stated during his NSEERS interview that he entered the country using someone else’s passport. Although Sarwar asserted during the removal proceedings that he entered without inspection, the IJ was well within her discretion to 8 disbelieve this story, especially considering the affidavit, and the testimony of Rosenstein and Riccitelli. Accordingly, there was substantial evidence that Sarwar was inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i). Being inadmissible, he was not eligible for an adjustment of status under 8 U.S.C. § 1255(i).5 For these reasons, and after careful consideration of the record and the parties’ contentions, we will deny Sarwar’s petition for review. 5 We note that we do not have jurisdiction to consider Sarwar’s argument that the IJ was “predisposed” to find against him, as he did not raise this issue before the BIA. See Joseph, 465 F.3d at 126. 9 

45 N.J. Super. 167 (1957) 131 A.2d 802 ROBERT PARKER, PLAINTIFF-APPELLANT, v. MICHAEL W. ZANGHI AND VINCENT RANDO, INDIVIDUALLY AND TRADING AS AMERICAN CONSTRUCTION & WRECKING CO., DEFENDANTS-RESPONDENTS. Superior Court of New Jersey, Appellate Division. Argued April 1, 1957. Decided May 9, 1957. *168 Before Judges CLAPP, JAYNE and FRANCIS. *169 Mr. George F. Kugler, Jr., argued the cause for plaintiff-appellant (Messrs. Brown, Connery, Kulp & Willie, attorneys; Mr. Horace G. Brown, of counsel). Mr. Peter J. Devine argued the cause for defendants-respondents (Messrs. Orlando, Kisselman & Devine, attorneys). The opinion of the court was delivered by CLAPP, S.J.A.D. This action was brought against defendants Michael W. Zanghi and Vincent Rando, individually and as partners doing business as the American Construction & Wrecking Co., to recover for personal injuries sustained by the plaintiff, allegedly as a result of Rando's negligence. The plaintiff was struck by a tractor operated by Rando on partnership business in Philadelphia, Pennsylvania. At the conclusion of the testimony, the trial court dismissed the case. Plaintiff appeals. Plaintiff presents two points on the appeal. He claims, first, that the trial court erred in holding that he was a "statutory employee" of the defendant partners under the Pennsylvania Workmen's Compensation Act and therefore barred from maintaining a common law action against them; second, even if he was a statutory employee, nevertheless the employer was the partnership, a separate entity, and the partner Rando was a third person who could be held in this common law action. The Wrecking Company was awarded a contract by the Philadelphia Housing Authority under which the company agreed to buy, raze and remove six two-story houses located in Philadelphia. To secure the contract, the Wrecking Company had bid (agreed to pay) $1,010.10. The first house was razed by the company by way of experiment, in an endeavor to find out whether it would be more practical to take the other houses down in panels or salvage them as a whole. Some of the materials secured from the first house were apparently sold on the site; some (it is rather important to note) were delivered by the company in its two *170 dump trucks to purchasers in Philadelphia; and some were transported in these trucks to the company's yard in Atlantic City, New Jersey, for sale there. Defendants lived and had their place of business in Atlantic City. As a result of this experiment, the Wrecking Company agreed to sell the first floors and roofs of the other five houses as one-story dwellings to a purchaser at Cardiff, New Jersey, and to deliver them to him there. However, not having the huge low-boy tractor-trailers necessary for the hauling of an entire dwelling unit intact, it made an agreement with S. & E. McCormick, Inc. which had done that work. On the day of the accident plaintiff, one of McCormick's employees, entered upon the housing site in order to back one of McCormick's tractor-trailers under a dwelling unit, which had been or was being jacked up for that purpose. There was, however, an obstruction on the ground, and Rando sought to remove it with one of the Wrecking Company's shovel-tractors, but that tractor slipped, crushing plaintiff against his own trailer. Were the defendants the "statutory employers" of the plaintiff under the applicable Pennsylvania statutes? 77 Purdon's Pa. Stat. Ann., §§ 25, 52 and 462. To constitute a person a statutory employer, several conditions must exist (McDonald v. Levinson Steel Co., 302 Pa. 287, 153 A. 424, 426 (Sup. Ct. 1930)), of which we are concerned here with only two. First — to use the words of the statute (77 Purdon's Pa. Stat. Ann., § 25) — it must appear that McCormick was: "a sub-contractor to whom a principal contractor [the defendants] has sub-let any part of the work which such principal contractor has undertaken." (Italics added.) Defendants had contracted to remove from the site the six houses and the material composing them, and we think it can fairly be said that they "sublet" to McCormick "part of the work which" they had "undertaken." McCormick, by agreeing to haul off the roofs and first stories of five *171 houses, took over a substantial part of the removal operation. Plaintiff does not lay great stress on this point. Second, it must appear that the defendants, the alleged statutory employer, permitted the plaintiff to enter upon the housing site — "for the performance upon such premises of a part of the employer's regular business entrusted to" McCormick. (Italics added.) 77 Purdon's Pa. Stat. Ann., § 52. It clearly was a part of defendants' regular business to sell the salvage; in this way they secured compensation for their services in razing and removing the houses — indeed, sufficient compensation to induce them to pay $1,010.10 for the contract. Besides, it clearly was a part of their regular business as house-wreckers to see to it that the houses and the material composing them were removed from the premises. On the other hand, it must be taken as true on this motion for dismissal (there was some conflict in the testimony) that defendants had never rented tractor-trailers and never done any heavy hauling. It appears beyond any real question that the removal of salvage in small units through dump trucks for purposes of sale was a part of the defendants' regular business. The question is whether it ceased to be a part of their regular business when, doubtless in order to secure additional profit, the removal was effected by transporting a whole dwelling unit intact on a trailer-tractor. A new variation in the performance of the statutory employer's ordinary business or a new operation in that business should not, it seems to us, deprive the statutory employee of coverage, provided the new activity lies within the main stream of the employer's usual operations. Here the tractor-trailer can perhaps be looked upon merely as a new tool in defendants' ordinary salvaging business. In any event, if a doubt exists as to whether we should look broadly or narrowly at defendants' operations in determining what is the nature of their business, we think the broad view should be taken, for the Workmen's Compensation Act *172 is to be construed liberally so as to bring the case at hand within its coverage. Davis v. City of Philadelphia, 153 Pa. Super. 645, 35 A.2d 77, 80 (Super. Ct. 1943). We find no Pennsylvania case bearing on these principles except Davis. There an auctioneer had been engaged to auction off coal mine machinery belonging to a bankrupt. Wishing to have the machinery brought up from the mine to the surface so as to display it to prospective purchasers, the auctioneer entered into an arrangement with a former operator of the mine to use some of its employees, including claimant, for that purpose. The court, noting that the display of the articles to be sold was part of the ordinary business of an auctioneer selling a bankrupt's assets, held the auctioneer was a statutory employer of the claimant. The court said: "While the removal of machinery from a coal mine may be a comparatively rare occurrence, it is none the less a part of the auctioneer's regular business if done in connection with the sale at auction of the property of a bankrupt. Assuming the employment was casual, it was nevertheless within the accepted category of regular course of business * * *." Here was a very unusual undertaking on the part of the auctioneer, yet one which was held to have arisen (as we have put it above) within the main stream of the auctioneer's usual operations. Cf. further Haytko v. William Crabb & Co., 17 N.J. Super. 95 (Cty. Ct. 1951, an opinion by Judge Francis). For the reasons indicated, we think plaintiff was a "statutory employee." The second issue in the case is whether the defendant Rando is a third person who can be held for his own negligence in this common law action. Plaintiff's original complaint was against Zanghi and Rando, individually and as partners; but an amended complaint added a count against Rando solely. One of the underlying questions here is whether, as plaintiff claims, the employer-partnership is to be looked upon for the purposes of the Workmen's Compensation Act as a legal entity detached *173 from its members and whether, therefore, each of the partners is, in law, a third person. Of course, if the entity theory is rejected and the partners are held to be the plaintiff's employers, then it follows — and there is no dispute on the point — that Rando is immune from suit here. Plaintiff contends that this question whether the cause of action against Rando with respect to his negligence has been abolished by the Workmen's Compensation Act, is a matter to be determined by New Jersey law. This is to be doubted. See Restatement, Conflicts of Laws, § 401, 1948 supplement; Stacy v. Greenberg, 9 N.J. 390, 399 (1952). It is not urged by plaintiff that under the New Jersey law a partnership, formed here, has a separate jural existence for all purposes and that Pennsylvania should therefore give recognition to it in applying its Workmen's Compensation Law. Cf. Restatement, Id., § 154. However, we need not decide the conflicts question. So far as we have discovered, Pennsylvania has not dealt with the status of a partnership under its Workmen's Compensation Act. We shall assume that the Pennsylvania law on this point is controlling and shall also assume (thus, in effect, assuming the point plaintiff is contending for) that it is the same as New Jersey law; that is to say, that under the Pennsylvania law an employer-partnership is to be given an individuality of its own for purposes of the workmen's compensation statute. Felice v. Felice, 34 N.J. Super. 388 (App. Div. 1955). The Pennsylvania Workmen's Compensation Act, 77 Purdon's Pa. Stat. Ann., § 21, like the New Jersey Act, N.J.S.A. 34:15-36, defines employers as "natural persons, partnerships," etc. However, even if the partnership itself is the employer, the question still remains whether a plaintiff should be barred from suing at common law an individual partner for his allegedly tortious act committed (as was Rando's act here) in the ordinary course of the partnership business. The Pennsylvania statute, after declaring that under certain circumstances an employer will be presumed to have agreed to pay workmen's compensation, goes on to provide: *174 "Such agreement * * * shall operate as a surrender by the parties thereto of their rights to any form or amount of compensation or damages for any injury or death occurring in the course of the employment, or to any method of determination thereof, other than as" fixed in the Workmen's Compensation Act. (Italics added.) 77 Purdon's Pa. Stat. Ann., § 481. Cf. the quite similar language found in N.J.S.A. 34:15-8. These statutes declare that the parties having rights to damages (reference is made here to the employees) are obliged to surrender those rights; but they do not specify the persons who are to be discharged from liability for the damages. Nor does the section of the Pennsylvania Workmen's Compensation Act dealing with the employer's right of subrogation against third parties furnish any specification as to who these third parties are (77 Purdon's Pa. Stat. Ann., § 671): "Where the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of the employee * * * against such third party to the extent of the compensation payable under this article by the employer * * *." Notwithstanding this statute, the right of action against the third party remains in the injured employee. Scalise v. F.M. Venzie & Co., 301 Pa. 315, 152 A. 90, 92 (Sup. Ct. 1930). Further, see N.J.S.A. 34:15-40. While there is no good reason to put any strain on this legislation so as to relieve any person from liability for a tort he has committed against the employee, nevertheless we should be mindful of the underlying objects of the legislation so as not to contract its terms unwarrantably. Caputo v. Best Foods, 17 N.J. 259, 264 (1955). We think the problem can be brought out more sharply if, turning to the law of partnership, we consider who is liable for a partner's tort and also who is liable for workmen's compensation when a partnership is the employer. Some argument perhaps can be made that under the Uniform Partnership Act (which is in force in Pennsylvania), taking *175 it literally, a partnership is liable as an entity for the negligent act of a partner committed in the ordinary course of partnership business. 59 Purdon's Pa. Stat. Ann., § 35 (cf. § 11); N.J.S.A. 42:1-13 (cf. 42:1-6); but cf. Caplan v. Caplan, 268 N.Y. 445, 198 N.E. 23, 101 A.L.R. 1223 (Ct. App. 1935). In any event, it is clear that under that act the partners are liable for such negligence jointly and severally. 59 Purdon's Pa. Stat. Ann., § 37; N.J.S.A. 42:1-15; Caplan v. Caplan, supra. Hence, if under the circumstances Rando may be held for the alleged tort here, then Zanghi is also answerable for it. It is also clear that Zanghi and Rando are liable to pay workmen's compensation, even though it may be said (as we are assuming here) that the payment of compensation constitutes an obligation "of the partnership" as a separate entity. 59 Purdon's Pa. Stat. Ann., § 37; N.J.S.A. 42:1-15; cf. Palle v. State Industrial Commission of Utah, 79 Utah 47, 7 P.2d 284, 288, 81 A.L.R. 1222 (Sup. Ct. 1932). The question presented by the statute which requires an employee to surrender his common law cause of action in return for workmen's compensation, thus resolves itself into this: was it intended to leave him a right to recover at the common law from the very persons, or from at least one of those persons (Rando), who are answerable for the payment of workmen's compensation? We think not. We therefore conclude that even though (as we are assuming here) the partnership is itself the employer under the Pennsylvania Workmen's Compensation Act, nevertheless in view of the law rendering the partners liable for the workmen's compensation, the act should be construed as requiring the employee to surrender any common law cause of action in tort, which he holds against the partners, or either of them, because of a compensable injury. This result is, of course, in accord with that reached in jurisdictions which refuse to look upon the partnership as an entity for the purposes of the Workmen's Compensation Act. Williams v. Hartshorn, 296 N.Y. 49, 69 N.E.2d *176 557 (Ct. App. 1946); cf. Reed c. Industrial Accident Comm., 10 Cal.2d 191, 73 P.2d 1212, 114 A.L.R. 720 (Sup. Ct. 1937); Brollier v. Van Alstine, 236 Mo. App. 1233, 163 S.W.2d 109 (Ct. App. 1942). Contra, Monson v. Arcand, 244 Minn. 440, 70 N.W.2d 364 (Sup. Ct. 1955). In our view the trial court gave the right answer to the two questions presented by the appeal. Affirmed.

16 F.3d 1226NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. UNITED STATES of America, Plaintiff-Appellee,v.John F. ROSCH, Defendant-Appellant. Nos. 92-2164, 92-2826 and 92-3940. United States Court of Appeals, Seventh Circuit. Argued May 3, 1993.Decided Dec. 21, 1993. Before POSNER, Chief Judge, COFFEY, Circuit Judge and WILLIAMS, District Judge.* ORDER In three separate appeals, Defendant John Rosch attacks his conviction and sentence, as well as the district court's dismissal of his petition for a writ of habeas corpus. We affirm. I. On September 20, 1990, a Third Superseding Indictment was filed against Rosch, charging him with twenty-eight counts of criminal misconduct in connection with his activities as president and chief operating officer of Glen Ellyn Savings & Loan Association. Three days into his trial, Rosch pled guilty to Counts One and Twenty-Eight of the Third Superseding Indictment. Count One charged Rosch "with conspiring to run the affairs of the Glen Ellyn Savings & Loan Association through a pattern of racketeering ...," in violation of 18 U.S.C. Sec. 1962(d) (the "RICO charge"). Count Twenty-Eight alleged that on May 24, 1985, Rosch "knowingly and willfully misapplied approximately $100,000 in funds and credits belonging to and entrusted to the custody of Glen Ellyn Savings ...," in violation of 18 U.S.C. Sec. 657 (the "embezzlement charge"). In exchange for Rosch's guilty plea, the government agreed to dismiss the remaining counts. Rosch signed a written plea agreement which stated that he had "read the charges against him contained in the Third Superseding Indictment," that "those charges ha[d] been fully explained to him by his attorney[,]" and that he "fully underst[ood] the nature and elements of the crimes which he ha[d] been charged." The district court held a change-of-plea hearing on October 25, 1990. At the hearing, the judge (1) described the nature of the RICO and embezzlement charges, (2) incorporated by reference the summary of the indictment, which he had read to the jury at the commencement of trial and which both parties had approved, and (3) upon agreement of the parties, incorporated by reference the government's opening statement summarizing what the government believed the evidence would show. The judge also emphasized several key provisions of the plea agreement. One such provision stated that the judge was not a party to the agreement and could impose any sentence up to the statutory maximum on either count. Another authorized the government to recommend whatever sentence it deemed appropriate. The government also, in open court, directed the judge's attention to paragraph 10 of the plea agreement, which states as follows: 10. Defendant understands that the United States Attorney's Office will fully apprise the District Court and the United States Probation Office of the nature, scope and extent of the defendant's conduct regarding the charges against him, and related matters, including all matters in aggravation and mitigation relevant to the issue of sentencing. The judge asked Rosch whether he understood that the provisions of paragraph 10 were applicable to his case, and Rosch responded yes. Finally, the judge drew Rosch's attention to the portions of the plea agreement which stated that (1) the maximum penalty for the RICO charge was a twenty-year prison sentence and a fine of twice the amount of loss to the victim or gain to the defendant; and (2) the maximum penalty for the embezzlement charge was an additional five-year prison term and a $250,000 fine, plus any restitution the court might order. Having reviewed the charges, the government's statement of the evidence, and the plea agreement, the judge addressed Rosch as follows: Now, Mr. Rosch, then, you understand now the charges that have been brought against you to which you would be pleading guilty, and the Government in summary form and, of course, incorporating by reference the more detailed opening statement that you previously had heard, you understand now the evidence that would be presented in this case should the trial have been completed. Now, is that statement of facts then for the charges to which you would be pleading guilty substantially correct? Rosch responded that the facts were "substantially correct." The judge then continued by engaging Rosch in the following colloquy: COURT: Did you, in fact, then commit the crimes as charged? ROSCH: According to the law, yes, your honor. COURT: And did you intend to commit the acts that constitute the crimes as charged? ROSCH: Yes. The judge then asked Rosch if he still wanted to change his plea to guilty. Rosch stated that he did. Thereafter, the judge accepted the change of plea, entered a judgment of guilty, and set a sentencing date. On January 29, 1990, the government sent Rosch a copy of the United States Probation Office's presentence report. The presentence report included the government's version of the charges and a recommendation that Rosch be sentenced to twenty years imprisonment, ordered to make full restitution, and fined $52,000,000. On March 15, 1991, Rosch filed a 194-page pro se "Defendant's Version" discussing his culpability and responding to the presentence report. In that document Rosch stated that: (1) he pled guilty as a tactical maneuver to limit his sentencing exposure; (2) he personally researched the law governing guilty pleas, including his rights under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); and (3) he knew that he probably would have been convicted of many of the counts contained in the Third Superseding Indictment had he proceeded with his trial. Two weeks later, on April 1, 1991, and over five months after he originally pled guilty, Rosch moved to vacate the plea agreement and withdraw his guilty plea on the ground that it was neither knowing nor voluntary due primarily to the inadequate assistance he believed he had received from his attorney. The court denied Rosch's motion on June 28, 1991, finding that Rosch had received effective assistance and had voluntarily and knowingly pled guilty. The judge concluded that Rosch had initially pled guilty as a tactical maneuver and then decided after the presentence report was issued that he had made a bad choice. The judge also noted that Rosch not only had a law degree, but had graduated at the top of his class. The judge further stated that Rosch had reaped the reward he bargained for in changing his plea, as his maximum exposure to criminal punishment was limited when the government dropped all other charges against him. Rosch maintained that he was innocent, and challenged the contents of the presentence report. The government moved to have Rosch object to the presentence report on a line-by-line basis, pursuant to Federal Rule of Criminal Procedure 32. During the hearing on this motion, Rosch denied his guilt of any crime. Rosch also indicated his wish to contradict the testimony given at trial, stating: Judge, if it please the Court, all you heard was [the Assistant United States Attorney's] direct examination. You did not hear any evidence from the defendant, and I understand I pled guilty, I won't go into the reasons again. I have evidence that will contradict the very testimony on the stand and I wish to present it. The government then moved to vacate the Rule 32 proceedings entirely, arguing that Rosch had waived his right to a factual determination on the report by refusing to identify the specific matters in the presentence report to which he objected. The sentencing hearing began on November 26, 1991, and continued on December 2 and 12, 1991, and February 6 and 7, 1992. The issues centered on whether Rosch caused the failure of Glen Ellyn and the amount of the loss incurred by the failure. The primary testimony presented at these proceedings came from the government's witness, Thomas C. Kovac, a federal bank examiner in charge of the Glen Ellyn investigation. Kovac testified regarding the facts surrounding the failure of Glen Ellyn, as well as the nature of the losses caused by Rosch's bad loans. Specifically, Kovac testified that (1) only $2.4 million dollars worth of the $19.6 million dollars worth of fraudulent loans Rosch approved between 1981 and 1985 would have had to fail for Glen Ellyn itself to fail; (2) the cause of Glen Ellyn's failure was $12 million in defaulted loans made to a former co-defendant and authorized by Rosch; and, (3) the actual losses to Glen Ellyn and its successor in interest, the FSLIC, as a result of Rosch's fraudulent loan approvals was $12 million in defaulted loans, plus an additional loss of $3.8 million to a savings institution in South Beloit, Illinois. Although Rosch was given the opportunity to call his own witnesses, the only evidence he presented was his own testimony plus voluminous documents, wherein he characterized his activities as poor business judgment and denied that his actions caused Glen Ellyn to fail. Rosch also claimed that the FSLIC was negligent in its efforts to collect on defaulted loans, and that he should not be held responsible for their negligence. On cross-examination Rosch admitted that over a five- or six-year period, he had transferred property to his wife and children for no compensation, with the intention of defeating creditors in connection with Glen Ellyn. Rosch further testified that his wife currently had assets of $795,000. The court sentenced Rosch on February 28, 1992. The court found that the crimes which Rosch admitted in the plea agreement and the evidence the government presented at the sentencing hearing were sufficient to support a finding that Rosch had caused Glen Ellyn to fail, and characterized Rosch's evidence to the contrary as "arranging and rearranging the deck chairs on the Titanic." The court determined that the losses which Rosch caused totalled at least $2 million, but that it was not necessary to determine precisely how much more than $2 million since Rosch did not have the ability to pay a restitution order exceeding that amount. In reaching the conclusion that Rosch would be able to pay $2 million in restitution, the Court made the following factual determinations: (1) Rosch had deliberately transferred assets to his wife and children in excess of normal good faith gifts; (2) many of the assets in his wife's name were recoverable as a fraud to the government; (3) Rosch had fraudulently transferred title to a lucrative country club membership to family members at the same time he was seeking court-appointed counsel on the basis of indigence; and, (4) Rosch had current assets of $775,000. The court also stated that its ruling took into consideration "the defendant's financial needs, earning ability, his dependents and their needs, [and] foreseeability of future earnings." Based on the above findings, the court sentenced Rosch to nine years on the RICO charge and ordered him to pay $2 million in restitution. The court stated that the restitution order was based on the funds Rosch currently had available and also on what he would be expected to earn within five years of his release from prison. The court sentenced Rosch to five years of probation for the embezzlement charge, along with 500 hours of community service, and a fine of $100,000. On March 6, 1992, Rosch filed a pro se motion to vacate his sentence and conviction. This motion was denied on April 23, 1992. Rosch appealed the denial of this motion on May 14, 1992. On July 17, 1992, the district court entered an "Amended Judgment Order," which memorialized certain oral findings of fact made at the sentencing hearing, and ordered that it be appended to the presentence investigation report. On July 27, 1992, Rosch filed a pro se appeal from the amended judgment order. Finally, Rosch filed a petition for relief under 28 U.S.C. Sec. 2241 in the Western District of Wisconsin. The district court dismissed the petition. Rosch appealed the dismissal on December 2, 1992. This Court has ordered that the original appeal, Rosch's pro se appeal, and the appeal from the order dismissing his habeas corpus petition be consolidated. II. Rosch raises four issues on appeal: (1) whether the district court abused its discretion by denying Rosch's motion to withdraw his guilty plea; (2) whether the district court erred when it ordered Rosch to pay $2 million in restitution; (3) whether the district court failed to comply with Federal Rule of Criminal Procedure 32(c)(3)(D) and/or violated his due process rights during sentencing; and (4) whether the district court erred when it dismissed his petition for a writ of habeas corpus. A. The District Court Did Not Abuse Its Discretion By Denying Rosch's Motion to Withdraw His Guilty Plea In order to overturn a district court's denial of a motion to withdraw a guilty plea, a defendant 'must demonstrate that a fair and just reason exists for withdrawing the plea.' United States v. Saenz, 969 F.2d 294, 296 (7th Cir.1992) ( quoting United States v. Ray, 828 F.2d 399, 422 (7th Cir.1987), cert. denied, 485 U.S. 964, 108 S.Ct. 1233, 99 L.Ed.2d 432 (1988). It is not enough that a defendant has decided, using hindsight, that the guilty plea was a poor tactical maneuver. See United States v. Hurtado, 846 F.2d 995, 997 (5th Cir.1988), cert. denied, 488 U.S. 863, 109 S.Ct. 163, 102 L.Ed.2d 133 (1988). The decision whether to allow the withdrawal of a guilty plea is within the sound discretion of the district court, and will be reversed only for an abuse of that discretion. Saenz, 969 F.2d at 296. The district court's findings of fact in support of its decision will be upheld unless clearly erroneous. Id. Rosch contends that the district court abused its discretion by not allowing him to withdraw his plea because (1) he would not have plead guilty but for certain incorrect advice he had received from his attorney and (2) his attorney's lack of preparation was so severe that he was "coerced" into pleading guilty. 1. Incorrect Advice from Counsel According to Rosch, his attorney failed to advise him that by pleading guilty to the RICO charge, he would be admitting all of the underlying criminal acts charged in Count One of the indictment and would be sentenced accordingly. Rather, Rosch's attorney advised him that he would only have to admit two of the underlying criminal acts alleged in Count One, which the attorney characterized as innocuous. Rosch contends that this improper advice amounted to inadequate assistance of counsel, and that because he was not properly informed of the consequences of his plea, it was not knowing, voluntary and intelligent. In order to be valid, a guilty plea must represent "a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970). "Where ... a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice 'was within the range of competence demanded of attorney's in criminal cases.' " Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985) ( quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1448, 25 L.Ed.2d 763 (1970)). Defendants seeking to withdraw a guilty plea on the ground it was the result of improper advice from counsel must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Hill, 474 U.S. at 57-59, 106 S.Ct. at 369-71; Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984), reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). The requirement that a defendant show prejudice serves the fundamental interest in the finality of guilty pleas. Hill, 474 U.S. at 58, 106 S.Ct. at 370; United States v. Timmerick, 441 U.S. 780, 784, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979) ("Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice.") ( quoting United States v. Smith, 440 F.2d 521, 528 (7th Cir.1971) (Stevens, J., dissenting)). 1 We conclude that Rosch suffered no prejudice due to the advice he received from counsel, since he was sufficiently informed of the consequences of his plea through other means. The district court correctly informed him of the maximum sentence he could receive upon pleading guilty, and made it clear that the court had the discretion to impose any sentence it chose up to the maximum. The trial judge's statements, the written plea agreement, the summary of the indictment and the government's opening statement, which were referred to during the hearing and incorporated into the plea proceedings, provided detailed accounts of the nature and magnitude of the charges. Furthermore, during the plea hearing, the government specifically emphasized paragraph 10 of the plea agreement, which stated that the government would "fully apprise the District Court ... of the nature, scope and extent of the defendant's conduct regarding the charges against him, and related matters, including all matters in aggravation and mitigation relevant to the issue of sentencing." The reference to "related matters" as well as the "charges against him" was sufficient to put Rosch on notice that the sentencing court was going to hear about more than just the two supposedly innocuous acts. 2 There is no indication that Rosch, an intelligent man with legal training and who graduated at the top of his law school class, did not understand the information provided to him. 2. The Coercion Theory 3 This Court also rejects Rosch's contention that his attorney's lack of preparation at various stages made it so unlikely that he would be acquitted that he was left with no choice but to plead guilty. We doubt that this is the type of coercion contemplated by the law. See Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Furthermore, Rosch's contention is contradicted by his statement under oath at the change-of-plea hearing that he was fully satisfied with his attorney's advice and representation. 4 Even if we accept Rosch's current position that he received inadequate assistance of counsel, we must deny relief because he has failed to demonstrate, as he must, "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. at 2066 (1984). There is no indication that Rosch, faced with a daunting indictment and the possibility of a very onerous sentence, would have decided not to accept the government's plea offer if his counsel had performed better. In fact, Rosch admitted in his pro se "Defendant's Version," filed in response to the presentence report, that he pled guilty as a tactical maneuver, because he knew that a jury would probably find him guilty of many of the crimes charged in the Third Superseding Indictment. 3. Conclusion 5 For the reasons stated above, we find that the district court did not abuse its discretion when it denied Rosch's motion to withdraw his guilty plea. 6 B. The District Court Did Not Err by Ordering Rosch to Pay $2 Million in Restitution 7 Rosch contends that the district court (1) erred in calculating the amount of the restitution order it entered pursuant to the Victim and Witness Protection Act ("VWPA"), 18 U.S.C. Secs. 3663-3664; (2) abused its discretion by failing to establish a payment schedule; and (3) violated his Due Process rights. He believes that the restitution order should be vacated, or, in the alternative, that his case should be remanded for recalculation of the amount of the order. 8 1. The District Court Did Not Err in Calculating the Amount of Restitution 9 In determining the amount of restitution to be paid by a defendant pursuant to the VWPA, the district court "shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate." 18 U.S.C. 3664(a). Furthermore, the "order of restitution must be ascertained and delineated with an accurate computation, cannot exceed the loss actually caused, and must be set out with specific findings." United States v. Brick, 905 F.2d 1092, 1099 (7th Cir.1990). A restitution order imposed pursuant to the VWPA is reviewed for abuse of discretion, and the findings of fact upon which it is based are reviewed for clear error. See, e.g., United States v. Smith, 944 F.2d 618, 623 (9th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1515, 117 L.Ed.2d 651 (1992). A restitution order must be reversed when the defendant shows that the district court explicitly repudiated a mandatory factor, or that it was not improbable that the judge failed to consider a mandatory factor listed in 18 U.S.C. 3664(a) and was influenced thereby. United States v. Gomer, 764 F.2d 1221, 1223 (7th Cir.1985). 10 Rosch contends the district court failed to make a sufficiently specific finding as to the exact amount of the loss suffered by his victims, and that therefore the restitution order was not the result of an "accurate computation," as required under United States v. Brick, 905 F.2d 1092, 1099 (7th Cir.1990). He further contends that this failure violated his overall right to be sentenced based upon accurate information. See United States v. Eschweiler, 782 F.2d 1385, 1387 (7th Cir.1986). 11 In calculating the restitution order, the court relied on the testimony and affidavits of a federal bank examiner, who testified that the losses attributable to Rosch's criminal acts, made up primarily of defaulted loans, were at least $12 million. The bank examiner reached this figure by taking the total amount of defaulted loans, $19.5 million, and subtracting the amount that the FSLIC was able to realize between 1985 and the time of sentencing. The bank examiner also testified that an attempt to recover $9.6 million in defaulted loans had been mired since 1986, and that another $6 million in loan losses could not be mitigated because the collateral for the loans had liabilities in excess of its value. Having heard this testimony and as well as additional evidence on the issue, the court stated that (1) the bank examiner's figures were "reasonably accurate;" (2) the exact amount of the losses was uncertain since the total amount the FSLIC might recover through foreclosing on the defaulted loans and through other means was uncertain; (3) "it would take maybe even months of analysis, and even a lot of assumptions might have to be made[, and a] lot of other evidence would have to brought in" to determine the exact amount; and, (4) a precise figure as to the total amount the FSLIC might be able to recover was not necessary, because "the evidence [was] overwhelming that [the FSLIC would be unable to recover] at least $2 million [in losses which were] caused by the [defendant's] illegal activities." 12 Based on the above, it is clear that the district court did not "explicitly repudiate" consideration of the losses Rosch caused in calculating the restitution order, and it is not "improbable" that the court adequately considered the data presented to it. See United States v. Gomer, 764 F.2d 1221, 1223 (7th Cir.1985). As for the court's findings, there was sufficient evidence from which the court could conclude that the losses totalled over $2 million, even though the evidence may have been insufficient to establish the exact amount. The exact amount of the losses was irrelevant so long as they exceeded $2 million, since, according to the court, Rosch would be unable to pay more than $2 million in any event. Accordingly, we conclude that the district court's factual determination of the dollar amount of the losses caused by Rosch's criminal activities was sufficiently specific and accurate, and find no abuse of discretion. 13 Rosch also contends that the district court failed to adequately consider his financial resources in calculating the amount of the restitution order as required under 18 U.S.C. Sec. 3664(a). He believes that this error was so severe that it violated the principles underlying our holdings in United States v. Peden, 872 F.2d 1303 (7th Cir.1989) and United States v. Mahoney, 859 F.2d 47 (7th Cir.1988). 14 In United States v. Mahoney, 859 F.2d 47, 49 (7th Cir.1988), we stated that the "VWPA implicitly requires the district court to balance the victim's interest in compensation against the financial resources and circumstances of the defendant--all the while remaining faithful to the usual rehabilitative, deterrent, retributive, and restrictive goals of criminal sentencing." We reiterated this holding in United States v. Peden, 872 F.2d 1303, 1311 (7th Cir.1989). We further stated in Mahoney that 15 at the time the court orders restitution it is most paramount that the defendant, in the all-important rehabilitative process, have at least a hope of fulfilling and complying with each and every order of the court. Thus, an impossible order of restitution ... is nothing but a sham, for the defendant has no chance of complying with the same, thus defeating any hope of restitution and impeding the rehabilitative process. 16 Mahoney, 859 F.2d at 52. Rosch reasons based on these holdings that, because, in his opinion, the district court merely paid "lip service" to his dire financial condition, that not only was the restitution order in his case an abuse of discretion, but that it was merely a sham, with no hope of serving any rehabilitative purpose. 17 Rosch's contention is not borne out by the record. The court had ample evidence before it regarding Rosch's financial condition. Having reviewed that evidence, the court found that (1) Rosch had deliberately transferred assets to his wife and children in excess of normal good faith gifts; (2) many of the assets in his wife's name were recoverable as a fraud to the government; (3) Rosch had fraudulently transferred title to a lucrative country club membership to family members at the same time he was seeking court-appointed counsel on the basis of indigence; (4) Rosch had current assets of $775,000; and, (5) Rosch had skills which would allow him to find gainful employment after his release from prison. The court also specifically stated that it had considered Rosch's financial needs, as well as those of his dependents, and the amount of loss to the victim. 18 This evidence provided a sufficient basis for the court's restitution order. Furthermore, Rosch's case is distinguishable from both United States v. Peden, 872 F.2d 1303 (7th Cir.1989), where the district court heard no evidence at all regarding the defendant's financial condition, and United States v. Mahoney, 859 F.2d 47 (7th Cir.1988), where the amount of the restitution order was so excessive when compared to the defendant's annual income that it was improbable that the district court adequately considered the defendant's financial condition. Accordingly, we find that the court did not abuse its discretion in its consideration of Rosch's financial condition. 2. Payment Schedule 19 Rosch contends that the district court's failure to set up a payment schedule was an abuse of discretion, since it should have realized that he would be unable to pay restitution immediately. See 18 U.S.C. Sec. 3579(f)(3). As stated above, the district court had sufficient evidence upon which it could find that Rosch had the resources to pay at least a significant portion of the restitution order. Furthermore, the government has stayed its efforts to collect the award, so even if Rosch were unable to pay restitution immediately, it would make little difference. Accordingly, we find no abuse of discretion. 3. Due Process Violations 20 Finally, Rosch argues that the $2 million restitution order deprived him of due process because the RICO count did not allege a precise loss amount. He relies on several cases, including United States v. Peredo, 884 F.2d 1029 (7th Cir.1989), in which we reversed a sua sponte restitution order in the amount of $62,300, issued without any specific findings of fact, where the defendant pled guilty to a fraud count charging him with taking "over $5,000." 21 As we stated in section II.A.1. of this opinion, Rosch had adequate notice of the nature and magnitude of the criminal acts alleged in the RICO charge. He received sufficient notice of that he might be exposed to a substantial restitution order. Accordingly, we conclude that Rosch's case is distinguishable from Peredo, and find no violation of Rosch's Due Process rights. 4. Conclusion 22 We find no reversible error in connection with the district court's restitution order.** 23 C. The District Court Did Not Fail to Comply With Federal Rule of Criminal Procedure 32(c)(3)(D) and Did Not Violate Rosch's Due Process Rights During Sentencing 24 Finally, Rosch contends the district court erred by failing to comply with Federal Rule of Criminal Procedure 32(c)(3)(D), which provides that 25 [i]f the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons. 26 Rosch points out that he vigorously questioned the accuracy of the presentence report with respect to the amount of loss suffered by his victims, and contends that the court failed to accurately state its findings on the issue or that it would not be relying on the amount of loss in sentencing him. He further contends the court erred by not attaching written findings on this issue to the presentence report in a timely fashion. Finally, he contends that these errors were so severe as to deny him his due process right to be sentenced based on accurate information. See United States v. Eschweiler, 782 F.2d 1385, 1387 (7th Cir.1986). 27 Before examining Rosch's contentions, we deem it appropriate to review the twofold purpose of Rule 32(c)(3)(D): First, the Rule protects a defendant's due process right to fair sentencing procedures, particularly the right to be sentenced on the basis of accurate information. Second, it provides a clear record of the disposition and resolution of controverted facts in the presentence report. This record aids both appellate courts in their review of sentencing hearings and the administrative agencies that use the report in their own decision making processes. Eschweiler, 782 F.2d at 1387. 28 Turning to Rosch's contentions, we conclude that the court made adequate findings as to the amount of loss suffered by Rosch's victims. We reach this conclusion for the same reasons stated in section II.B. of this opinion. Furthermore, both of the policies underlying Rule 32(c)(3)(D) have been adequately served: As stated in section II.B. of this opinion, the district court's calculation of the loss to Rosch's victims was sufficiently accurate and specific so as not to deny him his right to be sentenced based on accurate information. Second, the district court's written and oral findings were sufficiently clear to establish an adequate record for this court to examine and to provide necessary information to any other entity to which the information is relevant. 29 We also reject Rosch's contention that the court committed reversible error by failing to attach written findings on these issues to the presentence report in a timely fashion. On July 17, 1992, almost five months after it sentenced Rosch, the court entered an "Amended Judgment Against Defendant," which contained a "Sentencing Order of Determination, Findings of Fact and Statement of Reasons," and ordered the latter to be attached to the presentence investigation report, and that copies be sent to the Bureau of Prisons and Parole Commission as soon as possible. Rosch contends that these written findings did not satisfy Rule 32(c)(3)(D) because (1) the court lacked jurisdiction to enter them, since he had already filed notice of appeal, and (2) the written findings of July 17, 1992, are not sufficiently definite as to the amount of the losses his victims suffered and the court's written findings as to Rosch's ability to pay are so erroneous as to be inadequate to satisfy the requirements of Rule 32(c)(3)(D). 30 As for the jurisdictional matter, Rosch relies on United States v. Edwards, 800 F.2d 878, 882-84 (9th Cir.1986), in which the court remanded the case for resentencing where the district entered its written findings five months after notice of appeal was filed. The Edwards court held that the district court no longer had jurisdiction to make written factual determinations under Rule 32(c)(3)(D) once the notice of appeal was filed. Id. The court reasoned that Rule 32(c)(3)(D) clearly contemplated that all disputed facts related to sentencing should be resolved prior to sentencing so that they could be incorporated into the sentencing decision, and that determination after sentencing would not serve this goal. Id. at 883. 31 Rosch's reliance on Edwards is misplaced. In Edwards, the district court actually made factual findings after sentencing the defendant. In Rosch's case, there is no indication, contrary to Rosch's contentions, that the district court made any new factual determinations after it sentenced him. The court merely reduced the findings it had already made to writing. It was merely performing a ministerial function. See United States v. Moran, 845 F.2d 135, 139 (7th Cir.1988) (holding the attachment of written findings to the presentence report is merely a ministerial function, which may be performed by the United States Attorney). Attaching written findings after sentencing does not undermine the policies underlying Rule 32(c)(3)(D) where such determinations were made before the sentencing decision. Id. 32 We also conclude, for the same reasons as we stated in section II.B. of this opinion, that the written findings as to the amount of loss sustained by Rosch's victims were sufficiently specific to satisfy Rule 32(c)(3)(D) and that the court's written findings as to Rosch's ability to pay were not so erroneous as to fail to satisfy Rule 32(c)(3)(D). Finally, because we find the court made adequate and timely findings as required under Rule 32(c)(3)(D), we also reject Rosch's contention that his due process right to be sentenced based on accurate evidence was violated. 33 D. The District Court Did Not Err When It Dismissed Rosch's Petition for a Writ of Habeas Corpus 34 On October 24, 1992, Rosch filed a petition in the Western District of Wisconsin, where he had been imprisoned, seeking relief under 28 U.S.C. Sec. 2241 and other statutes. The petition expressly stated that it had not been brought pursuant to 28 U.S.C. Sec. 2255. The district court dismissed the petition on the grounds that (1) Rosch was attacking the propriety of his sentence rather than the conditions of his confinement, and hence the petition should have been brought under 28 U.S.C. Sec. 2255 rather than 28 U.S.C. Sec. 2241, see Miller v. United States, 564 F.2d 103, 105 (1st Cir.1977), cert. denied, 435 U.S. 931, 98 S.Ct. 1504, 55 L.Ed.2d 528 (1978); (2) the court lacked jurisdiction to consider a petition attacking the propriety of Rosch's sentence, since such petitions must be brought before the court which imposed the sentence, see id.; and (3) because the propriety of Rosch's sentence was currently being reviewed by this Court, it would be inappropriate for the district court to consider it. See Black v. United States, 269 F.2d 38, 41 (9th Cir.1959), cert. denied, 361 U.S. 938, 80 S.Ct. 379, 4 L.Ed.2d 357 (1960). We find no fault with the district court's reasoning. 35 AFFIRMED. * The Honorable Spencer Williams, District Judge of the United States District Court for the Northern District of California, is sitting by designation ** Rosch also argues that the district court erred by fining him $100,000, since the fine will impair his ability to pay restitution. Because we find the court had sufficient evidence from which it could conclude that Rosch has the ability to comply with the restitution order, we find that the imposition of the fine was not error

43 F.3d 1468 NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Said Nouhad ADRA, Defendant-Appellant. No. 93-5797. United States Court of Appeals, Fourth Circuit. Argued May 11, 1994.Decided Dec. 13, 1994. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior District Judge. (CR-93-187-A) ARGUED: Eric Anthony Welter, Reed, Smith, Shaw & McClay, Washington, DC, for appellant. Stephen P. Learned Asst. U.S. Atty., Tax Div., U.S. Dept. of Justice, Alexandria, VA, for appellee. ON BRIEF: Helen F. Fahey, U.S. Atty., Sarah M. Mortenson, Tax Division, U.S. Dept. of Justice, Alexandria, VA, for appellee. E.D.Va. AFFIRMED. Before NIEMEYER, Circuit Judge, PHILLIPS, Senior Circuit Judge, and ERWIN, Senior United States District Judge for the Middle District of North Carolina, sitting by designation. OPINION PHILLIPS, Senior Circuit Judge: 1 Said Nouhad Adra appeals his convictions on money laundering, bank fraud, and currency structuring charges growing out of a series of transactions that he conducted while manager of an automobile leasing business. We find no reversible error among the various ones assigned and affirm the convictions on all counts. 2 * Assessed in the light most favorable to the Government, the evidence tended to show the following. Adra came to the United States from Kuwait in 1983. After engaging in his own business ventures for a while, in 1985 he entered into a business relationship with McLean Savings & Loan Association (the Bank) in Northern Virginia. The exact nature of the relationship over time is disputed by Adra and the Bank, but in ways irrelevant to this case. The critical, undisputed facts of the relationship are that in 1986 the Bank, at Adra's suggestion, set up a wholly owned subsidiary, operating under the trade name "Masterlease," to lease automobiles. Adra was made President of the subsidiary, with full authority to approve leases while operating within Bank guidelines. He was paid a salary and, eventually a 10percent bonus on the subsidiary's net income. 3 In this capacity, Adra devised a "residual value lease financing" program deliberately designed to cater to a high credit-risk lessee clientele. Its basic feature was the requirement of a down payment representing the mathematically determined present lease-end value of the leased automobile, with monthly lease payments then to be made over the leasehold term at the end of which title would pass to the lessee if all lease payments had been made. The down payments could be made in cash or cash and trade-in combinations. 4 The Bank provided financing for these transactions. In the typical arrangement, a car dealership would direct a potential lessee of one of its cars to Masterlease. Once Adra had approved the lessee's application and the car lease agreement had been executed, the Bank would transfer money to Masterlease's operating account from which Adra would draw checks to purchase the automobile, with title being taken in the Bank's name. If all went well, title was transferred from Bank to lessee at the end of the lease term; if not, the Bank absorbed whatever loss it might sustain by lessee default of whatever kind. 5 Overall things did not go well with the venture. In mid-1988, the Bank decided to get out of the car leasing business because of the "overall volume of delinquency," and Adra's relationship was terminated in August of that year. 6 Several transactions handled by Adra during the period of the Masterlease operation gave rise to the indictments and prosecutions in this case. Each involved a similar pattern in which a young male, accompanied by an older female, came to Masterlease to apply for lease of an automobile previously selected at a car dealership. On each occasion, the lease transaction was accomplished by having the companion, at Adra's direction, fill out the application with her own credit and income information as "nominee" of the actual lessee. The nominal lessee would not, however, make any part of the residual-value down payment nor any of the monthly lease payments, nor be given possession of the car. Instead, the actual lessee would make the payments (or so many of the monthly payments as were paid) and possess the car. The actual lessee in each of the transactions was, as it later developed, then engaged in drug trafficking. This was the general pattern; the details of each transaction require elaboration. 7 Two of the transactions that figure most critically in this case involved Valerie Williams, as nominal lessee, and Jeffrey Williams (no relation), as actual lessee. The details were given in the testimony of Valerie Williams as Government witness. 8 In August or September 1987, Valerie was asked by a friend to assist the friend's 22-year old nephew, Jeffrey, in leasing a Nissan Pathfinder. Valerie agreed. After visiting several car dealerships with no success, the two went, at Jeffrey's suggestion, to Adra's Masterlease office. There, Adra, after being introduced to Valerie, agreed to process a lease application and proceeded to direct a transaction in which Valerie filled out the application as nominal lessee and Jeffrey simply stood by until down payment time came. In Jeffrey's presence, Adra directed Valerie to misstate her annual income on the application "in order for the agreement to go through." Valerie did as directed, misstating her income as $31,000 when it was actually $22,000. When the application was completed, Adra handed to Valerie a lease agreement for a Nissan Pathfinder. It required a $6,000 down payment, with monthly lease payments of $429 for five years, and a final payment of $5,413 in order to receive title at the end of the lease term. Valerie looked it over and in Adra's presence told Jeffrey that the price was "outrageous" and asked him where he was "going to get that kind of money." Jeffrey told her "not to worry, just sign it," which she did. Valerie never took possession of the leased Nissan nor made any payments under the lease agreement. As they left Adra's office, Jeffrey left a bag, which Valerie assumed contained the required $6,000 payment, on Adra's desk. Jeffrey took possession of the car. 9 Nine months later, Jeffrey asked Valerie to help him lease a Mercedes coupe. She declined at first because she was already the nominal lessee of the Nissan Pathfinder that Jeffrey was using as his own. She agreed, however, when Jeffrey explained that the Pathfinder lease would be transferred to one Michelle Smith, a girlfriend of his brother, Darryl Williams, thereby relieving Valerie of any potential liability on the Pathfinder lease. 10 In late May 1988, Valerie and Jeffrey went to the Masterlease office where they were joined by Darryl Williams and Michelle Smith. Adra again handled the transactions that followed. First, while Valerie waited in the lobby, he closed a new lease of the Nissan Pathfinder to Michelle. An agreement terminating the original Pathfinder lease was then given to Valerie for execution. It listed the payments received on that lease over the past nine months but required the nominal lessee (Valerie) to pay an additional $4,792 to "terminate" the lease. At the bottom it contained a statement that the lessee had paid this amount. Valerie signed as terminating lessee but she made no payment, nor did Adra ask her to do so. 11 Valerie and Jeffrey then went with Adra to his office to close the new Mercedes lease. Valerie was again given an application which required credit and income information. As she had on the Pathfinder lease application, she substantially overstated her income at Adra's direction. When she told Adra that recent financial problems due to a separation had caused her to become delinquent on several credit accounts, Adra told her to indicate on the application that pregnancy had caused the delinquencies and that arrangements had been made to pay the outstanding bills on a monthly basis. None of this was true, but Valerie complied and signed the application as falsified with respect to both her income and her credit situation. 12 The lease agreement then presented for Valerie's execution as nominal lessee called for a down payment of $42,750 and monthly lease payments of $945 for five years. Again, she expressed concern to Jeffrey about the amounts involved, specifically noting that the size of the monthly payments might cause the car to be repossessed and "mess up her credit." And, pointing to the $42,750 down payment figure, she asked Jeffrey, in Adra's presence, "how was he going to make a downpayment like that?" Again, as he had in connection with the Pathfinder lease, Jeffrey told her not to worry about it. 13 In Valerie's presence, Jeffrey gave a sum of money to a person in the Masterlease office who went with another into an adjoining room where they counted the money. As they counted, Jeffrey expressed his concern to Adra that he, Jeffrey, be given full credit for the money he had just delivered although he was not identified on any of the lease transaction documents. Adra assured him that he would be properly credited with the payments, but that this would show up in a number of increments of $9,000-plus; that Adra couldn't deposit more than that at one time because anything more would be reported to IRS. 14 As with the Pathfinder lease, Valerie never made any of the required payments nor ever physically possessed the Mercedes. When default on the monthly payments later occurred, the Bank repossessed the Mercedes, sustaining a loss of $11,224 on the transaction. 15 Financial records disclosed the following transactions related to the structuring of the $42,750 down payment that was reflected in the lease agreement. Euro Motorcars, the car dealership that sold the Mercedes to the Bank, received two cash payments a week apart: one for $9,500, the other for $9,542. Each was credited on Masterlease records for the benefit of Valerie Williams, though she made no such payments. A cashier's check for $9,500 ostensibly drawn by Valerie Williams, but never obtained by her, was deposited in the Masterlease's account. These sums plus the $4,792 that Adra required Valerie falsely to indicate she had paid to terminate the Pathfinder lease, and a standard dealer rebate of $9,413 given by Euro Motorcars to the Bank and passed on to the lessee, account for the $42,750 down payment figure. 16 The cash paid by Jeffrey Williams in these two transactions was proven to be the proceeds of drug trafficking. 17 Two other transactions involving others than the Williams' with Adra shared similar characteristics. The first was detailed in the testimony of Government witness Tracy Pinkney (at the time, Proctor). 18 In August 1987, Proctor had gone with her 21-year old friend, Ricardo George, to the Masterlease office for the purpose of completing a leasing arrangement on a 735 BMW that George was already driving on a purchase order and lease agreement signed by Proctor with another company. At the Masterlease office, George introduced Proctor to Adra, who then directed the processing of a lease application and agreement with Proctor as nominal lessee. When Proctor listed her after-tax monthly income on the application as $800, Adra told her to increase the figure to $3,200 "because it would look good to the Bank." As she was filling out the application, Adra told her to use a monthly pre-tax income figure of $4,041. When given the lease agreement to review and sign, Proctor asked Ricardo George whether he "could afford" the indicated monthly payment of $1,019, to which he responded that she should not worry about it. After Proctor had signed the lease, Adra congratulated her on her new BMW. When she replied that it wasn't hers, Adra responded that he knew that, and then congratulated George. 19 Tracy Proctor Pinkney never made any payment on the leased car or took possession of it. Eventually it was repossessed for default in payments, resulting in a $12,537 loss to the Bank. 20 The final transaction detailed in the Government's evidence occurred in April 1988. As described in the testimony of Stephenson McArthur, a previously convicted drug dealer, who participated in the transaction, it followed an unsuccessful effort by McArthur to lease a Nissan ZX300 from Martin's Nissan using one Karen Hubbard as nominal lessee. When Hubbard's credit was not satisfactory to Martin's Nissan, one of that dealership's sales people referred McArthur to Adra/Masterlease. When McArthur arrived at the Masterlease office in April 1988, Adra was expecting him and had prepared a lease agreement for Karen Hubbard's execution as nominal lessee. The lease called for a down payment of $6,500. McArthur gave Adra $7,500 in $20, $50, and $100 bills pulled from his pocket; according to McArthur, the extra $1,000 was payment to Adra" to have the lease and everything done up." Adra counted out the money, and gave McArthur a receipt for $6,500 in the name of Karen Hubbard. 21 When Karen Hubbard arrived shortly thereafter, she signed a credit application and lease agreement as nominal lessee. Adra then handed a copy of the documents to McArthur and told him to enjoy the car. McArthur was arrested on drug trafficking charges a few months later. 22 Adra was indicted in a six-count indictment in April, 1993. Count One charged him with conspiracy to commit bank fraud in violation of 18 U.S.C. Sec. 371, and Counts Two, Three and Four charged substantive acts of bank fraud in violation of 18 U.S.C. Sec. 1344(1) and (2), in connection with the three transactions involving Proctor and Valerie Williams respectively as nominal lessees. Count Five charged money laundering in violation of 18 U.S.C. # 8E8E # 1956(a)(1)(B)(i) and (ii), in connection with the May, 1988 Mercedes lease transaction. Count Six charged transaction structuring to evade a reporting requirement in violation of 31 U.S.C. Secs. 5324(a)(3) and 5322(a), in connection with the May, 1988, Mercedes lease transaction. 23 During a one day jury trial in July, 1993, Adra testified in his own defense, essentially denying that any of the transactions occurred as the Government's evidence indicated, and specifically denying any criminal conduct on his part in the matters charged. The jury found him guilty on all six counts, and this appeal followed. Adra challenges his conviction on each of the counts. We take them in order. II 24 Adra challenges the sufficiency of the evidence to convict him on the one bank fraud conspiracy and three substantive bank fraud counts (Counts One-Four) under the general conspiracy statute, 18 U.S.C. Sec. 371 and the specific bank fraud statute, 18 U.S.C. Sec. 1344(1), (2),1 respectively. The challenge is without merit. Under the familiar test of Jackson v. Virginia, 443 U.S. 307, 319 (1979), "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," the evidence readily sufficed to support the convictions on each of these counts. 25 The conspiracy charged to Adra was the scheme in which he participated with various nominal and actual lessees to defraud the Bank by inducing it to finance purchase of the leased cars by intentionally misstating the incomes and credit standing of the nominal lessees. The three substantive acts of fraud charged were the two transactions involving Valerie Williams and the one transaction involving Tracy Proctor (Pinkney) as nominal lessees. 26 The Bank's president testified, without contradiction, that Adra's conduct in arranging leases to nominal lessees who paid nothing and never, to his knowledge, took possession of the cars, and in causing the nominal lessees to falsify their income and credit conditions violated leasing and financing policies of the Bank which were known to Adra. The evidence was undisputed that the Bank lost approximately $23,000 from two of the transactions. Adra's contention in the face of this uncontradicted evidence is that it is insufficient to prove his intent to defraud the Bank, given the fact that the nominal lessees remained liable to the Bank. This argument is specious. The evidence obviously sufficed to permit a rational jury finding that Adra and his co-conspirators participated in a scheme to make false representations to a banking institution with the purpose of influencing it to finance the car leases. It as obviously sufficed to support rational findings that Adra executed this scheme on the three specific occasions charged in the substantive bank fraud counts. III 27 Adra next challenges the sufficiency of the evidence to convict him on the Count Five charge of money laundering in violation of 18 U.S.C. Secs. 1956(a)(1)(B)(i) and (ii)2 in connection with the May, 1988 Mercedes lease transaction. Again, we conclude that the evidence was sufficient to convict on this count, and that the district court therefore did not err in refusing to direct acquittal on it. 28 To convict a defendant of conducting a "money laundering" financial transaction under this statute, the Government must prove that (1) the funds involved in the transaction were the "proceeds of specified unlawful activity"; (2) the defendant knew that they were "the proceeds of some form of unlawful activity;" and (3) the transaction was intended by the defendant either (i) to conceal or disguise the proceeds' nature, source, control, location, or ownership, or (ii) to avoid a federal reporting requirement. 18 U.S.C. Sec. 1956. See United States v. Campbell, 977 F.2d 854, 856-57 (4th Cir.1992). Adra concedes sufficiency of the evidence to prove elements (1) and (3). He challenges only its sufficiency to prove his knowledge that the funds provided by Jeffrey Williams in the May, 1988 Mercedes lease transaction were "the proceeds of some form of unlawful activity." As to that element, the proof may be either that the defendant had actual knowledge of the requisite fact or that he was "wilfully blind" to its existence. Id. at 857. Here, we are satisfied the evidence was sufficient to support a rational jury finding of Adra's actual knowledge3 that the funds given him by Jeffrey Williams as down payment on the Mercedes lease were "the proceeds of some form of unlawful activity." 29 When, as here, the alleged "launderer" is not the source of the tainted proceeds, it obviously may be more difficult to prove his knowledge of taint from "some form of unlawful activity" than it is when the alleged launderer is himself the source. See United States v. Antzoulatos, 962 F.2d 720, 724 (7th Cir.1992). Yet it can be done: most readily by direct evidence that the non-source launderer was told of the taint, either by the source himself, see, e.g., United States v. Isabel, 945 F.2d 1193, 1202 (1st Cir.1991), or by others, see, e.g., United States v. Kaufmann, 985 F.2d 884, 893 (7th Cir.1993), but also by sufficiently probative circumstantial evidence. See, e.g., United States v. Carr, 25 F.3d 1194, 1205 (3rd Cir.1994) (properly inferable from opportunity necessarily provided to launderer to know of taint by launderer's intimate association with source); United States v. Long, 977 F.2d 1264, 1269-70 (8th Cir.1992) (properly inferable from non-source launderer's provision of phony job to source which he then sought to cover by lying to grand jury). 30 Here, there concededly is no direct evidence that Adra actually knew, either from his own observation or from information supplied by the source or others, that Jeffrey Williams' downpayment came from "some form of unlawful activity." Adra relies on this lack of direct evidence in urging the overall insufficiency of the evidence on the knowledge element. 31 We are satisfied, however, that there was sufficient circumstantial evidence from which the jury rationally could have found the requisite knowledge beyond a reasonable doubt by drawing reasonable inferences from Adra's conduct and that of others in his presence. Cf. United States v. Ratzlaf, --- U.S. # 6D6D 6D# , 114 S.Ct. 655, 663 n. 19 (1994) (citing Spies v. United States, 317 U.S. 492, 499-500 (1943)). 32 Principally, there was the evidence that Williams, a visibly youthful twenty-two year old, who just nine months earlier had been able to make a $6,000 cash down payment to Adra, was able on the occasion in question to make another of around $33,000. That these sums might have been earned from lawful income or represented lawfully acquired capital assets was belied by the subterfuge, whose details were directed by Adra, of using another's financial statement to avoid making disclosure of Jeffrey's income and capital assets. From this device, the jury might rationally infer that both Jeffrey and Adra knew that Jeffrey could not report--as his nominee could--any lawful source for so significant a sum of money. The inference that Adra necessarily knew that the funds were derived from some form of unlawful activity is bolstered by Jeffrey's willingness--although with manifested anxiety--to put them at risk in a transaction whose documentary record did not recognize his entitlement to credit for them. Had he been able to report a lawful source--either from income, or gift, or capital--it is inconceivable as a matter of common sense that he would have run such a risk rather than going through a direct lease transaction in which his financial interest would have been fully documented. And a jury, applying its own experience and common sense in the matter, rationally could infer that Adra, necessarily drawing the same inferences, must have known of the money's acquisition "from some form of unlawful activity." We therefore reject Adra's contention that the evidence was insufficient to convict him on this count. IV 33 Adra next challenges his conviction for currency structuring in violation of 31 U.S.C. Secs. 5324(a)(3) and 5322(a)4 on two grounds: erroneous jury instruction and insufficiency of the evidence to support the jury's verdict. We take these in order. 34 * In Ratzlaf v. United States, --- U.S. ----, 114 S.Ct. 655 (1994), decided while this appeal was pending, the Supreme Court held that the willfulness element in Sec. 5322(a) requires that to convict under that section and Sec. 5324, the Government must prove that the defendant "knew the structuring in which he engaged was unlawful." Id. at 663. Because the trial judge had instructed the jury that to convict the defendant the Government need only prove that he knew of the financial institution's reporting obligation and that he had attempted to evade it, but not that he knew his structuring attempt was illegal, the court reversed and remanded. 35 Adra contends that the jury instruction in his case suffered the same vice and requires reversal and remand. We disagree. We believe that in total compass, the instruction here satisfied Ratzlaf's requirement. 36 The court began by instructing the jury that: 37 "The terms 'willfully' and 'knowingly' are used throughout these instructions and they are elements of each offense. An act is done willfully that is done voluntarily and intentionally, and with the specific intent to do something the law forbid[s]; that is, with the purpose to disobey or disregard the law." 38 J.A. 246-47 (emphasis added). Subsequently, the court gave the specific elements necessary for a conviction under Secs. 5324(a)(3) and 5322: 39 "In order to prove the crime of structuring ... the government must establish beyond a reasonable doubt the following essential elements: First, that the defendant had knowledge of the currency transaction reporting requirements. Second, the defendant, with such knowledge, knowingly and willfully structured or assisted in structuring or attempted to structure or assist in structuring any transaction". 40 J.A. 263 (emphasis added). 41 Taken together, these instructions contain the critical element the Supreme Court found missing in Ratzlaf, namely, that the Government must prove not only that Adra knew that financial institutions must report currency transactions in excess of $10,000, but, in addition, that he knew it was illegal to "structure" a transaction so as to avoid the necessity of complying with the reporting requirements.5 See United States v. Walker, 25 F.3d 540, 548 (7th Cir.1994) (comparable instructions upheld under Ratzlaf requirement). B 42 Adra's further contention that there was insufficient evidence to support the requisite jury finding that he knew the structuring he undertook was unlawful is without merit. 43 There was abundant evidence adduced at trial demonstrating Adra's knowledge of--indeed, intimate familiarity with--the currency transaction laws and regulations at issue. He had worked for the Bank in a position that required him to know their details and purposes, and had in fact filled out the required currency transaction reports for the Bank. In addition, Adra actively directed the structured transaction at issue, exercising his sole control of the way in which the funds yielded would be deposited to avoid the reporting requirements as part of the laundering scheme. The jury here rationally could find the requisite knowledge on Adra's part that the structuring in which he was engaged was unlawful "by drawing reasonable inferences from the evidence of [his] conduct." Ratzlaf, 114 S.Ct. at 663 n. 19. V 44 Adra finally challenges as prejudicial error the district court's failure to give a limiting or curative instruction following the Government's elicitation from Adra on cross-examination of the details of a conversation Adra had had with a Government agent several years after the events at issue, and the admission in evidence of some "mug shots" of Ricardo George and Jeffrey Williams. 45 Because there was no objection as to either of these matters at trial, they could only be the basis for reversal if we could conclude they were "plain error" under Fed.R.Crim.P. 52. We cannot. If error at all, they could not qualify as "plain" under the exacting standard of United States v. Olano, --- U.S. # 6D 6D6D# , 113 S.Ct. 1770, 1776-79 (1993). VI 46 There having been no reversible error among those assigned, the convictions are 47 AFFIRMED. 1 "Whoever knowingly executes, or attempts to execute, a scheme or artifice--(1) to defraud a financial institution; or (2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of a financial institution, by means of false or fraudulent pretenses, representations, or promises; shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both." 18 U.S.C. Sec. 1344 2 "Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity ... (B) knowing that the transaction is designed in whole or in part (i) to conceal or disguise the nature, the location, the source, the ownership, or (ii) the control of the proceeds of specified unlawful activity; or to avoid a transaction reporting requirement under State or Federal law." 18 U.S.C. Sec. 1956(a)(1)(B)(i) and (ii) 3 Though, as indicated, our precedents permit proof of the requisite knowledge by proof of "willful blindness," the district court did not, as requested by the Government, so instruct the jury in this case. This raises the question whether, in the absence of such an instruction, a jury finding of the requisite knowledge could nevertheless be upheld as adequately supported by sufficient evidence of willful blindness though not of actual knowledge. Although we would be disposed, in the absence of direct circuit precedent, to believe that it could be, we need not now decide the question. The Government at oral argument indicated its willingness to stand on the sufficiency of the evidence to prove actual knowledge and we have so assessed it. The evidence of course easily suffices to support a finding of willful blindness 4 31 U.S.C. Sec. 5324 provides, in relevant part: "No person shall for the purpose of evading the reporting requirements of section 5313(a) ... with respect to such transaction cause or attempt to cause a domestic financial institution to fail to file a report required under Sec. 5313(a)." Section 5313(a), and its corresponding regulation in 31 C.F.R. Sec. 103.22(a), in turn require a financial institution to report any cash transactions involving more than $10,000 to the Internal Revenue Service. 31 U.S.C. Sec. 5322(a) then provides "A person willfully violating this subchapter or a regulation prescribed under this subchapter [31 U.S.C. Secs. 5311-5328] ... shall be fined not more than $250,000, or imprisoned for not more than five years, or both." 5 We note that the district court's "willfulness" instruction here differs critically from that we found violative of Ratzlaf in United States v. Rogers, 18 F.3d 265 (4th Cir.1994). In Rogers the trial court had instructed the jury: "Willful means no more than the Defendant charged with the duty knows what he is doing. It does not mean, in addition, he must suppose he is breaking the law." Id. at 267 (emphasis added)

212 N.W.2d 876 (1973) STATE of Minnesota ex rel. James P. LUDWIG and James P. Ludwig, Individually, Appellant, v. CITY OF BEMIDJI, Respondent. No. 44079. Supreme Court of Minnesota. November 23, 1973. *877 Kief & Duranske and George L. Duranske III, Bemidji, for appellant. Smith, McRae & Hilligan and Thomas M. Hilligan, Eugene Ouradnik, City Atty., Bemidji, for respondent. Heard and considered en banc. OTIS, Justice. These proceedings have been brought by a resident of Beltrami County to enjoin the city of Bemidji under the provisions of the Minnesota Environmental Rights Act, Minn.St. c. 116B, from polluting the Mississippi River and to recover damages arising from a nuisance maintained by the city. Section 116B.03, subd. 1, provides, in part, that "no action shall be allowable under this section for conduct taken by a person pursuant to any * * * permit issued by the pollution control agency * * *." The issue is whether the city's permit to discharge effluent into the river was validly revoked by the Pollution Control Agency (PCA). The trial court held that the city did not have adequate notice of the PCA's intention to revoke the permit and accordingly dismissed the injunction suit. Plaintiff appeals from that judgment. We affirm. The nuisance action is still pending. On July 9, 1959, the Water Pollution Control Commission of Minnesota granted the city a permit under which it was allowed to operate its waste disposal facilities by discharging into the river sewage which had been subjected to secondary treatment. Subsequently, by L.1967, c. 882, the Minnesota Pollution Control Agency was created as a successor agency to the Water Pollution Control Commission. In 1969, the PCA adopted Regulation WPC 15, which established standards of pollution governing, among other entities, the city of Bemidji. Extensive negotiations between the PCA and the city followed, designed to require the city to conform. In June 1970, PCA notified some 150 towns, villages, cities, counties, individuals, and corporations of its intention to conduct a hearing on July 13, 1970. The notice which was published and served on those affected, including the city of Bemidji, included the following: "YOU WILL PLEASE TAKE NOTICE that pursuant to authorization by the Minnesota Pollution Control Agency, and in accordance with applicable laws (Minnesota Statutes, 1967, Chapters 115 and 116, as amended), notice is hereby given that a public hearing will be held by said Agency or by one or more authorized members, employees, or agents thereof, beginning at 1:30 p. m. on July 13, 1970, in the Board Room of the State Board of Health Building, at 717 Delaware Street S.E., Minneapolis, for the purpose of receiving and considering testimony and evidence bearing on the adoption of water use classifications; establishment of standards of quality and purity for effluents discharged to and/or which may affect certain interstate waters of Minnesota, and adopting regulations relating thereto; and revoking or modifying existing permits for sewage, industrial waste or other waste disposal systems, and issuing orders for the abatement and control of actual or potential sources of pollution of the interstate waters of the State, or tributary waters which may affect the indicated waters, in conformance with the purposes *878 of the applicable State laws and regulations, the recommendations of the Federal-State enforcement conference on Lake Superior and major tributaries as embodied in the summary issued by Secretary Hickel on January 26, 1970, and the requirements of the approved plan for implementation of the interstate water quality standards. "Proposed water use classifications, effluent standards, and recommendations relating to revocation or modification of permits and issuance of orders for abatement of pollution are on file in the offices of the Agency in Room 319, State Board of Health Building, 717 Delaware Street S.E., Minneapolis, Minnesota 55440, and are open for inspection by any person upon request." The city made no appearance of any kind at the hearing. Thereafter, on January 11, 1971, the PCA adopted Regulation WPC 28, adopting certain effluent standards. That regulation supplemented WPC 15 by adding, inter alia, the following standards: "Substance or Limiting Concentration Characteristic * * * * * * "Fecal coliform group 200 MPN/100 milliliters organisms * * * * * * "Pathogenic organisms None" On June 14, 1971, the PCA issued an order revoking the city of Bemidji's permit to discharge effluent into the Mississippi River and directing the city to conform to Reg. WPC 28 as well as WPC 15 and 25. The city was given until May 26, 1973, to complete a sewage system which would permit the city to meet the standards fixed by PCA. That order is not before us on direct appeal but is collaterally attacked by the city as a defense in the action brought by plaintiff to require the city to conform to the standards established by Reg. WPC 28. The notice of the July 13, 1970, hearing, was entitled: "Notice of Public Hearing on Adoption of Water Use Classifications, Establishment of Standards for Effluents Discharged to and/or Affecting the Interstate Waters of Minnesota, Revocation and Modification of Permits Relating Thereto, and Issuance of Orders for Abatement of Pollution Thereof." In dismissing plaintiff's injunction suit brought pursuant to Minn.St. c. 116B, the trial court held that the notice was adequate to sustain the validity of Reg. WPC 28 but was inadequate to confer jurisdiction over defendant for purposes of revoking the permit issued July 9, 1959. Under § 116B.03, subd. 1, of the Minnesota Environmental Rights Act: "* * * [N]o action shall be allowable under this section for conduct taken by a person pursuant to any * * * permit issued by the pollution control agency * * *." The issue, as we have indicated, is whether the city's permit of July 9, 1959, was validly revoked. Whether the city had adequate notice of the action to be taken by the PCA at its July 13, 1970, meeting is governed by the Administrative Procedure Act. Under Minn.St. 15.0411, subd. 4, a contested case is defined as follows: "`Contested Case' means a proceeding before an agency in which the legal rights, duties, or privileges of specific parties are required by law or constitutional right to be determined after an agency hearing." Section 15.0418 makes the following provision for notice in a contested case: "In any contested case all parties shall be afforded an opportunity for hearing after reasonable notice. The notice shall state the time, place and issues involved, but if, by reason of the nature of the proceeding, the issues cannot be fully stated in advance of the hearing, or if subsequent amendment of the issues is *879 necessary, they shall be fully stated as soon as practicable, and opportunity shall be afforded all parties to present evidence and argument with respect thereto. * * *" The Water Pollution Control Act contained the following notice provision (Minn.St.1971, § 115.05, subd. 1): "No final order of the agency shall be effective as to the vested rights of any person adversely affected thereby nor as to any disposal system operated by any person unless the agency or its authorized officer, member, or agent shall have held a hearing upon the matter therein involved at which evidence may be taken, of which hearing such person shall have had notice as hereinafter provided. Any person who will be directly affected by the final order therein shall have the right to be heard at the hearing and to submit evidence thereat. Written notice specifying the time and place of the hearing shall be served by the agency upon all persons known by it to be directly affected by the final order, personally or by mail not less than 30 days before the date of the hearing. A copy of the final order shall be served in the same manner upon all persons who entered an appearance at the hearing."[1] Plaintiff argues that the notice of the July 13, 1970, hearing, which was published in a Bemidji paper and served on the city, complied with the statute and with the constitutional standards prescribed by Morgan v. United States, 298 U.S. 468, 56 S. Ct. 906, 80 L.Ed. 1288 (1936), and Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129 (1938). The second Morgan case was quoted with approval in State v. Duluth, Mi. & I. R. Ry. Co., 246 Minn. 383, 400, 75 N.W.2d 398, 410, appeal dismissed, 352 U.S. 804, 77 S.Ct. 46, 1 L.Ed.2d 38 (1956), as follows: "* * * The right to a hearing embraces not only the right to present evidence but also a reasonable opportunity to know the claims of the opposing party and to meet them. The right to submit argument implies that opportunity; otherwise the right may be but a barren one. Those who are brought into contest with the Government in a quasi-judicial proceeding aimed at the control of their activities are entitled to be fairly advised of what the Government proposes and to be heard upon its proposals before it issues its final command." It is the position of plaintiff that the city waived its right to be heard by failing to appear. He cites Martin v. Wolfson, 218 Minn. 557, 568, 16 N.W.2d 884, 890 (1944), where we said: "* * * The right to present evidence, to have witnesses sworn, and to have them subjected to direct and cross-examination in accordance with recognized judicial procedure was the right of any interested person present at the hearing. But, unless that right was asserted, it must be considered waived. While courts have a tender regard for the rights and privileges of citizens, there is no reason of public policy why they should invoke for him constitutional or statutory rights which he himself has voluntarily relinquished." The facts that the city was served with notice of the agency's intention to consider and adopt WPC 28 and that the agency invoked that regulation to revoke the city's permit resulted in no substantial prejudice to the city, it is argued, because WPC 28 merely supplemented the existing regulation, WPC 15, in an inconsequential manner. *880 The total coliform group organism count was not changed. WPC 28 simply specified a standard by which to measure and limit fecal coliform group organism count. With respect to the addition of a standard limiting the pathogen content of water, the question was moot as to the city, according to plaintiff, since no effort was made by the PCA to measure the pathogen content in the city's sewage effluent. While the notice may have been inadequate as to ordinary uninformed individuals, plaintiff contends that the extended negotiations between the various state agencies and the city with respect to the pollution problem should have put the city on notice of the purposes and consequences of the July 13, 1970, meeting. Plaintiff argues that the part of the notice of the meeting which showed as a purpose "revoking or modifying existing permits" and the paragraph of the notice stating that recommendations relating to revocation of permits were on file in the agency's Minneapolis office and were open for inspection gave the city ample notice and opportunity to determine what action the PCA contemplated. Finally, plaintiff urges us to adopt a rule which would obviate the necessity for giving two notices relative to one course of action, namely, a notice pertaining to the adoption of regulations and a second notice subsequent to their adoption, indicating an intent to apply and enforce the new regulation with respect to particular individuals. We decline to adopt such a rule. We agree with the trial court that the notice of the July 13, 1970, hearing failed to comply with Minn.St. 15.0418. The PCA, therefore, did not have jurisdiction to revoke the city's permit granted July 9, 1959. The notice served on the city was directed at approximately 150 municipalities and individuals who were concerned with the adoption of pollution standards. In the absence of any expression of intent to revoke a specific permit, the sheer number of municipal corporations, counties, and persons notified had a tendency to distract the city from immediate concern over a change in its individual status. Obviously, the PCA could not, at one hearing, deal with the problems of all 150 who were served with notice. While the notice invited those who were served to examine the files of the agency's office to determine what recommendations it had made with respect to the revocation of permits, the record does not show whether there was on file a recommendation that the city of Bemidji's permit be revoked. There is merit in the city's argument that it could not adequately prepare for a hearing which was designed to enforce a standard not yet adopted. We are of the opinion that Minn.St. 15.0418 was designed to meet that problem. Where "the issues cannot be fully stated in advance of the hearing * * * they shall be fully stated as soon as practicable, and opportunity shall be afforded all parties to present evidence and argument with respect thereto." Although WPC 28 was adopted January 11, 1971, the order revoking the city's permit was not issued until June 14, 1971. Since this lapse of time suggests there was no urgency in the matter, the agency had ample opportunity in the 5 months following its adoption of the standards to notify the city of its intention to enforce them against the city and to accord the city an individual hearing to resist that proposed order. We hold that the failure to afford a second hearing was a violation of the statute which deprived the agency of jurisdiction over the city and accordingly affirm. Affirmed. YETKA and SCOTT, JJ., not having been members of this court at the time of the argument and submission, took no part in the consideration or decision of this case. NOTES [1] We are cognizant of the provisions of Minn. St. 15.0413, subd. 1, which direct that every rule or regulation filed in the office of the secretary of state and commissioner of administration shall have the force and effect of law. However, we hold that the specific provisions of Minn.St. 115.05, subd. 1, are here controlling under Minn.St. 645.26, which governs the interpretation of statutes which are in conflict.

580 N.W.2d 870 (1998) 458 Mich. 141 Johnny JACKSON, Plaintiff-Appellee, v. COUNTY OF SAGINAW, Thomas McIntyre, Individually and in his capacity as Sheriff of Saginaw County, Richard Roe and Jane Doe, Defendants-Appellants. Docket No. 106498, Calendar No. 3. Supreme Court of Michigan. Argued April 7, 1998. Decided July 1, 1998. Jensen, Gilbert, Smith & Borrello, P.C. by Peter C. Jensen, Saginaw, for defendantsappellants. Opinion MICHAEL F. CAVANAGH, Justice. In this case we are called on to address whether summary disposition was appropriately granted in favor of the sole remaining *871 defendant under MCR 2.116(C)(7) and MCR 2.116(C)(10).[1] We find that reasonable minds could not differ in concluding that the evidence, when viewed in a light most favorable to the plaintiff, does not raise a question whether the individual defendant, Vincent Uy, M.D., a government employee, was grossly negligent as required for liability under § 7 of the governmental tort liability act (GTLA), M.C.L. § 691.1407; M.S.A. § 3.996(107). Accordingly, we find that the trial court did not err in granting summary disposition in favor of Dr. Uy, and reverse the holding of the Court of Appeals to the contrary. I In reviewing a grant of summary disposition, an appellate court must view the evidence in the light most favorable to the nonmoving party, and make all legitimate inferences in favor of the nonmoving party. Skinner v. Square D Co., 445 Mich. 153, 516 N.W.2d 475 (1994). Our review has found the Court of Appeals summary of the facts to be accurate, and we therefore adopt that summary: In December 1990, plaintiff was incarcerated in the Saginaw County jail, and in January 1991 began to experience throat and ear pain. Plaintiff was examined in the jail infirmary on several occasions between January 1991 and May 1991, at which time he was referred to a specialist. Plaintiff was thereafter diagnosed with throat cancer and his larynx was surgically removed. Plaintiff brought this two-count complaint: Count I alleged violations of "due process, equal protection and [the] prohibition against cruel and unusual punishment as guaranteed by the Michigan Constitution"; and Count II alleged, in the alternative, that defendants had been grossly negligent in denying him adequate medical care. Specifically, plaintiff alleged that defendants had delayed in providing him with specialized care despite his recurrent symptoms of throat and ear pain and hoarseness. Plaintiff further alleged that the treatment delay had proximately caused him pain and suffering, exacerbation of his cancerous condition, and a shortening of his life span. In their answer, defendants asserted general denials of negligence or gross negligence and also asserted the affirmative defense of governmental immunity. Following some discovery, defendants moved for summary disposition. MCR 2.116(C)(7) [governmental immunity], (C)(10) [no genuine issue of material fact]. Defendants supported their motion with affidavits of the treating physician, Vincent Uy, M.D., and the supervisory nurse at the jail, Amy Valerio, R.N. The following chronology of events is drawn from these affidavits and the subsequent deposition of Dr. Uy: 1/11/91 Plaintiff was first seen by a jail nurse in the infirmary, complaining of throat and ear pain. 1/16/91 Plaintiff was seen a second time by a nurse, again complaining of throat and ear pain. The symptoms were "not serious," and plaintiff did not request to see a physician. 3/24/91 Plaintiff was seen again in the infirmary, complaining of recurrent throat and ear pain. The attending nurse scheduled an appointment for plaintiff to be seen by jail physician, Vincent Uy, M.D. 3/28/91 Dr. Uy examined plaintiff's throat with a tongue depressor, finding it to be red, inflamed, and infected. He prescribed an antibiotic and had a throat culture performed. He found no evidence of tumors or cancerous growth. 4/23/91 Dr. Uy again examined plaintiff, finding his throat still to be infected. Dr. Uy prescribed a stronger antibiotic and had a second throat culture performed. No evidence of tumors or cancerous growth was detected. 5/9/91 Plaintiff complained that his symptoms had recurred. Because plaintiff stated that the earlier antibiotic treatment had been temporarily successful, Dr. Uy prescribed another antibiotic. No evidence *872 of tumors or cancerous growth was detected. 5/21/91 Plaintiff complained again of a sore throat and now hoarseness. Dr. Uy referred plaintiff to an ear, nose, and throat specialist. In his answer to defendants' summary disposition motion, plaintiff averred in an affidavit that, contrary to defendants' averments, he had continually complained about his medical condition "each and every month" between January 1991 and his release in July 1991. To corroborate this claim, plaintiff relied on the deposition testimony of Perri Payne, plaintiff's former cellmate, who testified that plaintiff continually complained about his medical condition. Payne further testified that at times plaintiff sought the attention of the guards by shaking the cell bars and requesting to be sent to the hospital. Plaintiff's averments in his affidavit, and the deposition testimony of two treating physicians, are summarized as follows: 6/17/91 Plaintiff was seen by Robert Borenitsch, D.O., an ear, nose, and throat specialist. Given plaintiff's medical history of "progressive hoarseness" since December 1990 and the fact that he was a heavy smoker and drinker, Dr. Borenitsch immediately suspected a serious problem such as cancer, even before examining plaintiff. Dr. Borenitsch performed a laryngoscopy, revealing lesions on plaintiff's right vocal cord which Dr. Borenitsch believed to be a malignancy. 6/21/91 Dr. Borenitsch performed another laryngoscopy in conjunction with a biopsy. The biopsy confirmed the diagnosis of cancer. 6/26/91 Dr. Borenitsch informed plaintiff of the diagnosis and referred him to an otolaryngologist for surgery. Dr. Borenitsch eventually referred plaintiff to another otolaryngologist, Ramon Esclamado, M.D., who specialized in head and neck surgery. 7/19/91 Dr. Esclamado examined plaintiff, who indicated a history of throat pain for seven months and ear pain for six months as well as being a heavy smoker and drinker. Dr. Esclamado initially suspected squamous carcinoma. 7/22/91 A tracheotomy was performed because the tumor was obstructing plaintiff's airway. 10/8/91 After experimental chemotherapy treatment was unsuccessful in shrinking the tumor, a total laryngectomy was performed, removing plaintiff's voice box. After hearing arguments of counsel, the trial court granted summary disposition in favor of all defendants on the basis of governmental immunity. [Unpublished opinion per curiam, issued May 10, 1996 (Docket No. 182564), slip op. at 1-3.] On appeal by the plaintiff, the Court of Appeals affirmed summary disposition in favor of the defendants on the deliberate indifference claims, and the gross negligence claims against the county, the sheriff, and nurse Valerio, but reversed the grant of summary disposition in favor of Dr. Uy, finding that "reasonable minds could differ as to whether his conduct was so reckless as to demonstrate a substantial lack of concern for whether an injury resulted."[2]Id. at 6. We granted defendant's[3] application for leave to appeal, 456 Mich. 877, 570 N.W.2d 782 (1997), and now reverse the decision of the Court of Appeals regarding Dr. Uy. II As we have observed, the plaintiff, as the nonmoving party, is entitled to have the facts viewed in the light most favorable to him, and to all legitimate inferences therefrom in his favor. Skinner, supra; Moll v. Abbott Laboratories, 444 Mich. 1, 27, n. 36, 506 N.W.2d 816 (1993). We review this question of law de novo. Cardinal Mooney High School v. Michigan High School Athletic Ass'n, 437 Mich. 75, 80, 467 N.W.2d 21 *873 (1991). Defendant[4] claims error in the finding of the Court of Appeals that summary disposition in regard to him was inappropriate on the basis of a finding that reasonable minds could differ with regard to whether his conduct amounted to gross negligence. The Court of Appeals in the past has held that "[g]enerally, once a standard of conduct is established, the reasonableness of an actor's conduct under the standard is a question for the factfinder, not the court." Tallman v. Markstrom, 180 Mich.App. 141, 144, 446 N.W.2d 618 (1989). "However, if, on the basis of the evidence presented, reasonable minds could not differ, then the motion for summary disposition should be granted." Vermilya v. Dunham, 195 Mich.App. 79, 83, 489 N.W.2d 496 (1992). The Court of Appeals cited both these cases in its analysis, and we agree that these established precedents form the boundaries of our review. Accordingly, our task is to review the facts, in the light most favorable to the plaintiff, and determine the appropriateness of summary disposition in favor of the defendant.[5] III Plaintiff's complaint characterized defendant as a jail employee.[6] Plaintiff's claim of gross negligence against this employee is accordingly governed by § 7 of the GTLA, M.C.L. § 691.1407; M.S.A. § 3.996(107), which provides[7]: (1) Except as otherwise provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided in this act, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed. (2) Except as otherwise provided in this section, and without regard to the discretionary or ministerial nature of the conduct in question, each officer and employee of a governmental agency, each volunteer acting on behalf of a governmental agency, and each member of a board, council, commission, or statutorily created task force of a governmental agency shall be immune from tort liability for injuries to persons or damages to property caused by the officer, employee, or member while in the course of employment or service or volunteer while acting on behalf of a governmental agency if all of the following are met: (a) The officer, employee, member, or volunteer is acting or reasonably believes he or she is acting within the scope of his or her authority. (b) The governmental agency is engaged in the exercise or discharge of a governmental function. (c) The officer's employee's member's, or volunteer's conduct does not amount to gross negligence that is the proximate *874 cause of the injury or damage. As used in this subdivision, "gross negligence" means conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results. Subsection 2 governs our analysis. For summary disposition to have been appropriate on the basis of governmental immunity, Dr. Uy is required to have met all three conditions of that section. Regarding the first two, there is no dispute. The operation of a jail is clearly a governmental function,[8] and there has been no allegation that Dr. Uy was acting outside the scope of his authority when treating the plaintiff. Accordingly, we now turn to whether Dr. Uy's conduct could "amount to gross negligence that is the proximate cause of the injury or damage." IV As noted, the trial court had before it the depositions of Dr. Uy and the plaintiff's cellmate, Payne. Additionally, the record contains the depositions of Dr. Borenitsch, the ear, nose, and throat specialist to whom Dr. Uy referred the plaintiff, and Dr. Esclamado, the otolaryngologist who performed the surgery on the plaintiff. The Court of Appeals found that the trial court had erred in granting summary disposition on the basis of its reading of testimony in these latter two depositions. The Court of Appeals observed that neither Dr. Borenitsch or Dr. Esclamado would offer an opinion regarding whether the plaintiff's cancer could have been diagnosed earlier than it was. However, it found the doctors' testimony to indicate that, minimally, a laryngoscopic examination[9] of plaintiff's throat was indicated on the basis of his four-month history of symptoms. We disagree with this latter characterization and regardless of its correctness, further disagree with the conclusion drawn by the Court of Appeals from this finding. First, we note that this conclusion apparently was drawn from a question asked Dr. Borenitsch regarding whether the jail medical staff should have suspected cancer sooner on the basis of the plaintiff's symptoms. Dr. Borenitsch did not directly answer that question. Rather, he specifically noted, as he previously had done, that he could not testify with respect to the standard of care in the jail. As to the standard of care for an ear, nose, and throat practitioner, however, Dr. Borenitsch did indicate that he would have done a laryngoscopic examination sooner, and that after "a couple of months" of continuing symptoms like those the plaintiff described, he definitely felt that such an examination would be required. Likewise, while Dr. Esclamado testified that, as an otolaryngologist, he would immediately suspect cancer, given the plaintiff's history, he was not prepared to render an opinion regarding the appropriateness of the care plaintiff received at the jail. Dr. Esclamado confined his testimony only to the general nature of the cancer and his area of specialized practice. Accordingly, we conclude that no testimony was presented to support the Court of Appeals finding that a laryngoscopic examination should have been performed by Dr. Uy. In fact, there appears to be no expert testimony in the record that indicates Dr. Uy violated the standard of care with regard to a negligence standard. Which brings us to our second point of disagreement, the conclusion drawn by the Court of Appeals. While the Court of Appeals correctly quoted the statutory definition of gross negligence, it found that a failure to perform a laryngoscopic examination was sufficient to raise a question regarding gross negligence. This, however, is contrary to the requirements of the statute. The statutory definition of gross negligence is "conduct so reckless *875 as to demonstrate a substantial lack of concern for whether an injury results." As we have noted, it appears that the deposition testimony offered to the trial court fails to raise a question whether the defendant even violated the standard of care applicable to him and therefore would be guilty of negligence. There is, however, clearly no testimony at all offered to support a notion that his conduct would be so reckless as to demonstrate a substantial lack of concern for whether an injury results. While the plaintiff is entitled to all reasonable inferences, we cannot find it reasonable to infer that, assuming arguendo that Dr. Uy should have referred the plaintiff for a laryngoscopic examination sooner,[10] his lack of doing so could demonstrate such a substantial lack of concern. The record does indicate that Dr. Uy continued to treat the plaintiff with a variety of medications, as well as administering various tests, and that Dr. Uy reacted with different treatments each time the plaintiff was seen by him. In such circumstances, we must agree with the trial judge that reasonable minds could not differ in concluding that Dr. Uy's conduct in the course of his treatment of the plaintiff could not amount to gross negligence as defined in the statute. Lastly, we observe that our decision today is based on the statutory definition of gross negligence, and a finding that such a requirement cannot be met in this case.[11] We note in passing, however, that the statute also requires that gross negligence be the proximate cause of plaintiff's injuries for liability to attach to the governmental defendants. On this point, as well, the deposition testimony presented to the trial court is lacking. Both Dr. Borenitsch and Dr. Esclamado declined to offer testimony concerning the difference detection of the plaintiff's cancer four months earlier might have made. V Accordingly, having found that plaintiff has raised no question on which reasonable minds could differ concerning gross negligence in defendant Dr. Uy's conduct, we conclude that the trial judge was correct in his grant of summary disposition in favor of Dr. Uy, and reverse that part of the Court of Appeals opinion that holds to the contrary.[12] MALLETT, C.J., and BRICKLEY, BOYLE, WEAVER, MARILYN J. KELLY, and TAYLOR, JJ., concurred with MICHAEL F. CAVANAGH, J. NOTES [1] As will be noted, the Court of Appeals ruled on several issues in this matter. However, only the defendants have sought review in this Court, raising a solitary claim of error. The plaintiff, who appeared in propria persona in the Court of Appeals, has not appeared before this Court. [2] As will be discussed below, this language reflects the statutory definition of gross negligence under § 7 of the GTLA. [3] While counsel has characterized the appellant's posture as that of "defendants," because relief is sought only from the Court of Appeals decision regarding Dr. Uy, the singular form will be used for consistency. [4] As indicated by the Court of Appeals, plaintiff's complaint presented considerable ambiguity regarding the identity of the individual defendant "Richard Roe." Plaintiff's complaint did not specifically name Dr. Uy, and identified "Richard Roe" variously as a sheriff's department employee and a "deputy" responsible for the supervision of medical care of the prisoners. Nonetheless, the trial judge's written opinion apparently presumed that Roe was in fact Dr. Uy. The Court of Appeals noted that, because the plaintiff did not dispute this determination in his brief to that Court, it would "assume that the trial judge was correct." Likewise, because the defendant has not raised the issue, and the plaintiff has not appeared before us, we too will accept for the purposes of this decision the conclusion that Roe is in fact Dr. Uy. [5] The trial court decided the instant matter under MCR 2.116(C)(7) and (10). Our review focuses on MCR 2.116(C)(7), which allows, inter alia, a motion for summary disposition based on an assertion that "[t]he claim is barred because of ... immunity granted by law...." [6] The record, in fact, raises some question regarding the exact status of Dr. Uy, but this issue is not before us, and, accordingly, we accept plaintiff's characterization of defendant's position. [7] Subsection 3 of this section was amended by the Legislature in 1996. Because this subsection deals with intentional torts, it is not relevant to the matter before us. Likewise, the 1996 addition of subsection 6, which provides for immunity to guardians ad litem when they are acting within the scope of their authority, is also not relevant to our question. The subsections that control this case remain identical to their form in 1991. [8] See, e.g., Jackson v. Detroit, 449 Mich. 420, 537 N.W.2d 151 (1995). [9] Dr. Borenitsch indicated in his deposition that a laryngoscopic examination involves advancing a flexible fiberoptic telescope through the nose and down the throat to allow the visualization of structures, such as the larynx, which are located farther down the throat and are not visible during an ordinary examination with a tongue depressor. His testimony indicated that the cancerous area of the plaintiff's throat was not visible without performing a laryngoscopic examination. [10] There is no indication in the record that the equipment for a laryngoscopic evaluation would have been present at the jail infirmary, nor an indication whether such a procedure would be within the realm of practice for a primary care physician. [11] Defendant has argued in his brief that under Canon v. Thumudo, 430 Mich. 326, 422 N.W.2d 688 (1988), the medical decisions made by Dr. Uy were "discretionary," and hence, protected by governmental immunity. The Legislature, however, as we indicated in Canon at 332, n. 2, 422 N.W.2d 688, amended § 7 of the GTLA in 1986 to eliminate any distinction between discretionary and ministerial functions. The language now used is: "without regard to the discretionary or ministerial nature of the conduct in question...." M.C.L. § 691.1407(2); M.S.A. § 3.996(107)(2). Hence, although we agree with defendant's argument that gross negligence cannot be shown in this case, we do not do so on the basis of Canon because the discretionary/ministerial rationale used there is no longer applicable to the statute as modified by the Legislature. [12] Having not been called to review the balance of the Court of Appeals opinion, we do not reach any of the remaining issues addressed below.

850 A.2d 516 (2004) 369 N.J. Super. 610 STATE of New Jersey, Plaintiff/Respondent, v. Simmone N. IKERD a/k/a Simmone Holloway, Defendant/Appellant.[1] Superior Court of New Jersey, Appellate Division. Submitted February 10, 2004. Decided June 14, 2004. *517 Yvonne Smith Segars, Public Defender, attorney for appellant (J. Michael Blake, *518 Assistant Deputy Public Defender on the brief). Peter C. Harvey, Attorney General, attorney for respondent (Judson H. Hamlin, Assistant Prosecutor, on the brief). Before Judges STERN, A.A. RODRÍGUEZ and PAYNE. The opinion of the court was delivered by PAYNE, J.A.D. We hold in this appeal that a pregnant, drug-addicted woman who has violated the conditions of her probation cannot be sentenced to prison for the avowed purpose of safeguarding the health of her fetus. To have done so is contrary to law and constituted an abuse of discretion. The facts follow: On January 29, 1998, defendant Simmone Ikerd pled guilty to one count of third-degree theft by deception (welfare fraud), N.J.S.A. 2C:20-4. It was her first indictable conviction. Ikerd was sentenced on March 16 of that year to a five-year period of probation, conditioned upon entry into and completion of drug treatment and restitution of $2,675 at the rate of $25 per month, payable through probation, as well as payment of a VCCB penalty of $50 and a SNSF assessment of $75 at the rate of $5 per month. The sentencing judge found the need to deter defendant and others from violating the law as the sole aggravating factor relevant to Ikerd's sentence. See N.J.S.A. 2C:44-1a(9). He found no mitigating factors. On February 14, 2003, Ikerd appeared before a different judge as the result of a reported violation of probation (VOP). At the time, she had paid only nineteen or twenty dollars in restitution and allegedly had been noncompliant with other probationary conditions. She remained drug-addicted, but she stated that she was undergoing drug treatment through a methadone clinic. Ikerd had been arrested approximately two to three weeks before the February hearing when she was eight weeks pregnant, and initially had been confined to the Middlesex County Adult Correctional Facility. However, because of her pregnancy, she was transferred to Robert Wood Johnson Hospital for a period of two weeks in order to obtain access to methadone, which was not available in the jail. The hospitalization may also have been required to treat Ikerd's severe asthma. Although Ikerd had appeared in court on multiple occasions (the judge counted thirty-five or thirty-eight), her probation records disclose that this was her third VOP, and that one of the two prior violations had been withdrawn. At the time of the February hearing, Ikerd was eleven weeks pregnant, a fact that she confirmed upon questioning by the judge. Although there had been some concern regarding the condition of her fetus, hospital tests had found that it remained viable. Ikerd sought continuation of her probation so that she could attempt to finish her drug treatment; the State requested incarceration in State prison because of the risk to both mother and fetus from drug abuse. The prosecutor argued: "There is nothing—no conditions of probation—that will help Miss [Ikerd] away from her addiction, help the life of her baby, and they will both be at risk." The judge characterized Ikerd's situation as creating a "dilemma." She had acknowledged that she desired her present pregnancy. Yet, according to a doctor who had written to the court regarding Ikerd's treatment and condition, methadone maintenance was necessary to the preservation of that pregnancy, and, as the judge recognized, it was not available in county jail. Medical treatment in a hospital *519 setting, the judge observed, would cause "[t]he taxpayers to pay out a fortune." However, if Ikerd's probation were continued, there was no assurance that she would seek the high-risk pre-natal care that had been recommended as medically necessary. The judge believed that only place where Ikerd's addiction and the health of her fetus could be adequately addressed was the Edna Mahan Correctional Facility. He observed: I dare say, that there isn't a person in this group, who has a personal opinion, you know, put her in jail. Not because we want to punish her; but because we want to save the baby. Because we know, once we release her on the street, she's going to kill herself, she's going to kill the baby, if she doesn't kill herself. It's only because she's developed a tolerance that is beyond words. Because this bright lady, this educated lady, who is a public employee for years, is going to use drugs no matter what we do. So, we all agree. But how can I ignore the fact that she is pregnant? After further discussing options with the probation officer, prosecutor and defense counsel participating in the hearing, the judge observed that he did not "feel comfortable" placing Ikerd in county jail. He then directed defense counsel to discuss punishment with Ikerd, stating: If you want to make my weekend, tell me that Miss Ikerd said, "Judge, sentence me to the minimum amount of time at Edna Mahan, so I know that this child can be born." Please do that. Tell me that she wants to go to jail, so she can save the baby. Ikerd responded through her counsel that she sought "mercy from the Court" and that she was "asking for the minimum time at Edna Mahan State Prison." A factual basis for the VOP was established, consisting of Ikerd's acknowledgment of a urine test that was positive for opiates on March 30, 2001, failure to pay "fines" in the approximate amount of $3,000, and failure to cooperate with prenatal testing that had been scheduled at a local hospital on March 23, 2001, a condition imposed by the probation department after the inception of the present pregnancy. We note that "[n]o revocation of suspension or probation shall be based on failure to pay a fine or make restitution, unless the failure was willful." N.J.S.A. 2C:45-3a(4). The willfulness of Ikerd's conduct was not established in connection with her plea. We note as well that Ikerd asserted a defense in connection with her failure to obtain pre-natal testing, stating that she had to leave the testing site on the date in question to take her daughter, who was ill with a streptococcal throat infection, to the doctor—a defense that was apparently rejected by the judge, who remarked: "I'll accept her position. I'm going to impose a guilty finding based on that." The court thereupon found a sufficient factual basis to permit acceptance of Ikerd's "plea of guilty." An extended discussion then occurred regarding sentencing. The fact that Ikerd had 261 days of jail credits created a problem in the judge's view. "If I sentence her to three years, with 261 days credit, and not a whole lot of criminal record in her background, she might be released in two or three months. Then where are we? She wants the baby." The prosecutor suggested the imposition of a period of parole ineligibility, to which the court agreed, with thanks. The judge stated: Under the circumstances, what I'm going to do is sentence Miss Ikerd ... to a three-year term. I am satisfied that the aggravating factor of the risk she will commit another offense is present. She does not have an extensive prior criminal history. The need to deter *520 her and others from violating the law. There are really no mitigating factors that I see. I will add to that reason, the fact that she has showed a disinclination to cooperate with probation in any respect. So, I'm satisfied[2] that the aggravating factors substantially outweigh the mitigating factors. I am going to sentence her to a three-year term, with an 18-month period of parole ineligibility. And 261 days credit. Now, Mr. Fleming [defense counsel], if she loses the baby, if there is a problem, and she has the baby, I'll consider, since this is a Violation of Probation, any application that you wish to make at that time.... But the point is, I want to keep her off the street. I don't want her using drugs. The only way I can do it is by putting her in jail. Ikerd appealed her sentence and, after a preliminary hearing as part of our Excessive Sentence Oral Argument Program, we requested further briefing of the issues raised by the court's sentencing procedures and decided to consider the matter in a plenary decision. Before this appeal was argued, Ikerd gave birth to a healthy child and was released from prison. I. The State argues in opposition to this appeal that it has been mooted by Ikerd's release from custody. We disagree, finding the issues presented to be of substantial importance, to be capable of repetition, and yet to be likely to otherwise evade review. Roe v. Wade, 410 U.S. 113, 124-25, 93 S.Ct. 705, 712-13, 35 L.Ed.2d 147, 161 (1973). [W]hen, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be "capable of repetition, yet evading review." [Id. 410 U.S. at 125, 93 S.Ct. at 713, 35 L.Ed.2d at 161 (quoting Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310, 316 (1911)).] See also Mistrick v. Division of Medical Assistance and Health Services, 154 N.J. 158, 165, 712 A.2d 188 (1998); Zirger v. General Accident Ins. Co., 144 N.J. 327, 330, 676 A.2d 1065 (1996); Division of Youth and Family Servs. v. J.B., 120 N.J. 112, 118-19, 576 A.2d 261 (1990). Thus, even if this case can be considered moot, we find a decision on the merits to be warranted. Nor do we regard Ikerd to have waived her right to contest the sentence imposed when, faced with no viable alternative, she threw herself upon the mercy of the court. In such a circumstance, her equivocal acceptance of a pre-ordained result cannot be termed voluntary or knowing. State v. Scherzer, 301 N.J.Super. 363, *521 449, 694 A.2d 196 (App.Div.), certif. denied, 151 N.J. 466, 700 A.2d 878 (1997). II. We recognize that punishment, including the imposition of a term of incarceration in the custody of the Department of Corrections, can legally be imposed on a defendant as the result of an inexcusable failure to comply with a condition of probation. N.J.S.A. 2C:45-3a(4) and -3b. However, the February hearing in Ikerd's case clearly demonstrated that the extent of the punishment imposed upon Ikerd resulted solely from her status as a pregnant addict. It bore no relationship to the offense that she initially committed, was excessively punitive, and accomplished no legitimate penal aim. It thus violated New Jersey law, and likely violated Ikerd's constitutional rights. We commence our analysis with a discussion of New Jersey sentencing law and the bedrock principle that sentences should be oriented toward the offense, not the offender. State v. Jabbour, 118 N.J. 1, 6, 570 A.2d 391 (1990); State v. Baylass, 114 N.J. 169, 175, 553 A.2d 326 (1989); State v. Roth, 95 N.J. 334, 355, 471 A.2d 370 (1984); State v. Hodge, 95 N.J. 369, 375, 471 A. 2d 389 (1984). Accordingly, when imposing a sentence on a VOP, the focus of the sentencing judge must be upon the underlying crime and the sentence appropriate to that crime when considered in conjunction with the aggravating factors found by the court at the time the initial sentence was imposed and any mitigating factors surviving the probationary violation. Generally, aggravating factors concentrate on the circumstances surrounding the commission of the original offense and serve to distinguish that offense from other similar offenses. State v. Yarbough, 195 N.J.Super. 135, 143, 478 A.2d 432 (App.Div.1984), remanded, 100 N.J. 627, 498 A.2d 1239 (1985). Once the court decides to impose a custodial sentence [as the result of a VOP], it must again weigh the aggravating and mitigating factors to determine whether to impose the presumptive sentence or one that is more appropriate. The only aggravating factors the court may consider are those that existed at the time of the initial sentencing. [Baylass, supra, 114 N.J. at 176, 553 A.2d 326.] See also State v. Vasquez, 129 N.J. 189, 205-06, 609 A.2d 29 (1992); State v. Molina, 114 N.J. 181, 184-85, 553 A.2d 332 (1989). The fact that there has been a violation of probation "means a failure of non-custodial rehabilitation. It does not necessarily suggest aggravating circumstances regarding the original offense mandating an enhanced punishment scheme." State v. Smith, 226 N.J.Super. 276, 280, 543 A.2d 1060 (App.Div.1988). See also State v. Wilson, 226 N.J.Super. 271, 276, 543 A.2d 1057 (App.Div.1988). Cf. also People v. Bedenkop, 252 Ill.App.3d 419, 192 Ill.Dec. 163, 625 N.E.2d 123 (1993) (reversing sentence on VOP premised on defendant's conduct in giving birth to an addicted baby while on probation and on the court's desire to insulate defendant from further opportunities for pregnancy). Initial consideration of a defendant's amenability to probation relates to the weighing of mitigating, not aggravating factors, which if found to have been present then but not after probation was violated, can be deleted from the calculus when imposing a sentence on the VOP. Baylass, supra, 114 N.J. at 177, 553 A.2d 326; Molina, supra, 114 N.J. at 185, 553 A.2d 332. See also State v. Robinson, 232 N.J.Super. 21, 27-28, 556 A.2d 342 (App. *522 Div.1989), certif. denied, 117 N.J. 654, 569 A.2d 1349 (1989). In the present case, the VOP judge considered as an aggravating factor not only the need to deter, found initially, but also the previously uncited risk that Ikerd would commit another offense, N.J.S.A. 2C:44-1a(3), as well as Ikerd's "disinclination to cooperate with probation in any respect." The precedent that we have discussed demonstrates that neither of the latter two factors should have been considered.[3] The judge was likewise wrong in seeking to address Ikerd's addiction in the fashion that he did. "By emphasizing the potential rehabilitative effect of incarceration, the court departed from the Code's mandate to forego defendant's capacity for rehabilitation and to concentrate on fitting the penalty to the crime." Baylass, supra, 114 N.J. at 179, 553 A.2d 326 (citing State v. Hodge, 95 N.J. 369, 378-79, 471 A.2d 389 (1984)). Further, we find no warrant in the Code of Criminal Justice or case law interpreting it for imposition by the judge of a period of parole ineligibility in connection with a VOP sentence of less than the presumptive term, as occurred in this case. See, State v. Ervin, 241 N.J.Super. 458, 473, 575 A.2d 491 (App.Div.1989), certif. denied, 121 N.J. 634, 583 A.2d 328 (1990). There is no logic in a determination that the crime, in context, justified only a reduced sentence, but nonetheless was of such magnitude that a period of parole ineligibility was required. See, e.g., Baylass, supra, 114 N.J. at 179, 553 A.2d 326; State v. Kruse, 105 N.J. 354, 361-62, 521 A.2d 836 (1987) (finding only limited circumstances in which a period of parole ineligibility can be imposed even on a presumptive sentence); Smith, supra, 226 N.J.Super. at 280-81, 543 A.2d 1060. Finally, we are satisfied that the judge's reasons for sentencing Ikerd to prison had no relationship whatsoever to the Criminal Code, as is required. No where was there any real consideration given to the impact of the probation violation that was demonstrated and to which Ikerd admitted guilt (essentially, the use of drugs in 2001) on the "in out" decision that must precede any sentencing on a VOP. Baylass, supra, 114 N.J. at 175, 179, 553 A.2d 326; Molina, supra, 114 N.J. at 184, 553 A.2d 332. The transcript of the February hearing clearly discloses that the only reason that the judge sent Ikerd to prison was to protect the health of her fetus, a consideration wholly unrelated to Ikerd's underlying crime of welfare fraud. That the court was willing to reconsider its sentence if Ikerd's pregnancy terminated constitutes disturbing but compelling proof of this proposition. Ikerd was punished by being subjected to the extended prison term because she was pregnant and addicted, and for no other reason. A sentencing judge's personal views as to the nature of appropriate protections in this circumstance cannot substitute for the Code's carefully delineated sentencing scheme in this regard. "Judges have no business imposing their views of `enlightened' sentencing on society." State v. Des Marets, 92 N.J. 62, 66, 455 A.2d 1074 (1983) (citing id. at 91, 455 A.2d 1074 (Handler, J. dissenting)). The purpose of the criminal justice system is to determine whether a crime has been committed and, if so, to punish the guilty parties—not to determine the most effective policy to combat a particular social ill. *523 [Jean Reith Schroedel & Pamela Fiber, Punitive Versus Public Health Oriented Responses to Drug Use by Pregnant Women, 1 Yale J. Health Pol'y L. & Ethics 217 (2001).] See also Barrie Becker & Peggy Hora, The Legal Community's Response to Drug Use During Pregnancy in the Criminal Sentencing and Dependency Contexts: A Survey of Judges, Prosecuting Attorneys, and Defense Attorneys in Ten California Counties, 2 S.Cal. Rev. L. & Women's Stud., 527, 531 (Spring 1993) ("Judges who take it upon themselves to solve problems of drug-exposed infants, however sympathetic their actions may be, are acting like legislators and are making medical decisions that they are usually ill-equipped to make."). The conduct of the judge in this case usurped the powers of the legislature. It was contrary to statute. N.J.S.A. 2C:1-5a ("no conduct constitutes an offense unless the offense is defined by this code or another statute of this State."). It violated principles of the separation of powers. See State v. Stewart, 136 N.J. 174, 181, 642 A.2d 942 (1994); State v. Cannon, 128 N.J. 546, 563, 608 A.2d 341 (1992). It was thus improper. III. Our decision to vacate the sentence imposed in this matter finds ample support in state law, and thus we do not discuss at length the constitutional implications of the court's action. However, we recognize that the VOP judge's sentencing rationale touches upon, at least, intertwined principles underlying federal and state safeguards against cruel and unusual punishment (see, e.g., Robinson v. California, 370 U.S. 660, 666-67, 82 S.Ct. 1417, 1420-21, 8 L.Ed.2d 758, 762-63 (1962) (holding addiction constitutes a status, not a crime for which punishment can be meted out); State v. Hampton, 61 N.J. 250, 273-74, 294 A.2d 23 (1972) (defining cruel and unusual punishment)[4]; Des Marets, supra, 92 N.J. at 81-82, 455 A.2d 1074), protection of the right of privacy, including the right of procreation (see, e.g., Roe, supra, 410 U.S. at 152-53, 93 S.Ct. at 726-27, 35 L.Ed.2d at 176-77; Griswold v. Connecticut, 381 U.S. 479, 484-85, 85 S.Ct. 1678, 1681-82, 14 L.Ed.2d 510, 514-15 (1965); Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Right to Choose v. Byrne, 91 N.J. 287, 305-07, 450 A.2d 925 (1982)), and both due process and equal protection guarantees. See, e.g., Viereck v. United States, 318 U.S. 236, 241-42, 63 S.Ct. 561, 563-64, 87 L.Ed. 734, 738 (1943); Right to Choose, supra, 91 N.J. at 305-10, 450 A.2d 925. See gen., e.g., Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy, 104 Harv. L.Rev. 1419 (May 1991); Barrie L. Becker, Order in the Court: Challenging Judges Who Incarcerate Pregnant, Substance-Dependent Defendants to Protect Fetal *524 Health, 19 Hastings Const. L.Q. 235 (Fall 1991). IV. In sum, we find no malevolence in the motives of the VOP judge in sentencing Ikerd to State prison. Nonetheless we find no legal support for what he did. Because the initially imposed period of probation was within those authorized for a third-degree crime, and the maximum period of that probation with appropriate credits has long expired, we reinstate the original probationary sentence and direct that no further proceedings are required. NOTES [1] This case was initially argued on the December 16, 2003 ESOA calendar, before Judges Stern and Payne. We invited letter briefs on the issues developed herein. [2] At our request, the February transcript was reviewed for accuracy during the course of this appeal. Changes, including the substitution of "satisfied" for "received" and a change in the attribution of a comment, were made by the transcribing reporter and communicated to us and to the parties. [3] Although not addressed by the VOP judge, Ikerd's drug use during pregnancy did not, at time of sentencing, by virtue of the pregnancy constitute a crime. Cf. In re K.H.O., 161 N.J. 337, 349, 736 A.2d 1246 (1999). [4] Commentators have faulted protective incarceration of methadone-dependent pregnant women in facilities that lack methadone treatment because the deprivation of methadone causes severe physical consequences to the mother and almost inevitably leads to the death of the fetus, thereby constituting cruel punishment. See Stephen R. Kandall & Wendy Chavkin, Illicit Drugs in America: History, Impact on Women and Infants, and Treatment Strategies for Women, 43 Hastings L.J. 615, 629 n. 126 (1992). See also Peggy Hora & Barrie Becker, Judicial Considerations when Sentencing Pregnant Substance Abusers, 35, No.2 Judges' J. 3, 6 (Spring 1996). That concern, arising initially in this case as the result of the imprisonment of Ikerd in the Middlesex County Jail, was alleviated by her transfer to a hospital facility and her subsequent transfer to a prison where methadone was apparently available.

333 F.2d 515 64-2 USTC P 9562 Paul W. TILLOTSON, Special Agent, Internal Revenue Service,Plaintiff-Appellee,v.Jackson L. BOUGHNER, Defendant-Appellant. No. 14450. United States Court of Appeals Seventh Circuit. June 17, 1964, Rehearing Denied July 20, 1964. William A. Barnett, Chicago, Ill., Crowley, Barnett, & Goschi, Chicago, Ill., of counsel, for appellant. Louis F. Oberdorfer, Asst. Atty. Gen., Burton Berkley, Attorney, U.S. Department of Justice, Washington, D.C., Edward V. Hanrahan, U.S. Atty., Chicago, Ill., Lee A. Jackson, Joseph M. Howard, Attorneys, Department of Justice, Washington, D.C., for appellee. Before DUFFY, KNOCH and SWYGERT, Circuit Judges. SWYGERT, Circuit Judge. 1 This appeal is from an order of the district court in a proceeding under the provisions of section 7604 of the Internal Revenue Code of 1954. The order directed defendant Jackson L. Boughner, an attorney, to appear and give testimony before Paul W. Tillotson, a special agent of the Internal Revenue Service, pursuant to an Internal Revenue summons issued under section 7602 of the Code. 2 In July, 1961, defendant sent a letter to the Chicago district director of Internal Revenue enclosing $215,499.95 in behalf of an unknown taxpayer. In March, 1962, agent Tillotson was assigned to discover the name of the taxpayer and the years covered by the check, and also to determine whether there should be a criminal prosecution. Defendant informed the agent that he did not know the name of the taxpayer or the years involved; that the matter had been referred to him by another lawyer whose name he refused to divulge. 3 In October, 1962, defendant was served with an Internal Revenue summons commanding him to appear before the agent. Defendant appeared as the summons required but objected to its validity. He did not testify. The agent petitioned the district court to enforce the summons and thereafter, following a hearing, the court entered the order from which this appeal is taken.1 I. 4 Section 7601(a) of the Code authorizes the Internal Revenue Service to investigate the tax liability of taxpayers.2 To implement such investigation, section 7602 of the Code3 gives the Service broad powers of discovery. De Masters v. Arend, 313 F.2d 79 (9th Cir. 1963). 5 According to the evidence submitted to the district court, agent Tillotson was assigned to discover the anonymous taxpayer's identity in order to determine his correct tax liabilities and whether there had been a criminal violation. We hold sections 7601(a) and 7602 authorized the investigation undertaken and the issuance of the summons. 6 Defendant argues that only an investigation of a taxpayer whose identity is known is authorized. We reject this argument. Defendant has been summoned to testify concerning a taxpayer who paid a large sum of money, purportedly covering his tax liability. That his name and whereabouts are not known does not discount the fact that a taxpayer exists whose tax liability the Internal Revenue Service has statutory authority to investigate. 7 Defendant cities McDonough v. Lambert, 94 F.2d 838 (1st Cir. 1938), In re International Corp. Co., 5 F.Supp. 608 (D.C., S.D.N.Y.1934), and Mays v. Davis, 7 F.Supp. 596 (D.C., W.D.Pa.1934), in support of his position. These cases are distinguishable. In McDonough, the Service wanted to know to whom the McDonough Company had paid a $10,000 legal fee. Only the company was under investigation. The court of appeals vacated the district court's enforcement of the summons on the theory that it related to the tax return of the lawyer who had received the fee and that it had no relevancy to the company's tax liability. To the same effect is In re International Corp. Co. In Mays, the Service was engaged in a fishing exploration, attempting to examine the books of a trust company that such examination might furnish information of tax liability of some of the trusts administered by the company or their beneficiaries. 8 Here, the tax liability of the person who sent a check for a substantial sum to the Service, purportedly to pay his taxes, is under investigation. Defendant has been summoned to testify concerning that specific taxpayer's liability. II. 9 The functions of the Intelligence Division of the Internal Revenue Service are delineated in the applicable Treasury regulations.4 Special agents of the division are not only authorized to investigate possible criminal violations but also to ascertain civil penalties. The regulations covering the issuance of summons under section 7602 are not confined to any one branch of the Service. 10 Agent Tillotson testified that he was assigned not only to learn the taxpayer's identity, but to determine if the correct tax had been paid and if fraud penalties, criminal or civil, were due. These duties were authorized by regulation. 11 No criminal prosecution existed at the time the summons was issued. For that reason the cases relied upon by defendant, United States v. O'Connor, 118 F.Supp. 248 (D.C.Mass.1953), and Application of Myers, 202 F.Supp. 212 (D.C., E.D.Pa.1962), are distinguishable. 12 The propriety of a special agent's issuance of a summons in a situation such as presented here was approved in Boren v. Tucker, 239 F.2d 767 (9th Cir. 1956). Cf. In re Magnus, Babee & Reynard, Inc., 311 F.2d 12 (2d Cir. 1962). 13 The order of the district court is affirmed. 14 KNOCH, Circuit Judge (concurring). 15 I note that we do not have before us any issue concerning a claim of constitutional or other privilege. 16 We are proceeding on the basis that no criminal prosecution existed at the time the summons was issued. The applicable Treasury regulations do authorize Special Agents of the Intelligence Division of the Internal Revenue Service to ascertain civil penalties as well as to investigate possible criminal violations. 17 Nevertheless, departure here from the usual procedure of tandem investigation by a Special Agent and an Internal Revenue Agent who is a member of the Field Audit Branch reasonably gives rise to a state of dubiety concerning the actual purpose for issuing the summons. 18 However, in the peculiar circumstances of this specific case, I concur with my brothers' opinion that the order of the District Court be affirmed. 1 This court held in Tillotson v. Boughner, 327 F.2d 982 (7th Cir. 1964), that the order was final and appealable following the decision in Reisman v. Caplin, 375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459 (1964) 2 7601 (a) reads: 'General rule.-- The Secretary or his delegate shall, to the extent he deems it practicable, cause officers or employees of the Treasury Department to proceed, from time to time, through each internal revenue district and inquire after and concerning all persons therein who may be liable to pay any internal revenue tax, and all persons owning or having the care and management of any objects with respect to which any tax is imposed.' 3 The pertinent language of section 7602 reads: 'For the purpose of * * * determining the liability of any person for any internal Revenue tax * * * the Secretary or his delegate is authorized--* * * To summon the person liable for the tax * * * or any other person the Secretary or his delegate may deem proper, to appear before the Secretary or his delegate at a time and place named in the summons and * * * to give such testimony, under oath, as may be relevant or material to such inquiry.' 4 Statement of Organization and Functions, Treasury Department Publication No. 383 (CCH 1964 Stand.Fed.Tax Rep. P5988) '1118.6 Intelligence Division. '(2) The Division evaluates allegations and indications of tax law violations and determines investigations to be undertaken. It makes recommendations as to the disposition of cases investigated, including recommendations of criminal prosecution, and the assertion of civil penalties. It provides assistance to U.S. Attorneys and the Regional counsel in the trial of cases. The Intelligence Division consists of groups of special agents.' Treas.Reg. 301.7602-1. '(a) In general. For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax (including any interest, additional amount, addition to the tax, or civil penalty) or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability, any authorized officer or employee of the Internal Revenue Service may examine any books, papers, records or other data which may be relevant or material to such inquiry; and take such testimony of the person concerned, under oath, as may be relevant to such inquiry.'

188 Ga. App. 785 (1988) 374 S.E.2d 353 LANDERS et al. v. HERITAGE BANK; and vice versa. 76505, 76506. Court of Appeals of Georgia. Decided October 14, 1988. Frank W. Virgin, for appellants. Mickey G. Roberts, for appellee. POPE, Judge. Nellie K. Landers and her husband Guy A. Landers opened a checking account in 1978 with Heritage Bank. Landers, who had retired after 22 years of active service with the U. S. Air Force, received monthly retirement benefits which were wire transferred by the Air Force into the joint checking account. Landers died on October 28, 1981, and Mrs. Landers promptly reported his death both to the Air Force and to the bank. On October 31, 1981, Mrs. Landers and her son, Guy A. Landers, Jr., met with an officer of Heritage Bank and arranged to delete Landers' name from the joint checking account and to substitute Guy A. Landers, Jr.'s name, without changing the account number. However, the bank neglected to notify the Air Force of these changes as required by federal regulation (31 CFR § 210 (e) and (h) (1)). The Air Force continued to wire transfer funds which Mrs. Landers assumed to be widow survivor benefits, or other such benefits appropriately paid to her after her husband's death, into this account until October 1984. In January of 1985, the Air Force sent the bank a "Notice of Accountability," alleging that the bank owed the government *786 for payments received into the bank account after Landers' death in the amount of $24,173.66. Upon receipt of this notification from the Air Force the bank, without sending the Landerses a copy of the Notice of Accountability as required by 31 CFR § 210.11, or any other prior notice, debited $4,399.54 from their checking account on January 22, 1985 and $122 on March 3, 1985. After the initial debit the bank telephoned Mrs. Landers informing her that she owed the bank $19,652.12. Mrs. Landers responded that she no longer had the money. In November of 1985, after the Air Force debited the bank's Federal Reserve account for the amount of $19,774.12, the bank filed suit against Mrs. Landers and Landers, Jr., for the difference between the amount the bank paid the Air Force and the amount retrieved from the Landers' account. The Landerses answered and filed a counterclaim for $4,521.54, representing the total amount seized from their account. In response to a motion for summary judgment filed by the bank, the Landerses sought dismissal of the complaint and an award of summary judgment on their counterclaim. The trial court granted the bank summary judgment, from which the Landerses appeal, and also awarded partial summary judgment to the Landerses for $4,521.54, which is the subject of the bank's cross-appeal. Held: The bank advanced four theories of recovery: (1) that under the Uniform Commercial Code it had the right to revoke and charge back to a customer's account those checks it was unable to collect upon which it had extended provisional credit (OCGA § 11-4-212); (2) that it was also authorized by the Uniform Commercial Code to charge against a customer's account any item which was otherwise properly payable from the account even though the charge created an overdraft (OCGA § 11-4-401); (3) that the language on its signature card created a contractual right in the bank to charge any indebtedness of a depositor to the bank against that account; and (4) that the Landerses were unjustly enriched and profited to the bank's detriment because the Air Force was empowered to debit the bank's Federal Reserve account for the full amount of the money incorrectly deposited in their account. Neither the Uniform Commercial Code provisions nor the signature card were effective to relieve the bank in the present situation. The Landerses had no contractual indebtedness to the bank, nor did they cause any overdraft, and the action taken by the bank to charge back against the account was not timely under OCGA § 11-4-301 (1). Moreover, although it is not stated in the order appealed from, since the trial court found the seizure of funds from the Landers account to be wrongful, it must be assumed that the judgment against the Landerses was based solely on the theory of unjust enrichment. Thus, notwithstanding that the bank's complaint alleged that the Landerses *787 were obligated to it as the result of an overdrawn checking account, the action was one for the recovery of voluntary payments, or money had and received, which is governed by OCGA § 13-1-13. "`An action for money had and received lies in all cases where another has received money which the plaintiff ex aequo et bono is entitled to recover and which the defendant is not entitled to retain. (Cit.). Although legal in form, being an action in implied assumpsit, it is founded on the equitable principle that no one ought to unjustly enrich himself at the expense of another, and it is a substitute for a suit in equity. (Cit.)' [Cits.] Due to the nature and origin of the cause of action, however, `"(t)he equitable right to restitution from one unjustly enriched at another's expense is terminated or diminished if circumstances have so changed that it would be inequitable to require full restitution."' [Cits.]" (Indention omitted.) Raccuglia v. Paine Webber, Inc., 180 Ga. App. 570, 571-72 (1) (349 SE2d 803) (1986). Therefore, in such an action, "the plaintiff generally can recover a payment mistakenly made when that mistake was caused by his lack of diligence or his negligence in ascertaining the true facts and the other party would not be prejudiced by refunding the payment — subject to a weighing of the equities between the parties by the trier of fact." Gulf Life Ins. Co. v. Folsom, 256 Ga. 400, 406 (349 SE2d 368) (1986). "The finding of the trial court thus amounts to a holding that if it is undisputed a payment was a mistake, the recipient must give it back, and his having spent it is not a `prejudice' which the law will protect. This is not exactly the law.... OCGA § 13-1-13 ... provides that a payment made through ignorance of the law or where all the facts are known and no artifice, deception, or fraudulent practice used by the other party, `are deemed voluntary and cannot be recovered' unless it was forced by other named circumstances. (Emphasis supplied.) This law is amplified, but not restricted, by OCGA § 23-2-32 (a), to the effect that negligence of the complaining party, `that want of reasonable prudence, the absence of which would be a violation of legal duty,' will prevent recovery by equity. But an exception is given by paragraph (b) of § 23-2-32, in that `(r)elief may be granted even in cases of negligence by the complainant if it appears that the other party has not been prejudiced thereby.' Gulf Life Ins. Co., supra, p. 403." Graham v. Hogan, 185 Ga. App. 842 (1) (366 SE2d 219) (1988). There are genuine issues of material fact involved here in regard to how much, or if indeed, the Air Force overpaid Mrs. Landers when the benefits continued after her husband's death. Moreover, there has been no weighing of the equities as to whether the bank's negligence in failing to notify the Air Force after Landers' death precluded its claim, and whether Mrs. Landers experienced a change of position *788 whereby she would be unduly prejudiced by having to repay the bank; or, on the other hand, if Mrs. Landers spent money which she knew or should have known she had received by mistake, that she might not have acted in good faith and would be obligated to return it to the bank. Consequently, we cannot agree that either party was entitled to recover the full amount sought as a matter of law, and conclude that the trial court erred in granting summary judgment to the bank and partial summary judgment to the Landerses. Graham, supra; Raccuglia, supra. Judgments reversed. McMurray, P. J., and Benham, J., concur.

260 Kan. 235 (1996) 918 P.2d 629 STATE OF KANSAS, Appellee, v. JOSHUA BRANDON KAISER, Appellant. No. 73,166. Supreme Court of Kansas. Opinion filed June 7, 1996. *236 Jessica R. Kunen, chief appellate defender, argued the cause and was on the brief for appellant. Michelle V. Hostetler, assistant district attorney, argued the cause, and Joan M. Hamilton, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee. The opinion of the court was delivered by LOCKETT, J.: Defendant Joshua Kaiser appeals from his convictions for first-degree felony murder, aggravated kidnapping, aggravated robbery, and unlawful use of a weapon. Defendant claims (1) insufficiency of evidence; (2) error in jury instructions; (3) juror misconduct; (4) improper certification for prosecution as an adult; and (5) double jeopardy. Kaiser, who was 17 years old at the time, was charged with aiding and abetting Jason Schaeffer in several offenses culminating in the shooting death of Tim Riley. The facts are largely undisputed and are based primarily on defendant's statements to the police and the testimony of a witness. Kaiser and Schaeffer were AWOL from a juvenile drug and alcohol treatment facility. During the early morning hours of March 1, 1993, Kaiser arid Schaeffer left the house of a friend, T. J. Solis. In his statements to the police, Kaiser admitted that he and Schaeffer, who had an unloaded sawed-off .410 shotgun and two shells, left Solis' house to steal a vehicle. Around 3 a.m. they observed *237 Tim Riley start his car and then return to his house. Kaiser suggested they steal the car. Because Schaeffer was concerned Riley would call the police to report the car stolen, Schaeffer decided they should wait for Riley to return and take him hostage. As they waited, Kaiser stated, he informed Schaeffer that he did not want to do it. As Kaiser started walking away, Riley came out of the house. Kaiser looked back and heard Schaeffer "cock" the gun and tell Riley that his friend had a .45 pistol. Riley was forced into the driver's seat. As Kaiser continued to walk away, the car pulled up and Schaeffer told him to get into the front seat of the car. Schaeffer forced Riley into the trunk of the car, and Riley asked them to take care of the car. Solis became aware they had returned to his house when Kaiser threw snowballs against a window. Solis went outside. Kaiser was sitting in the passenger seat of a car, and Schaeffer was in the driver's seat. A shotgun that a friend had left at Solis' house several days earlier was on the back seat. Schaeffer told Solis they had "jacked" a guy. Solis understood that to mean a carjacking. Schaeffer informed Solis that the owner of the car was in the trunk. Because Solis was skeptical, Schaeffer said toward the back of the car, "Are you all right back there, sir?" Solis was surprised by a voice responding from the trunk, "Yeah, I'm all right." Schaeffer told Solis to get into the car, but Solis declined. Schaeffer drove away with Kaiser in the passenger seat and Riley in the trunk. Five minutes after Schaeffer and Kaiser departed, Solis called the police and spoke to an officer. Solis told the officer that a person was in the trunk of a car. He gave the officer the make of the car and the license number. He informed the officer that Schaeffer and Kaiser would return to his house to pick up clothes that they had left at his house. After leaving Solis' house, Schaeffer and Kaiser drove to the country. Schaeffer suggested to Kaiser that they kill Riley. Kaiser said he told Schaeffer he was not killing anyone and requested Schaeffer to drop him off and allow him to walk home. Kaiser said he later told Schaeffer not to kill Riley or he would get the hard 40, but Schaeffer ignored him. Schaeffer stopped the car, let Riley out of the trunk, and told Riley to stand near a fence post with his *238 back to him. Kaiser said he remained in the car with the window open, smoking a cigarette. Schaeffer asked Riley how the ride was, and Riley replied that it was a little bumpy. Schaeffer then shot Riley in the back of the head. After the shooting, Kaiser exited the car and walked to the body. Kaiser observed blood coming from Riley's mouth and head. Schaeffer took Riley's watch and ring. Kaiser indicated he felt sad and was in a daze. Later, Solis again heard Kaiser throwing snowballs against a window. Solis notified the police by telephone that Schaeffer and Kaiser had returned. Solis met Kaiser at the back door of the house. Kaiser asked for clothes he and Schaeffer had left at the house, and Solis retrieved the clothes. Nothing was said about the man in the trunk of the car. Solis said that either Schaeffer or Kaiser told him that they were leaving for Texas. After Schaeffer and Kaiser drove away, Solis again telephoned the police. The police located the car and a chase ensued, ending when the car crashed into a tree. After a foot chase, Kaiser and Schaeffer were apprehended hiding in a car several blocks from the scene of the crash. Kaiser gave audiotaped and videotaped statements. Kaiser stated to the police, "It was me or him [Riley], or both of us." Kaiser did not inform the police that they had stopped at Solis' house before taking Riley into the country. Kaiser later admitted that they had stopped at Solis' house after Schaeffer killed Riley. Kaiser indicated to the police that Schaeffer was acting crazy. After giving the statements Kaiser directed the police to a field where Riley's body was found. Riley had died of a single gunshot wound to the back of the head fired from a distance of less than 4 feet. The State's motion to waive juvenile jurisdiction was granted, and Kaiser was tried as an adult. The jury convicted Kaiser of unlawful use of a weapon, aggravated robbery, aggravated kidnapping, and felony murder based on the underlying crime of aggravated robbery. Kaiser was sentenced to life (murder), life (aggravated kidnapping), 15 years to life (aggravated robbery), and 1 to 5 years (unlawful use of a weapon). All sentences were imposed concurrently except the 15 to life sentence for aggravated robbery. Kaiser appeals. *239 SUFFICIENCY OF EVIDENCE The defendant's first claim is that there was insufficient evidence to support his convictions because the State's evidence was that he was not involved in the crimes, but merely was present, and he was not an aider and abettor. He further claims the conviction was improperly based on speculation, conjecture, and suspicion. Because each, claim is based on sufficiency of the evidence, we will analyze each claim separately and then review the evidence. When the sufficiency of the evidence is challenged in a criminal case, an appellate court's standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Timley, 255 Kan. 286, Syl. ¶ 13, 875 P.2d 242 (1994). This court will not reweigh the evidence; rather, it looks only to the evidence which supports the verdict. If the essential elements of the charge are sustained by any competent evidence, the conviction must stand. State v. Burton, 235 Kan. 472, Syl. ¶ 2, 681 P.2d 646 (1984). One of Kaiser's assertions to the jury was that he reasonably believed he would suffer the same fate as Riley if he did not act as Schaeffer demanded. Based on this testimony, the jury was instructed: "Compulsion is a defense if the defendant acted under the compulsion or threat of imminent infliction of death or great bodily harm, and he reasonably believed that death or great bodily harm would have been inflicted upon him had he not acted as he did. "Such a defense is not available to one who willfully or wantonly placed himself in a situation in which it was probable that he would have been subjected to compulsion or threat." After reviewing the evidence the jury found that Kaiser was not compelled by Schaeffer and had chosen to associate with Schaeffer in the deadly venture. 1. Evidence Contradicting Defendant's Version The defendant's primary contention is that the State must accept as true his statements which the State introduced into evidence, unless the State affirmatively proves with other evidence an explanation *240 for how the incident occurred. The defendant points out that the State's evidence, i.e., his statements to the police, shows that he was not involved in the crimes of which he was convicted. As authority for his claim that under the circumstances the State was bound by his exculpatory statement, Kaiser cites State v. Scott, 289 N.C. 712, 224 S.E.2d 185 (1976). Scott involved a defendant charged in the shooting death of Wallace Jacobs. Jacobs' wife, Eula Mae, was also charged in the shooting. The State did not believe Scott was the shooter and charged him as an aider and abettor of Eula Mae. The State presented Scott's statement, "No, I didn't," when asked whether he killed Jacobs. The Scott court stated: "The State is bound by that statement unless other evidence casts doubt on its veracity or throws `a different light on the circumstances of the homicide.'" 289 N.C. at 719 (quoting State v. Hankerson, 288 N.C. 632, 637, 220 S.E.2d 575 [1975]). In Scott, there was no evidence impinging upon Scott's denial that he killed Jacobs, so the case could not have been submitted to the jury on the theory that he did. The Scott court reviewed the record and found evidence of aiding and abetting insufficient and reversed the conviction. Conversely, the Hankerson court found evidence throwing a different light on the circumstances of the homicide sufficient to discount the exculpatory portions of the defendant's confession. Kaiser, relying on Scott, highlights his version of the evidence and asserts that the evidence introduced by the prosecution shows that he only intended to steal an unoccupied car and had refused to associate with Schaeffer's later unlawful activity. He points out that after the attempted thefts of several cars, he refused to participate in the other crimes, sat passively in the stolen car, and tried to persuade Schaeffer to release Riley unharmed. The defendant cites no Kansas cases to support his assertion that the State is bound by exculpatory statements of a defendant which are introduced at trial by the State. Kaiser's assertion ignores that the jury is to determine the weight and credibility to be given to the testimony of each witness. Thus, even if there was no evidence contrary to Kaiser's denial, the jury could find that his statements excusing his participation in the offenses were not credible or were *241 entitled to little weight and could disregard those portions of his statements. Next, the defendant stresses that his mere presence is insufficient to show beyond a reasonable doubt that he knowingly associated with the unlawful venture and participated in a way which indicated willful furtherance of the venture. He cites State v. Green, 237 Kan. 146, 697 P.2d 1305 (1985). In Green, the State appealed from the dismissal of a complaint following the preliminary examination. The defendant rode to Lawrence with two friends for the purpose of driving around. They drove by a car dealer's lot and then returned to steal new wheels and tires for the car. While the two friends removed the wheels and tires from a truck in the lot, the defendant drove away because he wanted nothing to do with the theft. Later the defendant returned to pick up his friends. He did not help load the tires into the car. The Green court affirmed the district court's refusal to bind the defendant over for trial, stating that the evidence showed the defendant was nothing more than a "mere associate" of the principals and that there was not even circumstantial evidence to show that Green was willfully furthering the success of the criminal venture. 237 Kan. at 149. Contrary to the findings in Green, here there is sufficient other evidence, in addition to the defendant's statements, presented at trial to cast doubt on the defendant's claim that he was merely present when the crimes were committed. 2. Aiding and Abetting The defendant also argues that the fact he intended to steal an unoccupied car does not translate into an intent to commit the crimes of aggravated robbery, aggravated kidnapping, and murder. K.S.A. 21-3205 sets forth the statutory liability for aiding and abetting: "(1) A person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime. "(2) A person liable under subsection (1) hereof is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by *242 such person as a probable consequence of committing or attempting to commit the crime intended." The jury was instructed on this theory of liability. To be convicted as an aider and abettor, "the law requires that the person knowingly associates with the unlawful venture and participates in a way which indicates that such person is furthering the success of the venture." State v. Hobson, 234 Kan. 133, 138, 671 P.2d 1365 (1983). Mere association with the principals who actually commit the crime or mere presence in the vicinity of the crime is itself insufficient to establish guilt as an aider and abettor; however, when a person knowingly associates with the unlawful venture and participates in a way which indicates he or she willfully is furthering the success of the venture, such evidence of guilt is sufficient to go to the jury. State v. Dunn, 243 Kan. 414, 429, 758 P.2d 718 (1988). Kaiser argues that K.S.A. 21-3205, which makes a defendant liable for reasonably foreseeable crimes, assumes that the defendant aided and abetted the initial crime charged in the complaint. He reasons that an intent to commit theft differs from first-degree felony murder, aggravated kidnapping, aggravated robbery, and unlawful use of a weapon, the crimes of which he was charged and convicted. This argument is unpersuasive. The defendant not only manifested an intent to steal a car, he intended to steal the murder victim's car. Under the facts, later set out, the jury was correctly instructed on aiding and abetting and found Kaiser was responsible for the other crimes committed because they were reasonably foreseeable. 3. Speculation, Conjecture, and Suspicion The defendant next argues that his convictions were based on speculation, conjecture, and suspicion. The defendant concludes that the State relied on speculation and the stacking of inference upon inference to prove his intent to aid and abet Schaeffer in these crimes. Kansas law does not permit a jury to find an element of a crime from inferences based only on inferences. In State v. Burton, 235 Kan. 472, Syl. ¶ 3, this court stated that presumptions and inferences *243 may be drawn only from facts established and presumption may not rest upon presumption or inference on inference. What is meant by this rule is that an inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility. After reviewing the evidence we find that any presumptions or inferences claimed by the defendant are either established facts or based on established facts. This claim has no merit. 4. The Evidence Kaiser initiated the events by developing a plan with Schaeffer to steal a car. He knew Schaeffer was carrying a shotgun and shells. At times Kaiser had possession of the shotgun. When Schaeffer and the defendant observed Riley start his car, the defendant suggested taking that particular car. The defendant claimed he did not want to take a hostage, but the jury found this claim was not credible. The defendant accompanied Schaeffer in Riley's car after Schaeffer ordered Riley into the trunk of the car. The jury was also aware that Kaiser had several opportunities to report that Riley was in the trunk of the car. Kaiser was present when Schaeffer shot and killed Riley. The defendant's footprints were near the body. Both times Kaiser and Schaeffer stopped at Solis' house, the defendant exited the car but returned rather than leave Schaeffer. Further, the defendant engaged the police in a foot chase after Schaeffer crashed Riley's car into a tree. After the car crashed, the defendant was in no danger from Schaeffer and could have then turned himself in to the police, but instead he ran away and hid in a car until he was found. In fact, the defendant had to be forced out of his hiding place by the use of a police dog. From these circumstances a reasonable factfinder could have determined that the defendant was a willing participant in the events despite his claim that he was an unwilling participant. An appellate court will not reweigh the evidence or second-guess the jury's determination of the credibility of witnesses. After reviewing the record we find that there was sufficient evidence, viewing the evidence in the light most favorable to the State, upon *244 which a reasonable factfinder could conclude beyond a reasonable doubt that the defendant was guilty of these offenses. 5. Possession of Firearm The defendant also claims the evidence did not show that he possessed the shotgun with intent to control and therefore was insufficient to sustain his conviction for unlawful use of a weapon. The defendant reasons that although he might have held the gun at times, Schaeffer was actually in control of the gun. The defendant cites State v. Flinchpaugh, 232 Kan. 831, 659 P.2d 208 (1983), where this court stated that possession of a controlled substance requires having control over the substance with knowledge of and the intent to have such control. 232 Kan. 831, Syl. ¶ 1. The defendant's reliance on Flinchpaugh is misplaced. K.S.A. 21-4201(a)(7) makes it a crime to possess or carry "a shotgun with a barrel less than 18 inches in length or any other firearm designed to discharge or capable of discharging automatically more than once by a single function of the trigger." There is no requirement that the defendant intend to permanently possess, carry, or control the weapon. The defendant had the gun, knew what it was, and intended to possess it. There was sufficient evidence upon which a reasonable factfinder could convict the defendant of the unlawful use of a weapon based upon the instructions. WITHDRAWAL FROM CRIMINAL ACTIVITY The defendant's next claim is that withdrawal is a defense to subsequent criminal activity of others. A defendant is entitled to have the jury instructed on his or her theory of defense even if the evidence supporting the defense is slight. State v. Brown, 258 Kan. 374, 386, 904 P.2d 985 (1995); State v. Hunter, 241 Kan. 629, 646, 740 P.2d 559 (1987). None of the crimes of which the defendant has been convicted contain a statutory defense of withdrawal. The question is whether Kansas recognizes withdrawal from criminal activity as a nonstatutory defense. The defendant patterned his requested instruction on withdrawal after PIK Crim.3d 55.04, which states: "It is a defense to a charge of conspiracy that the defendant in good faith withdrew from the agreement and communicated the fact of such withdrawal *245 to any party to the agreement before any party acted in furtherance of it." This instruction paraphrases K.S.A. 21-3302(b), which permits withdrawal from the conspiracy if the withdrawal occurred before any overt act in furtherance of the conspiracy was committed. The defendant sought to change the language "to a charge of conspiracy" and instruct that "[i]t is a defense that the defendant in good faith withdrew" based on an uncharged conspiracy to commit a felony theft of an automobile. Kaiser argues that the conspiracy ended when Kaiser communicated his withdrawal to Schaeffer. Kaiser reasons that if he cannot be charged with conspiracy to commit the subsequent crime, he cannot be convicted of the subsequent crimes. The State argued that withdrawal is a statutory defense only to a charge of conspiracy and that the instruction was not required because the crime of conspiracy was not charged in the complaint. The trial judge refused to instruct the jury on a general defense of withdrawal. In determining this issue, it is necessary to understand the distinction between liability for crimes of another, K.S.A. 21-3205, and the crime of conspiracy, 21-3302. Under K.S.A. 21-3205 an individual is criminally responsible for a crime committed by another if that individual aids, abets, advises, hires, counsels, or procures (aids and abets) the other to commit the crime. In addition, the individual is also statutorily liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by him or her as a probable consequence of committing or attempting to commit the crime intended. The crime of conspiracy, K.S.A. 21-3302, is an agreement with another person to commit a crime or to assist to commit a crime. The crime of conspiracy has a penalty set by the legislature. In addition, the legislature provided that no person may be convicted of the crime of conspiracy unless an overt act in furtherance of the conspiracy is alleged or proved to have been committed by the individual or by a coconspirator. The legislature provided a defense to the crime of conspiracy if the accused voluntarily and in good faith withdraws from the conspiracy, and communicates the fact of such withdrawal to one or more of the coconspirators, before any *246 overt act in furtherance of the conspiracy has been committed by the accused or by a coconspirator. As authority for his assertion that withdrawal is a valid defense to crimes of aiding and abetting, the defendant cites United States v. Lothian, 976 F.2d 1257 (9th Cir. 1992). In Lothian, the defendant was charged with and convicted of numerous counts of mail fraud, wire fraud, and interstate transportation of property obtained by fraud. The defendant and another person began an enterprise of soliciting investors in precious metals. The defendant participated in the scheme from May 1985 to December 1985, at which time he resigned to begin a new business venture. He rejoined the scheme after his new business failed. The defendant relied on a defense of withdrawal, claiming that he was not liable for crimes occurring during his absence. The Lothian court recognized that withdrawal is traditionally a defense to crimes of complicity: conspiracy and aiding and abetting. Although Lothian was not charged with conspiracy or aiding and abetting, the court held the defense of withdrawal applicable under the facts of the case by finding that crimes of a mail or wire fraud scheme are akin to crimes of conspiracy. The court recognized that to withdraw from a crime of conspiracy, the defendant must either disavow the unlawful goal of the conspiracy; affirmatively act to defeat the purpose of the conspiracy; or take definite, decisive, and positive steps to show the defendant's disassociation from the conspiracy. 976 F.2d at 1261. Further, the court recognized that though a defendant is liable for substantive crimes committed in furtherance of a conspiracy, the defense of withdrawal from the conspiracy is also a defense to the underlying substantive offenses. 976 F.2d at 1262. The Lothian court recognized that the defendant had not been charged with conspiracy. However, the court noted that mail and wire fraud are treated like conspiracy in several respects in that similar evidentiary and vicarious liability rules apply. The Ninth Circuit Lothian court noted that the Seventh Circuit had held withdrawal is not an available defense to substantive fraud charges, citing United States v. Read, 658 F.2d 1225 (7th Cir. 1981), but the Lothian court distinguished Read on the facts because in Read *247 the withdrawal had no effect as the defendant had directed a key part of the scheme and the underlying substantive crimes were the inevitable consequences of the defendant's actions. In Lothian, conversely, the court held that the defendant's withdrawal negated the element of the use of the mails or wires where that use was not an inevitable consequence of the defendant's participation prior to withdrawal. 976 F.2d at 1263. Thus, the court held that withdrawal was a defense to substantive crimes which occurred after the defendant voluntarily and affirmatively ceased his participation in December 1985 and which the prosecution did not prove were the inevitable consequence of actions taken by the defendant or his co-schemers prior to his departure. 976 F.2d at 1264. Lothian is distinguishable from the case at bar. Under the Model Penal Code withdrawal is included in the Code as a defense to aiding and abetting. See Model Penal Code §2.06(6)(c) (1962). Under K.S.A. 21-3302(b) withdrawal is a defense to conspiracy, but there is no statutory defense of withdrawal to aiding and abetting or other crimes. See K.S.A. 21-3205. Kansas appellate courts have not recognized withdrawal as a common-law or court-created defense to aiding and abetting. The issue of withdrawal as a defense has twice been addressed. In State v. Walters, 8 Kan. App.2d 237, 655 P.2d 947 (1982), rev. denied 232 Kan. 876 (1983), the defendant claimed he was entitled to an instruction on the defense of withdrawal based on evidence that he did not know the other participants were going to commit a crime when he drove them to the area where the crimes occurred and that he did not return later to pick them up. The Walters court stated: "There are no Kansas cases directly in point. We do note Kansas `borrowed' K.S.A. 21-3205 [the aiding and abetting statute] from Minnesota. Kansas did not adopt subdivision 3 of Minn. Stat. Ann. § 609.05 (West 1964), which provides a defense if the defendant abandons his purpose and makes a reasonable effort to prevent the commission of the crime prior to its commission." 8 Kan. App.2d at 241. The court concluded: "We express no opinion as to if, when or how one may withdraw from a crime and escape responsibility therefor, *248 as we are of the opinion the record in this case would not support an instruction concerning withdrawal." 8 Kan. App.2d at 241-42. The defense of withdrawal was recently addressed by this court in State v. Pratt, 255 Kan. 767, 876 P.2d 1390 (1994). The defendant actively participated with a co-participant in forcing two victims into an automobile. The defendant exited the vehicle because he was sick and/or he believed the co-participant was going to leave the state, which the defendant did not want to do. After the defendant exited the car, the co-participant attempted to rape one of the victims. The defendant contended he had withdrawn from the crime spree before the attempted rape occurred. Noting that the defendant cited no authority for his argument, the Pratt court said that People v. Brown, 26 Ill.2d 308, 186 N.E.2d 321 (1962), had stated that withdrawal requires the communication of an intent to withdraw and that the withdrawal must be timely; i.e., "`it must be possible for the trier of fact "to say that the accused had wholly and effectively detached himself from the criminal enterprise before the act with which he is charged is in the process of consummation or has become so inevitable that it cannot reasonably be stayed."'" 255 Kan. at 772. The Pratt court noted Brown stated that withdrawal may not be made effective from a felony murder when the transaction which leads to the felony murder has commenced. 255 Kan. at 772. The Pratt court, without acknowledging the defense of withdrawal, pointed out that the "[c]rimes [the defendant] had aided in starting in motion continued in his absence with the foreseeable result" and that there was no evidence the defendant exited the vehicle because he wanted no further involvement in the criminal activity. 255 Kan. at 773. The Pratt court concluded that an aider and abettor need not be physically present when the crime is committed and found that there was sufficient evidence to support the defendant's attempted rape conviction. First, we note that all crimes in Kansas are statutory. K.S.A. 21-3102 states: "(1) No conduct constitutes a crime against the state of Kansas unless it is made criminal in this code or in another statute of this state, but where a crime is denounced by any statute of this state, but not defined, the definition of such crime at common law shall be applied. *249 "(2) Unless expressly stated otherwise, or the context otherwise requires, the provisions of this code apply to crimes created by statute other than in this code." In addition to statutorily defining the crimes, the legislature has set out the principles of criminal liability and specified the defenses to criminal liability. K.S.A. 21-3201 et seq. The specific defenses to criminal liability are not guilty; intoxication, K.S.A. 21-3208; compulsion, K.S.A. 21-3209; entrapment, K.S.A. 21-3210; and the use of force in defense of a person, dwelling, and property other than a dwelling. K.S.A. 21-3211, K.S.A. 21-3212 and K.S.A. 21-3213. The Kansas Legislature has not enacted a defense of withdrawal from aiding and abetting. The trial court did not err in refusing to instruct the jury on withdrawal as a defense to the crimes of aggravated robbery, aggravated kidnapping, and felony murder. JUROR MISCONDUCT The defendant filed a motion for a new trial based on the affidavit of one of the jurors, Eugenia Tunley. Tunley's affidavit stated that during jury deliberation she expressed her opinion to the other jurors that the defendant was not guilty of the charges. She stated that the other jurors made various statements as to her age (she was a teenager) and their desires to end the case quickly because of the upcoming holidays. Tunley's affidavit also stated that she was told by the jurors "the majority rules" and that she had to change her position and could not state to the judge that it was not her verdict when the jury was polled. Tunley stated that as 5 p.m. on the last day of deliberations and the Christmas holiday grew nearer, she was pressured to change her vote so the other jurors would not have to return. Tunley stated that she voted guilty against her belief because of the pressure and coercion of the other jurors. Tunley stated that she subsequently felt bad about her vote and informed the defendant and his attorney of the pressure which resulted in changing her vote to guilty. The defendant contended that Tunley's verdict of guilty was the product of coercion by other jurors, and he filed a motion requesting that the trial court grant a new trial or recall the jurors for a hearing. The court refused to conduct an evidentiary hearing or *250 recall the jurors because the claimed error delved impermissibly into the mental process of the jurors, K.S.A. 60-441, and Tunley had individually agreed to Kaiser's guilt when the jury was polled. A new trial will be granted only if required in the interest of justice. K.S.A. 22-3501(1). Juror misconduct is not grounds for a new trial unless it is shown to have substantially prejudiced the defendant's rights. State v. Goseland, 256 Kan. 729, 735, 887 P.2d 1109 (1994); State v. Cady, 248 Kan. 743, 756, 811 P.2d 1130 (1991). The procedure for and limitations on challenging the validity of a jury verdict are statutory. K.S.A. 60-444(a) states that a juror is not exempt "from testifying as a witness to conditions or occurrences either within or outside of the jury room having a material bearing on the validity of the verdict ..., except as expressly limited by K.S.A. 60-441." K.S.A. 60-441 prohibits testimony concerning the mental processes of the jury: "Upon an inquiry as to the validity of a verdict ... no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict ... or concerning the mental processes by which it was determined." Both K.S.A. 60-444(a) and K.S.A. 60-441 are implicated here. The information in Tunley's affidavit concerning the statements made by other jurors is objective material about which testimony may be taken under K.S.A. 60-444(a) without controverting K.S.A. 60-441. The question is whether the information in Tunley's affidavit and the effect these statements had on her verdict were prohibited by K.S.A. 60-441. To support his claim that the jury's verdict could be challenged, the defendant relies on Saucedo v. Winger, 252 Kan. 718, 850 P.2d 908 (1992). In Saucedo, a medical malpractice case, two instances of alleged jury misconduct occurred. A juror informed the other jurors during deliberations that the plaintiff's son could speak Spanish though he testified that he could not, and a juror stated that the uncle of the plaintiff's deceased husband was a cocaine dealer and that it was possible the deceased died of a cocaine overdose. Based on the affidavits of three jurors admitting the misconduct, *251 plaintiff filed a motion to recall the jury. This court agreed with the trial judge that juror misconduct did occur during deliberations. 252 Kan. at 727-28. This court held that the misconduct substantially affected the right of the plaintiff to a fair trial because a juror introduced evidence on material issues of fact and remanded the case for a new trial. 252 Kan. at 733. The defendant stresses the following language from Saucedo, 252 Kan. at 732: "A review of the Kansas cases cited indicates the statutory prohibition against receipt of evidence to impeach a jury verdict by showing the mental process by which the verdict was determined does not apply where a party claims the constitutional right to a trial by jury has been violated by jury misconduct which has a substantial effect on the rights of that party." The defendant reasons that this statement permits jurors to testify concerning the mental processes by which the verdict was reached. The fallacy in the defendant's argument is that he ignores the concluding sentence of the quoted paragraph: "When the jury is recalled, a juror may be questioned or evidence received as to physical facts, conditions, or occurrences of a juror's misconduct, either within or without the jury room, which were material to the issues being determined." 252 Kan. at 732. This statement does no more than restate K.S.A. 60-444(a) concerning what testimony of jurors is admissible. Earlier in the opinion, the Saucedo court explicitly adhered to the prohibition of K.S.A. 60-441 against testimony concerning the effect of statements or events as influencing a juror to agree to the verdict or the mental processes by which the verdict was determined. 252 Kan. at 728. The court stated that a verdict may not be impeached by questions concerning a juror's views or conclusions, the reasons for those views or the factors used in determining those conclusions, or what influences those views or the mental process in reaching such conclusions. 252 Kan. at 728-29. The court concluded: "Public policy forbids the questioning of a juror on these matters for a very obvious reason, i.e., there is no possible way to test the truth or veracity of the answers." 252 Kan. at 729. Here, the jury was instructed: *252 "The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced from the evidence that he is guilty. "The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims made by the State, you must find the defendant not guilty; if you have no reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant guilty." Instruction No. 9. "When you retire to the jury room you will first select one of your members as foreman. He or she will preside over your deliberations, will speak for the jury in court, and will sign the verdict upon which you agree. "Your verdict must be founded entirely upon the evidence admitted and the law as given in these instructions. "Your agreement upon the verdict must be unanimous." Instruction No. 16. The jury was polled after the verdict was returned. Tunley responded: "Yes, it is," when asked whether the verdict read by the court was her verdict. In Crowley v. Ottken, 224 Kan. 27, 31, 578 P.2d 689 (1978), this court stated that "the mere fact a juror who joins in a verdict later professes to believe the defendant innocent is no basis for ordering a mistrial." See State v. Mitchell, 234 Kan. 185, 191, 672 P.2d 1 (1983). The motion for a new trial here relates to Tunley's mental process in determining the verdict and is prohibited by K.S.A. 60-441. Tunley agreed to the verdict, and her subsequent claim that she believed the defendant was innocent is not a basis for ordering a new trial now. Based upon the circumstances of this case, the trial court properly denied the defendant's motion without recalling the other jurors. PROSECUTION AS AN ADULT The defendant next claims that the court erred in certifying him for prosecution as an adult. The court may authorize prosecution as an adult of a juvenile who is 16 years old at the time of the offense if there is substantial evidence that the juvenile should be prosecuted as an adult. K.S.A. 38-1636(f)(3). The defendant was 17 years old at the time of these offenses, less than 3 months from his 18th birthday. The State filed a motion to waive juvenile jurisdiction pursuant to K.S.A. 38-1636. *253 K.S.A. 38-1636(e) sets forth eight factors which shall be considered in determining whether a juvenile should be prosecuted as an adult: "(1) The seriousness of the alleged offense and whether the protection of the community requires prosecution as an adult; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against a person or against property, greater weight being given to offenses against persons, especially if personal injury resulted; (4) the number of alleged offenses unadjudicated and pending against the respondent; (5) the previous history of the respondent, including whether the respondent had been adjudicated a delinquent or miscreant under the Kansas juvenile code or a juvenile offender under this code and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence; (6) the sophistication or maturity of the respondent as determined by consideration of the respondent's home, environment, emotional attitude, pattern of living or desire to be treated as an adult; (7) whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court's jurisdiction under this code; and (8) whether the interests of the respondent or of the community would be better served by criminal prosecution." K.S.A. 38-1636(e) further states that "[t]he insufficiency of evidence pertaining to any one or more of the factors listed in this subsection shall not in and of itself be determinative of the issue." Our standard of review is whether there is substantial evidence supporting the trial court's decision. See K.S.A. 38-1636(f)(3); State v. Tran, 252 Kan. 494, 508, 847 P.2d 680 (1993). The trial court held an extensive hearing on the State's motion to waive juvenile jurisdiction. We note that the defendant's attorney had been granted leave to arrange a psychological evaluation of the defendant for purposes of the waiver hearing. When he was unable to make arrangements for a qualified individual to evaluate Kaiser, the court ordered that Kaiser's evaluation be conducted by Dr. William Logan, whom the State had selected for its evaluation. The defendant's attorney did not object. The State called Dr. Logan to testify. Dr. Logan testified that he evaluated the defendant. In reaching his conclusions, he relied on statements the defendant made to him when interviewed and on psychological and other records *254 completed at the defendant's various placements, including the Youth Center at Beloit, Phillipsburg Middle School, St. John's Military Academy, Topeka State Hospital Screening Unit, the Youth Center at Atchison, and the Youth Center at Topeka (YCAT). Dr. Logan also considered police reports concerning the current offenses. Dr. Logan testified as to events the defendant self-reported. Dr. Logan testified that the reports he reviewed generally confirmed the defendant's self-report, with the additional information of an incident of sexual abuse. He testified as to the results of psychological testing conducted by various agencies and as to the defendant's placements and the recommendations which led to those placements. Based on his evaluation of the defendant, Dr. Logan diagnosed conduct disorder, group type, a disorder generally given to juveniles who engage in misbehavior, generally with peers, and an attention deficit, hyperactivity disorder based on the defendant's history. Dr. Logan testified that the attention deficit disorder and hyperactivity created some personality deficits but would not necessarily affect the defendant's capacity to be rehabilitated. Dr. Logan indicated that the defendant's prior placements in programs did not result in a long-term benefit because he routinely had eloped from programs with less structure. He noted that the defendant had made some improvement while at YCAT, but deteriorated when the structure of the program lessened, and he noted that the defendant's longest placement had been for 6 or 7 months. Dr. Logan opined that the juvenile system in Kansas may have the capacity to provide the needed programs for the defendant, but historically the juvenile system has not provided it. Dr. Logan opined that because of the defendant's immaturity, the defendant required consistency in a placement over a period of several, at least 2, years; the defendant would also need consistent counseling, several times a week, by someone experienced in dealing with individuals like him. Dr. Logan felt it was possible that a placement until the age of 21 (around 2½ years) could facilitate changes in the defendant "if he applied himself consistently, if he stayed in one facility, if he didn't elope, if he made some conscious effort to avoid peers that were engaged in trouble." Dr. Logan *255 noted, however, that the defendant had not made such an effort in the past, though his current experiences might have changed him. The State also presented the testimony of Dorothy Lewis, a social worker with the Department of Social and Rehabilitation Services (SRS). Ms. Lewis testified that she has been the defendant's primary social worker since May 1987. She was familiar with his various placements and testified as to the reasons he was removed from various placements, including that he had completed the programs or purpose of the placement or that he had eloped from the facilities. The defendant's counsel objected to this testimony due to hearsay and lack of foundation for the witness' personal knowledge. The court noted that Ms. Lewis testified she had personal knowledge and indicated that the defendant's counsel could inquire further on the basis for Ms. Lewis' personal knowledge, which might affect the weight of Ms. Lewis' testimony. The objection was made continuing. The defendant's counsel also objected to testimony by Ms. Lewis concerning offenses, such as theft, which led to the defendant's placements. The court overruled the objection based on the business records exception to the prohibition against hearsay. Ms. Lewis stated that she had made every effort available to her and her agency to rehabilitate the defendant. She testified that the only placement possible would be to attempt a referral to YCAT because no group home would accept the defendant and that she did not know of any program that could provide extensive counseling treatment. On cross-examination, the defendant's attorney questioned Ms. Lewis as to the basis of her personal knowledge of the defendant's various placements. She testified that her knowledge was based on various telephone contacts with the administrators at the various facilities and on written progress and discharge reports prepared by the facilities. She did not know who at the facilities had prepared some of the reports; for some facilities she did know who had prepared the reports but did not know how the reports were compiled. Following this testimony, the defendant's counsel renewed his objection on the basis of hearsay and requested that the court strike the testimony of Ms. Lewis. Counsel noted that the requirements *256 for admitting business records had not been satisfied and that business records had not been offered into evidence or admitted. The judge overruled defendant's objection to the social worker's testimony and stated that it would give whatever probative value it deemed necessary or appropriate to the evidence. Finally, the State presented the testimony of Dr. Leo Herrman, the program director at YCAT. Dr. Herrman testified that if the defendant were returned to YCAT, he would be exposed to the full array of rehabilitation programs available but that YCAT did not have anything to offer the defendant that the facility had not already offered him. Dr. Herrman also stated that YCAT was able to provide individual counseling but not extensive counseling (several times a week) by a therapist uninvolved in making management decisions about the defendant. Dr. Herrman pointed out that the treatment team would determine the appropriate program for the defendant if placed in YCAT. If placed at YCAT the team could recommend thrice-weekly individual psychotherapy, though Dr. Herrman doubted that recommendation would be made because intensive psychotherapy with conduct disorder has a very poor prognosis. In addition to the testimony, two journal entries of prior adjudications of the defendant were admitted into evidence: a September 15, 1989, adjudication for misdemeanor theft of property and an April 23, 1991, adjudication for felony theft of property and misdemeanor battery. After the evidence had been submitted, the court discussed the factors specified in K.S.A. 38-1636(e) noting: (1) The seriousness of the alleged offense and whether the protection of the community requires prosecution as an adult: The court noted that the allegations against the defendant were of significant and serious magnitude. (2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner: The court noted that the allegations against the defendant indicated aggressive, violent, and premeditated actions. (The court noted that determining whether *257 the defendant was an aider and abettor in the crimes was not the purpose of the hearing.) (3) Whether the offense was against a person or against property: The court noted that the offenses were both against a person and against property, and the offense resulted in the death of a person. (4) The number of offenses unadjudicated and pending: The court stated that the current complaint included four unadjudicated and pending charges. (5) The previous history of the respondent, including whether the respondent had been adjudicated a delinquent or miscreant and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence: The court noted prior adjudications for both felony and misdemeanor theft and for battery. Further, the testimony of Dr. Logan and his findings reflected a pattern of aggression by the defendant. (6) The sophistication or maturing of the respondent as determined by the respondent's home, environment, emotional attitude, pattern of living, or desire to be treated as an adult: The court opined that this was a difficult category for this defendant. The court noted that the defendant had been a ward of the State for some time and that the State had failed to meet his needs and had not done a good job of providing the appropriate resources to meet the needs of the defendant. The court also questioned the sophistication and maturity of the defendant. (7) Whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court's jurisdiction under the juvenile code: The court noted that it could commit the defendant to a youth center until the age of 21 but that even if all things were at the optimum, the program "may" benefit the defendant, with no guarantees and not even a likelihood of benefit. (8) Whether the interests of the defendant or of the community would be better served by criminal prosecution: The court noted *258 that while the defendant's position was that he would not be better served by criminal prosecution, the community would be better served by criminal prosecution. Based on the totality of the circumstances, the court determined that the system had failed the defendant and that it did not have the capability at this point in time to rectify the prior mistakes made. The court further found that even if Dr. Logan's recommendation for intensive psychotherapy were followed, the State lacked the resources to implement such a program for the defendant. The court granted the State's motion to waive juvenile jurisdiction and certified the defendant for prosecution as an adult. On appeal, the defendant raises three challenges to the court's certification for adult prosecution. 1. Hearsay First, the defendant complains that the court considered hearsay evidence in making its decision. The defendant points out that hearsay evidence is inadmissible in juvenile proceedings unless the evidence meets a specific hearsay exception under K.S.A. 60-460. See In the Matter of Mary P., 237 Kan. 456, 459, 701 P.2d 681 (1985). K.S.A. 38-1636(e) states that subject to the provisions of K.S.A. 38-1653, written reports and other materials relating to the respondent's mental, physical, educational, and social history may be considered by the court. K.S.A. 38-1653 provides that the civil rules of evidence apply in all adjudicatory hearings and states that "[t]he judge presiding at the hearing shall not consider, read or rely upon any report not properly admitted according to rules of evidence." The defendant complains that the court permitted Ms. Lewis to testify concerning the defendant's placements, his behavior, and the treatment decisions of the various facilities based on telephone contacts and sporadic reports from some of the facilities. The defendant points out that no records or reports were offered into the record as business records. The defendant argues that the business records exception did not apply to Ms. Lewis' testimony. The defendant claims this violated his right to a fair proceeding and to cross-examine witnesses. *259 K.S.A. 60-460(m) states that writings offered are admissible "if the judge finds that (1) they were made in the regular course of a business at or about the time of the act, condition or event recorded and (2) the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness." The defendant asserts there was no showing that the reports used by the social worker were made in the regular course of business at or about the time of the act or condition reported or that the source preparing the reports and the method and circumstances of preparation indicated trustworthiness. The defendant stresses that Ms. Lewis was permitted to testify concerning the defendant's "patterns" and her determination based on personal knowledge that SRS had done all it could and because SRS had no programs to offer the defendant, the only possible placement for him was YCAT. The defendant is attempting to exclude the testimony of the primary social worker responsible for monitoring and supervising him while in SRS custody by focusing on the records and information used by the social worker to evaluate the defendant's progress and the failures within the system. Even though the information used by the social worker was made in the regular course of business, the records were not being offered as memoranda or records of acts, conditions, or events to prove facts. Records may be used to refresh a witness' recollection or memory even though the records were not prepared by the witness and even though the records are not admitted into evidence. See State v. Kelly, 19 Kan. App.2d 625, Syl. ¶¶ 1, 2, 3, 874 P.2d 1208 (1994). Here, the records and information were used not to refresh Ms. Lewis' memory while testifying but to show what information she had used to determine what programs and placements would be most beneficial to the defendant. It is the social worker's conclusion and acts based on the information that are in question. The records were available for the defendant to question. The social worker testified as to her actions and why she acted and was cross-examined by the defendant. The same rationale applies to Dr. Herrman's testimony. The testimony of the social worker and *260 the director of YCAT was not in violation of K.S.A. 38-1653, which prohibits the admission of hearsay testimony. The defendant also complains that Dr. Logan's testimony was based on reports and not on facts personally perceived by him. Although the defendant admits that some of Dr. Logan's information came from the defendant, the defendant asserts that "much" of the evaluation was based on the reports. After acknowledging that under the rules of evidence, an expert witness is allowed to state an opinion and the reasons therefore without first specifying the data upon which the opinion is based, the defendant stresses that "upon cross-examination the witness may be required to specify such data." K.S.A. 60-458. Dr. Logan adequately specified the data upon which his evaluation has based. His reliance on information prepared by other sources was appropriate. When an expert witness is required to specify the data upon which the expert opinion is based, and that data includes statements made by a criminal defendant during a psychiatric evaluation, the defendant's statements are not offered to prove the truth of the matter asserted and thus are not hearsay. Rather, the defendant's statements are part of the data perceived by or made known to the expert and meet the admissibility requirements of K.S.A. 60-456(b). State v. Humphrey, 252 Kan. 6, Syl. ¶ 5, 845 P.2d 592 (1992). The same is true for data obtained from other sources. The reports upon which Dr. Logan's expert opinion was based were not offered into evidence and were not inadmissible hearsay. 2. Custody Beyond Age 21 The defendant claims that in evaluating factor (7), the judge failed to consider that a juvenile could be retained in custody beyond the age of 21. Factor (7) requires the court to consider whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court's jurisdiction. K.S.A. 38-1675 states that when a juvenile offender reaches the age of 21, the juvenile shall be discharged from any further obligation under the commitment. However, the defendant cites *261 K.S.A. 38-1676, which provides that if a juvenile offender has committed an act which would be a class A or B felony if committed by an adult, the county attorney and the court must be notified 30 days before the offender's release. The county attorney or the court on its own motion may request a hearing to determine if the juvenile should be retained in the custody of the Secretary of SRS. "Following the hearing if the court authorizes a dispositional order for the secretary to retain custody, the juvenile offender shall not be held in a state youth center for longer than the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which the juvenile offender has been adjudicated to have committed." K.S.A. 38-1676(b). In its evaluation of factor (7), the court mentioned that it could commit the defendant to a youth center until discharged according to law or until the age of 21. The court did not discuss whether K.S.A. 38-1676 would, at the time of defendant's prospective release from custody, permit the court to authorize continuing custody of the defendant. However, as the State points out and contrary to the defendant's assertions, the court's evaluation of factor (7) turned not on the length of the defendant's potential juvenile placement but rather on the lack of resources to rehabilitate the defendant in the juvenile system. The court recognized that the system had failed the defendant in the past and that even in optimum conditions the possibility of rehabilitation was not guaranteed or even likely. The fact that the court misstated the potential for continuing custody beyond the age of 21 does not require reversal of the court's decision to waive juvenile jurisdiction. 3. Weighing the Factors Finally, the defendant claims that the court's decision to certify him for prosecution as an adult was not based on substantial competent evidence. As stated earlier, "[t]he insufficiency of evidence pertaining to any one or more of the factors listed in this subsection shall not in and of itself be determinative of the issue." K.S.A. 38-1636(e). Our standard of review is whether there is substantial evidence supporting the trial court's decision. See K.S.A. 38-1636(f)(3); *262 State v. Tran, 252 Kan. 494, 508, 847 P.2d 680 (1993). Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. State v. Ratley, 253 Kan. 394, 398, 855 P.2d 943 (1993). A review of the evidence admitted at the waiver hearing reveals substantial evidence upon which a reasonable person could conclude that the defendant should be certified for prosecution as an adult. Although some evidence could be construed against adult certification, an appellate court will not reweigh the evidence. The court did not err in waiving juvenile jurisdiction and allowing the defendant to be prosecuted as an adult. DOUBLE JEOPARDY Finally, the defendant claims that the imposition of consecutive sentences for his convictions of first-degree murder and the underlying felony of aggravated robbery violates the prohibition against double jeopardy. The defendant acknowledges that it is the well-established law in Kansas that multiple convictions and punishments for both felony murder and the underlying felony are not a violation of double jeopardy. See, e.g., State v. Gonzales, 245 Kan. 691, 702-07, 783 P.2d 1239 (1989); State v. Dunn, 243 Kan. 414, 431-33, 758 P.2d 718 (1988). Although the defendant contends that these cases were incorrectly decided, he makes no argument as to why the decisions were incorrect except to state that felony murder is not excepted from the principles of double jeopardy. The defendant has shown no compelling reason for us to depart from this well-established law and find that these cases were wrongly decided. There was no double jeopardy violation here. Affirmed.

In the United States Court of Federal Claims No. 17-421 Filed: December 27, 2018 **************************************** * 26 U.S.C. § 6511 (Limitations On Credit * Or Refund); * 26 U.S.C. § 6672 (Failure To Collect And * Pay Over Tax); * 26 U.S.C. § 7121 (Closing Agreements); * 26 U.S.C. § 7422 (Civil Actions For * Refund); ALICE KIMBLE, * 28 U.S.C. § 1346 (United States As * Defendant); Plaintiff, * 28 U.S.C. § 1491 (Tucker Act); * 31 U.S.C. § 5314 (Records And Reports v. * On Foreign Financial Agency * Transactions); THE UNITED STATES, * 31 U.S.C. § 5321 (Civil Penalties); * 26 C.F.R. § 301.7701(b)-2(d)(1) (Closer Defendant. * Connection Exception); * 31 C.F.R. § 1010.350 (Reports Of Foreign * Financial Accounts); * 31 C.F.R. § 1010.820 (Civil Penalty); * RCFC 11(b) (Representations To The * Court); * RCFC 56 (Summary Judgment). **************************************** James O. Druker, Kase & Druker, Garden City, New York, Counsel for Plaintiff. Jason S. Selmont, United States Department of Justice, Tax Division, Washington, D.C., Counsel for the Government. MEMORANDUM OPINION AND FINAL ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BRADEN, Senior Judge. This case presents two issues arising under 31 U.S.C. § 5321(a)(5) (2004) that currently are before the United States Court of Appeals for the Federal Circuit in a pending appeal: (1) whether the Internal Revenue Service (“IRS”) must establish that a taxpayer had knowledge of the legal duty under federal tax law to report foreign bank accounts, but acted in “reckless disregard” of that duty, before it may impose a civil penalty for a willful violation of 31 U.S.C. § 5314; and (2) whether the maximum penalty for a willful violation of 31 U.S.C. § 5314, as set forth in 31 U.S.C. § 5321(a)(5)(C)(i) (2004), supersedes 31 C.F.R. § 1010.820(g)(2). See Appellant’s Br., Norman v. United States, Fed. Cir. No. 18-2408 (Nov. 20, 2018). I. RELEVANT FACTUAL BACKGROUND.1 A. Alice Kimble’s Foreign Bank Accounts. Alice Green is a United States citizen, born in 1951. Stip. ¶ 1. Her father, Harold Green, died in 1997; her mother, Frances Green, died in 2016. Stip. ¶ 10. Sometime prior to 1980, Harold Green and Frances Green opened an investment account at the Union Bank of Switzerland (“UBS account”); Harold Green designated Alice as a joint owner. Stip. ¶¶ 12, 13. According to Harold Green’s daughter, the purpose of the UBS account was, as follows: As you know, ever since you have been a little girl, I have taught you that we need to have a safe haven because I am Jewish. You are half Jewish and our family was killed in the Holocaust and my parents escaped prosecution. So we have an account that we are not going to use the money for in case we ever have to escape America and it’s in Switzerland and you must never tell anybody about this account. Alice Kimble Tr. 18:24–19:8. Neither Harold nor Frances Green filed a gift tax return reporting that Alice Green was a co-owner. Alice Kimble Tr. 18:1–13. In 1983 or 1984, Alice Green married Michael Kimble. Compare Stip. ¶ 7 with Michael Kimble Tr. 25:6. Sometime afterwards, Harold Green told Michael Kimble about the UBS account. Stip. ¶ 15; Michael Kimble Tr. 38:21–39:1 (“[Harold Green] feared . . . a repeat of the Holocaust. And to the extent that anyone knew about this bank account that would defeat the whole purpose.”); 41:13–16 (“You cannot touch this, except for dire emergency. Life-and-death emergency. You need to get out of the country.”). Michael Kimble promised to “always respect” Harold Green’s wishes. Alice Kimble Tr. 22:14–15. Alice and Michael Kimble had one son, David Kimble, born in 1985. Stip. ¶ 8. Alice Kimble told David Kimble about the UBS account when he was a teenager and instructed him to 1 The facts recited herein were derived from: the June 27, 2018 Stipulation Of Facts (“Stip.”); Exhibits attached to the June 27, 2018 Motion For Summary Judgment (“Def. Ex. 1– 37”); the deposition transcripts of Alice Kimble (“Alice Kimble Tr.”), Michael Kimble (“Michael Kimble Tr.”), and Steven Weinstein (“Weinstein Tr.”); documents attached to the Declaration of Melissa Irons (“Irons Decl. 006–604”); and Exhibits attached to Plaintiffs’ July 24, 2018 Cross- Motion For Summary Judgment (“Pl. Ex. A–B”). 2 keep it “totally secret[,] because one day we [may] need to escape the United States.” Alice Kimble Tr. 23:7–8, 116:19. In or around 1998, Alice and Michael Kimble opened a bank account at HSBC (“HSBC account”) in Paris, France to pay expenses associated with a Paris apartment they owned. Stip. ¶¶ 32, 35. Michael Kimble made the initial deposit opening the HSBC account. Stip. ¶ 33. No money in the HSBC account was derived from illegal activities or used for illegal purposes. Stip. ¶ 34. On July 22, 1998, Alice Kimble signed a “Numbered Account Agreement” that directed UBS physically to retain all correspondence about the UBS account at the bank in Switzerland and paid a fee for that service. Stip. ¶ 23. That same day, Alice Kimble also signed a “Basic Trust Agreement” that instructed UBS “to effect capital investments in the form of time deposits.” Stip. ¶ 22.2 During his marriage to Alice Kimble, Michael Kimble handled the couple’s finances and prepared their joint federal tax returns, but never reported any investment income derived either from the HSBC or UBS accounts. Michael Kimble Tr. 61:24, 62:22–63:1. Nor did Michael Kimble and Alice Kimble report the existence of their foreign bank accounts on their joint federal tax returns. Michael Kimble Tr. 63:2–8. According to Michael Kimble, he did not know about the federal requirement to report foreign bank accounts until he learned about it in the “[l]ate ‘90s,” while using Turbo Tax. Michael Kimble Tr. 65:12–17. In 2000, Alice and Michael Kimble divorced. Stip. ¶ 7. Alice Kimble did not disclose the UBS account in any of the documents produced during the divorce. Stip. ¶ 17. However, after the divorce, Alice Kimble became the sole owner of the HSBC account. Stip. ¶ 36. Michael Kimble continued to provide Alice Kimble with financial advice and attended meetings with UBS representatives. Stip. ¶¶ 18, 29.3 According to Alice Kimble, she and Michael Kimble continued to keep the UBS account secret out of respect for Harold Green. Alice Kimble Tr. 98:15. In or around 2000, Alice Kimble hired Steven Weinstein, a certified public accountant licensed in New York, to prepare her federal and New York state income tax returns. Stip. ¶ 41. Mr. Weinstein never asked Alice Kimble if she had a foreign bank account. Weinstein 15:15. At that time, Alice Kimble did not disclose the existence of either the UBS or HSBC accounts to Steven Weinstein. Stip. ¶ 43. Alice Kimble also never asked Steven Weinstein whether foreign investment income needed to be reported on her federal income tax returns. Stip. ¶¶ 44, 45. In 2005, Alice Kimble granted David Kimble and Frances Green a general Power of Attorney over the UBS account. Stip. ¶ 19. The Power of Attorney provided that David Kimble 2 The Parties’ Stipulation Of Facts states that “June 22, 2018,” was the date that Alice Kimble signed the Numbered Account Agreement and Basic Trust Agreement. Stip. ¶¶ 22, 23. Those documents, however, were dated “22.07.98.” Defs. Ex. 1, 2. 3 Between 1998 and 2008, Alice and Michael Kimble met with UBS representatives in New York at least six times to discuss the account. Stip. ¶¶ 28, 29. Alice Kimble also met with a UBS representative in Switzerland at least once. Stip. ¶ 28. 3 and Frances Green “are authorized to act severally and by their sole signature.” Def. Ex. 6. Alice Kimble testified that she gave Michael Kimble a “certain type” of Power of Attorney over the UBS account in 2005, but Michael Kimble’s name does not appear on any authorization document and Michael Kimble testified that he was not aware that he was granted a Power of Attorney. Compare Alice Kimble Tr. 96:2–6 with Def. Ex. 6; Michael Kimble Tr. 44:2. On April 15, 2005, Alice Kimble signed three documents concerning the USB account. Def. Exs. 3, 4, 5. The first document was a “Basic Document for Account/Custody Account Relationship,” that provided: “Except for special circumstances, correspondence is . . . to be retained for a fee and held available at UBS.” Def. Ex. 5. The second document was a “Supplement for New Account US Status Tax Form US Withholding Tax/Natural Person Assets and Income Subject to United States Withholding Tax Declaration of Non-US Status.” Stip. ¶ 25. Question 2 of this document provided: “The undersigned account holder hereby declares that he/she is the beneficial owner of the assets and income to which this declaration relates in accordance with [United States] tax law.” Def. Ex. 3. The third document was a “Verification of the beneficial owner’s identity” and provided: “The contracting partner hereby declares” and then listed two options. Def. Ex. 4. Alice Kimble checked the box next to the option indicating that “the contracting partner is the sole beneficial owner of the assets concerned.” Def. Ex. 4. Frances Green was a co-owner of the UBS account at that time; therefore, Alice Kimble’s representation to UBS that she was the sole beneficial owner was not accurate. Alice Kimble Tr. 49:2–3. Prior to 2008, Alice Kimble did not make any deposits into or withdrawals from the UBS account. Stip. ¶ 30. The UBS account earned investment income each year from 2003 through 2008. Stip. ¶ 49. In or around 2008, Alice Kimble added David Kimble as a co-owner on the UBS account. Alice Kimble Tr. 17:19–22. Thereafter, David Kimble continued to attend meetings between Alice Kimble and UBS representatives. Alice Kimble Tr. 28:22. In 2008, Alice Kimble also learned from an article in the New York Times that the United States was “putting pressure on UBS to reveal the names of people who had secret accounts in UBS.” Alice Kimble Tr. 55:7–18. Prior to reading the New York Times article, Alice Kimble did not know that she had an obligation to disclose her foreign bank accounts. Alice Kimble Tr. 87:3; 100:20–101:8. Around that time, Alice Kimble retained counsel to comply with foreign reporting requirements. Alice Kimble Tr. 56:20–22. On June 30, 2008, the balance in the UBS account was $1,365,661.65. Stip. ¶ 31. On June 30, 2008, the balance in the HSBC account was $134,129.67. Stip. ¶ 40. In 2009, UBS entered a deferred prosecution agreement with the United States that required UBS to provide the IRS with the names and account information of United States citizen clients. Def. Ex. 31 at 161. On October 24, 2009, Alice Kimble signed a document authorizing UBS to comply with the IRS’s request. Def. Ex. 32 at 199. In or around 2010, Alice Kimble sold the Paris apartment, closed the HSBC account, and deposited the proceeds into the UBS account. Stip. ¶ 38; Alice Kimble Tr. 59:1–6. 4  B. Alice Kimble’s Federal Tax Returns.4 Alice Kimble timely filed Form 1040s for tax years 2004 through 2008. Stip. ¶ 47; Def. Ex. 10–14.5 But, on those Form 1040s, Alice Kimble did not report any investment income, either from the UBS or HSBC accounts. Stip. ¶ 50; Def. Exs. 10–14. Alice Kimble also did not review the accuracy of any federal income tax returns filed on her behalf for tax years 2003 through 2008. Stip. ¶ 46. Question 7(a) of IRS Federal Form 1040, U.S. Individual Income Tax Return, Schedule B – Interest and Ordinary Dividends, Part III, Foreign Accounts and Trusts, for the tax years 2004 through 2007 asked: “At any time during [that tax year], did you have an interest in or a signature or other authority over a financial account in a foreign country, such as a bank account, securities account, or other financial account?” Def. Ex. 13 at 82. In each tax year 2003 through 2008, the IRS also published instructions to Schedule B. See, e.g., Def. Ex. 27. For example, the 2007 instructions for completing Schedule B stated that a taxpayer should reply “Yes” to Question 7(a) if either: 1. You own more than 50% of the stock in any corporation that owns one or more foreign bank accounts. 2. At any time during 2007 you had an interest in or signature authority over a financial account in a foreign country (such as a bank account, securities account, or other financial accounts). Def. Ex. 27 at 137. The 2007 instructions also provided: See [the Report of Foreign Bank and Financial Accounts (“FBAR”)] to find out if you are considered to have an interest in or signature or other authority over a financial account in a foreign country (such as a bank account, securities account, or other financial account). You can get [a FBAR] by visiting the IRS website at www.irs.gov/pub/irs-pdf/f90221.pdf. 4 All relevant statutes and regulations are produced in the Court Appendix, attached to this Memorandum Opinion And Final Order. 5 Alice Kimble timely filed Form 1040s for tax years 2003 through 2008. Stip. ¶ 47. The only Form 1040s, attached as an Exhibit to the June 27, 2018 Motion For Summary Judgment, were for tax years 2004 through 2008. Def. Ex. 10–14. Therefore, the court did not rely on the parties’ representations regarding Alice Kimble’s Form 1040 for tax year 2003 in resolving the pending motions. See RCFC 56(a) (“A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record.”). 5  If you checked the “Yes” box on line 7a, file [a FBAR] by June 30, 2008, with the Department of the Treasury at the address shown on that form. Do not attach it to Form 1040. Def. Ex. 27 at 137. On each Form 1040 for tax years 2004 through 2007, Alice Kimble checked the box next to Question 7(a) labeled “No.” Stip. ¶ 48; see, e.g., Def. Ex. 13 at 82. On the Form 1040 for 2008, Alice Kimble left the spaces next to Question 7(a) blank. Def. Ex. 14 at 88. Alice Kimble did not timely file a FBAR for calendar years 2003 through 2008. Stip. ¶ 61. In July 2000, the IRS issued specific FBAR instructions, that stated: Who Must File this Report Each United States person, who has a financial interest in or signature authority, or other authority over any financial accounts, including bank, securities, or other types of financial accounts in a foreign country, if the aggregate value of these financial accounts exceeds $10,000 at any time during the calendar year, must report that relationship each calendar year by filing [a FBAR] with the Department of the Treasury on or before June 30, of the succeeding year. Def. Ex. 28 at 140 (bold in original). The FBAR instructions define a “financial interest” as: Financial Interest A financial interest in a bank, securities, or other financial account in a foreign country means an interest described in either of the following two paragraphs: (1) A United States person has a financial interest in each account for which such person is the owner of record or has legal title, whether the account is maintained for his or her own benefit or for the benefit of others including non-United States persons. Def. Ex. 28 at 140 (bold in original).6 On April 8, 2009, Alice Kimble applied to the Offshore Voluntary Disclosure Program (“OVDP”), a “voluntary disclosure program specifically designed for taxpayers with exposure to potential criminal liability and/or substantial civil penalties due to a willful failure to report foreign financial assets and pay all tax due in respect of those assets.” Def. Ex. at 33. 6 The instructions for completing the FBAR were again revised in October 2008; those instructions materially are identical to the July 2000 instructions. Compare Def. Ex. 28 with Def. Ex. 29. 6  On October 16, 2009, Alice Kimble was accepted into the OVDP. Stip. ¶ 64; Irons Decl. 351. Around that time, however, Alice Kimble “switched” the UBS account number to a new one, to reflect that David Kimble was no longer a co-owner on the UBS account. Alice Kimble Tr. 37:1–24. On January 27, 2011, Alice Kimble filed Form 1040X, Amended U.S. Individual Income Tax Return, for tax years 2003 through 2008, as part of her participation in the OVDP. Stip. ¶ 51; Def. Ex. 15–20. • On the amended return for tax year 2003, Alice Kimble reported an underpayment of $14,564. Stip. ¶ 52; Def. Ex. 15 at 92. • On the amended return for tax year 2004, Alice Kimble reported an underpayment of $9,473. Stip. ¶ 53; Def. Ex. 16 at 97. • On the amended return for tax year 2005, Alice Kimble reported an underpayment of $11,165. Stip. ¶ 54; Def. Ex. 17 at 101. • On the amended return for tax year 2006, Alice Kimble reported an underpayment of $25,643. Stip. ¶ 55; Def. Ex. 18 at 105. • On the amended return for tax year 2007, Alice Kimble reported an underpayment of $26,391. Stip. ¶ 56; Def. Ex. 19 at 111. Alice Kimble also changed her answer to Question 7(a) on Schedule B – Interest and Ordinary Dividends from “No” to “Yes.” Stip. ¶ 60; Def. Ex. at 111. • On the amended return for tax year 2008, Alice Kimble reported an underpayment of $12,130. Stip. ¶ 57; Def. Ex. 20 at 118. Each of these underpayments were caused by Alice Kimble’s failure to report foreign income to the IRS. Stip. ¶ 58. On the amended returns for tax years 2003 to 2006 and 2008, Alice Kimble also did not amend her answer to Question 7(a), although income from both the UBS and HSBC accounts was included on amended Schedule B for each of those years. Stip. ¶ 59. Alice Kimble proffered no explanation as to why her answer to Question 7(a) for those years was never amended. Alice Kimble Tr. 82:15. On September 25, 2012, Alice Kimble filed a FBAR for calendar years 2003 through 2008. Stip. ¶ 62; Def. Ex. 21–26. On each FBAR, Alice Kimble reported the existence of the UBS or HSBC accounts. Stip. ¶ 63; Def. Ex. 21–26. On October 5, 2012, Alice Kimble and the IRS negotiated a Closing Agreement7 that required an amendment to her income tax returns 2003 through 2008 to report undisclosed foreign 7 Section 7121 of the Internal Revenue Code provides that: 7 income and pay the tax liability due. Def. Ex. 34 at 202. In addition, the October 5, 2012 Closing Agreement required Alice Kimble to pay a miscellaneous penalty of $377,309.00. Def. Ex. 34 at 202 ¶ 3. But, Alice Kimble did not know whether the Closing Agreement, bearing her signature, was ever submitted to the IRS. Alice Kimble Tr. 107:10. In or around February 2013, Alice Kimble attempted to withdraw from the OVDP and declined to pay the miscellaneous penalty. Irons Decl. 334, 336. A letter from Alice Kimble’s attorney to the IRS, relaying her decision to withdraw from the OVDP, is dated “January 23, 2013,” but a follow-up letter dated “February 26, 2013” clarified that her decision was effective on the later date. Irons Decl. 334, 336. Alice Kimble testified that she decided to “take her chances” with the IRS. Stip. ¶ 66; Alice Kimble Tr. 103:10–11 (“The penalty was so high that I was advised to appeal the penalty.”). Thereafter, the IRS sent Alice Kimble a letter informing her that any opt- out from the OVDP would be irrevocable and might cause her to incur a higher penalty. Stip. ¶ 65. C. The Internal Revenue Service Examination. Sometime in 2013, the IRS began an examination of Alice Kimble’s FBAR filings for the 2007 calendar year. Stip. ¶ 67. After an IRS Revenue Agent conducted an audit of the UBS and HSBC accounts, it was determined that Alice Kimble’s failure to file a FBAR for 2007 was “willful.” Irons Decl. 025–037. Specifically, the IRS found: Alice Kimble was “required to file [FBARs] annually for many years but failed to do so;” she qualified for mitigation, because she satisfied the four regulatory criteria;8 but her failure to file FBARs nevertheless was “willful.” Irons Decl. 025–033. The “willfulness” finding was based on eight factual findings: 1. Alice Kimble had “direct financial interest in the accounts as she was listed as the sole owner of each account.” Irons Decl. 030. (a) The Secretary is authorized to enter into an agreement in writing with any person relating to the liability of such person (or of the person or estate for whom he acts) in respect of any internal revenue tax for any taxable period. 26 U.S.C. § 7121. 8 The four regulatory criteria were: • No prior history of past FBAR penalty assessments. • No money in the foreign accounts was from illegal sources or used for criminal purposes, based on available information. • [Alice Kimble] is cooperating with the [IRS]. • The civil fraud penalty was not asserted for any underpayments of tax that were connected to her failure to file FBARs. Irons Decl. 025; see also I.R.M. § 4.26.16.4.6.1. Unless otherwise noted, all citations to Internal Revenue Manual (“I.R.M.”) §§ 4.26.16 et seq. reference the I.R.M., issued on July 1, 2008. 8  2. “All original Schedule B’s-Part III [Question 7(a)] per returns were checked ‘No.’” Irons Decl. 031. “It is reasonable to assume that a person inheriting a Swiss bank account worth over a million dollars would inform themselves of their obligations related to such an account.” Irons Decl. 031. 3. Alice Kimble “failed not only to disclose her accounts and [sic] but also omitted all income associated with them, repeatedly. This went on for decades, and [Alice] Kimble only choose [sic] to correct her returns and participate in [OVDP] after advisement from UBS, once the [July 8, 2008] John Doe [S]ummons was issued to the bank.” Irons Decl. 031. 4. Alice Kimble “took efforts to conceal the existence of her accounts.” Irons Decl. 031. 5. Alice Kimble “had active management of both accounts.” Irons Decl. 032. 6. Alice Kimble “has no business or family connection to either France, or Switzerland.” Irons Decl. 032. Fear of persecution “does not represent reasonable cause for noncompliance with U.S. law.” Irons Decl. 032. 7. “Even after entering into and opting out of [OVDP] the [sic] [Alice] Kimble has remained non-compliant.” Irons Decl. 032. 8. Alice Kimble “had significant involvement with her accounts[,] and has generated sizable offshore income that she chose to conceal (52% of her overall earnings in 2007 were related to concealed foreign accounts).” Irons Decl. 033. The IRS also rejected Alice Kimble’s request to apply a “reasonable cause” standard,9 because her violation was “willful” and “the facts do not support that ordinary business care and prudence were exercised.” Irons Decl. 034. Therefore, the IRS calculated the applicable penalty, in accordance with I.R.M. § 4.26.16.3.610 and I.R.M. Exhibit 4.26.16-2.11 Irons Decl. 035. Next, the IRS added 50 percent of the balance in the UBS account, as of June 30, 2008 ($682,832), to 9 Title 31, U.S.C. § 5321(a)(5)(B)(ii) states that, for non-willful violations, “[n]o penalty shall be imposed” if: (I) such violation was due to reasonable cause, and (II) the amount of the transaction or the balance in the account at the time of the transaction was properly reported. 31 U.S.C. § 5321(a)(5)(B)(ii). 10 See Court Appendix, infra, for the text of I.R.M. § 4.26.16.3.6. 11 See Court Appendix, infra, for the text of I.R.M. Exhibit 4.26.16-2. 9 10 percent of the balance in the HSBC account, as of December 31, 2007 ($14,397). Irons Decl. 037, 092.12 The total penalty amount was determined to be $697,229. Irons Decl. 037. On April 7, 2014, the IRS issued Letter 3709, advising Alice Kimble that she owed a penalty of $697,229, pursuant to 31 U.S.C. § 5321(a)(5),13 for the willful failure to file a FBAR for 2007. Stip. ¶ 68; Iron Decl. 013–015. On July 15, 2016, the IRS assessed a penalty in the amount of $697,229. Stip. ¶ 69. On or about August 3, 2016, Alice Kimble paid the full amount of the assessed penalty. Stip. ¶ 70.14 On September 8, 2016, Alice Kimble filed a Claim For Refund And Request For Abatement with the IRS. Compl. Ex. A.15 II. PROCEDURAL HISTORY. On March 24, 2017, Alice Kimble (“Plaintiff”) filed a Complaint in the United States Court of Federal Claims for a refund of the assessed penalty. ECF No. 1.16 On May 16, 2017, the Government filed an Unopposed Motion For An Enlargement Of Time to answer the March 24, 2017 Complaint. ECF No. 5. On May 30, 2017, the court granted that Motion. On July 24, 2017, the Government filed a Second Unopposed Motion For An Enlargement Of Time to answer the March 24, 2017 Complaint. ECF No. 6. On July 26, 2017, the Government filed a Motion For Leave To File Answer Out Of Time. ECF No. 7. On July 28, 2017, the court granted both the July 24, 2017 and July 26, 2017 Motions. On July 31, 2017, the Government filed an Answer. ECF No. 8. 12 The fractional balance for each account was rounded to the nearest dollar, before adding them together. Irons Decl. 037. 13 See Court Appendix, infra, for the text of 31 U.S.C. § 5321(a)(5) (2004). 14 The Parties’ Stipulation states that Alice Kimble paid the assessed penalty on August 3, 2016. Stip. ¶ 70. 15 See RCFC 56(c)(3) (“The court need consider only the cited materials, but it may consider other materials in the record.”). 16 The March 24, 2017 Complaint alleged that Alice Kimble paid the assessed penalty on August 8, 2016. Compl. ¶ 8. But, the September 8, 2016 Claim For Refund states that Alice Kimble paid the assessed penalty on “8/11/2016.” Compl. Ex. A. The March 24, 2017 Complaint also alleged that Alice Kimble’s parents were “Holocaust survivors.” Compl. ¶ 16. But, Alice Kimble testified that both her parents were born in the United States. Alice Kimble Tr. 92:19–24. These discrepancies should have been addressed by an amendment to the March 24, 2017 Complaint. See RCFC 11(b). 10  On September 19, 2017, the parties filed a Joint Preliminary Status Report. ECF No. 9. On November 9, 2017, the court issued a Scheduling Order setting a May 18, 2018 deadline for the close of fact discovery and May 29, 2018 as the trial date. ECF No. 13. On December 7, 2017, Plaintiff filed a Status Report requesting the court’s assistance in “narrowing down, and perhaps resolving, the issues in this case.” ECF No. 14 at 1. On January 8, 2018, the Government filed a Motion For Order Compelling Production Of Documents. ECF No. 15. On January 10, 2018, the parties filed a Joint Status Report requesting that the court vacate the May 29, 2018 trial date. ECF No. 16. On January 11, 2018, the court granted the January 8, 2018 Motion To Compel. ECF No. 17. On March 12, 2018, the parties submitted a Joint Status Report. ECF No. 18. On March 20, 2018, Plaintiff filed a letter requesting that the court convene a discovery conference. ECF No. 22. On March 27, 2018, the Government filed an Unopposed Motion For An Enlargement Of Time to respond to the March 20, 2018 letter. ECF No. 23. On April 2, 2018, the court granted the March 27, 2018 Motion. ECF No. 24. On April 2, 2018, Plaintiff filed a Motion To Withdraw the March 20, 2018 letter. ECF No. 25. That same day, the court granted the Motion To Withdraw. On April 6, 2018, the parties filed a Joint Status Report again requesting that the court vacate the May 29, 2018 trial date. ECF No. 26. On April 10, 2018, the court issued a Scheduling Order canceling the May 29, 2018 trial date and setting deadlines for briefing on a motion for summary judgment. ECF No. 27. On June 27, 2018, the parties filed a Stipulation Of Facts. ECF No. 28. That same day, the Government filed a Motion For Summary Judgment (“Gov’t Mot.”). ECF No. 29. On July 24, 2018, Plaintiff filed a Response And Cross-Motion For Summary Judgment (“Pl. Resp.”). ECF No. 30. That same day, Plaintiff filed a letter urging the court to consider a case Plaintiff had omitted from its Response And Cross-Motion. ECF No. 31. On August 16, 2018, the Government filed an Unopposed Motion For An Enlargement Of Time And Motion For Leave To Exceed Page Limit. ECF No. 32. That same day, the court granted the August 16, 2018 Motion. ECF No. 33. On August 24, 2018, the Government filed a Response And Reply In Support Of Summary Judgment (“Gov’t Reply”). ECF No. 34. On August 30, 2018, Plaintiff filed an Unopposed Motion For An Enlargement Of Time to file a Reply. ECF No. 35. That same day, the court granted the August 30, 2018 Motion. ECF No. 36. On October 4, 2018, Plaintiff filed a Reply In Support Of The Cross-Motion For Summary Judgment (“Pl. Reply”). ECF No. 37. On November 8, 2018, the Government filed a Notice Of Recent Decision to inform the court about the decision of the United States District Court for the Middle District of Florida in United States v. Estate of Schoenfeld, No. 3:16-CV-1248-J-34PDB, 2018 WL 4599743 (M.D. Fla. Sept. 25, 2018). ECF No. 38. 11 III. DISCUSSION. A. Subject Matter Jurisdiction. Subject matter jurisdiction is a threshold issue that a court must determine at the outset of a case. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998) (“The requirement that jurisdiction be established as a threshold matter ‘spring[s] from the nature and limits of the judicial power of the United States’ and is ‘inflexible and without exception.’”) (quoting Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884)). The Tucker Act authorizes the United States Court of Federal Claims with jurisdiction to adjudicate “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The United States Court of Appeals for the Federal Circuit has held that the United States Court of Federal Claims does not have jurisdiction to adjudicate claims that arise under the Due Process Clause of the Fifth Amendment to the United States Constitution. See, e.g., Wheeler v. United States, 11 F.3d 156, 159 (Fed. Cir. 1993). But, in Norman v. United States, 429 F.3d 1081 (Fed. Cir. 2005), our appellate court recognized that the United States Court of Federal Claims has jurisdiction to adjudicate an illegal exaction, as it “involves a deprivation of property without due process of law, in violation of the Due Process Clause of the Fifth Amendment to the Constitution.” Id. at 1095. “The classic illegal exaction claim is a tax refund suit alleging that taxes have been improperly collected or withheld by the government.” Id. at 1095. Therefore, to invoke the Tucker Act, a plaintiff must demonstrate that a “statute or provision causing the exaction itself provides, either expressly or by necessary implication, that the remedy for its violation entails a return of money unlawfully exacted.” Id. (quotations omitted). In subsequent cases, the United States Court of Appeals for the Federal Circuit has clarified that “jurisdiction over illegal exaction claims is subject to the administrative refund scheme that Congress established in the Internal Revenue Code,” i.e., filing an administrative claim for refund, and complying with applicable statutory time limits. See Strategic Hous. Fin. Corp. of Travis Cty. v. United States, 608 F.3d 1317, 1324 (Fed. Cir. 2010) (citing United States v. Clintwood Elkhorn Min. Co., 553 U.S. 1, 4 (2008)); see also Taha v. United States, No. 2018-1879, 2018 WL 6600221, at *3 (Fed. Cir. Dec. 14, 2018) (summarizing the administrative refund scheme). Although the March 24, 2017 Complaint does not invoke jurisdiction under the Due Process Clause, it does allege that Plaintiff did not commit a willful violation of 31 U.S.C. § 5314, and, even if Plaintiff did commit a willful violation, the IRS assessed an unlawful penalty in excess of $10,000. Stip. ¶ 69. Therefore, if Plaintiff can establish that her violation of 31 U.S.C. § 5314 was not willful, the IRS’s penalty assessment ipso facto is contrary to law and the court has jurisdiction to order the return of those funds. See 28 U.S.C. § 1346(a);17 see also Jarnagin v. United States, 134 Fed. Cl. 368, 375 (Fed. Cl. 2017) (determining that the United States Court of 17 See Court Appendix, infra, for the text of 28 U.S.C. § 1346(a). Section 1346 complements, but does not displace, the Tucker Act. See Hinck v. United States, 64 Fed. Cl. 71, 76 (Fed Cl. 2005), aff’d, 446 F.3d 1307 (Fed. Cir. 2006), aff’d, 550 U.S. 501 (2007). 12 Federal Claims has subject matter jurisdiction to adjudicate a violation of 31 U.S.C. § 5321(a)(5) (2004)).18 The September 8, 2016 Claim For Refund19 is sufficient to satisfy Congress’s administrative refund scheme. See 26 U.S.C. § 7422(a) (“No suit or proceeding shall be maintained . . . until a claim for refund or credit has been duly filed[.]”); see also 26 U.S.C. § 6511(a) (establishing time limits for refund claims).20 For these reasons, the court has determined that it has subject matter jurisdiction to adjudicate the claim alleged in the March 24, 2017 Complaint. B. Standing. The United States Court of Federal Claims, although an Article I court, “applies the same standing requirements enforced by other federal courts created under Article III.” Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009). Article III of the United States Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” Bank of Am. Corp. v. City of Miami, Fla., 137 S. Ct. 1296, 1302 (2017). To demonstrate the existence of a case or controversy, a plaintiff must show “an ‘injury in fact’ that is ‘fairly traceable’ to the defendant’s conduct and ‘that is likely to be redressed by a favorable judicial decision.’” Id. (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)). The IRS assessed a $697,229 penalty against Plaintiff. Stip. ¶ 69. Plaintiff paid that penalty in full. Compl. ¶ 8. That is sufficient to establish an injury in fact. See Janus v. Am. Fed’n of State, Cty., & Mun. Employees, Council 31, 138 S. Ct. 2448, 2462 (2018) (holding that an employee had standing to challenge agency fees automatically deducted from his wages). Plaintiff’s monetary injury was “fairly traceable” to the IRS’s penalty assessment. See Spokeo, 136 S. Ct. at 1547. And, if the court orders the IRS to refund the penalty, that will redress Plaintiff’s alleged monetary injury. Id. 18 In Jarnagin, Plaintiffs did not appeal the decision of the United States Court of Federal Claims and the time to file a Notice of Appeal has passed. 19 The September 8, 2016 Claim For Refund was attached as an Exhibit to the March 24, 2017 Complaint. The court may consider that Exhibit in ruling on the June 27, 2018 Motion For Summary Judgment. See RCFC 56(c)(3) (“The court need consider only the cited materials, but it may consider other materials in the record.”). 20 See Court Appendix, infra, for the text of 26 U.S.C. § 6511(a). Plaintiff filed the September 8, 2016 Claim For Refund approximately one month after she paid the IRS the full amount of the assessed penalty, well within the 2-year and 3-year time limits set by 26 U.S.C. § 6511(a). Compare Compl. Ex. A with Stip. ¶ 70. Therefore, the court does not need to determine whether Section 6511 applies to an administrative claim requesting refund of a FBAR penalty assessed, pursuant to 31 U.S.C. § 5321(a)(5). 13  For these reasons, the court has determined that Plaintiff has standing to seek an adjudication of the claims alleged in the March 24, 2017 Complaint. C. Standard Of Review. Rule 56 of the United States Court of Federal Claims (“RCFC”) authorizes a party to file a motion for summary judgment, that a court should grant “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.” RCFC 56. “A genuine dispute exists when the evidence is such that a reasonable [factfinder] could return a verdict for the nonmoving party.” 8x8, Inc. v. United States, 854 F.3d 1376, 1380 (Fed. Cir. 2017) (citations omitted). “A material fact is one that might affect the outcome of the case.” Id. (citations omitted). “The party seeking summary judgment has the initial burden of establishing that there is no genuine dispute as to any material fact.” Id. In addition, the court must “draw all factual inferences in favor of the nonmovant.” Zafer Taahhut Insaat ve Ticaret A.S. v. United States, 833 F.3d 1356, 1361 (Fed. Cir. 2016). D. Whether Plaintiff Willfully Failed To File A Foreign Bank Account Report. The parties stipulated that Plaintiff failed to file a FBAR for 2007. Stip. ¶ 48. In addition, Plaintiff admitted that she is “not disput[ing] the FBAR penalty for the HSBC account.” Def. Ex. 30 at 154. Plaintiff also admitted that she “is not seeking recovery of the 2007 FBAR penalty imposed for the HSBC account.” Def. Ex. 30 at 154. As such, the court does not need to determine whether the penalty assessed by the IRS against the HSBC account was lawful. See RCFC 36(b) (“A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended.”). Therefore, the threshold issue the court must determine is whether Plaintiff’s failure to file a FBAR for the 2007 tax year was “willful.” 1. The Government’s Motion For Summary Judgment. The Government argues that summary judgment is appropriate to resolve “willfulness,” because Plaintiff “(1) knew that she had funds in a Swiss bank account and in a French bank account; and (2) did not report her interest in the accounts on a timely FBAR, but despite that knowledge, falsely represented on her income-tax return that she had no foreign bank accounts.” Gov’t Mot. at 2. In addition, Plaintiff: “manag[ed] her foreign accounts with the help of her UBS bankers;” “did not maintain the account in her own name;” “hid the account from the United States by not investing in U.S. securities;” and “failed to tell her accountant that she had a foreign bank account.” Gov’t Mot. at 2–3. Then-applicable IRS regulations required Plaintiff to file a FBAR for 2007, on or before June 30, 2008. Gov’t Mot. 17. Plaintiff failed to file a FBAR on that date, either for the UBS or HSBC accounts. Gov’t Mot. 17. A violation of 31 U.S.C. § 5321(a)(5) (2004) is “willful[]” where a taxpayer: (1) violates the law “voluntarily rather than accidentally;” (2) is “willfully blind” to the legal duty to report; or (3) engages in conduct that is in “reckless disregard” of the legal duty to report. Gov’t Mot. at 18. Plaintiff’s conduct was willful under each of these standards. Gov’t Mot. at 18. First, Plaintiff’s failure to report was voluntary, because she signed her 2007 federal tax return knowing of the obligation to report. Gov’t Mot. 19–23. Plaintiff had actual knowledge of 14 the filing requirement, but decided not to inform the IRS about the UBS account. Gov’t Mot. at 21. In addition, Plaintiff maintained a numbered account and instructed UBS not to send any account-related correspondence to the United States. Gov’t Mot. at 22. And, Plaintiff did not inform her accountant about the existence of her foreign bank accounts. Gov’t Mot. at 22. Second, as a matter of law, a taxpayer is charged with knowledge of the representations made on federal tax returns. Gov’t Mot. at 19 (citing Jarnagin, 134 Fed. Cl. at 378). Plaintiff also had knowledge of the FBAR requirement posited by Question 7(a) on Form 1040 of her 2007 income tax return. Gov’t Mot. at 20. In addition, Plaintiff was “willfully blind” to the requirement that she file a FBAR. Gov’t Mot. at 23–25. To be “willfully blind,” “a [person] must subjectively believe that there is a high probability that a fact exists and the [person] must take deliberate actions to avoid learning that fact.” United States v. McBride, 908 F. Supp. 2d 1186, 1210 (D. Utah 2012) (modifications in original). Plaintiff admitted that she never read her tax returns or any of the documents she signed related to the UBS account. Stip. ¶ 46. Therefore, Plaintiff was “willfully blind” of her duty to comply with IRS reporting requirements. Gov’t Mot. at 24. In sum, Plaintiff engaged in reckless disregard of the statutory duty to: file a FBAR; answer Question 7(a) accurately on her 2007 income tax return; and ask her accountant for advice on any reporting requirements or other federal tax issues that might arise in connection with the UBS account. Gov’t Mot. at 25–28. Therefore, Plaintiff’s conduct was “willful.” Gov’t Mot. at 8. 2. Plaintiff’s Response And Cross-Motion For Summary Judgment. Plaintiff responds that “willfulness” is a “voluntary, intentional violation of a known legal duty.” Pl. Resp. at 12. The Government’s interpretation of 31 U.S.C. § 5321 would render the term “willful” superfluous, because every taxpayer who fails to file a FBAR does so willfully. Pl. Resp. at 13. In this case, Plaintiff never read her tax returns and had no knowledge of the FBAR or other federal tax reporting requirements. Pl. Resp. at 17. “[C]onduct properly characterized as willful must meet a higher standard than a simple failure to check the box on the tax return showing the existence of a foreign account, pay taxes on the income[,] and file a FBAR.” Pl. Resp. at 14. In addition, each case cited by the Government “involved conduct significantly more egregious than that evidenced here.” Pl. Resp. at 15. I.R.M. § 4.26.16.6.5.1, Willful FBAR Violations–Evidence (Nov. 6, 2015) defines “willfulness” as “knowledge of the reporting requirements and [a] conscious choice not to comply.” Pl. Resp. at 18. Plaintiff was not aware that she had a legal duty to report her foreign bank accounts to the IRS until 2008. Pl. Resp. at 13–14. Therefore, she made no conscious choice not to comply. Pl. Resp. at 14. In addition, I.R.M. § 4.26.16.6.5.2, Willful FBAR Violations– Defining Willfulness (Nov. 6, 2015) provides a list of documents that the IRS references to determine whether a failure to comply with reporting requirements is “willful;” none of those documents, however, were proffered by the Government in this case. Pl. Resp. at 19–20. Congress created a higher penalty for willful violations to punish “bad actors.” Pl. Resp. at 20. Plaintiff is not a bad actor; she did not use the UBS account for any illegal activities. Pl. Resp. at 20. 3. The Government’s Reply And Response To Plaintiff’s Cross-Motion. The Government replies that Plaintiff’s definition of “willfulness” concerns criminal activity; a less exacting standard applies to activity that is civil in nature. Gov’t Reply at 3. A 15 number of courts have determined that a willful failure to file a FBAR evidences recklessness and willful blindness. Gov’t Reply at 4 (citing United States v. Williams, 489 F. App’x 655, 658 (4th Cir. 2012) (holding that “willful blindness” in certain circumstances “may be inferred”)). Moreover, Plaintiff’s failure to report the UBS account on her federal income tax returns was part of a broader effort to conceal the account’s existence from the IRS. Gov’t Reply at 5. Plaintiff designated the UBS account as a numbered account, elected not to receive account-related correspondence in the United States, and instructed her son that the account was to remain secret. Gov’t Reply at 5. It does not make any difference if Plaintiff did not read her tax returns; as a matter of law, a taxpayer is charged with constructive knowledge of the contents of a signed income tax return. Gov’t Reply at 7. Likewise, the fact that others have committed more egregious FBAR violations does not shield Plaintiff from liability. Gov’t Reply at 8–9. 4. Plaintiff’s Reply. Plaintiff reiterates that the Government’s position would render most FBAR violations as willful, contrary to Congress’s intent in establishing a multi-tiered system of penalties. Pl. Reply at 3–5. More importantly, when the IRS assessed a penalty against Plaintiff, it did not proffer any evidence that she knew about the reporting requirement prior to 2008. Pl. Reply at 6. 5. The Court’s Resolution. On October 22, 2004, Congress authorized the Secretary of the Treasury to impose a “civil money penalty” for a violation of 31 U.S.C. § 5314, with a heightened penalty reserved for “willful[]” violations. See 31 U.S.C. § 5321(a)(5)(C)(i) (2004). The United States Supreme Court has held that, since “willfulness is a statutory condition of civil liability,” it is “generally taken[] to cover not only knowing violations of a standard, but reckless ones as well.” Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57 (2007) (holding that a “willful” violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681n, includes reckless conduct). Therein, the United States Supreme Court defined “recklessness” as “violating an objective standard: action entailing an unjustifiably high risk of harm that is either known or so obvious that it should be known.” Id. at 68 (internal quotations omitted); see also Godfrey v. United States, 748 F.2d 1568, 1577 (Fed. Cir. 1984) (holding in the context of federal tax law that “willful conduct” includes “a reckless disregard of an obvious and known risk that taxes might not be remitted”) (citations and quotation marks omitted). On November 6, 2015, the IRS issued I.R.M. §§ 4.26.16.6.5.1 and 4.26.16.6.5.2. I.R.M. § 4.26.16.6.5.1 defined “willfulness” as “knowledge of the reporting requirements and [a] conscious choice not to comply.”21 I.R.M. § 4.26.16.6.5.2 identified thirteen documents that “may be helpful” to the IRS in “establishing willfulness.”22 Plaintiff argues that any violation of 31 U.S.C. § 5314 was not “willful,” because the Government did not proffer any of the documents listed in I.R.M. § 4.26.16.6.5.2 in this case. Pl. Resp. at 19–20. There are two problems with Plaintiff’s argument. First, I.R.M. § 4.26.16.6.5.2 does not state that the existence of one of the listed documents is a prerequisite to establishing a willful FBAR violation. Second, the 21 See Court Appendix, infra, for the text of I.R.M. § 4.26.16.6.5.1. 22 See Court Appendix, infra, for the text of I.R.M. § 4.26.16.6.5.2. 16 Government did proffer several of the listed documents, i.e., bank statements from the UBS account and the IRS examiner’s work product. See I.R.M. § 4.26.16.6.5.2(2)(a), (m) (Nov. 6, 2015). The relevant stipulated facts in this case are as follows: • Plaintiff did not disclose the existence of the UBS account to her accountant until approximately 2010. Stip. ¶ 43. • Plaintiff never asked her accountant how to properly report foreign investment income. Stip. ¶ 44. • Plaintiff did not review her individual income tax returns for accuracy for tax years 2003 through 2008. Stip. ¶ 46. • Plaintiff answered “No” to Question 7(a) on her 2007 income tax return, falsely representing under penalty of perjury, that she had no foreign bank accounts. Stip. ¶ 48. In the court’s judgment, stipulations ¶¶ 46 and 48 together evidence conduct by Plaintiff, as a co-owner of the UBS account that exhibited a “reckless disregard” of the legal duty under federal tax law to report foreign bank accounts to the IRS by filing a FBAR. See Godfrey, 748 F.2d at 1577; see also Norman v. United States, 138 Fed. Cl. 189, 194 (Fed. Cl. 2018) (determining that a taxpayer was “put on inquiry notice of the FBAR requirement when she signed her tax return”) (internal quotations omitted), appeal docketed, No. 18-2408 (Fed. Cir. Sept. 18, 2018); see also Jarnagin, 134 Fed. Cl. at 378 (“A taxpayer who signs a tax return will not be heard to claim innocence for not having actually read the return, as he or she is charged with constructive knowledge of its contents.”) (citations omitted).23 Although Plaintiff had no legal duty to disclose information to her accountant or to ask her accountant about IRS reporting requirements, these additional undisputed facts do not affect the court’s determination that Plaintiff’s conduct in this case was “willful.” For these reasons, the court has determined, viewing the evidence in the light most favorable to Plaintiff, that there is no genuine issue of material fact that Plaintiff violated 31 U.S.C. § 5314 and that her conduct was “willful.” See 31 U.S.C. § 5321(a)(5) (2004); see also RCFC 56. 23 A May 23, 2018 Memorandum the IRS Office of Chief Counsel distributed to IRS program managers states that, “[t]he standard for willfulness under 31 U.S.C. § 5321(a)(5)(C) is the civil willfulness standard, and includes not only knowing violations of the FBAR requirements, but willful blindness to the FBAR requirements as well as reckless violations of the FBAR requirements.” Burden of Proof and Standard for Willfulness Under 31 U.S.C. § 5321(a)(5)(C), PMTA-2018-13, at 1 (May 23, 2018). For a comprehensive discussion of how other federal courts have construed whether a FBAR violation is “willful,” see Hale E. Sheppard, “What Constitutes A ‘Willful’ FBAR Violation?,” 129 J. TAX’N 24 (Nov. 2018) (collecting cases). 17  E. Whether The Internal Revenue Service Abused Its Discretion In Assessing Plaintiff A Civil Penalty Of $697,229. 1. The Government’s Motion For Summary Judgment. The Government argues that Congress amended 31 U.S.C. § 5321(a)(5) in 2004 to increase the maximum penalty for FBAR violations, and thereby superseded 31 C.F.R. § 1010.820(g)(2). Gov’t Mot. at 34. Thereafter, if the IRS determined a willful violation of 31 U.S.C. § 5321(a)(5) (2004) occurred, the IRS had authority to impose a civil penalty “up to the greater of $100,000 or 50% of the balance in the account at the time of the violation.” Gov’t Mot. at 28. In this case, the IRS considered I.R.M. Exhibit 4.26.16–2, Normal FBAR Penalty Mitigation Guidelines For Violations Occurring After October 22, 2004, in calculating the penalty to be assessed to Plaintiff regarding the UBS and HSBC accounts. Under those Guidelines, the IRS properly exercised discretion in finding that Plaintiff’s HSBC account should be treated as a Mitigation Level of II; but Plaintiff’s UBS account should be treated as a Mitigation Level of IV. Gov’t Mot. at 30. The penalties that the IRS assessed were “within the range authorized by Congress.” Gov’t Mot. at 33.24 2. Plaintiff’s Response And Cross-Motion For Summary Judgment. Plaintiff responds that the IRS abused its discretion when it assessed a penalty for the 2007 FBAR violation, because it did not consider factors other than the size of the account, in determining the penalty. Pl. Resp. at 22. The IRS also abused its discretion when it found that Plaintiff was the “sole beneficiary” of the UBS account after her father’s death, since she was a co-owner with her mother. Pl. Resp. at 23. In addition, the IRS abused its discretion when it found that Plaintiff did not have any personal connection to Switzerland, when she did have a connection by “inherit[ing] an account domiciled there.” Pl. Resp. at 23. And, the IRS abused its discretion when it found that Plaintiff “actively managed” the UBS account. Pl. Resp. at 23. In fact, Plaintiff resisted her husband’s urgings to invest the funds in the UBS account more aggressively and followed her father’s instructions that the account be used only in an emergency. Pl. Resp. at 23– 24. The IRS’s assessment of the maximum penalty against Plaintiff also was an abuse of discretion, because the IRS did not adhere to regulations that set the maximum penalty of $100,000, but were not changed after Congress amended 31 U.S.C. § 5321(a)(5) in 2004. Pl. Resp. at 28. And, the penalty assessed was an “excessive fine,” in violation of the Eighth Amendment to the United States Constitution. Pl. Resp. at 26–27. 24 In that regard, the Government suggests that the non-precedential decision of the United States District Court for the Western District of Texas in United States v. Colliot, No. 16-1281, 2018 WL 2271381 (W.D. Tex. May 16, 2018), determining that 31 C.F.R. § 1010.820(g)(2) continues to cap FBAR penalties at $100,000 is erroneous and should not be followed. Gov’t Mot. at 35–37. 18  3. The Government’s Reply And Response To Plaintiff’s Cross-Motion. The Government replies that the IRS properly utilized I.R.M. § 4.26.16.3.6 in evaluating Plaintiff’s FBAR violation and determined that she satisfied the requirements for a mitigated penalty. Gov’t Reply at 10. But, the IRS declined to mitigate the maximum statutory penalty assessed in 2016, with respect to the UBS account, because of the eight factual determinations made by the IRS examiner. Gov’t Reply at 10–11. In addition, Plaintiff did “not explain how the IRS’s allegedly erroneous findings would affect the outcome of the decision-making process.” Gov’t Reply at 11. For example, the fact that Plaintiff was added as a co-owner of the UBS account does not establish a personal connection with Switzerland. Gov’t Reply at 12. Plaintiff was involved in management of the UBS account, as evidenced by meetings she attended with representatives from the bank annually to review investments. Gov’t Reply at 13. In addition, Plaintiff’s April 15, 2005 “Verification of the beneficial owner’s identity” evidences that she was the sole beneficiary of the UBS account. Def. Ex. 4. The IRS penalty assessment also did not violate the Eighth Amendment to the United States Constitution, because the penalty was not a “fine,” nor was it “excessive.” Gov’t Reply 15–28. The IRS applied the maximum penalty established by Congress at 31 U.S.C. § 5321(a)(5)(C)(i) (2004). Gov’t Reply at 29. As a matter of law, when Congress increased the maximum penalty above $100,000 on October 22, 2004, 31 C.F.R. § 1010.820(g)(2) no longer had any effect. Gov’t Reply 30–34. 4. Plaintiff’s Reply. Plaintiff replies that the IRS’s penalty assessment violated the Eighth Amendment to the United States Constitution, because it was a disproportionate fine that was punitive in nature. Pl. Reply at 8–11. When Congress increased the maximum penalty that could be assessed for FBAR violations, it did not mandate that a penalty, greater than $100,000, be assessed in any individual case. Pl. Reply at 13. The IRS is bound by the agency’s regulations and the IRS’s decision not to remove the pre-2004 regulations from the Code of Federal Regulations was not unintentional; Plaintiff is entitled to rely on those regulations. Pl. Reply at 14–15. 5. The Court’s Resolution. On July 15, 2016, the IRS assessed a maximum penalty against Plaintiff with respect to the UBS account, pursuant to 31 U.S.C. § 5321(a)(5)(C)(i) (2004), and properly referenced I.R.M. § 4.26.16.3.6 in doing so. Irons Decl. 035. Plaintiff does not identify why that assessment violated any statute or applicable regulation. See generally Compl.; Pl. Resp.; Pl. Reply. Instead, Plaintiff argues that the IRS’s decision was an abuse of discretion, because: (1) Plaintiff was not the “sole beneficiary” of the UBS account; (2) Plaintiff did have a personal connection to Switzerland; (3) Plaintiff did not “actively manage” the UBS account; and (4) the IRS did not rely on the documents listed in I.R.M. § 4.26.16.6.5.2 that evidence willfulness. Pl. Resp. at 23–24. Therefore, Plaintiff reasons that she is entitled to rely on the $100,000 maximum penalty set forth in 31 U.S.C. §5321(a)(5) (2003). Pl. Resp. at 23–24. As to the ownership of the UBS account, although the record evidences that Plaintiff was not the “sole beneficiary” of the UBS account, Plaintiff represented that she was the sole beneficiary in an April 15, 2005 “Verification of the beneficial owner’s identity.” Def. Ex. 4. 19 Assuming arguendo that the IRS erroneously determined Plaintiff was the sole beneficiary, Plaintiff nevertheless failed to establish why being only a co-owner necessarily rendered the IRS’s penalty assessment unlawful or an abuse of discretion. Compare Pl. Resp. at 23 with Irons Decl. at 030. As to the IRS’s finding that Plaintiff did not have a personal connection to Switzerland, as a matter of law, only having a property interest in a bank account is not sufficient to establish a “significant contact with a foreign country.” See 26 C.F.R. § 301.7701(b)-2(d)(1).25 As to Plaintiff’s role in managing the UBS account, the parties stipulated that between 1998 and 2008, Alice Kimble met with representatives of UBS in New York at least six times and met with a UBS representative in Switzerland at least once. Stip. ¶¶ 28, 29. Therefore, the IRS did not abuse its discretion in finding that Plaintiff actively was involved with the UBS account. Irons Decl. at 032. As to the documents listed in I.R.M. § 4.26.16.6.5.2, the court previously addressed this issue at D.5, supra. Plaintiff is also no longer entitled to be assessed a maximum civil penalty of $100,000, as set forth in 31 U.S.C. § 5321(a)(5) (2003).26 On October 22, 2004, Congress enacted a new statute that increased the statutory maximum penalty for a “willful” violation to “the greater of [] $100,000, or [] 50 percent of the . . . balance in the account at the time of the violation.” See American Jobs Creation Act of 2004, Pub. L. No. 108-357, 118 Stat. 1418, 1586, § 821 (Oct. 22, 2004) (“Jobs Creation Act”). And, on July 1, 2008, the IRS issued I.R.M. § 4.26.16.4.5.1, that stated: “At the time of this writing, the regulations at [31 C.F.R. § 1010.820] have not been revised to reflect the change in the willfulness penalty ceiling.” I.R.M. § 4.26.16.4.5.1. The IRS, however, warned that, “the statute [i.e., the Jobs Creation Act] is self-executing and the new penalty ceilings apply.” I.R.M. § 4.26.16.4.5.1. Although, the Jobs Creation Act is inconsistent with 31 C.F.R. § 1010.820(g)(2), it is settled law that an agency’s regulations “must be consistent with the statute under which they are promulgated.” United States v. Larionoff, 431 U.S. 864, 873 (1977). Since the civil penalty amount for a “willful” violation in 31 U.S.C. § 5321(a)(5) (2003) was replaced with 31 U.S.C. § 5321(a)(5)(C)(i) (2004), the April 8, 1987 regulations are “no longer valid.” Norman, 138 Fed. Cl. at 196. The court’s research has found two recent United States District Court cases determining that, although the IRS theoretically may assess a penalty greater than $100,000 for a FBAR violation committed after 2004, the IRS is still bound by the maximum penalty in the pre-2004 statute. See Colliot, 2018 WL 2271381, at *3;27 United States v. Wahdan, 325 F. Supp. 3d 1136, 25 See Court Appendix, infra, for the text of 26 C.F.R. § 301.7701(b)-2(d)(1). 26 See Court Appendix, infra, for the text of 31 U.S.C. § 5321(a)(5) (2003). 27 In Colliot, the United States District Court for the Western District of Texas determined that 31 C.F.R. § 1010.820(g)(2) survived the enactment of the Jobs Creation Act, because “[r]ules issued via notice-and-comment rulemaking must be repealed via notice-and-comment rulemaking.” 2018 WL 2271381, at *3 (citing Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1205 (2015)). In Perez, the United States Supreme Court held that agencies must “use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance.” 135 S. Ct. at 1206. The Jobs Creation Act, however, is not an agency rule and Congress has 20 1141 (D. Colo. 2018).28 The reasoning of these cases, however, conflicts with the decision of the United States Court of Appeals for the Federal Circuit in Barseback Kraft AB v. United States, 121 F.3d 1475 (Fed. Cir. 1997). In that case, nuclear energy companies sued to enforce contracts for uranium with the United States Department of Energy (“DOE”). Id. at 1477. The contracts provided that prices would be set in accordance with “DOE pricing policy for such services.” Id. at 1478. After the parties executed the contracts, Congress enacted legislation that transferred responsibility for administering uranium sales to a new federal agency, and “changed the government’s pricing strategy from one based on recovering just its costs to one aimed at profit maximization.” Id. The uranium companies argued that the new agency was bound by DOE’s pricing regulations, but the United States Court of Appeals for the Federal Circuit held that the “DOE could not have had any valid uranium enrichment pricing policy in 1993 and 1994[,] because Congress had stripped it of its authority to sell uranium enrichment services.” Id. at 1480. “The fact that DOE’s [pricing regulations] had not been formally withdrawn from the Code of Federal Regulations [did] not save them from invalidity.” Id. (emphasis added). Like the legislation that stripped DOE of authority over uranium pricing, the Jobs Creation Act replaced the prior penalty for willful violations of federal tax law in 31 U.S.C. § 5321(a)(5) (2003), thereby nullifying any inconsistent regulations governing the pre-2004 statute. For these reasons, the court has determined, viewing the evidence in the light most favorable to Plaintiff, that there is no genuine issue of material fact as to whether the IRS abused its discretion, when it assessed a civil penalty against Plaintiff of $697,229, i.e., 50 percent of the balance in the UBS account in 2007. See 31 U.S.C. § 5321(a)(5)(C)(i) (2004); see also RCFC 56. 29 authority prospectively to alter the effect of agency regulations. See Robertson v. Seattle Audubon Soc., 503 U.S. 429, 438–40 (1992) (holding that a statutory amendment affecting ongoing litigation over forest management did not violate Article III of the United States Constitution, because it “compelled changes in law, not findings or results under old law”). 28 In Wahdan, the United States District Court for the District of Colorado determined that the Secretary of the Treasury adjusted the maximum FBAR penalty for inflation several times in the past decade. See 325 F. Supp. 3d at 1140. According to that court, “[t]his suggests that the Secretary was aware of the penalties available under 31 U.S.C. § 5321(a)(5)(C) and elected to continue to limit the IRS’[s] authority to impose penalties to $100,000.” Id. Although this inference is plausible, it is more likely that the Secretary of the Treasury determined that I.R.M. § 4.26.16.4.5.1 correctly determined that the Jobs Creation Act was “self-executing.” Regardless, any legitimate inference that may be drawn from a series of routine inflation adjustments after 2004 does not alter the text of the Jobs Creation Act. Neither of the aforementioned United States District Court decisions explain why the Jobs Creation Act should be construed to retain the $100,000 maximum penalty set forth at 31 C.F.R. § 1010.820(g)(2), but supersede the remainder of the regulation. 29 The court does not need to address Plaintiff’s argument that the penalty assessment violated the Eighth Amendment to the United States Constitution, because the March 24, 2017 Complaint did not allege such a claim. See Casa de Cambio Comdiv S.A., de C.V. v. United States, 21 IV. CONCLUSION. For the reasons discussed herein, the June 27, 2018 Motion For Summary Judgment is granted; the July 24, 2018 Cross-Motion For Summary Judgment is denied. The Clerk of Court is directed to enter judgment for the Government. IT IS SO ORDERED. s/ Susan G. Braden SUSAN G. BRADEN Senior Judge 291 F.3d 1356, 1366 (Fed. Cir. 2002) (“No mention of this theory appears in [Plaintiff’s] complaint. Under the circumstances, we hold that [Plaintiff] waived any claim it may have against the government based on such a theory.”). In any event, the only other court that considered this issue determined that the FBAR penalty was not punitive. See Estate of Schoenfeld, 2018 WL 4599743, at *11 (determining that the FBAR penalty is “remedial,” not “penal”). 22  COURT APPENDIX A. Relevant Statutes. 26 U.S.C. § 6511(a) provides: Claim for credit or refund of an overpayment of any tax imposed by this title in respect of which tax the taxpayer is required to file a return shall be filed by the taxpayer within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later, or if no return was filed by the taxpayer, within 2 years from the time the tax was paid. Claim for credit or refund of an overpayment of any tax imposed by this title which is required to be paid by means of a stamp shall be filed by the taxpayer within 3 years from the time the tax was paid. 26 U.S.C. § 6511(a). 31 U.S.C. § 5314 provides: (a) Considering the need to avoid impeding or controlling the export or import of monetary instruments and the need to avoid burdening unreasonably a person making a transaction with a foreign financial agency, the Secretary of the Treasury shall require a resident or citizen of the United States or a person in, and doing business in, the United States, to keep records, file reports, or keep records and file reports, when the resident, citizen, or person makes a transaction or maintains a relation for any person with a foreign financial agency. The records and reports shall contain the following information in the way and to the extent the Secretary prescribes: (1) the identity and address of participants in a transaction or relationship. (2) the legal capacity in which a participant is acting. (3) the identity of real parties in interest. (4) a description of the transaction. (b) The Secretary may prescribe— (1) a reasonable classification of persons subject to or exempt from a requirement under this section or a regulation under this section; (2) a foreign country to which a requirement or a regulation under this section applies if the Secretary decides applying the requirement or regulation to all foreign countries is unnecessary or undesirable; 23  (3) the magnitude of transactions subject to a requirement or a regulation under this section; (4) the kind of transaction subject to or exempt from a requirement or a regulation under this section; and (5) other matters the Secretary considers necessary to carry out this section or a regulation under this section. (c) A person shall be required to disclose a record required to be kept under this section or under a regulation under this section only as required by law. 31 U.S.C. § 5314. 31 U.S.C. § 5321(a)(5) provides: (A) Penalty authorized.— The Secretary of the Treasury may impose a civil money penalty on any person who violates, or causes any violation of, any provision of section 5314. (B) Amount of penalty.— (i) In general.— Except as provided in subparagraph (C), the amount of any civil penalty imposed under subparagraph (A) shall not exceed $10,000. (ii) Reasonable cause exception.—No penalty shall be imposed under subparagraph (A) with respect to any violation if— (I) such violation was due to reasonable cause, and (II) the amount of the transaction or the balance in the account at the time of the transaction was properly reported. (C) Willful violations.—In the case of any person willfully violating, or willfully causing any violation of, any provision of section 5314— (i) the maximum penalty under subparagraph (B)(i) shall be increased to the greater of— (I) $100,000, or 24  (II) 50 percent of the amount determined under subparagraph (D), and (ii) subparagraph (B)(ii) shall not apply. 31 U.S.C. § 5321(a)(5) (2004). 31 U.S.C. § 5321(a)(5) (2003) provided: Foreign financial agency transaction violation.— (A) Penalty authorized.—The Secretary of the Treasury may impose a civil money penalty on any person who willfully violates or any person willfully causing any violation of any provision of section 5314. (B) Maximum amount limitation.—The amount of any civil money penalty imposed under subparagraph (A) shall not exceed— (i) in the case of violation of such section involving a transaction, the greater of— (I) the amount (not to exceed $100,000) of the transaction; or (II) $25,000; and (ii) in the case of violation of such section involving a failure to report the existence of an account or any identifying information required to be provided with respect to such account, the greater of— (I) an amount (not to exceed $100,000) equal to the balance in the account at the time of the violation; or (II) $25,000. 31 U.S.C. § 5321(a)(5) (2003). 28 U.S.C. § 1346(a) provides: The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of: (1) Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected 25  without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws; (2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort, except that the district courts shall not have jurisdiction of any civil action or claim against the United States founded upon any express or implied contract with the United States or for liquidated or unliquidated damages in cases not sounding in tort which are subject to sections 7104(b)(1) and 7107(a)(1) of title 41. For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration shall be considered an express or implied contract with the United States. 28 U.S.C. § 1346(a). 26 B. Relevant Internal Revenue Service Regulations. 26 C.F.R. § 301.7701(b)-2(d)(1) provides that: In general. For purposes of section 7701(b) and the regulations under that section, an alien individual will be considered to have a closer connection to a foreign country than the United States if the individual or the Commissioner establishes that the individual has maintained more significant contacts with the foreign country than with the United States. In determining whether an individual has maintained more significant contacts with a foreign country than the United States, the facts and circumstances to be considered include, but are not limited to, the following - (i) The location of the individual’s permanent home; (ii) The location of the individual’s family; (iii) The location of personal belongings, such as automobiles, furniture, clothing and jewelry owned by the individual and his or her family; (iv) The location of social, political, cultural or religious organizations with which the individual has a current relationship; (v) The location where the individual conducts his or her routine personal banking activities; (vi) The location where the individual conducts business activities (other than those that constitute the individual’s tax home); (vii) The location of the jurisdiction in which the individual holds a driver’s license; (viii) The location of the jurisdiction in which the individual votes; (ix) The country of residence designated by the individual on forms and documents; and 27  (x) The types of official forms and documents filed by the individual, such as Form 1078 (Certificate of Alien Claiming Residence in the United States), Form W-8 (Certificate of Foreign Status) or Form W-9 (Payer’s Request for Taxpayer Identification Number). 26 C.F.R. § 301.7701(b)-2(d)(1). 31 C.F.R. § 1010.820 provides: (a) For any willful violation, committed on or before October 12, 1984, of any reporting requirement for financial institutions under this chapter or of any recordkeeping requirements of §§ 1010.311, 1010.313, 1020.315, 1021.311 or 1021.313, the Secretary may assess upon any domestic financial institution, and upon any partner, director, officer, or employee thereof who willfully participates in the violation, a civil penalty not to exceed $1,000. (b) For any willful violation committed after October 12, 1984 and before October 28, 1986, of any reporting requirement for financial institutions under this chapter or of the recordkeeping requirements of § 1010.420, the Secretary may assess upon any domestic financial institution, and upon any partner, director, officer, or employee thereof who willfully participates in the violation, a civil penalty not to exceed $10,000. (c) For any willful violation of any recordkeeping requirement for financial institutions, except violations of § 1010.420, under this chapter, the Secretary may assess upon any domestic financial institution, and upon any partner, director, officer, or employee thereof who willfully participates in the violation, a civil penalty not to exceed $1,000. (d) For any failure to file a report required under § 1010.340 or for filing such a report containing any material omission or misstatement, the Secretary may assess a civil penalty up to the amount of the currency or monetary instruments transported, mailed or shipped, less any amount forfeited under § 1010.830. (e) For any willful violation of § 1010.314 committed after January 26, 1987, the Secretary may assess upon any person a civil penalty not to exceed the amount of coins and currency involved in the transaction with respect to which such penalty is imposed. The amount of any civil penalty assessed under this paragraph shall be reduced by the amount of any forfeiture to the United States in connection with the transaction for which the penalty was imposed. 28  (f) For any willful violation committed after October 27, 1986, of any reporting requirement for financial institutions under this chapter (except § 1010.350, § 1010.360 or § 1010.420), the Secretary may assess upon any domestic financial institution, and upon any partner, director, officer, or employee thereof who willfully participates in the violation, a civil penalty not to exceed the greater of the amount (not to exceed $100,000) involved in the transaction or $25,000. (g) For any willful violation committed after October 27, 1986, of any requirement of § 1010.350, § 1010.360 or § 1010.420, the Secretary may assess upon any person, a civil penalty: (1) In the case of a violation of § 1010.360 involving a transaction, a civil penalty not to exceed the greater of the amount (not to exceed $100,000) of the transaction, or $25,000; and (2) In the case of a violation of § 1010.350 or § 1010.420 involving a failure to report the existence of an account or any identifying information required to be provided with respect to such account, a civil penalty not to exceed the greater of the amount (not to exceed $100,000) equal to the balance in the account at the time of the violation, or $25,000. (h) For each negligent violation of any requirement of this chapter, committed after October 27, 1986, the Secretary may assess upon any financial institution a civil penalty not to exceed $500. (i) For penalties that are assessed after August 1, 2016, see § 1010.821 for rules relating to the maximum amount of the penalty. 31 C.F.R. § 1010.820. 29 C. Internal Revenue Service Manual. I.R.M. § 4.26.16.3.6 provided: (1) The FBAR is required for each calendar year during which the aggregate amount(s) in the account(s) exceeded $10,000 valued in U.S. dollars at any time during the calendar year. The maximum value of an account is the largest amount of currency and non- monetary assets that appear on any quarterly or more frequent account statement issued for the applicable year. For example, if the statement closing balance is $9,000 but at any time during the year a balance of $15,000 appears on a statement, the maximum value is $15,000. (2) If periodic account statements are not issued, the maximum account asset value is the largest amount of currency and non- monetary assets in the account at any time during the year. (3) Convert foreign currency by using the official exchange rate in effect at the end of the year in question for converting the foreign currency into U.S. dollars. In valuing currency of a country that uses multiple exchange rates, use the rate that would apply if the currency in the account were converted into U.S. dollars at the close of the calendar year. The official Treasury Reporting Rates of Exchange for the previous quarter year can be obtained at http://fms.treas.gov/intn.html#rates or by calling the Department of the Treasury, Financial Management Service [(“FMS”)] International Funds Team at (202) 874-7994. As these rates are published quarterly, the rates should be accessed during the first quarter of the following year to obtain the previous December 31 valuation. The rates posted on the FMS website are the current exchange rates. Historical exchange rates will be needed to determine the value in a foreign account in prior years. For historical exchange rates, call FMS at (202) 874-8001 or (202) 874- 8004. These phone numbers may be subject to change. Check the FMS website (http://www.fms.treas.gov) for the most current information. (4) The value of stock, other securities, or other non-monetary assets in an account reported on the FBAR is the fair market value at the end of the calendar year, or if withdrawn from the account earlier in the year, at the time of the withdrawal. (5) If the filer had a financial interest in more than one account, each account is valued separately in accordance with the previous paragraphs. 30  (6) If a person had a financial interest in one or more but fewer than 25 accounts and is unable to determine whether the maximum value of these accounts exceeded $10,000 at any time during the year, the FBAR instructions state that the person is to complete Part II of the FBAR and if needed, the continuation page(s) for each of these accounts. If the maximum aggregate value of the accounts was not in excess of $10,000, then there would be no FBAR violation if the person did not file the FBAR, whether or not the person knew the value of the accounts at the time the FBAR was due. This is because section 103.27(c) of the Title 31 regulations only requires FBARs to be filed when the value of the accounts exceeds $10,000 during a calendar year. For rules regarding a person with a financial interest in 25 or more accounts, see I.R.M. § 4.26.16.3.9. I.R.M. § 4.26.16.3.6 (July 1, 2008). I.R.M. § 4.26.16.6.5.1 provides: (1) The test for willfulness is whether there was a voluntary, intentional violation of a known legal duty. (2) A finding of willfulness under the BSA must be supported by evidence of willfulness. (3) The burden of establishing willfulness is on the Service. (4) Willfulness is shown by the person's knowledge of the reporting requirements and the person's conscious choice not to comply with the requirements. In the FBAR situation, the person only need know that a reporting requirement exists. If a person has that knowledge, the only intent needed to constitute a willful violation of the requirement is a conscious choice not to file the FBAR. (5) Under the concept of “willful blindness,” willfulness is attributed to a person who made a conscious effort to avoid learning about the FBAR reporting and recordkeeping requirements. EXAMPLE: Willful blindness may be present when a person admits knowledge of, and fails to answer questions concerning, his interest in or signature or other authority over financial accounts at foreign banks on Schedule B of his Federal income tax return. This section of the income tax return refers taxpayers to the instructions for Schedule B, which provides guidance on their responsibilities for reporting foreign bank accounts and discusses the duty to file the FBAR. These resources indicate that the person could have learned of the filing and recordkeeping requirements quite easily. It is reasonable to assume that a person who has foreign bank accounts should read 31  the information specified by the government in tax forms. The failure to act on this information and learn of the further reporting requirement, as suggested on Schedule B, may provide evidence of willful blindness on the part of the person. Note: The failure to learn of the filing requirements coupled with other factors, such as the efforts taken to conceal the existence of the accounts and the amounts involved, may lead to a conclusion that the violation was due to willful blindness. The mere fact that a person checked the wrong box, or no box, on a Schedule B is not sufficient, in itself, to establish that the FBAR violation was attributable to willful blindness. (6) The following examples illustrate situations in which willfulness may be present: (a.) A person files the FBAR, but omits one of three foreign bank accounts. The person had previously closed the omitted account at the time of filing the FBAR. The person explains that the omission was due to unintentional oversight. During the examination, the person provides all information requested with respect to the omitted account. The information provided does not disclose anything suspicious about the account, and the person reported all income associated with the account on his tax return. The penalty for a willful violation should not apply absent other evidence that may indicate willfulness. (b.) A person filed the FBAR in earlier years but failed to file the FBAR in subsequent years when required to do so. When asked, the person does not provide a reasonable explanation for failing to file the FBAR. In addition, the person may have failed to report income associated with foreign bank accounts for the years that FBARs were not filed. A determination that the violation was willful would likely be appropriate in this case. (c.) A person received a warning letter informing him of the FBAR filing requirement, but the person continues to fail to file the FBAR in subsequent years. When asked, the person does not provide a reasonable explanation for failing to file the FBAR. In addition, the person may have failed to report income associated with the foreign bank accounts. A determination that the violation was willful would likely be appropriate in this case. I.R.M. § 4.26.16.6.5.1 (Nov. 6, 2015). 32 I.R.M. § 4.26.16.6.5.2 provides: (1) Willfulness can rarely be proven by direct evidence, since it is a state of mind. It is usually established by drawing a reasonable inference from the available facts. The government may base a determination of willfulness on inference from conduct meant to conceal sources of income or other financial information. For FBAR purposes, this could include concealing signature authority, interests in various transactions, and interests in entities transferring cash to foreign banks. (2) Documents that may be helpful in establishing willfulness include: (a.) Copies of statements for the foreign bank account. (b.) Notes of the examiner's interview with the foreign account holder/taxpayer about the foreign account. (c.) Correspondence with the account holder's tax return preparer that may address the FBAR filing requirement. (d.) Documents showing criminal activity related to the non- filing of the FBAR (or non-compliance with other BSA provisions). (e.) Promotional material (from a promoter or offshore bank). (f.) Statements for debit or credit cards from the offshore bank that, for example, reveal the account holder used funds from the offshore account to cover everyday living expenses in a manner that conceals the source of the funds. (g.) Copies of any FBARs filed previously by the account holder (or FinCEN Query printouts of FBARs). (h.) Copies of Information Document Requests with requested items that were not provided highlighted along with explanations as to why the requested information was not provided. (i.) Copies of debit or credit card agreements and fee schedules with the foreign bank, which may show a significantly higher cost than typically associated with cards from domestic banks. (j.) Copies of any investment management or broker's agreement and fee schedules with the foreign bank, which may show significantly higher costs than costs associated with domestic investment management firms or brokers. 33  (k.) The written explanation of why the FBAR was not filed, if such a statement is provided. Otherwise, note in the workpapers whether there was an opportunity to provide such a statement. (l.) Copies of any previous warning letters issued or certifications of prior FBAR penalty assessments. (m.) An explanation, in the workpapers, as to why the examiner believes the failure to file the FBAR was willful. (3) Documents available in an FBAR case worked under a Related Statute Determination under Title 26 that may be helpful in establishing willfulness include: (a.) Copies of documents from the administrative case file (including the Revenue Agent Report) for the income tax examination that show income related to funds in a foreign bank account was not reported. (b.) A copy of the signed income tax return with Schedule B attached, showing whether or not the box pertaining to foreign accounts is checked or unchecked. (c.) Copies of tax returns (or RTVUEs or BRTVUs) for at least three years prior to the opening of the offshore account and for all years after the account was opened, to show if a significant drop in reportable income occurred after the account was opened. (Review of the three years' returns prior to the opening of the account would give the examiner a better idea of what the taxpayer might have typically reported as income prior to opening the foreign account). (d.) Copies of any prior Revenue Agent Reports that may show a history of noncompliance. (e.) Two sets of cash T accounts (a reconciliation of the taxpayer's sources and uses of funds) with one set showing any unreported income in foreign accounts that was identified during the examination and the second set excluding the unreported income in foreign accounts. (f.) Any documents that would support fraud (see IRM 4.10.6.2.2 for a list of items to consider in asserting the fraud penalty). I.R.M. § 4.26.16.6.5.2 (Nov. 6, 2015). 34  I.R.M. Exhibit 4.26.16-2, Normal FBAR Penalty Mitigation Guidelines For Violations Occurring After October 22, 2004, in part: Willfulness Penalties To Qualify for Level I – If the maximum aggregate balance for all accounts to which the Determine Aggregate violations relate did not exceed $50,000, Level I applies to all Balances accounts. Determine the maximum balance at any time during the calendar year for each account. Add the individual maximum balances to find the maximum aggregate balance. Level I Penalty is The greater of $1,000 per violation or 5% of the maximum balance during the year of the account to which the violations relate for each violation. To Qualify for Level II – If Level I does not apply and if the maximum balance of the Determine Account Balance account to which the violations relate at any time during the calendar year did not exceed $250,000, Level II applies to that account. Level II Penalty is per The greater of $5,000 per violation or 10% of the maximum account balance during the calendar year for each Level II account. To Qualify for Level III If the maximum balance of the account to which the Level III violations relate at any time during the calendar year exceeded $250,000 but did not exceed $1,000,000, Level III applies to that account. Level III Penalty is per The greater of (a) or (b): (a) 10% of the maximum balance during account the calendar year for each Level III account, or (b) 50% of the closing balance in the account as of the last day for filing the FBAR. To Qualify for Level IV If the maximum balance of the account to which the violations relate at any time during the calendar year exceeded $1 million, Level IV, the statutory maximum, applies to that account. Level IV Penalty is per The greater of (a) or (b): (a) $100,000, or (b) 50% of the closing account the statutory balance in the account as of the last day for filing the FBAR. maximum I.R.M. Exhibit 4.26.16-2 (July 1, 2008). 35 

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 11-1649 ____________ MAURICE OPARAJI, Appellant, v. NORTH EAST AUTO-MARINE TERMINAL; A.T.I., U.S.A., INC.; RICARDO FURFARO; HUAL NORTH AMERICA, INC., a/k/a AUTOLINERS INC. __________________________________ On Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 2-04-cv-06445) District Judge: Honorable Susan D. Wigenton __________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) July 14, 2011 Before: SCIRICA, SMITH and VANASKIE, Circuit Judges (Opinion filed: July 18, 2011) ____________ OPINION ____________ PER CURIAM Appellant Maurice Oparaji filed a civil action in 2004 in the United States District Court for the District of New Jersey, alleging, in pertinent part, that North East Auto- Marine Terminal and others breached a contract with him to ship a 1983 International truck outfitted with dredging equipment from the Port of New York to Lagos, Nigeria. Oparaji sought in excess of $815,000 in money damages. On October 23, 2007, a jury returned a verdict in favor of the defendants on all counts. “Briefly, a jury no-caused [Oparaji] on his allegations that the defendants had, among other things, converted his property, were in breach of contract, and had committed conspiracy and fraud.” (District Court Order, 12/08/09, at 1.) That same day, the District Court, sua sponte, issued an order (1) noting that Oparaji’s truck remained on North East Auto-Marine Terminal’s property without cost to him since May, 2004, and (2) directing the United States Marshals Service to supervise the return of the truck to Oparaji. Oparaji sought relief from the verdict under Rules 59 and 60, Fed. R. Civ. Pro., and he sought to enjoin the order concerning the return of his truck. With respect to the truck, the District Court determined that the defendants had no further obligation to store it; the court thus denied a stay. See Oparaji v. North East Auto-Marine Terminal, Inc., 2007 WL 3226605 (D.N.J. Oct. 29, 2007). Soon thereafter, the District Court denied Oparaji a new trial, rejecting his contention that the jury was somehow misled by the court’s instructions on agency. The court also found unpersuasive Oparaji’s allegations of fraud. Oparaji appealed, and we affirmed. See Oparaji v. North East Auto-Marine Terminal, 297 Fed. Appx. 142, 146 (3d Cir. 2008) (per curiam). About a year later, Oparaji filed an item titled simply “Judgment,” without citing any authority in the federal rules or statutes for the filing. In this “Judgment,” Oparaji claimed that the defendants had failed to return his 1983 International truck and dredging equipment, and he demanded a money judgment in the amount of $198,750.00. The defendants’ attorneys filed declarations in opposition to the “Judgment.” North East Auto-Marine Terminal’s attorney asserted that Oparaji had failed to cooperate with several requests by the U.S. Marshal to facilitate the return of his truck; and that North 2 East Auto-Marine Terminal had stored Oparaji’s truck for more than one year after the District Court’s Order, after which time it ceased doing business in November, 2008 and closed its yard. Oparaji’s truck had thereafter been “scrapped” by a third-party towing company. The District Court issued an order denying the “Judgment” requested by Oparaji. The court found that Oparaji’s request “distort[ed]” its prior order and “upend[ed] the jury’s verdict.” (District Court Order, 12/08/09, at 2.) In accordance with circuit precedent, see Matter of Packer Ave. Associates, 884 F.2d 745 (3d Cir. 1989); Chipps v. United States Dist. Ct. for the Middle Dist. of Pa., 882 F.2d 72 (3d Cir. 1989); Gagliardi v. McWilliams, 834 F.2d 81 (3d Cir. 1987), the District Court gave Oparaji notice that it would impose Rule 11 sanctions in the event of further meritless filings. Oparaji appealed. Construing the “Judgment” as a motion to hold the defendants in contempt of the District Court’s October 23, 2007 order, we held that the District Court did not abuse its discretion in denying Oparaji’s request for a money judgment and affirmed. See Oparaji v. North East Auto-Marine Terminal, 372 Fed. Appx. 331 (3d Cir. 2010) (per curiam). We explained: Oparaji argues that … the October 23 order required [the defendants] to return the truck or initiate its return…. [H]owever, the October 23 order contemplated that Oparaji would assume responsibility for the truck, which he resisted doing for almost two years. The order did not require defendants to initiate that process or store the truck indefinitely …. Oparaji does not allege that defendants failed to cooperate with the Marshal in any respect or otherwise impeded his ability to retrieve the truck. Nor does he challenge the District Court’s finding that he failed to make any arrangements to retrieve the truck himself. 3 Id. at 333 (emphasis added). In concluding, we declined, for the time being, the defendants’ request that we enjoin Oparaji from filing any further lawsuits. See id. at 334. On July 8, 2010, Oparaji filed an actual motion for contempt and a separate motion for the recusal of United States District Judge Katharine S. Hayden. In his motion for contempt, Oparaji sought essentially the same relief as before; that is, he sought to hold the defendants in contempt for failing to comply with the District Court’s October 23, 2007 order. In addition, Oparaji claimed that racial animosity on the part of the defendants was the reason why they never returned his 1983 International truck. The case was reassigned to the Honorable Susan D. Wigenton for reasons that are not apparent from the record. Judge Wigenton, in an order entered on February 10, 2011, denied Oparaji’s motion for contempt for the “same reasons stated in Judge Hayden’s December 8, 2009 Opinion.” Judge Wigenton denied Oparaji’s motion to recuse as moot because Judge Hayden was no longer assigned to his case. 1 Oparaji then filed a motion for clarification and reconsideration, which Judge Wigenton denied in an order entered on March 2, 2011. Oparaji appeals the order denying his motion for contempt. We have jurisdiction over the District Court’s post-judgment order denying his motion for contempt under 28 U.S.C. § 1291. See Berne Corp. v. Gov’t of the Virgin Islands, 570 F.3d 130, 135 n.10 (3d Cir. 2009). 1 A motion is moot when a court is unable to fashion any form of meaningful relief, see Artway v. Att’y Gen. of New Jersey, 81 F.3d 1235, 1246 (3d Cir. 1996). Granting Oparaji’s motion would have been meaningless since his case was no longer assigned to Judge Hayden. 4  We will affirm. Our review of the denial of the motion for contempt is for an abuse of discretion. See Roe v. Operation Rescue, 54 F.3d 133, 137 (3d Cir. 1995). The abuse of discretion standard is met only where the District Court’s decision is based on an erroneous conclusion of law, or where the record contains no evidence upon which the court rationally could have based that decision, or where the supposed facts found are clearly erroneous. See In re: TMI Litigation, 193 F.3d 613, 666 (3d Cir. 1999), as amended, 199 F.3d 158 (3d Cir. 2000). We have already decided the issue presented by this appeal. Judge Hayden previously found that her order did not require the defendants to initiate the process of returning Oparaji’s truck, or require the defendants to store the truck indefinitely, and, on appeal, we concluded that Judge Hayden’s interpretation of her own order was not an abuse of discretion. See Oparaji, 372 Fed. Appx. at 333 (citing Gibbs v. Frank, 500 F.3d 202, 206 (3d Cir. 2007)). Oparaji’s arguments have been properly rejected, and we find no basis in his brief on appeal for reconsideration of his arguments. The jury found in favor of the defendants on all issues and Oparaji does not claim that the jury was racially biased. The District Court’s October 23, 2007 order contemplated that Oparaji, having lost his breach of contract action, would take it upon himself to retrieve his truck from the property of defendant North East Auto-Marine Terminal. Instead, Oparaji abandoned his truck on the private property of North East Auto-Marine Terminal. His argument essentially is that the defendants owed him a duty in perpetuity to store the truck, but there is no legal basis for the argument on this record. Accordingly, the defendants are not liable for contempt of the District Court’s October 23, 2007 order. 5  For the foregoing reasons, we will affirm the order of the District Court denying Oparaji’s motion for contempt. Having considered Oparaji’s arguments against an injunction, and finding them unpersuasive, we will grant the defendants’ renewed request for an order enjoining Oparaji. We agree that the contempt motion was vexatious and that the truck-related claims are likely to continue absent some restriction on Oparaji. See Chipps, 882 F.2d at 73. Oparaji is hereby enjoined from filing any further pleadings, motions, or other items relating to these truck-related claims without prior authorization from the District Court. 6 

United States Court of Appeals For the Eighth Circuit ___________________________ No. 19-2330 ___________________________ United States of America Plaintiff Appellee v. Cameron Lee Klouda Defendant Appellant ____________ Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids ____________ Submitted: April 20, 2020 Filed: April 23, 2020 [Unpublished] ____________ Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges. ____________ PER CURIAM.  Cameron Klouda appeals the sentence the district court1 imposed after he pleaded guilty to drug and firearm offenses. His counsel has moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 738 (1967). After careful review, we conclude that the district court did not abuse its discretion in sentencing Klouda. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (standard of review). Furthermore, having independently reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988), we find no nonfrivolous issues for appeal. Accordingly, we grant counsel’s motion and affirm. ______________________________ 1 The Honorable C.J. Williams, United States District Judge for the Northern District of Iowa. -2- 

THE THIRTEENTH COURT OF APPEALS 13-16-00626-CV Michael Bridges v. The Lakes at King Estates, Inc., Ronald Voss, and Richard Voss On Appeal from the 347th District Court of Nueces County, Texas Trial Cause No. 2014-DCV-3195-H JUDGMENT THE THIRTEENTH COURT OF APPEALS, having considered this cause on appeal, concludes that the judgment of the trial court should be AFFIRMED. The Court orders the judgment of the trial court AFFIRMED. Costs of the appeal are adjudged against appellant. We further order this decision certified below for observance. November 29, 2018 

33 So.3d 651 (2008) JOHN BROWN v. STATE. No. CR-07-0565. Court of Criminal Appeals of Alabama. December 19, 2008. Decision of the Alabama Court of Criminal Appeal Without Published Opinion Affirmed.

171 N.J. Super. 454 (1979) 410 A.2d 46 JURGEN MOZEE, PLAINTIFF-RESPONDENT, v. DARRELL L. McGHEE, LEE C. McGHEE, CHARLEY'S OTHER BROTHER AND UNITED SERVICES AUTOMOBILE ASSOCIATION, DEFENDANTS-APPELLANTS. Superior Court of New Jersey, Appellate Division. Submitted November 13, 1979. Decided December 5, 1979. *455 Before Judges BISCHOFF, BOTTER and DWYER. Lenox, Giordano, Devlin, Delehey & Socey, attorneys for appellant United Services Automobile Association (Charles A. Delehey on the brief). Stockman, Mancino, Marinari, Smithson & O'Donnell, attorneys for respondent (Daniel J. Graziano, Jr. and Joseph P. O'Donnell on the brief). BY THE COURT. This appeal presents once again a question concerning the extent of insurance coverage provided by a policy of insurance covering a New Jersey motor vehicle and containing an uninsured motorist (UM) endorsement. The procedural history of this appeal and the relevant facts are contained in the trial court opinion, reported at 161 N.J. Super. 551 (Law Div. 1978), and will be only briefly restated here. United Services Automobile Insurance Association (United Services) issued Lee C. McGhee an automobile insurance policy covering his son Darrell L. McGhee and providing $50,000 liability coverage for bodily injury. The policy also provided uninsured motorist coverage in the amount of $15,000 for the insured and occupants of the insured vehicle, pursuant to N.J.S.A. 17:28-1.1. Plaintiff Jurgen Mozee was a passenger in the insured vehicle on February 8, 1975 when it was operated by Darrell L. McGhee. Plaintiff contends an unidentified car emerged from a parking lot of Charley's Other Brother, causing McGhee to swerve and collide with a tree. Plaintiff was seriously injured. Following the accident United Services paid plaintiff $15,000 and obtained a release from him discharging the company's obligation to him for claims arising under the UM coverage. Plaintiff thereafter instituted suit against the McGhees and Charley's Other Brother. United Services offered plaintiff the full amount of coverage available in settlement of his claim. A dispute arose concerning *456 the extent of coverage available, United Services taking the position that it provided bodily injury coverage in the amount of $50,000 but that it is entitled to a credit of $15,000 based upon the terms of the UM endorsement and the UM release executed by plaintiff. Plaintiff, on the other hand, contends he is entitled to recover the full bodily injury coverage plus the $15,000 previously paid under the UM endorsement. Plaintiff instituted a declaratory judgment action to resolve this dispute and it is from the judgment entered in that action in favor of plaintiff that United Services prosecutes this appeal. We affirm. In Motor Club of America Ins. Co. v. Phillips, 66 N.J. 277 (1974), the Supreme Court invalidated an "other insurance" exclusion contained in a UM endorsement as repugnant to the statute, N.J.S.A. 17:28-1.1, saying: As to the literal import of the New Jersey statute there can be no doubt. It commands that "no automobile liability policy" (emphasis added) shall issue in this state unless it offers coverage for payment, within stated limits, of what an uninsured motorist would be liable for to an insured for damages for bodily injuries. Since every such policy must offer such coverage, and the statute contains no suggestion of relief from its undertaking in favor of an issuing insurer merely because another insurer had assumed the same obligation in favor of the same accident victim, the statute unambiguously grants the victim prima facie recourse to any and all policies applicable, subject to the unquestionably implicit condition that his claims in aggregate not exceed his damages. [at 292] This court has held that any attempt by an insurer to restrict its liability on an uninsured motorist endorsement is contrary to both the intent and meaning of that statute. Beek v. Ohio Cas. Ins. Co., 135 N.J. Super. 1 (App.Div. 1975), aff'd o.b. 73 N.J. 185 (1977), and we have consistently invalidated insurance policy provisions which attempt to reduce or limit UM recoveries by monies received under the bodily injury insurance. Fernandez v. Selected Risks Ins. Co., 163 N.J. Super. 270 (App.Div. 1978); Silas v. Allstate, 129 N.J. Super. 99 (App.Div. 1974). See, also, *457 Selected Risks Ins. Co. v. Schulz, 140 N.J. Super. 555 (Ch.Div. 1976). That the provisions of the UM endorsement are here sought to be applied to reduce the amount due under the basic automobile policy is without significance. We hold both coverages are available to a total of $65,000, so long as the actual damages sustained equal or exceed that amount. Any policy provision which seeks to avoid, limit or reduce coverage provided by a UM endorsement is void as contrary to the statute. Motor Club of America Ins. Co. v. Phillips, supra, 66 N.J. at 292. Affirmed.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs September 15, 2004 STATE OF TENNESSEE v. TERRELL DEBERRY AND DAMIEN LASHAWN NIXON, A/K/A "SKINNY" Appeal from the Circuit Court for Lauderdale County No. 7433 Joseph H. Walker, III, Judge No. W2004-00018-CCA-R3-CD - Filed December 7, 2004 The defendant Terrell Deberry was indicted for possession with intent to deliver .5 grams or more of cocaine. The defendant Damien Nixon was also indicted for possession with intent to deliver .5 grams or more of cocaine and for driving on a revoked license. After granting a motion to suppress the cocaine found in the possession of defendant Deberry, the trial court permitted the state an application for a discretionary appeal under Rule 9 of the Tennessee Rules of Appellate Procedure. Later, the state determined that because the substantive effect of the trial court’s ruling resulted in dismissal of the charges against each defendant, the more appropriate appellate remedy was under Rule 3 of the Tennessee Rules of Appellate Procedure. This court granted the motion to accept the appeal under Rule 3 and waived the timely filing of notice of appeal by the state. The issue presented for review is whether the trial court erred by granting the motion to suppress. Because the evidence was properly suppressed, the judgment is affirmed. Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed; Dismissed in Part GARY R. WADE, P.J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ALAN E. GLENN , JJ., joined. Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; and Tracey Brewer, Assistant District Attorney General, for the appellant, State of Tennessee. Gary F. Antrican, District Public Defender, for the appellee, Terrell Deberry. Rebecca S. Mills, Ripley, Tennessee, for the appellee, Damien Nixon. OPINION At approximately 6:36 p.m., on January 31, 2003, Halls Police Officer Kevin Brogdon stopped a red Mitsubishi which was being driven without either headlights or taillights. When Officer Brogdon approached the driver's side window, he recognized the defendant Damien Nixon. After confirming that Nixon’s license had been revoked, the officer ordered him out of the car, arrested him, and placed him in the back of his police cruiser. By that time, at least two other police officers were present at the scene. Officer Brogdon then returned to the vehicle and asked Deberry, a passenger, to step out. After seeking permission, the officer performed a pat-down for weapons. When he found none, he conducted a more extensive search, lifted Deberry’s shirt, and ultimately found a bag of drugs in his waistband. A search of the car yielded no other illegal substances. Each defendant was taken to the jail, advised of his Miranda rights, and questioned by police. Special Agent Danny Wilson of the Tennessee Bureau of Investigation assisted with the questioning of each defendant. At the suppression hearing, Officer Brogdon testified that he asked Deberry to step out of the car and opened the door for Deberry as he did so. Officer Brogdon recalled asking Deberry if he had anything such as narcotics or weapons in his possession, to which Deberry replied, “No.” According to the officer, he then asked whether Deberry had any objection to a personal search, to which Deberry answered in the negative. Officer Brogdon recalled then patting down Deberry from head to foot and finding no weapons. Officer Brogdon testified that afterward, he made a more extensive search by reaching into Deberry’s pockets, where he found an unopened cigar. Finally, Officer Brogdon intensified his search, lifted up the defendant’s shirt, and found the bag of illegal drugs. The officer acknowledged that there were no drugs in the car, no scent of drugs there and no weapons. Deberry testified that when he stepped out of the car, Officer Brogdon was standing right in front of him, blocking his path. He remembered that there were also at least two other police cars at the scene and several other officers. While Deberry could not remember the exact words the officer used before initiating the search, he explained that he consented to a pat-down only because he was frightened and believed the officer intended to search him anyway. At the conclusion of the hearing on the motion to suppress, the trial court determined that there were sufficient grounds for the officers to stop the car and place the driver, Nixon, under arrest. It ruled that the statement of the defendant Nixon was freely and voluntarily given. The trial court also held, however, that under these particular circumstances, involving a traffic offense by the driver, “there was no reasonable basis for the officer to request the passenger get out of the car and submit to a search.” Further, it concluded that “there was no legal basis to disrobe the defendant Deberry.” The state initially sought permission to appeal from the trial court under Tennessee Rule of Appellate Procedure 9, contending that the prosecution could not proceed unless the trial court’s suppression of the drugs was erroneous. The trial court granted permission to appeal on October 27, 2003. Because, however, the order was not presented to the Attorney General's Office in time (within 10 days of the order) for a Rule 9 appeal, the state chose to proceed under Rule 3. Its rationale was that the substantive effect of the trial court’s order of suppression of the drugs was a dismissal of the indictment. See State v. Phillips, 30 S.W.3d 372, 373 n.1 (Tenn. Crim. App. 2000) -2- (noting when a suppression order relates to seized drugs, the State ordinarily files a Rule 3 appeal as of right). In this appeal, the state argues that Officer Brogdon properly asked the passenger, Deberry, to step out of the car following the custodial arrest of the driver because the officer's search of the vehicle incident to arrest could not effectively proceed if Deberry remained inside. Further, the state argues that officers may order passengers out of a vehicle incident to a lawful traffic stop. In addition, the state claims that because defendant Deberry gave consent, the search was not limited to a pat-down for weapons as regulated by Terry v. Ohio, 392 U.S. 1, 27-28 (1968). Although the trial court did not reach the question of the voluntariness of Deberry’s consent to search, the state insists that he voluntarily consented to the full search. Finally, the state argues that even if the trial court properly suppressed the evidence against Deberry, Nixon does not have standing to challenge the admission of the cocaine as to his prosecution. Both the state and federal constitutions protect individuals from unreasonable searches and seizures; the general rule is that a warrantless search or seizure is presumed unreasonable and any evidence discovered subject to suppression. U.S. Const. amend. IV; Tenn. Const. art. I, § 7; Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); State v. Bridges, 963 S.W.2d 487, 490 (Tenn. 1997). Neither, however, limits all contact between citizens and law enforcement and both are designed, instead, "'to prevent arbitrary and oppressive interference with the privacy and personal security of individuals.'" INS v. Delgado, 466 U.S. 210, 215 (1984) (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 554 (1976)). Our courts have recognized three types of police-citizen interactions: (1) a full-scale arrest, which must be supported by probable cause; (2) a brief investigatory stop, which must be supported by reasonable suspicion; and (3) a brief police-citizen encounter, which requires no objective justification. See Florida v. Bostick, 501 U.S. 429, 434 (1991); Brown v. Illinois, 422 U.S. 590 (1975); Terry, 392 U.S. at 1. "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Terry, 392 U.S. at 19 n.16. An automobile stop constitutes a "seizure" within the meaning of both the Fourth Amendment to the United States Constitution and Article I, section 7 of the Tennessee Constitution. Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 450 (1990); Delaware v. Prouse, 440 U.S. 648, 653 (1979); State v. Binion, 900 S.W.2d 702, 705 (Tenn. Crim. App. 1994); State v. Westbrooks, 594 S.W.2d 741, 743 (Tenn. Crim. App. 1979). The fact that the detention may be brief and limited in scope does not alter that fact. Prouse, 440 U.S. at 653; State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993); Binion, 900 S.W.2d at 705; Westbrooks, 594 S.W.2d at 743. The basic question, as indicated, is whether the seizure was "reasonable." Binion, 900 S.W.2d at 705 (citing Sitz, 496 U.S. at 444). In Pulley, our supreme court ruled that "the reasonableness of seizures less intrusive than a full-scale arrest is judged by weighing the gravity of the public concern, the degree to which the seizure advances that concern, and the severity of the intrusion into individual privacy." 863 S.W.2d at 30. -3-  Our determination of the reasonableness of a stop of a vehicle depends on whether the officer had either probable cause or an "articulable and reasonable suspicion" that the vehicle or its occupants were subject to seizure for violation of the law. See Prouse, 440 U.S. at 663; State v. Coleman, 791 S.W.2d 504, 505 (Tenn. Crim. App. 1989). Probable cause has been generally defined as a reasonable ground for suspicion, supported by circumstances indicative of an illegal act. See Lea v. State, 181 Tenn. 378, 380-81, 181 S.W.2d 351, 352 (1944). While probable cause is not necessary for an investigative stop, it is a requirement that the officer's reasonable suspicion be supported by "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21; Pulley, 863 S.W.2d at 30; Coleman, 791 S.W.2d at 505; see also State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992) (applying Terry doctrine in context of vehicular stop). In determining whether reasonable suspicion exists, an important factor in the analysis is that reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Pulley, 863 S.W.2d at 32 (citing Alabama v. White, 496 U.S. 325, 330 (1990)). Courts considering the issue of reasonable suspicion must look to the totality of the circumstances. Those circumstances include the personal observations of the police officer, information obtained from other officers or agencies, information obtained from citizens, and the pattern of operation of certain offenders. Watkins, 827 S.W.2d at 294 (citing United States v. Cortez, 449 U.S. 411, 417-18 (1981)). Objective standards apply rather than the subjective beliefs of the officer making the stop. State v. Norword, 938 S.W.2d 23, 25 (Tenn. Crim. App. 1996). The scope of review is limited when the trial court makes a finding of facts at the conclusion of a suppression hearing, the facts are accorded the weight of a jury verdict. State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). The trial court's findings are binding upon this court unless the evidence in the record preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); see also Stephenson, 878 S.W.2d at 544; State v. Goforth, 678 S.W.2d 477, 479 (Tenn. Crim. App. 1984). Questions of credibility of witnesses, the weight and value of the evidence, and resolution of conflicts in evidence are matters entrusted to the trial judge as the trier of fact. The party prevailing in the trial court is entitled to the strongest legitimate view of the evidence adduced at the suppression hearing as well as all reasonable and legitimate inferences that may be drawn from the evidence. Odom, 928 S.W.2d at 23. The application of the law to the facts, however, requires de novo review. State v. Daniel, 12 S.W.3d 420, 423-24 (Tenn. 2000). Likewise, if the evidence does not involve a credibility assessment, the reviewing court must examine the record de novo without a presumption of correctness. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). In United States v. Drayton, 536 U.S. 194, 201-02 (2002), the Supreme Court determined that there is no Fourth Amendment violation when an officer simply approaches a person in a public place and poses a question. Even when there is no basis to suspect a crime, officers may ask questions, ask for identification, and ask for consent to conduct a search, so long as the means used -4- to induce the cooperation are not coercive. Id.; see Daniel, 12 S.W.3d at 425. A reviewing court must examine "all the circumstances surrounding the encounter" in determining whether the law enforcement conduct would have indicated a lack of freedom "to decline the officers' requests or otherwise terminate the encounter." Bostick, 501 U.S. at 439. As indicated, the subjective intent of the officer is not controlling. State v. Johnson, 980 S.W.2d 414 (Tenn. Crim. App. 1998). Here, the trial court found that Officer Brogdon had a reasonable basis to stop Nixon’s vehicle. Because the vehicle was being operated at night with its lights off, the officer had reasonable suspicion to believe a misdemeanor was being committed. The trial court also concluded that the officer had a basis to arrest Nixon. It determined that Officer Brogdon then approached the passenger side door, asked Deberry to step outside, and Deberry complied. Implicit in the finding of the trial court is that it was the legitimate objective of the officer to assure his own safety as to the passenger, who was not a suspect as to the traffic violation. The testimony was in dispute as to what the officer actually said to Deberry and the trial court made no finding as to whether Deberry consented to the officer’s request to remove himself from the vehicle. However, nothing in the record indicates that Deberry objected to exiting the vehicle. While determining that the officer had no basis to ask Deberry to step out of the vehicle, the trial court did accredit the testimony of Deberry to the extent that his consent to any search was limited to a pat-down, which was appropriate for a weapons check. It also ruled that when the officer completed the pat-down without discovering any weapons, he had no authority to make a more intrusive search, i.e., to “disrobe” Deberry by taking off his clothes or by removing his shirt, and that the officer would not otherwise have found the cocaine. It was on this basis that the trial court ordered suppression. It is well settled that a search conducted pursuant to a voluntary consent is an exception to the requirement that all searches and seizures be conducted pursuant to a warrant. State v. Bartram, 925 S.W.2d 227, 230 (Tenn. 1996) (citing Schneckloth v. Bustamonte, 412 U.S. 218 (1973)). "To pass constitutional muster, consent to search must be unequivocal, specific, intelligently given, and uncontaminated by duress or coercion." State v. Brown, 836 S.W.2d 530, 547 (Tenn. 1992). The following factors are used to evaluate the voluntariness of the consent: (1) whether the defendant is in custody; (2) the length of detention prior to the giving of consent; (3) the presence of coercive police procedures; (4) the defendant's awareness of the right to refuse to consent; (5) the defendant's age, education and intelligence; (6) whether the defendant understands his constitutional rights; (7) the extent of the defendant's prior experience with law enforcement; and -5-  (8) whether the defendant was injured, intoxicated, or in ill health. See, e.g., State v. Carter, 16 S.W.3d 762, 769 (Tenn. 2000). The state must show "more than acquiescence to a claim of lawful authority." Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968). The trial court's finding that a search is or is not consensual, however, will not be overturned unless the evidence preponderates against the ruling. Brady v. State, 584 S.W.2d 245, 251-52 (Tenn. Crim. App. 1979). In its order of suppression, the trial court made no mention of the presence of at least three other officers who had arrived at the scene by the time Deberry was searched or the fact that the driver, Nixon, had already been placed in the back of a police cruiser. Even though Deberry claimed that he could not move when he stepped out of the vehicle because his path was blocked, the trial court made no reference to any possible coercion on the part of Officer Brogdon. The trial court did find that Officer Brogdon’s intent was to check for weapons when he asked Deberry to get out of the car. The officer had testified that a pat-down of Deberry was necessary to ensure his own safety. Although the officer contended that his intent was to ask permission for a full search, there was nothing, as the trial court found, to indicate he had any reason to believe Deberry possessed any contraband. The officer had not found drugs or weapons on the driver, there was no indication of weapons or drugs in the car, and Deberry had been cooperative.1 Further, Deberry testified that he consented only to a weapons check because the officer had first asked him if he had anything in his possession that would “poke” him during the pat-down. The trial court fully accredited that portion of Deberry's testimony. Our supreme court has made the following observations: In determining the scope of consent, the relevant considerations include any express or implied limitations regarding the time, duration, area, or intensity of police activity necessary to accomplish the stated purpose of the search, as well as the expressed object of the search. The scope of consent is not based on the subjective intentions of the consenting party or the subjective interpretations of the searching officer. Instead the standard is "that of 'objective' reasonableness – what would the typical reasonable person have understood by the exchange between the officer and the suspect." 1 The facts of this case are distinguishable from Maryland v. Pringle, 540 U.S. 366 (2003). In that case, an officer stopped a car for speeding and subsequently obtained consent from the driver to search the vehicle. During the consensual search, the officer found $763 in the glove box and cocaine in the backseat armrest. Because none of the three occupants of the car, including Pringle, who was a front seat passenger, claimed the cocaine, the officer arrested each of them. At the police station, one of the passengers claimed the cocaine. The Court held that a reasonable officer could have concluded that there was probable cause to believe that Pringle was in possession of the drugs and therefore did not violate the Fourth Amendment by arresting him. Id. In the instant case, the evidence does not indicate that the officer had probable cause to believe that any crime had been committed by the defendant Deberry. -6- State v. Troxell, 78 S.W.3d 866, 871-72 (Tenn. 2002) (quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991)) (citations and footnote omitted). As indicated, Deberry contended that he consented only to a pat-down for weapons. The officer believed Deberry had agreed to a full search. The trial court accredited the testimony of Deberry to the extent that he did not expect to be “disrobed” when the pat-down did not reveal any weapons. Although the order of suppression could have been more explicit so as to indicate what a “reasonable person would have understood by the exchange,” the holding that the officer exceeded the scope of consent is supported by evidence in the record. While it appears that the officer had a reasonable basis to ask Deberry to step out of the car, deference should be afforded to the trial court, who saw and heard the witnesses first-hand, unless the evidence preponderates against the findings. In this instance, the evidence presented by the state is not so persuasive as to overcome the factual conclusions of the trial judge. In a related issue, the state argues that even if the drugs are suppressed as to Deberry, the driver, Nixon does not have standing to challenge the suppression because he did not have a reasonable expectation of privacy as to what was in Deberry’s personal possession. A failure on the part of the state to raise the issue of standing at trial serves as a waiver of the issue on appeal. State v. White, 635 S.W.2d 396 (Tenn. Crim. App. 1982). In White, our court held as follows: [T]he State has a duty to notify the defendant that it opposes his motion on standing grounds, a result which reflects the traditional policies of notice and fair play. If the State fails to raise the standing issue, but instead opposes the motion on the merits, the defendant is entitled to infer that the State concedes his standing and need not offer any evidence relevant to his expectation of privacy. Id. at 399-400 (citations omitted). In this case, standing was not raised in the trial court and the defendant did not respond to the issue on appeal. The only mention of standing prior to this appeal came in the affidavit attached to the motion to waive timely filing of notice of appeal. In the affidavit, the state argued that the suppression order was overbroad because Nixon did not have standing to challenge the drugs seized from Deberry. Because, however, the state failed to raise the issue of standing in the trial court, it is our view that the issue is waived on appeal. Accordingly, the order of suppression is affirmed to the extent that the contraband found in the possession of the defendant Deberry may not be admitted as evidence. The state waived the issue of the defendant Nixon’s standing by failing to present the issue in the trial court. The judgment is affirmed and the charges against each defendant for possession of cocaine are dismissed. ___________________________________ GARY R. WADE, PRESIDING JUDGE -7- 

25 B.R. 410 (1982) In re Alan CAMERON, Debtor. Alan CAMERON, Plaintiff, v. GEORGIA CENTRAL BANK, Defendant. Bankruptcy No. 82-02012A, Adv. No. 82-1171A. United States Bankruptcy Court, N.D. Georgia. December 2, 1982. Paul C. Parker, Decatur, Ga., for plaintiff. *411 James V. Burgess, Jr., Social Circle, Ga., for defendant. ORDER W. HOMER DRAKE, Bankruptcy Judge. After notice, on July 8, 1982, a trial was held on the debtor's May 11, 1982 complaint to avoid lien. The questions presented at this trial were: (1) whether the security interest at issue was a purchase-money security interest and (2) whether the provisions of 11 U.S.C. § 522(f) which allow a debtor to avoid a nonpossessory, nonpurchase-money security interest in certain consumer goods to the extent that said lien impairs an exemption to which the debtor would have been entitled are applicable to a Chapter 13 proceeding. After hearing evidence and argument of counsel, the Court makes the following findings of fact and conclusions of law: On November 18, 1980, Georgia Central Bank ("the Bank") loaned the debtor $2,500.00, of which $1,043.00 was advanced for the specific purpose of enabling the debtor to purchase certain items of household furniture from GKM Warehouse, Inc. of Social Circle, Georgia. A security agreement was executed and a financing statement filed resulting in the Bank's perfecting its security interest. For the reason stated below, the Court finds that the Bank's loan to the debtor is not a purchase-money loan; and, consequently, the Bank does not have a purchase-money security interest. While it is true that a portion of the loan enabled the debtor to purchase certain household goods, a portion of the loan was also a consolidation of a preexisting debt. As one Court has stated, "When a lender consolidates a purchase-money loan with a nonpurchase-money loan, it effectively gives up its purchase-money status unless there is some method provided for determining the extent to which each item of collateral secures its purchase money. Lenders have known that for some time." In re Coomer, 8 B.R. 351, 355 (Bkrtcy.E.D.Tenn.1980); see also In the Matter of Luczak, 16 B.R. 743 (Bkrtcy.W.D.Wisc.1982). In the instant case, there has been no method shown which would enable the Court to determine the extent to which the new furniture secured only purchase money. Therefore, the security interest is nonpurchase money. In In re Mitchell, Bkrtcy., 25 B.R. 406, Adversary Proceeding No. 82-0274A, this Court addressed the question of whether the provisions of § 522(f) of the Bankruptcy Code were applicable in a Chapter 13 proceeding. In Mitchell, the Court found that § 522(f) is applicable to Chapter 13 proceedings. Therefore, the relief which the plaintiff seeks is granted and the Bank's security interest in "two rooms of furniture consisting of one bed, one nightstand, one dresser, one hutch, two-piece living room suite, (and) one 1978 Zenith TV" is hereby declared to be avoided as contemplated by 11 U.S.C. § 522(f). IT IS SO ORDERED.

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________ No. 95-60233 __________________ AL COPELAND, Plaintiff - Appellant, versus GOLD COAST CASINO, The Vessel, Her Machinery, Equipment, Appurtenances, Tackles, Necessaries, Etc., IN REM, Defendant, and AMERICAN GAMING CORPORATION, IN PERSONAM; MCCARLIE ENTERPRISES, INCORPORATED; GENE MCCARLIE; THOMAS WALMAN, Defendants - Appellees. ______________________________________________ Appeal from the United States District Court for the Southern District of Mississippi (1:93-CV-516-BrR) ______________________________________________ May 9, 1996 Before GARWOOD, HIGGINBOTHAM and BENAVIDES, Circuit Judges. PER CURIAM:* Appellant Al Copeland appeals from an adverse judgment based upon Rule 50(a). Having considered the briefs, oral argument of counsel, and pertinent parts of the record, we find no error by the * Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. district court that would require reversal. Copeland's breach of contract claim was properly kept from the jury because the letter of intent was too vague, uncertain, and lacking in essential terms to be enforceable under Mississippi law. See Massengill v. Guardian Management Co., 19 F.3d 196 (5th Cir. 1994); Knight v. Sharif, 875 F.2d 516 (5th Cir. 1989). Copeland's good faith and fair dealing claim fails due to the absence of a contractual or fiduciary duty. See Knight, 875 F.2d at 525; Carter Equip. Co. v. John Deere Indus. Equip. Co., 681 F.2d 386, 390-91 (5th Cir. 1982). Similarly, Copeland's various fraud, misrepresentation, and estoppel claims fail for lack of reasonable reliance, and lack of evidence of a misrepresented present fact, see Solomon v. Walgreen Co., 975 F.2d 1086, 1091 (5th Cir. 1992); Spragins v. Sunburst Bank, 605 So.2d 777, 780 (Miss. 1992); Singing River Mall v. Mark Fields, Inc., 599 So.2d 938, 945 (Miss. 1992), and because the evidence on the essential element of damages was too speculative to allow a recovery for any of Copeland's alleged claims. Finally, the district court did not abuse its discretion in excluding the damages evidence that Copeland claims was wrongfully excluded at trial. AFFIRMED. 2 

117 N.H. 352 (1977) THE STATE OF NEW HAMPSHIRE v. ALEXANDER D. BERRY. No. 7639. Supreme Court of New Hampshire April 29, 1977 *353 David H. Souter, attorney general, and Peter W. Heed (Mr. Heed orally), for the state. Griffin, Harrington, Brigham & Ritzo and Charles J. Griffin, of Portsmouth (Mr. Griffin orally), for the defendant. GRIMES, J. In this appeal from his conviction for felonious sexual assault under RSA 632-A:3 (Supp. 1975) (statutory rape) defendant raises several issues including the failure of the trial judge to charge that delay in making a complaint by the victim was a factor to consider on her credibility, the sufficiency of the evidence and that RSA 632-A:3 (Supp. 1975) should be construed so as not to relate to sexually mature females under the age of sixteen years. Defendant was found guilty by a jury on March 17, 1976, *354 of felonious sexual assault on a fourteen-year-old girl. His exceptions were transferred by Cann, J. The girl, Roberta Skinner, who is the complaining witness and who had just turned fourteen, ran away from a group home in Portsmouth on October 24, 1975. The next day she was introduced to the defendant by a friend, Susan, who was also a fourteen-year-old runaway. The meeting took place in the two-room apartment of one Nichols with whom defendant was staying. It was agreed that the girls could stay at the apartment. Roberta testified that she told defendant her age and "name and everything." In the apartment there was a mattress on the floor in the livingroom and a bed in the kitchen. Roberta testified that on the night of October 25, she had been drinking and passed out and remembered nothing until the next morning. On the 26th, which was Sunday, defendant left early to visit his girl friend but according to Roberta returned about seven o'clock that evening. She testified that defendant kept giving her beers and that she passed out. She next remembered waking up and finding defendant having intercourse with her. She also stated that Susan entered the room and saw defendant on top of her and that she then told defendant to get off and that she then either passed out or went to sleep. The next afternoon the girls were apprehended at the apartment by two juvenile police officers. Roberta testified that she did not complain to the police for about a month, explaining on cross-examination that she was afraid at first but after being sent to the Youth Development Center and fearing she was pregnant she decided to complain. She also admitted that she blamed defendant and her mother for her trouble with the law. Susan testified that she saw defendant on top of Roberta under a blanket. Both girls were unsure of exact times or dates. Defendant did not testify, but Nichols and one Moore testified that defendant did not return from visiting his girl friend in Maine until 11:30 to 12:00 on Sunday and that he stayed in the living room while Roberta stayed in the kitchen. [1] One of the juvenile officers testified that when he arrived at the Nichols apartment to apprehend the girls they both resisted and he noted that they had been drinking beer before his arrival and that there were numerous cases of beer in the room and there was the odor of beer on the breath of the girls. The admission of this testimony was not error as defendant contends. Both girls testified *355 to much drinking while they were at the apartment and this could account for their inability to fix exact times and dates, which was attacked on cross-examination. What the officer observed on Monday tended to corroborate their testimony regarding the drinking on the previous days. [2] Defendant excepted to the court's failure to give his requested instruction that the "delay in making a complaint by the alleged victim . . . is a factor to be considered in weighing her testimony and credibility." We find no merit in this exception. It is true that delay in making a complaint in a forceable rape case may be considered on the question of the credibility of the complaining witness and of her state of mind on the issue of consent. However, in the case of a child under the age of sixteen consent is not material. State v. Lynch, 94 N.H. 52, 45 A.2d 885 (1946). Whatever relevance delay may have with respect to credibility, it is purely a question of fact under the circumstances of the particular case. [3] It does not appear that defendant's counsel was prevented from arguing the inference he espoused and the trial court did not negate the inference. The jury was therefore free to consider it. It was within the trial court's discretion whether to give the requested instruction and we find no abuse of that discretion. Donato v. Boutin, 114 N.H. 65, 314 A.2d 677 (1974); see Cleveland v. Reasby, 92 N.H. 518, 33 A.2d 554 (1943). [4, 5] There is no error in the denial by the trial court of defendant's motion to set aside the verdict. In passing on this question the evidence must be considered in the light most favorable to the state, which is entitled to all reasonable inferences from it. State v. Gilbert, 115 N.H. 665, 348 A.2d 713 (1975). Although there were conflicts in the testimony and some inconsistencies, these were for the jury to resolve. State v. Bergeron, 115 N.H. 70, 333 A.2d 721 (1975); State v. Reed, 106 N.H. 140, 207 A.2d 443 (1965). Defendant's final argument is that we should construe RSA 632-A:3 (Supp. 1975) so that it does not apply to sexually mature females under sixteen but only to emotionally and sexually immature females under that age. He argues that we should reach that conclusion because of RSA 625:3 (Supp. 1975) which provides that the rule that penal statutes are to be strictly construed does not apply to the code of which RSA 632-A:3 (Supp. 1975) is a *356 part but that all provisions "shall be construed according to the fair import of their terms and to promote justice." We reject defendant's argument. [6] There is nothing in the language of RSA 632-A:3 (Supp. 1975) or its history which gives the slightest indication that the legislature intended to have it apply only to females who were emotionally and sexually immature. Our statutory rape statutes have always applied to those under the age of consent regardless of their maturity and the fact that a female's apparent maturity may mislead a man into believing she is older than sixteen has been no defense. State v. Davis, 108 N.H. 158, 229 A.2d 842 (1967); see State v. Meloon, 116 N.H. 669, 366 A.2d 1176 (1976). If the legislature had intended to make such a drastic departure from our prior law as defendant suggests, we are sure it would have expressly said so. Exceptions overruled. DOUGLAS, J., did not sit; the others concurred.

Illinois Official Reports Appellate Court In re Marriage of Moorthy, 2015 IL App (1st) 132077 Appellate Court In re MARRIAGE OF DEEPALAKSHMI MOORTHY, Petitioner- Caption Appellant, and CHANNA MALLIK ARJUNA, Respondent- Appellee. District & No. First District, Fifth Division Docket No. 1-13-2077 Filed March 13, 2015 Decision Under Appeal from the Circuit Court of Cook County, No. 02-D-13868; the Review Hon. Naomi H. Schuster, Judge, presiding. Judgment Affirmed. Counsel on August Staas, of Chicago, for appellant. Appeal Law Office of Annette M. Fernholz, P.C. (Annette M. Fernholz and Nicole McKinnon, of counsel), and Badesch Abramovitch, both of Chicago, for appellee.  Panel PRESIDING JUSTICE PALMER delivered the judgment of the court, with opinion. Justices Gordon and Reyes concurred in the judgment and opinion. OPINION ¶1 In June 2003, the trial court entered a judgment dissolving the marriage of petitioner, Deepalakshmi Moorthy, and respondent, Channa Mallik Arjuna. In May 2011, Moorthy filed a petition to modify the amount of child support Arjuna paid for their daughter. Following an evidentiary hearing, the trial court entered an order on May 29, 2013, in which it increased the amount of child support based on Arjuna’s current yearly salary, but the trial court held that Arjuna’s proportionate share of the retained earnings from his majority-owned subchapter S corporation should not be imputed to him for purposes of calculating his child support obligation. Moorthy appeals that order, contending that the proportionate share of the retained corporate earnings should be included in Arjuna’s net income in calculating Arjuna’s child support obligation. We affirm. ¶2 I. BACKGROUND1 ¶3 The parties married in December 2000 and, as noted, had one child, Seema Lakshmi Arjuna, born in March 2002. Moorthy filed a petition for dissolution of marriage on August 27, 2002. The parties do not dispute that the trial court entered a default judgment for dissolution of marriage on June 5, 2003. It awarded sole custody of the minor to Moorthy and ordered Arjuna to pay $480 in monthly child support based on 20% of his average net monthly income of $2,401 as an employee of Mahantech Corp. (Mahantech), a company located in West Virginia. The parties were ordered to share equally any medical expenses not covered by Moorthy’s insurance. At the time, Arjuna lived in West Virginia and he continues to reside there, although he subsequently remarried and has one child with his current wife, and a stepchild. Moorthy and Seema have lived in metropolitan Chicago since the filing of the petition for dissolution. ¶4 On May 26, 2011, Moorthy filed a petition to increase child support pursuant to section 510 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/510 (West 2010)) asserting that a substantial change in circumstances occurred. In the petition, Moorthy argued that, as eight years had passed since the judgment of dissolution was entered, the minor child, who was now nine years old, had increased needs, and Arjuna’s income had also Initially, we note that Arjuna requests that we strike Moorthy’s statement of facts in her opening 1 brief as being argumentative and inaccurate. Illinois Supreme Court Rule 341(h)(6) requires that an appellant’s statement of facts provide an accurate and fair recitation of the pertinent facts without argument or comment. Ill. S. Ct. R. 341(h)(6) (eff. Feb. 6, 2013). This court may strike a statement of facts where it fails to comply with this rule. Szczesniak v. CJC Auto Parts, Inc., 2014 IL App (2d) 130636, ¶ 8. Having reviewed Moorthy’s statement of facts and the record and report of proceedings in this case, we do not find that it contains any such egregious inaccuracies as to hinder our review or warrant the harsh sanction of striking it. Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151, ¶ 15. -2-  increased. Moorthy requested that the court order Arjuna to pay increased child support, to pay half of the medical insurance for the minor, and to pay a reasonable portion of Moorthy’s daycare expenses. Arjuna filed a response on July 8, 2011, and the parties engaged in discovery. An evidentiary hearing was conducted on April 5, 2012, and May 22, 2012, at which Moorthy and Arjuna testified. ¶5 A. Arjuna’s Testimony ¶6 Arjuna was called to testify by Moorthy as an adverse witness. Arjuna testified that he lives in Charleston, West Virginia, with his current wife, their son, and a stepdaughter. In 2003, when the dissolution judgment was entered, Arjuna earned a salary of approximately $45,000 as an employee of Mahantech, which is a software consulting and networking services business. Arjuna testified that Mahantech was incorporated in Delaware in 1997 or 1998, and a distant relative, Gorli Hjrash, purchased the company from the original owners. Arjuna explained that the company was losing money and was going to be shut down, but Arjuna decided to buy it so that he could take over and run the corporation. He obtained 38% ownership in 2006. He did not pay anything for the ownership share because the company “was completely negative” and about to be shut down, and because he had been with Mahantech since 1999. In 2007, he acquired 91% of Mahantech, with the remaining 9% owned by Hjrash. Arjuna paid $500 for the 91%. He also testified that loans were taken out for the business, but he did not know whether he personally guaranteed them. He testified that he believed it was less than $200,000, but this had since been paid off. ¶7 Arjuna explained that because Mahantech is a subchapter S corporation, it does not pay federal corporate taxes on its income. Instead, he receives a schedule K-1 form from the company as one of the owners. His federal tax return for 2007 showed K-1 income of $108,433, but he testified that this amount was the K-1 income from Mahantech. He explained that this amount was not money that he actually took home. He testified that the money “stays in the company” and that “[t]he company paid the tax” under his name. Arjuna testified that an accountant handles Mahantech’s taxes. He indicated that his accountant calculates the taxes owed from Mahantech’s income and the taxes are paid by Mahantech but under Arjuna’s name since the subchapter S corporation does not pay taxes. He testified that his accountant logs on to Mahantech’s online account with the Internal Revenue Service (IRS) and inputs the amount of money owed, and the money is paid out of Mahantech’s bank account. Arjuna conceded that the taxes owed for Mahantech’s income were his liability and not the corporation’s liability. He testified that the “S corporation cannot pay the taxes. It has to be paid by the owner of the corporation.” Arjuna testified that he includes the corporation’s K-1 income on his personal tax return and the amount shown as total taxes owed on his tax return included the tax on Mahantech’s income. He testified that on his W-2 form, he received $50,000 in gross income and he paid taxes on that as well. His individual tax return also showed that his wife had income of $31,759 as a database administrator and income of $35,000 as a contractor for other companies. She was previously employed by Mahantech, but she left when Arjuna bought the company because he did not want family to be involved. However, she occasionally did some contract work for the company. ¶8 Similarly, for 2008, Arjuna testified that his tax return showed that he earned a salary of $50,000 with K-1 income of $91,071. Arjuna testified that the 2008 corporate tax return for Mahantech showed business income of $102,000. -3- ¶9 In 2009, Arjuna’s tax return showed that he again received a salary of $50,000. He testified that the 2009 corporate tax return for Mahantech showed ordinary business income of $129,634. Thus, $117,967 was attributed to Arjuna for his 91% share. Arjuna testified that on his 2009 schedule K-1, it showed a nontaxable distribution of $211,077. Arjuna testified that under state tax law in West Virginia, a company pays a 2% tax on any money in its bank account as of the last business day of the year. Therefore, his accountant advised Arjuna to take the money out of Mahantech’s account on the last business day of the year and then put the money back into the account on the first business day of the next year in order to avoid paying this tax. Arjuna explained that he obtained a cashier’s check for the amount, he did not deposit it in his own account or anywhere else, and he redeposited the same cashier’s check into the corporation’s account on the first business day of the next year. Arjuna therefore held the cashier’s check in his possession for approximately 48 hours. ¶ 10 With respect to 2010, Arjuna testified that his K-1 income from Mahantech was $117,281. The 2010 tax return for Mahantech showed ordinary business income of $129,119. As in 2009, the 2010 return also showed a distribution of $116,000, and Arjuna testified that he repeated the same action–taking out the amount in the Mahantech account at the end of the year in a cashier’s check and then redepositing the same check back into the corporate account in the new year. ¶ 11 Arjuna testified that his W-2 form from 2011 showed that he received a salary of $50,000. He testified that he was unsure whether he would receive the same salary in 2012 because business was down, and he would pay his employees before himself. A paystub from March 31, 2012, showed he earned a monthly income of $4,166.67. He testified that in 2011, Mahantech showed ordinary business income of only $25,429, which was significantly less than in prior years. The schedule K-1 form for 2011 showed income attributed to him in the amount of $21,105. Arjuna also testified that he went through the same procedure as in prior years in obtaining a cashier’s check for the amount in Mahantech’s bank account on the last business day of the year and redepositing the amount back into the account in the new year. He testified that he believed that Mahantech’s bank account had a balance of approximately $220,000 on the last day of 2011. ¶ 12 Arjuna agreed that in the years 2007, 2008, 2009, and 2010, the corporation’s earnings were greater than its expenses. Arjuna testified that he has never taken any money out of Mahantech other than for his salary and to pay taxes, except that in 2010, he took approximately $7,000 out to buy a plane ticket to visit his family in India because of a family emergency and he did not otherwise have the money to purchase the flight. He testified that the corporation currently had no debt, but the company was in the negative when he became owner and he was trying to make sure that all the corporation’s obligations were met. ¶ 13 He testified that his salary was decided by the owners when he bought the company. When asked if he could increase his salary to $60,000, he testified that he could not because Mahantech “needs the working capital. If I had to take the money from the payroll, I cannot. *** It is a small company. Every penny counts in the company.” He testified that with the $50,000 salary he receives, he was “living a very simple, I could say loyal [sic] middle class level of living because I am devoting myself towards this to give a better life for my kids.” He testified that he does “have a lot of issues. I want this or that, but I have to sacrifice to make something good for the family and the future.” -4- ¶ 14 Arjuna testified that Mahantech needed sufficient funds to support payroll and to pay employee taxes, unemployment taxes, health benefits, business liability insurance, worker’s compensation insurance, business auto insurance, business theft insurance, and accounting and tax expenses. The various insurance policies that Mahantech required, such as worker’s compensation insurance and business auto insurance, cost approximately $15,000 every year. ¶ 15 Arjuna testified that he had five salaried employees who work as programmers on-site with clients to help with computer network problems. He testified that Mahantech had approximately $50,000 to $60,000 in employee salary requirements per month. He provided the following examples of current employee contracts to which Mahantech was bound: (1) a contract for 2012 at a rate of $12,800 per month; (2) a contract with a 40-hour-per-week requirement and a salary of $70,000; (3) a contract for $5,000 per month; (4) a contract to pay an employee $12,809.55 per month; (5) a contract for $4,000 per month; (6) a contract for $61 per hour, plus benefits; (7) a contract to pay an hourly rate of $75 per hour; and (8) a contract to pay $5,000 per month, plus benefits. Arjuna testified that Mahantech had to pay the salaries for employees under these contracts regardless of whether it had a project for them to work on. Arjuna did not have a contract for himself as an employee; he was the only “at-will” employee. ¶ 16 With regard to Mahantech’s expenses and deductions as reflected on the corporation’s tax returns, Arjuna testified that, in 2008, the gross sales for Mahantech totaled $1,512,738. The company paid salaries and wages in the amount of $551,621. There was a deduction for $517,829, which represented professional fees, accounting fees, legal fees, work visa expenses, and consulting expenses. Mahantech’s employees were “H1B” employees who were in the United States on work visas, and obtaining and maintaining these visas comprised a significant expense to Mahantech. The legal expenses were incurred for managing the work visas and for applying to a federal minority certification program. Mahantech also had to pay filing fees for the work visas, which were $1,000 to $3,000 each time something had to be filed, such as when an employee changed client locations. Mahantech also filed applications to sponsor all of its employees, except one, to obtain a three-year extension on their work visas, which last for six years, and to obtain green card applications, which were approved. He testified that if Mahantech is not able to find a project within a reasonable time period, it was the company’s responsibility to send the employee and his family back to his home country and pay travel and relocation expenses. He denied that he could lay off his work visa employees if there was no work for them. He testified, “I cannot lay them off. One thing, if I lay them off, I have to–the company has to pay the money for that employee and that employee’s spouse and everybody to send back to their home country.” Also, even if Mahantech was one day late in paying payroll, the employees could report Arjuna to the immigration service as he would be violating federal regulations. ¶ 17 In addition, Arjuna testified that Mahantech paid a large amount of money for consulting or contract work to another company for that company’s employees to work on Mahantech’s projects with Mahantech’s clients. Arjuna testified that he currently was not using any contract or consultant labor. He testified that his clients prefer his permanent employees instead of contract workers because they were more likely to stay for the duration of a project. ¶ 18 He testified that Mahantech currently had five contracts with other companies. He testified that the clients typically pay Mahantech monthly; he sends an invoice at the end of the month, and once billing rates are agreed on, the client takes 15 to 30 days to pay. He testified that “[m]ost of the time I get paid on time,” but sometimes a client delays payment, and in that case, -5-  Mahantech still had to cover its payroll and other expenses while waiting to receive the client’s payment. Arjuna testified that two contracts with customers would end in 2012 and that “this last year was getting worse” and Mahantech “may end up negative” or with only a few thousand dollars. ¶ 19 Arjuna explained that Mahantech’s gross receipts decreased in 2011 because a few contracts with one local company, Technology Solutions, ended in 2010. He testified that Technology Solutions comprised 60% or more of Mahantech’s business in 2010, but less than 5% of its business in 2011, and none of its business in 2012. Technology Solutions, in turn, did business with a worker’s compensation insurer, but the insurer’s business decreased drastically after a state-run provider entered the market. ¶ 20 Arjuna also testified that, in the interim between the hearing dates in this case, another one of the five remaining contracts for Mahantech expired and was not renewed. Arjuna did not yet have a new project for the employee who had worked on the project that ended, but Mahantech had to continue paying him, and this money came from its retained earnings. ¶ 21 Arjuna testified that in an effort to increase business, Mahantech became involved in a federal program for economically and socially disadvantaged minority business owners called section “8(a) certification,” which designated federal money for awarding contracts to minority-owned companies. It took him two years to obtain the certification. To qualify, the company was required to be in business for more than three years and be profitable, and the majority owner of the company was required to have a net worth of less than $250,000. Arjuna testified that to remain in the program, he had to improve the business and infrastructure and possibly hire someone to handle writing requests for proposals for the federal projects. The Small Business Administration monitors the company; Arjuna must submit information quarterly and provide a yearly business plan. The program also restricted Arjuna from taking out more than $200,000 or $250,000 as a bonus or salary from the company. Arjuna incurred expenses attending conferences as part of the federal program. Mahantech had not yet been awarded any federal contracts. ¶ 22 When asked if, as the 91% owner, he was the one who makes decisions for Mahantech, Arjuna testified that “according to the company bylaws, I still need to have my other partner to come to a final decision.” He testified that under the bylaws, he “cannot make 100 percent decision. *** I need to consider the other partner.” He testified that he “still need[s] to contact him [Hjrash], and I need to talk and explain what I’m doing.” When asked whether he could outvote Hjrash if they had a disagreement, Arjuna answered, “Yes.” However, upon subsequent questioning by Moorthy’s counsel, Arjuna denied that he was restricted in his ability to make distributions to himself because of the minority shareholder. He testified, “Not the minority shareholders. Obligations and–obligations of the business activity. Business needs the money to support the employees.” ¶ 23 Regarding his financial disclosure statement that he submitted in this case, Arjuna testified that he had $169.47 left each month after paying all of his bills. Regarding Moorthy’s request that Arjuna contribute to Seema’s health insurance, he testified that if it was possible to add her to his wife’s policy through her state employment, he did not have a problem including her on the policy. -6- ¶ 24 B. Moorthy’s Testimony ¶ 25 Moorthy testified that she was a software architect and had her own consulting company called Kanvig Tech Solutions. She was the only employee. Moorthy testified that, as a single mother, she needs a flexible work schedule and she tries to work 40 hours per week, but sometimes she works less, and she could go two months without having a job or contract lined up. Because she is raising Seema, she restricts herself to working only in the Chicago area. ¶ 26 Moorthy testified that Seema was 10 years old at the time and in fourth grade. Seema attends a public school in Chicago and the school day ends at 1:45 p.m. Moorthy does not have family living close enough to her to assist with child care on a daily basis. As a result, Moorthy has to find daycare for her between that time and 6 p.m. During the school year, she sends Seema to daycare at the school, which costs approximately $450 to $500 per month. How much she pays varies depending on how many school days or days off there are in a given month. For example, Moorthy testified that she paid $387 for May 2012. Moorthy testified that when she is not working, Seema still attends daycare because Moorthy pays for the school daycare ahead of time, a job interview for Moorthy may arise, and Moorthy does not want to change Seema’s schedule. ¶ 27 When there is no school and during the summer, Seema goes to a different daycare or Moorthy obtains a nanny. Every other summer, Seema stays with Moorthy’s parents in India. Moorthy testified that she paid the nanny she hired in the summer of 2011 a rate of $7 per hour, and she took care of Seema 10 hours per day during the summer, which totaled $350 per week, for approximately two months. Moorthy testified that the nanny usually charges $14 or $17 per hour, but charged Moorthy less because she “knows my situation.” Moorthy testified that during Seema’s previous spring break, she could not afford to pay for daycare, so she sent Seema to stay with Moorthy’s brother who lives in Michigan. Moorthy testified that since the petition to modify support was filed, she has spent approximately $3,500 on school-provided daycare, and $6,000 for other, alternative daycare. However, Moorthy also later testified that her 2010 tax return listed child care expenses in the amount of $2,492. Moorthy explained that this included only the cost of school daycare. She conceded that her previous testimony that she paid $3,500 for school daycare was erroneous. ¶ 28 In addition, Moorthy testified that Seema participates in the following classes or lessons: (1) swimming ($100 per month); (2) Kumon classes in math and English ($195 per month); (3) chess ($300 per month); (4) Robot City ($300 per semester); (5) violin ($150 per semester); (6) dance; (7) guitar ($150 per semester); and (8) kickball ($175 per semester). Moorthy explained that her education in India was “totally different” than Seema’s education in the United States, “so I [Moorthy] feel like she’s not up to the competency level that I was like–the country that I’m coming from.” Moorthy explained that she has “talked to other Indian families, like whatever they are doing, that’s what I will be usually doing with my daughter also.” She testified that Seema was doing fifth-grade subjects and she was in the gifted program at school, but “still she’s not challenged.” Seema attends Kumon classes every Monday and Wednesday all year. The classes for chess, robotics, and music are offered at the school and occur when Seema is at the school daycare between 1:45 and 6 p.m., but Moorthy still has to pay the cost of the daycare in addition to the cost of the classes. Moorthy testified that Seema’s swimming, Kumon, and Indian dance classes occur on the weekends or evenings, separate from school. Moorthy testified that Seema has been doing these activities for many years and Moorthy has paid for them. When asked if she contacted Arjuna before deciding to enroll Seema in all of -7-  these activities, Moorthy responded, “No, I didn’t because when I contacted, I mean the previous years, he had never returned call to–like all I was asking him is to talk to her. He reject [sic] her–like completely he reject her.” ¶ 29 Moorthy also pays for health insurance for Seema, which costs $100 per month and carries a $7,500 deductible, although she later testified that her financial disclosure statement submitted in this case indicated that she pays $263 per month for Seema’s health insurance. ¶ 30 Regarding her tax returns, Moorthy testified that in 2010, her company’s gross receipts were $128,600. She testified that her 2010 income including her W-2 and business income totaled approximately $100,000. She received a salary of $30,000 on her W-2 form. With respect to the remaining amount of business income of $67,529, Moorthy testified that she invested it in Seema and was trying to give her a better life. Moorthy testified that she believed her company tax return for 2011, which was not yet prepared at the time of the hearing, would show income of approximately $112,000. ¶ 31 Moorthy testified that she took the following deductions on her tax return: $49,895 for automobile expenses for gas to traveling to different jobsites in the Chicago area and for repairs; $3,114 for medical insurance; deductions for telephone and Internet expenses in connection with her business for her cellular telephone, home telephone, fax number, and Internet connection; a deduction for utilities related to the use of her home office; and a deduction for officer health insurance in the amount of $4,653, which she described as “my health insurance. Probably that other insurance is just to do with the company.” ¶ 32 Moorthy testified that in addition to the house she currently lives in with Seema, she also owns a house in Lake in the Hills, Illinois, which she rents out at $1,075 per month, and it was currently occupied. She testified that she has a mortgage on that house and pays $200 extra per month for association fees. She also has a mortgage on the house in which she currently lives. ¶ 33 With respect to her financial disclosure statement submitted in this case, Moorthy testified that it listed her monthly income as $7,350, which would include her salary and a monthly distribution from her company’s income. It listed expenses for utilities, telephone, and a cleaning service for her home. She listed a $200-per-month expense for furniture and appliance repair and replacement, which she explained represents such expenses as purchasing a new sofa approximately every three years, painting her daughter’s room, and purchasing her daughter a new desk when she grows out of her old one. She also listed a $200-per-month expense for repairs and maintenance to the property, and testified that, for example, it could be to fix pipes, or for maintenance or repair of the heat and electricity. She recently had to replace the dishwasher. She listed $325 for gasoline in driving Seema to various classes. She listed a $50 expense for books because Seema “loves to read, so we’ll be like buying some books for her all the time.” Moorthy listed a $150 expense for school lunches for Seema. She also listed $500 for medical expenses and Moorthy explained that she set aside $500 a month for Seema’s deductible because of medical issues. Moorthy testified that her disclosure statement showed that she was $3,910 “in the red” for each month. Moorthy explained that to cover this discrepancy, she “will be pulling that from the company” instead of saving or reinvesting her company’s income to grow the business. ¶ 34 Following the hearing, Moorthy submitted a written memorandum in support of her petition. She asserted that, as defined in section 505 of the Act (750 ILCS 5/505 (West 2010)), “net income” should include Arjuna’s proportionate share of Mahantech’s retained earnings because he had control over whether the corporation’s earnings were distributed, he identified -8-  no business purpose for not distributing the earnings, and he also took cashier’s checks from Mahantech at the end of each year, even though he did not cash them. Taking into account his proportionate share of the retained earnings and his W-2 salary from 2007 through 2011, Moorthy asserted that his average net income was $106,361 and his child support should be $1,772.68 per month. ¶ 35 C. The Trial Court’s Ruling ¶ 36 The court issued a written opinion on May 29, 2013. The parties and trial court agreed that there was no Illinois case directly on point regarding whether retained earnings of a closely held corporation should be included in a supporting parent’s income. Based on cases cited by the parties and the court from other jurisdictions, the trial court determined that the following factors were relevant in deciding whether the retained earnings of a closely held corporation constitute income for purposes of calculating a parent’s child support obligation: (1) whether the party was the sole shareholder, (2) whether the party was manipulating income, (3) whether the retained earnings were excessive, and (4) whether there was a legitimate business purpose for not distributing the retained earnings. Reviewing the testimony, the trial court held that Arjuna was the 91% shareholder, earned a salary of $50,000, lived a frugal lifestyle, and had not distributed any earnings (other than for the plane ticket to India). The court found that the retained earnings were necessary to meet the company’s payroll of six employees, overhead, immigration costs, the section 8(a) certification program, and insurance policies that were required and necessary for the company’s stability. The court noted that the company lost a major contract, but was still required to pay the salaries of its employees or pay to relocate an employee to his home country, and this testimony had not been challenged by Moorthy. In addition, the court held that Arjuna owed a fiduciary obligation to the minority shareholder to act in the best interests of the corporation. The court found that Arjuna had articulated a legitimate business purpose for not distributing the earnings. The court found no evidence that Arjuna manipulated his income in order to reduce his child support obligation, as his W-2 form reflected the same salary of $50,000 per year since 2007. The court specifically held that Arjuna “testified credibly that he is not keeping the retained earnings in the company for any reason other than a legitimate business purpose.” The court noted that there was no testimony that the amount of retained earnings was excessive. Based only on his W-2 wages of $50,000, the court determined Arjuna’s child support obligation should increase to $643 per month, retroactive to the date of filing the petition. In addition, the court held that Moorthy was to continue to be solely responsible for the costs of daycare for Seema, as she was “in a far superior position to support the day care arrangements, as she deems necessary based upon her work schedule and the activity schedule that she has selected [for] Seema without consultation with Arjuna.” Lastly, the court determined that the parties were to share the medical insurance costs for the minor equally and ordered Arjuna to pay half of the medical insurance premiums for the minor child, retroactive to the date of filing the petition. ¶ 37 II. ANALYSIS ¶ 38 Section 505(a) of the Act gives the trial court authority to order a parent to pay “ ‘an amount reasonable and necessary for [the] support’ of the child.” Mayfield v. Mayfield, 2013 IL 114655, ¶ 16 (quoting 750 ILCS 5/505(a) (West 2010)). The court must first determine the parties’ income and then apportion that income to set the amount of child support paid by the -9-  noncustodial parent. Id. A party’s “net income” under the Act is defined broadly as the “ ‘total of all income from all sources,’ ” minus various specified deductions. In re Marriage of Rogers, 213 Ill. 2d 129, 136-37 (2004) (quoting 750 ILCS 5/505(a)(3) (West 2002)). Although the Act does not define “income,” the supreme court in Rogers observed that it is defined in the dictionary as “ ‘something that comes in as an increment or addition ***: a gain or recurrent benefit that is usu[ally] measured in money ***: the value of goods and services received by an individual in a given period of time.’ ” Id. at 136-37 (quoting Webster’s Third New International Dictionary 1143 (1986)). In addition, it is also defined as “ ‘money or other form of payment that one receives, usu[ually] periodically, from employment, business, investments, royalties, gifts and the like.’ ” Id. at 137 (quoting Black’s Law Dictionary 778 (8th ed. 2004)). As such, “income” for purposes of child support determinations may include “a variety of payments [that] will qualify as ‘income’ for purposes of section 505(a)(3) of the Act that would not be taxable as income under the Internal Revenue Code,” which is designed to achieve different purposes than the child support provisions of the Act. Id. Accordingly, income includes “gains and benefits that enhance a noncustodial parent’s wealth and facilitate that parent’s ability to support a child or children,” which are “normally linked to employment or self-employment, investments, royalties, and gifts.” Mayfield, 2013 IL 114655, ¶ 16 (citing In re Marriage of Rogers, 213 Ill. 2d at 136-37). ¶ 39 Having determined a party’s net income based on these parameters, the court must then determine the amount of child support; the guidelines provide that the minimum amount for one child is “20% of the supporting party’s net income.” Mayfield, 2013 IL 114655, ¶ 17 (citing 750 ILCS 5/505(a)(1) (West 2010)). Section 505 “creates a rebuttable presumption [that] the specified percentage of a noncustodial parent’s income represents an appropriate child support award.” In re Marriage of Demattia, 302 Ill. App. 3d 390, 393 (1999). ¶ 40 Once initially set by the trial court, a party may seek to have the child support obligation modified by showing a substantial change in circumstances pursuant to section 510 of the Act. In re Marriage of Eberhardt, 387 Ill. App. 3d 226, 231 (2008) (citing 750 ILCS 5/510 (West 2006)). “The party seeking relief has the burden of showing a change in circumstances substantial enough to warrant a change in support. [Citation.] A change in income is one of the grounds for modification.” Id. The relevant focus of this inquiry is “ ‘the parent’s economic situation at the time the child support calculations are made by the court.’ ” Id. (quoting In re Marriage of Rogers, 213 Ill. 2d at 138). The rebuttable presumption that child support which conforms to the guidelines is appropriate is also applicable in modification proceedings. In re Marriage of Pratt, 2014 IL App (1st) 130465, ¶ 28. ¶ 41 In analyzing a trial court’s determination on appeal, we are mindful that “modification of a child support order lies within the trial court’s discretion, and we will not disturb its decision absent an abuse of discretion.” In re Marriage of Heldebrandt, 301 Ill. App. 3d 265, 267 (1998). “ ‘The findings of the trial court as to net income and the award of child support are within its sound discretion and will not be disturbed on appeal absent an abuse of discretion.’ ” In re Marriage of Pratt, 2014 IL App (1st) 130465, ¶ 22 (quoting In re Marriage of Breitenfeldt, 362 Ill. App. 3d 668, 675 (2005)). The trial court abuses its discretion if “no reasonable person would take the trial court’s view.” In re Marriage of Eberhardt, 387 Ill. App. 3d at 233. Further, we “allow the trial court’s factual conclusions to stand unless they are against the manifest weight of the evidence.” Id. “ ‘A judgment is against the manifest weight of the evidence only when an opposite conclusion is apparent or when findings appear to be - 10 -  unreasonable, arbitrary, or not based on evidence.’ ” Id. (quoting Bazydlo v. Volant, 164 Ill. 2d 207, 215 (1995)). ¶ 42 While Moorthy argues solely for a de novo standard of appellate review, this standard applies only to issues of statutory interpretation and “when there are no factual or credibility issues” and only questions of law remain. In re Marriage of Eberhardt, 387 Ill. App. 3d at 231 (citing In re Marriage of Crook, 211 Ill. 2d 437, 442 (2004), and In re Marriage of Rogers, 213 Ill. 2d at 136-37). Therefore, to the extent the trial court interpreted the Act and made rulings of law, we review those portions of its decision de novo, but the trial court’s determinations regarding net income and child support will be reviewed under the more deferential abuse of discretion standard. ¶ 43 Moorthy contends that the touchstone consideration of whether to include retained subchapter S corporation earnings as income is whether the obligated party has control over the distribution of the funds at issue. Moorthy highlights the fact that the allowable deductions or exceptions from “net income” contained in section 505(3) all involve matters over which the supporting party does not have control, such as mandatory retirement contributions, insurance premiums mandated by court order, and payments for debts previously incurred. 750 ILCS 5/505(3) (West 2010). ¶ 44 As explained in In re Marriage of Joynt, 375 Ill. App. 3d 817, 820-21 (2007): “A subchapter S corporation is a pass-through entity utilized for federal tax purposes. [Citation.] Unlike a subchapter C corporation, [a subchapter S corporation] does not pay corporate-level taxes on its income. Instead, the corporation’s income is taxed directly to its shareholders based on their ownership of corporate stock, whether or not the income is actually distributed to the shareholders. See I.R.C. §§ 1361 through 1379 (2000) (defining and explaining subchapter S and subchapter C corporations). A subchapter S corporation monitors its retained corporate earnings using an account which is then used to determine each shareholder’s basis for taxed but undistributed corporate income. However, retained earnings and profits of a subchapter S corporation are a corporate asset and remain the corporation’s property until severed from the other corporate assets and distributed as dividends. [Citation.]” ¶ 45 As the parties and the trial court recognized, no Illinois case law directly on point exists in this matter. The parties and the trial court relied on Illinois cases involving the related questions of whether other types of income constitute “income” for child support purposes and whether retained corporate earnings constitute marital property, which we review below. We note that these cases are inapposite as they deal with the question of whether retained earnings constitute marital property and not whether retained earnings should be imputed as income for purposes of calculating child support. However, we discuss them below because they were cited and discussed by the trial court and the parties for analogous purposes. We also review the cases cited by the parties and the trial court from foreign jurisdictions that analyzed whether retained corporate earnings can be attributed to a parent for child support purposes. ¶ 46 A. Illinois Case Law–Retained Earnings and Marital Property ¶ 47 In the case of In re Marriage of Joynt, 375 Ill. App. 3d at 820, the Third District of the Illinois Appellate Court held that the retained earnings of a closely held subchapter S corporation in which the husband owned 33% of the stock constituted nonmarital property. The court reasoned that the husband held a minority percentage of the shares, he was not a - 11 -  controlling shareholder, and he could not have unilaterally declared a dividend. Id. Although the income was taxed to the shareholder, the subchapter S corporation ultimately paid the taxes via year-end payments to the husband. Id. at 821. Expert witness testimony indicated that the retained earnings were used for corporate expenses, the husband’s compensation was “reasonable and fair,” and there was no evidence to support that he used retained earnings to shelter marital income. Id. ¶ 48 On the other hand, this court in In re Marriage of Lundahl, 396 Ill. App. 3d 495, 497 (2009), found that the retained earnings of the husband’s subchapter S corporation constituted marital property under the Act. The Lundahl court utilized the factors identified in Joynt in its analysis, that is, the nature and extent of the spouse’s stock holdings, whether the spouse had the authority to distribute the retained earnings, and the extent to which retained earnings were considered in the value of the corporation. Id. at 503 (citing Joynt, 375 Ill. App. 3d at 819). The court pointed out that, unlike in Joynt, the husband in Lundahl wholly owned the corporation and was the sole shareholder and, therefore, could unilaterally declare dividends. Id. at 503. The court held that the retained earnings therefore constituted the husband’s income and were not assets of the corporation. Id. Further, the court held that, unlike in Joynt, the company’s earnings were not retained to pay expenses or used in connection with the corporation, and they were taxed to the husband, who paid taxes on the earnings. Id. at 504. ¶ 49 B. Illinois Case Law–Net Income and Child Support ¶ 50 In the case of In re Marriage of Rogers, 213 Ill. 2d at 137-39, our supreme court concluded that yearly gifts that the father obligor received from his parents constituted income for purposes of calculating his child support obligation under the Act, even though such gifts may not be forthcoming in subsequent years. ¶ 51 In the case of In re Marriage of McGrath, 2012 IL 112792, ¶ 14, our supreme court held that net income did not include money that an obligor parent withdraws from a savings account that was owned by the obligor. ¶ 52 This district concluded in In re Marriage of Baumgartner, 384 Ill. App. 3d 39, 52, 56-57 (2008), that the proceeds from the sale of the father obligor’s residence did not constitute income for child support purposes because he used it to purchase a new residence and the sale was necessitated by him losing his job and relocating to where he obtained employment. ¶ 53 The Second District of the Illinois Appellate Court held in Ivanyi v. Granoff, 171 Ill. App. 3d 411, 421 (1988), that the father obligor’s interest, dividends, and capital gains were not part of his net income even though he reported them on his federal taxes because he did not actually or constructively receive the income. ¶ 54 The Second District held in In re Marriage of Harmon, 210 Ill. App. 3d 92, 95-96 (1991), overruled on other grounds in In re Marriage of Rogers, 213 Ill. 2d at 139, that the monthly interest payments the mother obligor received should not be included in her net income for child support purposes as they comprised her share of the marital assets and constituted passive income not actually received, regardless of how they were reported for tax purposes. The court noted that the obligor mother had health problems and the father had adequate financial resources to support the children alone. Id. at 97. ¶ 55 The Second District also held in In re Marriage of Tegeler, 365 Ill. App. 3d 448, 458 (2006), that an annual loan the father obligor received for running his farm was not part of his - 12 -  net income. The father’s tax return showed itemized totals of expenses and his accounting books contained detailed lists of expenses, which established a prima facie showing that the expenses were legitimate, and the mother failed to rebut this. Id. at 456. ¶ 56 C. Foreign Jurisdictions–Retained Earnings and Child Support ¶ 57 Of particular usefulness to our analysis is In re Marriage of Brand, 44 P.3d 321 (Kan. 2002), from the Supreme Court of Kansas.2 In Brand, the mother filed a motion to modify child support, seeking to include in the father’s income distributions from several subchapter S corporations of which the father was a minority shareholder. Id. at 323. The subchapter S corporation only distributed the amount necessary each year to reimburse its shareholders for their share of the corporation’s tax liability and the father could not declare a distribution independently of the other shareholders. Id. at 324. The applicable state statute provided that a parent’s income included regularly and periodically received income from any and all sources, which included self-employment gross income after reasonable business expenses. Id. at 326. The court noted that earnings of subchapter S corporations were owned by the corporation, not the shareholders, and corporations were not required to distribute the income. Id. at 325. As a matter of first impression, the court turned to cases from other jurisdictions, finding that most courts do not rely solely on tax returns to determine the amount of income available for support and that “[t]here is no presumption that an individual’s share of a Subchapter S corporation’s income should be included as income for purposes of calculating child support. Individual inquiry on a case-by-case basis is necessary to ensure that the appropriate amount of income is considered ‘received’ ***.” Id. at 328. In refusing to adopt a blanket rule regarding the inclusion of retained earnings in calculating support, the Brand court observed that “[a] corporation must sometimes necessarily retain profits, not everyone stands in a position to force distribution of a corporation’s profits, and not all distributions to shareholders increase their ability to pay support.” Id. at 330. The court concluded that deciding how to characterize corporate earnings and distributions and whether to deduct ordinary and necessary business expenses from those earnings were both “highly fact specific” inquiries. Id. Of the many factors to consider, the analysis should include the proportion of the shareholder’s ownership in the corporation, whether the shareholder could control distribution or retention of the business’s profits, and the “past earnings history of the corporation.” Id. Significantly, “[i]n those cases where income can be manipulated because of the ability to control distributions, heightened scrutiny should be exercised.” Id. The court held that, as a minority shareholder, the father was less able to control retained earnings or distributions, and the mother failed to show that he manipulated corporate assets or otherwise shielded his income to avoid child support obligations. Id. at 327-28, 330. The evidence supported that he received disbursements only for the purpose of paying his share of the corporation’s taxes, and this amount was consequently not available to pay child support. Id. at 328. The court therefore found no abuse of discretion in the lower court’s determination that retained earnings and distributions from 2 Although cases from foreign jurisdictions are not binding on this court, “comparable court decisions of other jurisdictions ‘are persuasive authority and entitled to respect.’ ” Kostal v. Pinkus Dermatopathology Laboratory, P.C., 357 Ill. App. 3d 381, 395 (2005) (quoting In re Marriage of Raski, 64 Ill. App. 3d 629, 633 (1978)). See Andrews v. Gonzalez, 2014 IL App (1st) 140342, ¶ 23. - 13 -  the subchapter S corporation should not be included in the father’s income for purposes of calculating child support. Id. at 330. ¶ 58 In a similar case from the Supreme Court of Tennessee, Taylor v. Fezell, 158 S.W.3d 352, 355 (Tenn. 2005), the supporting parent was the sole shareholder and president of a subchapter S corporation, which he converted to a C corporation after the divorce, thereby eliminating pass-through taxation of the corporation’s income. The trial court calculated the father’s modified child support obligation by imputing to him the retained earnings from the company as a subchapter S corporation before the divorce, in addition to the wages he earned after conversion of the corporation to a C corporation. Id. at 356. Similar to Illinois, the Tennessee child support guidelines defined “gross income” as “all income from any source.” (Internal quotation marks omitted.) Id. at 357. For the self-employed, the child support guidelines allowed a deduction for reasonable expenses required to produce the income. Id. at 358. As a matter of first impression, the court held: “[F]or the retained earnings of a corporation to be imputed to the sole or majority shareholder of a corporation, there must be a showing that those retained earnings are excessive or that the income is actually being manipulated. This approach requires trial courts to recognize the independent entity status of a corporation that is properly run by its shareholders. This recognition will require child support determinations to be based on the obligor’s actual income and benefits while protecting the corporate entity’s existence and the development of capitalization necessary to meet its legitimate business purposes.” Id. ¶ 59 In determining whether retained earnings are excessive, the Taylor supreme court advised that trial courts should examine the level of retained earnings from before the divorce as a benchmark or baseline for future retained earnings or capitalization. Id. As an additional component of this analysis, “[e]xpert testimony may be relevant to prove the level of retained earnings that are appropriate for the corporation to carry on its intended purpose, and the court should consider post-divorce corporation activities, particularly any unexplained increases or reductions of capitalization or retained earnings.” Id. Further, the trial court should also “closely examine personal expenses and economic benefits provided to the obligor by the corporation and should include the value of those extraordinary benefits in the obligor’s income calculation.” Id. at 359. As there was no evidence in Taylor that the father manipulated his income or that the retained earnings were excessive, the court held that it was error to include them in calculating his child support obligation, although the trial court should have included the economic value of the private use of his company car. Id. ¶ 60 In In re Marriage of Roth, 406 N.W.2d 77, 79 (Minn. Ct. App. 1987), the appellate court in Minnesota held, without much explanation, that the trial court should have included profits from the father’s closely held subchapter S corporation, of which the father was the sole officer and shareholder, in calculating the father’s support obligation. The evidence showed that the father charged significant personal expenses to the corporation and utilized corporate assets for personal use. Id. ¶ 61 In In re Marriage of Merrill, 587 N.E.2d 188, 191 (Ind. Ct. App. 1992), the appellate court in Indiana held that the trial court did not err in including one-half of the retained earnings from the father’s closely held corporation in calculating his income for child support purposes. The Indiana support guidelines provided that income from any source and income from operating a business should be included. Id. Although the retained earnings were reinvested in the business - 14 -  to cover inventory and bills and there was testimony regarding the declining viability of the business, the court, with little analysis, held that the retained earnings should nonetheless be attributed to the father and included in the child support calculation. Id. ¶ 62 In Roberts v. Wright, 1994-NMCA-022, ¶ 9, 117 N.M. 294, 871 P.2d 390, the appellate court in New Mexico held that the trial court properly refused to consider the mother’s corporate earnings in calculating her support obligation. The mother reinvested one year’s sizeable corporate earnings in her closely held corporation, which were significantly more than previous years, because a government contract required her to purchase substantial inventory, the contract was essential to the corporation’s success, and the market was highly competitive with declining profits. Id. ¶ 4. The court held that the evidence established that the reinvestment of retained earnings and the purchase of inventory were necessary to retain the important government contract and continue to be profitable. Id. ¶ 9. ¶ 63 D. Mahantech’s Retained Earnings ¶ 64 In the present case, the trial court considered whether Arjuna was the sole shareholder of the subchapter S corporation, whether there was evidence that he was manipulating income to reduce his support obligation, whether the corporation’s retained earnings were excessive, and whether there was a legitimate business purpose for not distributing the retained earnings. Based on our review of the above cases from Illinois and from other jurisdictions, we find no error of law in the trial court’s approach. In re Marriage of Eberhardt, 387 Ill. App. 3d at 231. We find that the well-reasoned decisions of Brand and Taylor best exemplify the correct approach, that is, courts should engage in a case-by-case, fact-specific analysis to determine whether retained earnings of a corporation should be imputed to the sole or majority shareholder for purposes of calculating child support. In re Marriage of Brand, 44 P.3d at 328, 330; Taylor, 158 S.W.3d at 358. Relevant factors in this analysis include: (1) the extent of the obligor’s ownership share in the corporation, (2) the obligor’s ability to decide whether corporate earnings should be retained or distributed, (3) the corporation’s history of retained earnings and distributions, in comparison to postdivorce corporation activities, (4) whether the retained earnings are excessive, and (5) whether there is evidence that income is actually being manipulated. In re Marriage of Brand, 44 P.3d at 330; Taylor, 158 S.W.3d at 358. As noted in Brand, heightened scrutiny is appropriate when the obligor has the power to control distributions, but this, in itself, is not dispositive of whether a subchapter S corporation’s retained earnings must be included in an obligor’s income when calculating child support. In re Marriage of Brand, 44 P.3d at 330. As both the Brand and Taylor courts aptly observed, it is sometimes necessary for a corporation to retain profits in order to secure its continued existence and appropriate capitalization to meet ongoing business necessities. In re Marriage of Brand, 44 P.3d at 330; Taylor, 158 S.W.3d at 358. Indeed, it would be unfair to the obligor to include in the calculations of income for child support the retained earnings necessary for the continuing viability of a corporation and thus not available to the obligor. ¶ 65 In addition, having reviewed the evidence presented at the hearing on Moorthy’s motion, we find no abuse of discretion regarding the trial court’s conclusions as to Arjuna’s net income and the child support determination. In re Marriage of Eberhardt, 387 Ill. App. 3d at 233. The trial court’s factual findings were not against the manifest weight of the evidence. Id. ¶ 66 We note that there is no prior history of the subchapter S corporation’s retained earnings because Arjuna did not acquire Mahantech until after the divorce was finalized. While we - 15 -  recognize that heightened scrutiny may be warranted where an individual has the ability to control distributions (In re Marriage of Brand, 44 P.3d at 330), there was no evidence presented that Arjuna was actually manipulating his income or refusing to declare distributions of Mahantech’s income in order to avoid an increase in his child support obligation. Rather, the evidence indicated that Arjuna obtained majority ownership of the corporation at a time when it was not financially successful and he was able to make it more profitable over the years. He testified that the retained earnings must be reinvested in the company to ensure its continued growth and to cover overhead expenses in the event of a business downturn. He continues to draw the same salary of $50,000 per year. His testimony and tax returns outlined the various expenses, including employee salaries, taxes, several types of necessary business insurance, expenses related to the pursuit of federal government contracts through the section 8(a) certification program, and significant amounts dedicated to the immigration and work visa concerns of its employees. Although Mahantech’s earnings decreased significantly in 2011, we note that this reduction had a legitimate explanation. Taylor, 158 S.W.3d at 358. Arjuna testified that a few contracts which constituted 60% of Mahantech’s business ended and had yet to be replaced, causing a loss of income to the corporation. Further, one employee was without a current project to work on, although Mahantech remained responsible for paying that employee’s salary. In addition, Arjuna testified that although he was the majority shareholder, he owed a duty to the minority shareholder and could not declare a distribution without considering the other shareholder. ¶ 67 Significantly, Moorthy failed to offer any evidence or testimony to rebut Arjuna’s evidence that the retained earnings were necessary and appropriate business actions and were not excessive. Notably, Moorthy did not present the testimony of an accountant or other expert regarding whether the level of retained earnings was in line with the corporation’s needs. As noted in Taylor, 158 S.W.3d at 358, expert testimony may be helpful and relevant in establishing “the level of retained earnings that are appropriate for the corporation to carry on its intended purpose, and the court should consider post-divorce corporation activities, particularly any unexplained increases or reductions of capitalization or retained earnings.” See, e.g., In re Marriage of Joynt, 375 Ill. App. 3d at 818 (accountant testified about the retained earnings and other financial information concerning the obligor’s closely held subchapter S corporation). Moorthy did not call an expert witness to present any evidence that Arjuna was manipulating his income or that the retained earnings were excessive, and she did not otherwise provide evidence through the examination of Arjuna or any other witness to rebut his testimony regarding Mahantech’s financial situation. Despite Moorthy’s argument to the contrary, our case law dictates that “[t]he party seeking relief has the burden of showing a change in circumstances substantial enough to warrant a change in support.” In re Marriage of Eberhardt, 387 Ill. App. 3d at 231. ¶ 68 Although Arjuna’s individual tax returns showed that he paid taxes on the portion of Mahantech’s earnings that were attributable to him through the schedule K-1, his testimony indicated that the money to pay these taxes came from Mahantech’s account, it was sent directly to the taxing agency, and the amount was not distributed to Arjuna first. An equivalent situation occurred in In re Marriage of Brand, 44 P.3d at 328, where the father received a distribution from the corporation only for purposes of paying his share of the corporation’s taxes, and the court held that this amount was not available to pay child support. We similarly conclude that the amounts used to pay Arjuna’s proportionate share of the taxes on - 16 -  Mahantech’s earnings did not constitute disbursements to him that should have been included in the child support calculation. ¶ 69 In addition, we do not find that Arjuna took a “disbursement” from Mahantech’s retained earnings or otherwise received income for child support calculation purposes when he obtained a cashier’s check at the end of every year for the amount in Mahantech’s bank account. Arjuna clarified that he did this at the advice of his accountant in order to avoid paying a state tax on the funds in the corporate bank account. He testified that he never deposited the cashier’s checks into his individual account, and each year he redeposited the cashier’s checks into Mahantech’s account on the first business day in the new year. Accordingly, the only evidence before the trial court was the testimony of Arjuna that he did not actually “receive” the income. As a result, we cannot find that the K-1 income can be used for purposes of calculating his child support obligation. See In re Marriage of Rogers, 213 Ill. 2d at 136-37 (noting that the dictionary definition of “income” includes money that is received by the individual).3 ¶ 70 Moorthy contends that the trial court improperly curtailed her inquiry into Arjuna’s testimony about the immigration expenses Mahantech was required to cover in the event that it terminated an employee. According to the report of proceedings, her attorney was questioning Arjuna regarding his testimony that if he laid off any of his foreign workers, Mahantech would be responsible for paying that employee’s and his family’s expenses to return to their home country. When counsel asked whether it was actually true that Mahantech was required to pay for relocation, Arjuna responded, “It is true. They can file a case against me with immigration to put me–make my life miserable.” Counsel then stated, “If I were to show you the immigration regulations–,” but Arjuna’s attorney objected based on relevance. The trial court sustained the objection and voiced concern that “we’re getting into issues of law that you’re trying to inquire about. He just testified as to what his understanding is, and you’re certainly free to call other witnesses if you want to rebut that testimony, but his testimony is to what he understands to be his expense. That stands as that. I’ll hear from other witness–.” We find no error in the trial court’s ruling as Arjuna was testifying to the facts of his case according to his own understanding, he is not a lawyer, and he was not presenting expert legal testimony regarding immigration regulations. The trial court did not improperly curtail Moorthy’s inquiry; rather, it specifically stated that it was willing to hear testimony from other witnesses to rebut Arjuna’s testimony. Whether to follow up by presenting other witnesses or evidence, 3 We recognize that this procedure utilized on the advice of Arjuna’s accountant, the paying out of the balance of the available funds at the end of every year and redeposit of those funds, raises several questions. First, from an accounting standpoint, it may be argued that since a check was issued and then redeposited, this could be considered a distribution and then a loan back to the corporation. However, while the record reflects that this was done on the advice of Arjuna’s accountant in order to avoid West Virginia taxation, the record is devoid of any evidence as to how this transaction was characterized on the corporate books and records. Further, it is unclear from the testimony in the record as to whether 100% of the funds available at the end of the calendar year were distributed to Arjuna or whether 91% was distributed to him and 9% to the other shareholder and then redeposited. However, we do not find that these questions impact our decision herein. As noted above, the trial court did not err in characterizing the funds left in the corporation as retained earnings and that this procedure utilized to avoid West Virginia taxes did not result in the receipt of “income” for the purposes of child support calculations. See In re Marriage of Rogers, 213 Ill. 2d at 136-37. - 17 -  as the trial court suggested, was a decision for Moorthy’s counsel. Further, it is noteworthy that Arjuna was extensively cross-examined regarding Mahantech’s business expenditures. In any event, even if it was an abuse of discretion to curtail the cross-examination in this way, it was on a small point and was therefore harmless. Lastly, in the absence of an offer of proof as to the excluded testimony, we must consider this issue to be waived. ¶ 71 Having determined that the trial court did not abuse its discretion in determining Arjuna’s child support obligation, we need not address Moorthy’s related contention that the court should resort to income averaging to calculate his obligation. See In re Marriage of Nelson, 297 Ill. App. 3d 651, 655 (1998) (where the obligor’s income fluctuates, it is appropriate, although not mandatory, for the court to average the obligor’s net income over consecutive years). The evidence showed that Arjuna’s income has been the same since 2007 through the time the petition was filed, that is, a salary of $50,000 per year. The trial court therefore determined that his monthly support obligation was $643, based on that constant figure. ¶ 72 E. Child Care Costs ¶ 73 Moorthy also contends on appeal that the trial court erred in denying her request for contribution to expenses for daycare and educational and extracurricular activities. Arjuna argues that in Moorthy’s petition in the trial court, she asked only for a contribution to daycare expenses, but not any extracurricular expenses. A party forfeits an issue on appeal where she fails to raise it before the trial court. In re Aaliyah L.H., 2013 IL App (2d) 120414, ¶ 21 (citing Einstein v. Nijim, 358 Ill. App. 3d 263, 275 (2005)). However, although Moorthy’s petition filed in the trial court made a generic request for contribution to daycare expenses, without specifically mentioning extracurricular activities, Moorthy testified extensively regarding the various extracurricular and educational expenses and the trial court’s ruling considered these other costs. ¶ 74 A trial court’s determination whether to order the supporting parent to contribute toward daycare costs, in addition to paying the statutorily mandated child support amount, is reviewed for an abuse of discretion on appeal. In re Aaliyah L.H., 2013 IL App (2d) 120414, ¶ 19 (citing In re Marriage of Serna, 172 Ill. App. 3d 1051, 1054 (1988)). The statute authorizes a trial court to order the supporting parent to pay an amount in excess of the guidelines. In re Marriage of Serna, 172 Ill. App. 3d at 1054 (citing Ill. Rev. Stat. 1987, ch. 40, ¶ 505(a) (now 750 ILCS 5/505 (West 2012)). “The Serna court held, in addition to the statutory child support amount under section 505 ***, the trial court has discretion to also order the noncustodial parent to pay half of the daycare expenses and other reasonable expenses.” In re Marriage of Carlson-Urbanczyk, 2013 IL App (3d) 120731, ¶ 15 (citing In re Marriage of Serna, 172 Ill. App. 3d at 1054). In In re Marriage of Carlson-Urbanczyk, the court held that any amount above the statutorily provided amount “represents an upward deviation from the statutory amount that must be supported by the record.” Id. (citing In re Marriage of Demattia, 302 Ill. App. 3d at 394). ¶ 75 We note that Moorthy provides no citation to any controlling statutory authority or case law to support her contentions on appeal. “ ‘A court of review is entitled to have the issues clearly defined and to be cited pertinent authority.’ ” Lake County Grading Co. v. Village of Antioch, 2014 IL 115805, ¶ 36 (quoting People ex rel. Illinois Department of Labor v. E.R.H. Enterprises, Inc., 2013 IL 115106, ¶ 56). A party fails to fulfill the requirements of Illinois Supreme Court Rule 341(h)(7) (eff. Feb. 6, 2013) if she does not present argument along with - 18 -  citations to relevant supporting authority. Lake County, 2014 IL 115805, ¶ 36. As a result, we find that Moorthy has forfeited these contentions on appeal. Id. ¶ 76 Even if we were to address the issue of daycare expenses despite Moorthy’s having forfeited it, we would nevertheless conclude that, based on the evidence presented at the hearing, there was no abuse of discretion. The trial court held that Moorthy “shall continue to be solely responsible for the daycare arrangements” of the minor and that “Moorthy’s Petition as it relates to the daycare expenses is denied.” The order goes on to note that “Moorthy is in a far superior position to support the daycare arrangements, as she deems necessary based upon her work schedule and the activity schedule that she has selected by [sic] Seema without consultation with Arjuna.” The trial court’s decision not to depart from the guidelines and order Arjuna to pay any additional amounts toward daycare was reasonable when considering both his limited income and Moorthy’s income from her company, and it was not an abuse of discretion. ¶ 77 III. CONCLUSION ¶ 78 Based on the above analysis, we conclude that the trial court did not abuse its discretion when it excluded from its child support calculations Arjuna’s proportionate share of the retained earnings from Mahantech. The trial court also did not abuse its discretion in denying Moorthy’s request for an additional amount for daycare expenses. ¶ 79 Affirmed. - 19 - 

IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON May 17, 2005 Session PATRICIA HAZLERIG v. MILLINGTON TELEPHONE COMPANY, INC. An Appeal from the Chancery Court for Shelby County CH-00-1838-3 D. J. Alissandratos, Chancellor No. W2004-01657-COA-R3-CV - Filed August 26, 2005 This case involves the doctrine of res judicata. The plaintiff telephone customer paid a fee to the defendant telephone company to block calls to 900 numbers from being made from her phone. Despite this, charges for 900 calls continued to appear on the customer’s bill. The customer disputed this, and the telephone company cut off her telephone service. The customer filed a claim against the telephone company in general sessions court for breach of contract and the telephone company filed a counterclaim for the unpaid charges for the 900 number calls. The general sessions court ruled in favor of the telephone company, and the customer appealed to the circuit court. The circuit court ruled in favor of the customer. The customer then filed a separate lawsuit against the telephone company in chancery court, seeking injunctive relief to require the telephone company to reinstate her telephone service. The telephone company answered, and later sought to amend its answer to plead the defense of res judicata. The chancery court refused to allow amendment of the answer to assert the defense. The chancery court then ruled in favor of the telephone customer. The telephone company appeals, asserting that the chancery court erred in not allowing amendment of its answer to assert the defense of res judicata. We affirm, finding that the principle of res judicata did not apply and the chancery court did not abuse its discretion in declining to permit amendment of the answer. Tenn. R. App. P. 3 Appeal as of Right; the Judgment of the Chancery Court is Affirmed HOLLY M. KIRBY , J., delivered the opinion of the Court, in which ALAN E. HIGHERS, J., AND DAVID R. FARMER , J., joined. Paul E. Lewis, Millington, for appellant Millington Telephone Company, Inc. Patricia Hazlerig, pro se, appellee.  MEMORANDUM OPINION1 Plaintiff/Appellee Patricia Hazlerig (“Hazlerig”) was a customer of Defendant/Appellant Millington Telephone Company (“Millington Telephone”) for many years. At some point, Hazlerig began receiving charges on her phone bill for calls to long distance 900 numbers for telephone calls that she allegedly did not place.2 Hazlerig then paid Millington Telephone for a call blocking service that was purportedly designed to prevent these types of calls from being made from her telephone. Despite this, charges for calls to 900 numbers continued to appear on Hazlerig’s telephone bill. Hazlerig disputed the charges and a disagreement arose between Hazlerig and Millington Telephone regarding who should pay for the disputed 900 number charges. Hazlerig paid her telephone bill except for the amounts for the calls to 900 numbers. As a result of the dispute, Millington Telephone cut off Hazlerig’s telephone service. In October 1997, Hazlerig filed a complaint in the General Sessions Court for Shelby County against Millington Telephone. The complaint alleged that Millington Telephone had breached its contract with Hazlerig for telephone services and that Millington Telephone violated the Tennessee Consumer Protection Act by misrepresenting its ability to block 900 calls to or from Hazlerig’s telephone. The complaint sought incidental, consequential, actual, and punitive damages as well as reimbursement for the cost of replacement telephone services. In November 1997, Millington Telephone filed a counter-complaint against Hazlerig in the General Sessions Court, seeking damages in the amount of $1,219.20, which represented the unpaid amount for calls to 900 telephone numbers that had been charged to Hazlerig’s account. The complaint also asked for attorney’s fees. The General Sessions judge made in illegible entry on Hazlerig’s complaint and ruled in favor of Millington Telephone on its counterclaim. Hazlerig appealed this decision to the Circuit Court. Though the record is not completely clear, it appears that the Circuit Court held a hearing on the matter on April 13, 2000. By order dated March 27, 2001, the Circuit Court held that Millington Telephone failed to carry its burden of proof in the cause and ruled in favor of Hazlerig. After the Circuit Court hearing but before the Circuit Court order was entered, Hazlerig filed a separate lawsuit against Millington Telephone in the Shelby County Chancery Court. The complaint noted that Millington Telephone had sued Hazlerig in the Circuit Court for the unpaid amount of Hazlerig’s bill, and asserted that Hazlerig had successfully defended the action. The complaint further alleged that Millington Telephone had withheld telephone services from Hazlerig 1 This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. W hen a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited or relied on for any reason in any unrelated case. 2 The record does not state the nature of the 900 number calls; however, they are generally understood to be sexually explicit. -2- for a period of five years even though Hazlerig was willing to pay for telephone services. Hazlerig contended that she lived in an area in which there was frequently no cell phone reception, and that Millington Telephone had a monopoly in her area for land-line telephone services, leaving her with no available telephone service. Hazlerig asserted that she had had medical difficulties and family crises, and that the withholding of land-line telephone services had caused her great hardship and resulted in damages from worry and anxiety. Hazlerig asked the Chancery Court to enjoin Millington Telephone from continuing to withhold telephone services. By consent order dated April 18, 2002, the Chancery Court referred the matter to a special master to make findings of fact, determine damages, if any, and to determine whether the court should issue injunctive relief. The special master heard testimony from Hazlerig regarding the facts she alleged and the medical conditions she allegedly developed from worry and anxiety. The special master also directed Hazlerig to apply for telephone services from Millington Telephone and report back to him with the results. After doing so, Hazlerig reported that Millington Telephone, citing Hazlerig’s credit history with them, required her to make a $100 deposit plus payment of the first month’s service fee of $59.35 in order to reinstate her telephone service. The special master issued his report on September 27, 2002. In it, the special master found that Hazlerig had not met her burden of proof regarding her medical claims or claims for lost wages. However, the special master found that Millington Telephone’s requirement that Hazlerig put down a $100 deposit in order to restore telephone services was inequitable in light of the fact that Millington Telephone was partially at fault for Hazlerig’s compromised credit history. The special master found that Hazlerig had suffered damages from Millington Telephone’s actions in the amount of $500, which included Hazlerig’s time in applying for telephone service with Millington Telephone, attending hearings, and paying the deposit. The special master determined that injunctive relief was not necessary because Millington Telephone had indicated that it was willing to reinstate Hazlerig’s telephone service upon payment of the $100 deposit and the $59.35 fee for the first month’s service. The record does not include a transcript of the proceedings before the special master; however, Millington Telephone apparently argued the defense of res judicata to the special master, asserting that issues before him had already been litigated in the General Sessions lawsuit and appealed to the Circuit Court. In his report, the special master stated that “[s]ince the record of the General Sessions Court is unclear as to the outcome of [Hazlerig’s] suit and the Circuit Court’s order did not address [Hazlerig’s] suit against the telephone company, the Special Master does not believe that res judicata can apply.” In October 2002, Millington Telephone filed a general exception to the report of the special master, without specifying its objections. In May 2003, Millington Telephone filed a motion to amend its original answer to the Chancery Court complaint in order to plead res judicata as a defense. -3-  In April 2004, Millington Telephone filed an amended exception to the report of the special master in which Millington Telephone “specifically excepts to the Master’s ruling denying res judicata.” The amended exception notes that Millington Telephone “specifically accepts the amount of five hundred dollars ($500.00) damages as found by the Special Master, since the Special Master also stated in his report that since [Hazlerig] offered no proof of any lost wages or medical damages.” In May 2004, the Chancery Court conducted a hearing on the matter. At the hearing, Millington Telephone moved for a continuance, on the basis that its motion to amend to add the defense of res judicata had not yet been decided. The Chancellor then denied Millington Telephone’s motion for a continuance and denied its motion to add res judicata as a defense. Then, based on the report of the special master dated December 27, 2002, the Chancery Court awarded Hazlerig $500 in compensatory damages and $7,625 in punitive damages, which represented 61 hours of attorney’s fees at the rate of $125 per hour. The Chancery Court then assessed costs against Millington Telephone. From this order, Millington Telephone now appeals, asserting that the trial erred in refusing to allow the amended defense of res judicata, and arguing that, based on res judicata, the Chancery Court lacked subject matter jurisdiction to consider Hazlerig’s lawsuit. Millington Telephone argues that the trial court erroneously refused to allow them to amend their answer to plead res judicata. The trial court’s decision on whether to permit an amendment to the answer is reviewed under an abuse of discretion standard. Smith v. Haley, 2001 Tenn. App. LEXIS 136, at *14 (Tenn. Ct. App. March 2, 2001); Bradley v. McLeod, 984 S.W.2d 929, 933 (Tenn. Ct. App. 1998). However, Millington Telephone also asserts that, based on res judicata, the Chancery Court lacked subject matter jurisdiction to hear Hazlerig’s lawsuit; whether the trial court lacked subject matter jurisdiction is a question of law, reviewed de novo. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996). Millington Telephone asserts that under Rules 18.01 and18.02 of the Tennessee Rules of Civil Procedure, all of Hazlerig’s claims should have been brought together. See Tenn. R. Civ. Proc. 18.01, 18.02 (2004). The Chancery Court order awarding a judgment to Hazlerig does not indicate the Chancery Court’s reasoning, but merely states that “the motion for res judicata is not well-taken and is denied.” On appeal, we consider first whether the doctrine of res judicata is applicable and would bar the Chancery Court from considering Hazlerig’s claims. “The doctrine of res judicata bars a second suit between the same parties or their privies on the same cause of action with respect to all issues which were or could have been litigated in the former suit.” Richardson v. Tennessee Board of Dentistry, 913 S.W.2d 446, 459 (Tenn. 1995) (quoting Massengill v. Scott, 738 S.W.2d 629, 631 (Tenn. 1987)). In the instant case, Hazlerig originally filed a claim in General Sessions Court against Millington Telephone for contract damages arising from her telephone service. This original claim -4- was in October 1997. The record does not indicate when Millington Telephone cut off Hazlerig’s telephone service. In response to Hazlerig’s General Sessions complaint, Millington Telephone filed a counter-claim against Hazlerig for monies allegedly owed on her telephone bill. This matter was appealed to Circuit Court and the Circuit Court ruled in favor of Hazlerig. By September 2000, the Circuit Court had ruled in Hazlerig’s favor but Hazlerig still had no phone service. As a result, Hazlerig filed suit against Millington Telephone again, this time asking the Chancery Court for injunctive relief to reinstate her telephone service. In the complaint filed in Chancery Court, Hazlerig alleged that she had been without phone services for a period of five years, that she had prevailed in the dispute with Millington Telephone in Circuit Court, and that Millington Telephone continued to refuse to reinstate her telephone services. Clearly, Hazlerig’s complaint related to events that occurred after the completion of the prior lawsuit – Millington Telephone’s continued refusal to provide her telephone services. Accordingly, we must conclude that Hazlerig’s Chancery Court lawsuit was not barred under the principle of res judicata. As a result, the Chancery Court’s refusal to allow the defense of res judicata was not error. The decision of the trial court is affirmed. Costs of this appeal are taxed to Appellant, Millington Telephone Company, or its surety, for which execution may issue if necessary. _____________________________ HOLLY M. KIRBY, JUDGE -5- 

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT ANA TERESA PENA, Appellant, v. ATTILA TINICS, Appellee. No. 4D18-3276 [July 18, 2019] Appeal of a non-final order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Andrea Ruth Gundersen, Judge; L.T. Case No. FMCE 16-6742 (41/93). Jorge Garcia-Menocal of Garcia-Menocal Irias & Pastori LLP, Coral Gables, for appellant. Marcy S. Resnik and Howard N. Kahn of Kahn & Resnick, PL, Dania, for appellee. PER CURIAM. Affirmed. WARNER, TAYLOR and FORST, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing. 

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STATE OF MICHIGAN COURT OF APPEALS In re AUSTIN MATSON, Minor. PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED October 24, 2017 Petitioner-Appellant, v No. 332780 Oakland Circuit Court AUSTIN MATSON, Family Division LC No. 2015-833608-DL Respondent-Appellee. Before: GLEICHER, P.J., and FORT HOOD and SWARTZLE, JJ. SWARTZLE, J. (concurring). I concur with the majority’s holding that the family court did not abuse its discretion in declining to waive jurisdiction under MCL 712A.4. I do not agree with all of the majority’s reasoning, nor am I as sanguine as the majority that respondent “is already on the road to remedying the cause of his offense” given the lack of any court-ordered punishment or rehabilitative programming. With that said, based on this evidentiary record and under the law as it is currently written, I cannot conclude that the family court clearly erred in its factual findings or abused its discretion in applying those facts to the law. I write separately to highlight that, in my opinion, the law as-written is in need of revision by the Legislature. Respondent confessed that when he was 16 years old, he sexually assaulted his twin step- sisters, toddlers at the time, on multiple occasions over a year. These sexual acts involving minors were not of the “Romeo and Juliet” variety, but were of a more heinous variety because (a) the victims were respondent’s siblings, (b) the victims were extremely young and vulnerable, and (c) respondent was old enough to know better. The assaults did not involve penetration, but it is hard to imagine a more troubling example of sexual assault where penetration is not present. Had charges been brought when respondent was still a minor, the family court would have had jurisdiction over him and some punishment and programming would have been available to impose on him. But, it is understandable that such charges were not brought then— the prosecution was not aware of the assaults because the sisters were, after all, toddlers at the time and no one apparently knew about the assaults until the sisters told their father years later. -1- (The very fact that the sisters recalled the assaults after several years unfortunately suggests that they may continue to suffer long-term adverse effects from respondent’s acts.) Because charges were brought when respondent was an adult, but he committed the criminal acts as a minor, the charges had to be filed in or transferred to the family court under MCL 712A.3(1). To waive the family court’s jurisdiction and have the charges moved to the criminal division of the circuit court, the prosecution had to establish by a preponderance of the evidence that such waiver was in the best interests of respondent and the public. MCL 712A.4(4). Given the lack of evidence offered by the prosecution as well as the witnesses who testified on behalf of respondent, the family court made factual findings that cannot be considered clearly erroneous on appeal, thus leaving respondent in family court—but not really, because the family court does not, by statute, have jurisdiction over adults except in limited circumstances not relevant here. MCL 712A.5. Thus, we are left with the rather perverse result of the family court concluding that, under MCL 712A.4, it cannot transfer the sexual-assault case to the criminal division, but acknowledging that, under MCL 712A.5, it does not have jurisdiction over the case because respondent is now an adult. In effect, under the law respondent is above the law. This may be the statutorily required result, but it is hardly a just one. The statutory language is clear, and as judges we are bound under separation-of-power principles to follow the Legislature’s language except in the rare case that such language violates the federal or state constitution. I believe, however, that this case illustrates an unintended consequence of the otherwise laudable reforms found in Michigan’s Juvenile Code. Accordingly, the Legislature may wish to consider either expanding the family court’s jurisdiction to handle cases like this, adding CSC-2 to the list of crimes for which waiver of jurisdiction to the criminal division is automatic, or addressing this type of circumstance in some other way. Accordingly, I concur only with the majority’s holding. /s/ Brock A. Swartzle -2- 

45 F.3d 646 63 USLW 2512, 129 Lab.Cas. P 33,194,2 Wage & Hour Cas.2d (BNA) 833 Robert B. REICH, Secretary of Labor, United StatesDepartment of Labor, Plaintiff-Appellee,v.NEW YORK CITY TRANSIT AUTHORITY, A Corporation, Defendant-Appellant. No. 555, Docket 94-6104. United States Court of Appeals,Second Circuit. Argued Oct. 26, 1994.Decided Jan. 17, 1995. Joan Brenner, Washington, DC (U.S. Dept. of Labor, Thomas S. Williamson, Jr., Sol. of Labor, Monica Gallagher, Associate Sol. and William J. Stone, for App. Litigation), for plaintiff-appellee-cross-appellant. Myron D. Rumeld, New York City (Proskauer Rose Goetz & Mendelsohn, Neil H. Abramson, of counsel), for defendant-appellant-cross-appellee. Before VAN GRAAFEILAND, McLAUGHLIN and LEVAL, Circuit Judges. LEVAL, Circuit Judge: 1 This is an appeal from a judgment of the United States District Court for the Eastern District of New York, Arthur D. Spatt, Judge, in favor of the plaintiff, the United States Department of Labor ("DOL"), holding that the New York City Transit Authority (the "TA") is required to compensate each of its Police Department's canine handlers, under the Fair Labor Standards Act, 29 U.S.C. Sec. 201, et seq. (the "FLSA"), as amended by the Portal-to-Portal Act, 29 U.S.C. Sec. 251, et seq., for the entire time spent commuting to and from work accompanied by the dog entrusted to him. The TA contends that such commuting time is not compensable under the FLSA. 2 For the reasons stated below, we reverse. Factual Background 3 Police officers in the TA Police Department's canine unit ("handlers") patrol the subways accompanied by male german shepherd dogs. Each handler is responsible for feeding, grooming, training, and caring for his dog, and is required to take the dog home with him at the end of the working day. For reasons relating to the training of the dogs, the handlers are not permitted to use public transportation in taking their dogs to and from work. Upon accepting assignment to the canine unit (which is voluntary), each handler was informed that he would not be compensated for home care or commuting time. The applicable collective bargaining agreement made no provision for such compensation. 4 In December of 1989, the DOL commenced this action against the TA under Section 17 of the FLSA, 29 U.S.C. Sec. 217, seeking an injunction requiring the TA to pay the handlers overtime compensation both for time spent caring for the dogs at home and for commuting to and from work. The TA and DOL settled certain claims. In accordance with this settlement, the TA amended its collective bargaining agreement with the handlers' union, the Patrolmen's Benevolent Association, to include a provision entitling the handlers to compensation for limited time devoted to "dog care work" at home.1 Accordingly, the issue that remained to be resolved in litigation was whether, and to what extent, the handlers should be paid for commuting time. The Proceedings Below 5 A three-day bench trial was conducted before Judge Spatt. See Reich v. New York City Transit Authority, 839 F.Supp. 171, 173 (E.D.N.Y.1993). The district court's findings included that handlers patrol the subways and other areas with their dogs to deter crime, arrest suspects and conduct searches; in order to create a bond between the handler and the dog, each handler bears sole responsibility for the care of the dog; the handlers consider their dogs "tools," as well as pets; all handlers must report to work at the Brooklyn Army Terminal to receive their daily assignments, and are required to commute using personal vehicles;2 during the commuting trip, dogs sometimes divert the handlers' attention or require care or clean up if they bark, or become unruly or sick. Id. at 173-74, 178. 6 The court found that, while the handlers' commuting time is not substantially increased, the dogs' presence does "restrict" the personal activity of the handlers and can cause inconvenience or a need to clean up.3 Id. at 178. 7 Based on these findings, the court concluded that, following Graham v. City of Chicago, 828 F.Supp. 576 (N.D.Ill.1993), the TA was required to compensate the handlers for all time spent commuting to and from work. The court found that transporting the dogs is compensable "because that activity is not segregable from the primary activity the officers are engaged in." Id. at 181 (emphasis in original). The court ordered the TA to pay overtime back wages totalling $146,267.68.4 Contentions on Appeal 8 On appeal, the TA argues primarily that the FLSA does not require it to compensate its handlers for commuting time. It contends that because the Portal-to-Portal Act exempts time spent "walking, riding, or traveling" to and from work, 29 U.S.C. Sec. 254(a)(1), no part of the commute, including that portion actually spent caring for the dog, is compensable. It contends further that the statute's exemption for activities that are "preliminary" or "postliminary" to the employee's "principal activities" also precludes liability for the commute. 29 U.S.C. Sec. 254(a)(2). As its secondary argument, the TA contends that, if any of the commuting time is deemed compensable, it should be limited to time spent actively caring for the dogs, which is de minimis. The DOL, on the other hand, contends that the entire commute should be compensated because the handlers are engaged in a "principal activity" during the commute, thereby rendering the travel and preliminary/postliminary exceptions inapplicable. That principal activity, in the DOL's view, is the "total care of the dog." 9 We find the principal positions of both parties exaggerated. We agree with the TA's secondary position that the only compensable portion of the commute is the time spent by the handlers actively caring for their dogs, and that the vast majority of the time, while the handler is driving and the dog is quietly occupying the back of the car, is not compensable work under the FLSA. Discussion I. The FLSA and the Portal-to-Portal Act 10 The purpose of the FLSA, passed in 1938, was to "guarantee[ ] compensation for all work or employment engaged in by employees covered by the Act." Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 602, 64 S.Ct. 698, 705, 88 L.Ed. 949 (1944). The Act requires employers to pay overtime for "employment in excess of [forty hours] at a rate not less than one and one-half times the regular rate at which [the employee] is employed." 29 U.S.C. Sec. 207(a)(1). While Congress made clear that employers are required to compensate employees for "work" or "employment," it did not define the contours of the type of "work" or "employment" that merited such compensation. 11 The Portal-to-Portal Act, which amended the FLSA in 1947, 29 U.S.C. Sec. 251, et seq., represented an attempt by Congress to delineate certain activities which did not constitute work, and therefore did not require compensation. It was passed in response to the Supreme Court's decision in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), which construed the FLSA to require compensation for such activities as walking from the factory gate to the workbench, and changing into work clothes. Id. at 692-93, 66 S.Ct. at 1195. 12 Congress made findings "that the [FLSA] has been interpreted judicially in disregard of long-established customs, ... thereby creating wholly unexpected liabilities, immense in amount and retroactive in operation, ... with the result that, if ... claims arising under such interpretations were permitted to stand, (1) the payment of such liabilities would bring about financial ruin of many employers ... [and] (4) employees would receive windfall payments ... of sums for activities performed by them without any expectation of reward beyond that included in their agreed rates of pay...." 29 U.S.C. Sec. 251(a). The Act was intended to relieve employers from liability for preliminaries, most of them relatively effortless, that were thought to fall outside the conventional expectations and customs of compensation. 13 The TA contends that its liability is precluded by each of the two exemptions specified in the Act. See 29 U.S.C. Sec. 254(a)(1) and (2). The Act provides (with certain exceptions) that: 14 no employer shall be subject to any liability ... under the Fair Labor Standards Act of 1938 ... on account of the failure of such employer to pay an employee ... (1) ... [for] traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and (2) [for] activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities. 15 The TA contends that the "principal activity or activities" of the handlers are limited to patrolling the trains and related activities during the workday. It therefore contends that the commute, and the activities conducted by the handlers during the commute, are exempted from compensation by both the travel exemption and the preliminary/postliminary exemption, as they occur before and after the performance of the handlers' principal activities. 16 The DOL would define the "principal activities" of the handlers far more broadly, to include also feeding, caring for, and walking the dogs, maintaining a relationship with them, and transporting them. The DOL maintains that these aspects of the handlers' jobs are an important part of the handlers' duties and are performed on the commute and at home during the hours of absence from patrol duties. The DOL thus contends that the commute does not fall within the Portal-to-Portal exemptions, both because it involves principal activities and because it does not occur either "prior to the time on any particular workday at which [the handler] commences, or subsequent to the time on any particular workday at which he ceases, [his] principal activity or activities." 29 U.S.C. Sec. 254(a). 17 The authorities offer little guidance as to the meaning of the term "principal activity or activities," or how to distinguish non-compensable preliminary/postliminary activities. And the guidance that does exist tends to be circular. The basis offered for making this distinction was first expressed by the Supreme Court in Steiner v. Mitchell, 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267 (1956), where the Court advised that duties should be considered principal activities, rather than non-compensable preliminary or postliminary tasks, if they are "an integral and indispensable part of the principal activities for which covered workmen are employed...." Id. at 256, 76 S.Ct. at 335. Applying this standard, the Court found, given the high risks to employee safety resulting from toxicity of the environment in an electric battery plant, that the employees' dressing, undressing, and showering were integral and indispensable to the principal activity of producing batteries and were thus a compensable principal activity, even though changing clothes and showering in ordinary circumstances were conceded by the government to be non-compensable. 18 The Court likewise found in Mitchell v. King Packing Co., 350 U.S. 260, 76 S.Ct. 337, 100 L.Ed. 282 (1956), that, for butchers, knife-sharpening performed before or after the work shift or during the employees' lunch hour was compensable as "an integral part of and indispensable to the various butchering activities for which [the employees] were principally employed." Id. at 263, 76 S.Ct. at 339. In Barrentine v. Arkansas-Best Freight System, Inc., 750 F.2d 47 (8th Cir.1984), cert. denied, 471 U.S. 1054, 105 S.Ct. 2116, 85 L.Ed.2d 480 (1985), truck drivers were found to be entitled to compensation for time spent driving company trucks to the garage for repairs prior to departing on the freight haulage route because these activities are "so indispensable to appellees' principal activity as to be outside the Portal-to-Portal exemption." Id. at 50-51.5 19 But in Leone v. Mobil Oil Corp., 523 F.2d 1153 (D.C.Cir.1975), employee representatives were not entitled to compensation for accompanying federal safety inspectors in a workplace inspection where the employer did not select the representative and had no control over the representative's participation, and the inspection benefitted the employee. Id. at 1163. And in Lindow v. United States, 738 F.2d 1057 (9th Cir.1984), no compensation was found owing where engineering employees of the Army Engineer Corps arrived at work a few minutes early, sometimes spending a few minutes prior to the workday reviewing logs, exchanging information, and opening gates. The court stressed that the employer had made clear that the employees were not expected to arrive early and that it would be difficult for the employer to maintain records for such brief fragmentary episodes of extra activity. As to much of these claims, the court found that they were excludible from compensation under the de minimis rule. 20 While no clear standards emerge, certain generalizations can be drawn from these authorities. The more the preliminary (or postliminary) activity is undertaken for the employer's benefit, the more indispensable it is to the primary goal of the employee's work, and the less choice the employee has in the matter, the more likely such work will be found to be compensable. Commuting and similar activities are generally not compensable. The ability of the employer to maintain records of such time expended is a factor. And, where the compensable preliminary work is truly minimal, it is the policy of the law to disregard it. It is our conclusion, after considering the available guidance, that both sides' principal arguments fall wide of the mark. 21 We think the TA's reading of "principal activity or activities" as limited to patrolling the trains, and not including even the time spent in off hours feeding, training, and walking the dogs, is too narrow and would lead to anomalous and unjustifiable results. Feeding, training, and walking are work and are indispensable to the dogs' well-being and to the employer's use of the dogs in its business. If the concept of principal activity were as narrow as the TA argues, then an employer could impose significant, time-consuming duties on the employee to be performed at home, before and after the main body of the workday, as well as during the commute, and be exempted from payment for those duties because they were not sufficiently related to the employee's principal duties performed during the workday. We think that such an interpretation would exaggerate the effect of the Portal-to-Portal exemptions, and would substantially undermine the purposes of the Fair Labor Standards Act by creating loopholes capable of significant abuse. 22 The Portal-to-Portal exemptions properly protect employers from responsibility for commuting time and for relatively trivial, non-onerous aspects of preliminary preparation, maintenance and clean up. Congress's undertaking to exempt such conventionally unpaid preliminaries (and postliminaries) from compensation in no way suggests, however, that real work assignments are exempt from compensation, just because they occur outside the confines of the main part of the workday. Furthermore, even if the travel exemption protected the employer from being responsible for compensating travel time, it would not follow that the employer is exempt from payment for actual work required to be done during such travel. We therefore reject the TA's contention that the travel exemption immunizes it from liability for any tasks imposed on handlers to be performed during the commute. See 29 C.F.R. Sec. 785.41 ("Any work which an employee is required to perform while traveling must, of course, be counted as hours worked."). We also reject the contention that feeding, walking, training or disciplining, when they occur during the commute, are non-compensable preliminary/postliminary activities. 23 On the other hand, we also find that the DOL's contentions are exaggerated. While we agree with the DOL that walking, feeding, training, grooming and cleaning up are integral and indispensable parts of the handler's principal activities and are compensable as work, the DOL goes much further. Pointing to the fact that the handler may not take the dog on public transportation, and that the obligation to walk or discipline the dog, or to clean up if the dog has become sick, or to communicate with the dog, can arise at any time during the commute, the DOL contends that the entire duration of the commute is compensable work time. 24 This goes too far. If accepted, the argument the DOL uses to justify charging the TA for the entire period of the commute would also justify charging for 24 hours a day. There are obligations that fall on the handlers 24 hours a day, and others that can arise at any time during the day or night. Handlers are required to house the dogs at their homes, to walk them, discipline them, and clean up after them whenever the need may arise, even if it were in the middle of the night, and to maintain a suitable relationship with the dog at all times when they are in the dog's presence. Acceptance of the DOL's arguments would require the conclusion that handlers must be compensated around the clock, waking and sleeping, because certain obligations are always present. 25 To resolve the dispute in this case, it is necessary to return to the basic principle that underlies the FLSA: Employees are entitled to compensation only for "work." As the Supreme Court found in Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 64 S.Ct. 698, 88 L.Ed. 949 (1944), an activity constitutes "work" (compensable under the FLSA) if it involves "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." Id. at 598, 64 S.Ct. at 703. To be sure, on occasions, courts have found that compensable work can occur despite absence of exertion, where, for example, employees have been required to stand by and wait for the employer's benefit. See Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 168, 89 L.Ed. 118 (1944); Vega v. Gasper, 36 F.3d 417, 425-27 (5th Cir.1994); Hill v. United States, 751 F.2d 810, 812-13 (6th Cir.1984), cert. denied, 474 U.S. 817, 106 S.Ct. 63, 88 L.Ed.2d 51 (1985). Here, however, the activity of commuting involved neither exertion nor loss of time. Although forbidden to use public transportation, the handlers were not required to drive; the only requirement was that the ride be in a private vehicle. And the district court explicitly found that the handlers' commuting time was not substantially increased by their dog-care activities. 839 F.Supp. at 178. 26 We believe that the district court erred when it concluded that the handlers' entire commute should be compensated. The DOL did not demonstrate that the entire commute satisfies the statutory concept of compensable work, as illuminated by the Supreme Court's decisions in Tennessee Coal and Armour. See also 29 C.F.R. Sec. 785.7. While there are occasions where dogs need to be walked or restrained, or the car requires cleaning, during the major part of commuting time no work is required. The handler merely drives with the dog in the back seat. The mere presence of a dog does not make the commute compensable. 27 We therefore conclude that the time spent by handlers driving to and from work with their dogs, except to the extent that actual duties of care, feeding, training, walking or cleaning up occur during such commute, is not compensable work. Such true dog-care work occurring during the commute, however, is not exempted from compensation by the Portal-to-Portal Act. II. The De Minimis Doctrine 28 The question that remains is whether, as the TA contends, the amount of theoretically compensable work that arises during the commute is so negligible as to be de minimis and therefore not compensable under the FLSA. The de minimis doctrine was first articulated by the Supreme Court in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946). The Court explained: 29 The workweek contemplated by Sec. 7(a) must be computed in light of the realities of the industrial world. When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act. It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved. 30 Id. at 692, 66 S.Ct. at 1195. 31 More recently, in Lindow v. United States, 738 F.2d 1057 (9th Cir.1984), the Ninth Circuit explained that three factors should be examined to assess whether otherwise compensable time should be considered de minimis, and therefore not compensable: (1) the practical administrative difficulty of recording the additional time; (2) the size of the claim in the aggregate; and (3) whether "the claimants performed the work on a regular basis." Id. at 1062-63. See also Hill, 751 F.2d at 815 (holding that interruption of postal worker during lunch was de minimis, requiring no compensation under the FLSA). Applying these factors, the Ninth Circuit found that the employees should not be compensated for the average of seven to eight minutes of pre-shift activities that occurred. Lindow, 738 F.2d at 1063-64. In so ruling, the court emphasized the administrative difficulty involved in recording this overtime, the wide variance among employees of time spent on social versus compensable activities, and the irregularity with which the employees engaged in compensable activities. Id. 32 Based on our review of the record, we too conclude that the time spent by the handlers engaged in active duties during the commute was de minimis. While handlers testified that they were required to restrain their dogs when they barked or misbehaved, it does not appear that such behavior occurred frequently or lasted for a significant time. Indeed, most handlers conveyed that their dogs responded quickly to discipline; it appears the time spent disciplining the dogs was insubstantial. Similarly, the cases in which the dogs vomited or soiled their handlers' cars, or required a stop to be walked, were few and far between. Stops for water were more frequent in the heat of summer, but consumed only a few minutes. Considered in the aggregate, the time spent by handlers in dog-care duties during the commute was neither substantial, nor regularly occurring.6 For a number of reasons, furthermore, it would be administratively difficult for the TA to monitor and record the time expended by handlers in dog-care duties during the commute. The task of recording the time spent in such duties, when they arise, might well exceed the time expended in performance of the duties. Considering the administrative difficulty of establishing a reliable system for recording the time spent in such care during commutes, the irregularity of the occurrence, and the tiny amount of aggregate time so expended, we conclude that these episodes of additional compensable work are de minimis and, therefore, need not be compensated. Conclusion 33 The judgment of the district court is reversed. The matter is remanded with instructions to enter judgment in favor of the Transit Authority. 1 The Amendment provides that the handlers will be compensated for a maximum of one hour per day of workday home care and one and one-half hours per day of non-workday home care. This covers time spent feeding, training, grooming, and exercising the dogs, as well as cleaning the home and kennel 2 It appears that the rule forbids transporting the dogs on public mass transportation. While, in practice, handlers generally drive to work in their own cars (which they park for free), no rule requires that the handler be the one who drives or that he use his own car 3 One witness testified that he had to stop his car ten to twelve times in two and one half years. Id. at 176. A second handler stated that he was required to stop his car and walk his dog more than 20 times each year. Id. at 174. A third handler testified that he "never stops enroute." Id. at 176 4 The parties agreed that the rate of pay to be used to arrive at the compensation figure for commuting time was an hourly rate of $3.80 and the time and one-half rate of $5.70 per hour. JA 652 5 See also Vega v. Gasper, 36 F.3d 417, 424-27 (5th Cir.1994) (lengthy bus transportation of agricultural workers to fields not compensable where the workers were not required to travel in the company bus; as to waiting time, remanded for findings whether the waiting was for the employer's benefit, which would render it compensable) 6 The District Court for the District of Columbia recently concluded in a similar action that no significant dog-care work was done during the commute. See Levering v. District of Columbia, 869 F.Supp. 24, 29-30 (D.C.D.C.1994) (dog-care work performed during the police handlers' commute was not significant enough to require compensation under the FLSA)

211 U.S. 176 (1908) BOWERS HYDRAULIC DREDGING COMPANY v. UNITED STATES. No. 9. Supreme Court of United States. Argued November 11, 1908. Decided November 30, 1908. APPEAL FROM THE COURT OF CLAIMS. Mr. L.T. Michener, with whom Mr. W.W. Dudley and Mr. P.G. Michener were on the brief, for appellant. Mr. Assistant Attorney General John Q. Thompson, with whom Mr. Philip M. Ashford, Special Attorney, was on the brief, for appellee. *180 MR. JUSTICE WHITE delivered the opinion of the court. The appellant, the dredge company, sued to recover $28,321.76. The relief sought was based on the averment that under a contract for dredging a channel, in the Christiana River and in or about the harbor of Wilmington, Delaware, made in 1899, and a supplementary contract made in June, 1901, the dredge company had excavated 260,430 cubic yards *181 of earth, for which, at the contract price, it should have been paid the sum sued for, but that the United States, in making settlement under the contract, despite the protest of the dredge company, had declined to pay, upon the ground that excavating and removing the earth referred to was not within the contract. The pertinent facts found by the court below are these (41 C. Cl. 214, 498): Prior to September, 1899, the United States was engaged in excavating a channel in the Christiana River and about the harbor of Wilmington, Delaware. The work, in September, 1899, was in process of execution, under a contract between the United States and the New York Dredging Company. In the office of the United States engineer in charge of the work there existed maps or drawings showing the condition of the river prior to any work being done by the New York Dredging Company, the location of the channel in which the work was being done, and the specifications controlling the contract, as well as the progress made in the work. Of these facts the dredge company had knowledge. On September 18, 1899, the United States engineer office at Wilmington, through William F. Smith, United States agent, advertised for proposals for the dredging and removing of about nine hundred thousand cubic yards of material in connection with the work then being done, as previously stated. In the advertisement inviting the proposals it was stated that specifications, blank forms for proposals, and all available information would be furnished on application to the engineer office. The specifications for the work in question recited: "The project, for the completion of which contracts are authorized in the law above quoted, requires the dredging of the Christiana River to a depth of 21 feet at mean low water from the 21-foot curve in the Delaware River to the upper line of the pulp works; thence to the draw pier of the Shellpot branch, No. 4, of the P., W. & B.R.R., so as to give a depth which gradually diminishes to 10 feet at mean low water at the latter-named place and the removal of shoals having less *182 than seven (7) feet of water over them; thence to Newport — the width to be 250 feet to the mouth of the Brandywine, 200 feet thence to the upper line of the pulp works, and 100 feet above. Work is now in progress under contracts for dredging to a depth of 18 feet up to the pulp works, the width to be made being 200 feet, and for all above-described dredging above the pulp works. The work required under these specifications is the dredging that remains to complete the project additional to that done or to be done under the contracts above referred to until their termination or completion. It is estimated that about 900,000 cubic yards will have to be removed." The character of the work required, the method of carrying on the same and the steps to be taken to fix the amount to become due under the contract when fully performed were stated in the specifications as follows: "The amount of material removed will be paid for by the cubic yard measured in place, and shall be determined by surveys made before dredging is commenced and after it is completed. All surveys and measurements are to be made under the direction of the engineer in charge by persons employed by him for that purpose. The decision of the engineer in charge as to the amount of material excavated and removed, as well as to its location and deposit, shall be final and without appeal on the part of the contractor. "The location of the work shall be plainly located by stakes and ranges. The level of mean low water as established by the engineer in charge shall not be changed during the progress of the work. The contractor shall be required to supply the lumber for the necessary stakes and ranges, and shall at all times when called upon furnish men and boats to set them and keep them set under the direction of the inspector, the expense thereof to be included in the contract price for the dredging. "No guarantee is given as to the nature of the bottom, but as far as it is known it is sand; mud, clay, and gravel. Bidders *183 are requested to satisfy themselves upon this point and to examine all other local conditions, as it will be assumed that their bids are based upon personal information. No extra allowance will be made for excavating material differing from that herein described. "It is understood and agreed that the quantities given are approximate only, and it must be understood that no claim will be made against the United States on account of any excess or deficiency, absolute or relative, in the same. Bidders are expected to examine the drawings, and are invited to make the estimate of quantities for themselves. It is not expected that the actual quantities will vary more than 10 per centum from the estimates. "Payments will be allowed for actual dredging to twenty-one (21) feet below mean low-water level. Work done outside of the designated lines of excavation or below the specified depth will not be paid for, and any material deposited otherwise than specified and agreed upon must be removed by the contractor at his own expense." On November 20, 1899, the claimant (dredge company), whose proposal had been accepted, entered into a contract with the United States through General William F. Smith, United States agent, for the performance of the additional dredging, in conformity with the advertisements and specifications referred to in the preceding findings. It was provided in the contract that "the said Bowers Hydraulic Dredging Company shall furnish all labor, machinery and appliances necessary or proper for the faithful execution of the contract, and shall do the work called for, and in all respects carry out and comply with the said specifications for dredging." The sum to be paid was fixed by the contract at 10 7/8 cents for each and every cubic yard of material dredged, "measured in place," the said price including removal and redeposit. Presumably, in consequence of knowledge on the part of the dredge company of a refusal by the Government to pay the New York Dredging Company for the work being done by *184 it for the removal of any earth from the excavated channel, derived from the sliding from slopes of the same, the dredging company, before commencing work, addressed a letter to General Smith, engineer in charge, requesting to know whether its contract would be construed as excluding payment for removing such earth. General Smith replied "that payment will be made for the quantity of material removed within the designated lines of excavation as determined by measurement before and after the dredging, and that such measurement does not include material which comes in from the sides during the progress of dredging." The letter stated: "I deem it proper to add that this is in conformity with the instructions received from the chief of engineers on the subject." The dredge company thereupon replied, protesting against this construction, declaring that it was not bound thereby, and that its performance of the work must not be construed as an acceptance of the correctness of such interpretation. The work was commenced. Whenever a payment was made under the contract the dredge company, in receiving the same, asserted that it was entitled to be paid for removing any earth which had fallen into the excavation from the slopes and which had been removed by it; and on payment for such work being refused it protested. On June 21, 1901, while the work on the contract was proceeding, the dredge company made a supplementary contract, increasing the amount to be by it excavated, in accordance with the terms and specifications of the prior contract, from 900,000 to 1,300,000 cubic yards. As the work thereafter progressed under both contracts payments were continued to be made by the Government and received by the dredge company under protest, as before stated, until the work under the contracts was finally completed. The court below found: "The amount of material that fell or slid from the sides or slopes of the vertical walls in front of the dredge and that was removed thereby along with the excavated material within the *185 designated lines for dredging as provided by the contract, was more than 30,000 cubic yards, which, at the contract price of 10 7/8 cents per cubic yard, would amount to over $3,000." In the opinion delivered by the court below it was said: "We are therefore of the opinion that the specifications, which are made part of the contract, are plain and unambiguous, and that they not only furnish the basis of measurement in place of the material to be excavated, but that the measurements made by the engineer in charge were in strict accord therewith. This being so, any other method of measurement in place, even though customary, is excluded by the terms of the contract, and, therefore, expert testimony is not admissible to explain language that needs no explanation." And for these reasons the right of the dredge company to recover was denied. A new trial was asked, among others, on the ground that error had been committed in not finding the trade meaning of the words, "measured in place," and because the amount of cubic yards of earth which had slid in from the sides or slopes of the excavation while the contract was being performed, and which had been removed by the company, had not been fixed at 260,430 instead of "as above 30,000," as stated in the findings. In addition a request was made that the findings be amended so as to qualify the finding that the price paid should be 10 7/8 cents for each and every cubic yard of material dredged, measured in place, by adding the words, "the same being the trade meaning or understanding of the words `measured in place.'" In addition it was asked that the finding as to the amount of cubic yards removed of matter that fell from the sides or slopes be increased from above 30,000 to 260,430. The motion for a new trial and the motion to amend the findings were overruled. The court, in its reasons for denying the motion, while stating that certain expert testimony had been offered as to the meaning of the words "measured in place," further stated that it had declined to consider the same and make a finding thereon, *186 as it concluded, as said in its previous opinion, that the import of the words "measured in place," as used in the contract, was so free from ambiguity that it did not consider the testimony relevant. This was based upon the opinion that whatever might be the commercial signification of the words that meaning could not be imported into the contract for the purpose of destroying its plain and obvious intendment when the terms of the entire contract and the specifications forming part of the same were given their proper weight. The errors complained of are all embraced under the following headings: a. The refusal of the court to receive and consider testimony offered as to the trade meaning of the words "measured in place" and its refusal to make a finding on the subject. It being contended that the action of the court in refusing to amend its findings and the statement, in its opinion, that it declined to consider such testimony, adequately preserves the question for review. b. The refusal of the court to find the precise amount removed of earth which slid in from the sides or slopes, thus leaving the finding uncertain on that subject. c. The attributing of conclusive efficacy to the action of the officer in charge. And finally, d. The construction given by the court to the contract. It is apparent that the question of construction last stated lies at the foundation of all the assignments, and therefore first commands consideration. We say this because if it be that the court below was correct in its conclusion that the contract gave to the words "measured in place," as therein used, a plain and unambiguous signification, it is obvious that the abstract or commercial meaning of those words, upon the hypothesis that they have such meaning, was rightly held to be irrelevant. And it is equally plain that if the court below rightly construed the contract in the particular mentioned it will be unnecessary to consider the effect which was given *187 to the action of the officer in charge, since that action was in accordance with the meaning which the court gave to the contract. Coming to consider the contract, we are of opinion that the court below correctly enforced its self-evident meaning. The requirement that the amount of material removed should be paid for by the cubic yard measured in place, and should be determined by surveys made before dredging is commenced and after its completion, clearly in and of itself established a method for fixing the amount of material which might be excavated, and which was to be paid for, absolutely incompatible with the contention that the contract contemplated that payment should be made for excavated earth which might slide into the channel from the slopes of the same during the progress of the work. And this is fortified by the requirement as to the location of the stakes and the keeping of them continually in place during the performance of the work under the contract. It is, moreover, additionally sustained by the provision, "that no extra allowance will be made for excavating material different from that herein prescribed," and by the stipulations, "that work done outside of the designated lines of excavations or below the specified depth will not be paid for," and "that any material deposited other than that specified and agreed upon must be removed by the contractor at his own expense." When these provisions are read in connection with the specification stating that "no guarantee is given as to the nature of the bottom, but, as far as it is known, it is sand, mud, clay and gravel, bidders are requested to satisfy themselves as to this point, and to examine all other local conditions, as it will be assumed that their bids are based upon personal information" in connection with the statement of the approximate quantity, and the further condition that "no claim will be made against the United States on account of any excess or deficiency, absolute or relative in the same," we think the conclusion is beyond reasonable controversy that the contract, by its express terms and without ambiguity, excludes *188 the possibility of holding that earth which might slide from the slopes during the excavation was to be paid for by the United States. To separate the words "measured in place" from all the other provisions of the contract in order to give them an assumed or proven abstract trade meaning repugnant to their significance in the contract would be to destroy and not to sustain and enforce the contract requirements. Lest our silence upon the subject may give rise to misconception, we deem it well to observe that even if the original contract was susceptible of a different construction from that which we hold arises from its plain import, such result could have no possible influence on the asserted claim of the dredge company, in so far as that claim is based upon excavation done under the supplementary contract. We say this because that contract was made with the full knowledge of the meaning affixed by the United States to the terms of the contract, and which had been insisted upon in the carrying on of the previous dredging operations. Affirmed.

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SUZANNE MACDONALD,  Plaintiff-Appellant, v. No. 04-35984 GRACE CHURCH SEATTLE; PACIFIC  D.C. No. CV-03-02955-RSL NORTHWEST PRESBYTERY OF THE PRESBYTERIAN CHURCH IN AMERICA; OPINION PRESBYTERIAN CHURCH (U.S.A.), Defendants-Appellees.  Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, District Judge, Presiding Argued and Submitted June 9, 2006—Seattle, Washington Filed August 11, 2006 Before: David R. Thompson, A. Wallace Tashima, and Consuelo M. Callahan, Circuit Judges. Opinion by Judge Thompson 9419  MACDONALD v. GRACE CHURCH SEATTLE 9423 COUNSEL Kathleen Phair Barnard, Seattle, Washington, for the plaintiff- appellant. Steven T. O’Ban, Seattle, Washington, for defendant-appellee Grace Church Seattle. Laurie L. Johnston, Seattle, Washington, for defendants- appellees Pacific Northwest Presbytery of the Presbyterian Church in America and Presbyterian Church (U.S.A.). OPINION THOMPSON, Senior Circuit Judge: Plaintiff-Appellant Suzanne MacDonald (MacDonald) appeals the district court’s dismissal of her Title VII claims against the defendant nonprofit religious organizations for sexual harassment and retaliation because she failed to file her charges with the Equal Employment Opportunity Commission (EEOC) within 180 days of the last alleged discriminatory act. She asserts that the longer 300-day filing deadline (with which she complied) applies because the Washington State Human Rights Commission (Washington Commission) had subject matter jurisdiction over her charges. She argues that even though the Washington Law Against Discrimination exempts nonprofit religious organizations from the definition of “employer,” the Washington Commission had subject mat- ter jurisdiction because it is designated as a Fair Employment Practice (FEP) agency by the EEOC. She also contends that the Washington Commission had subject matter jurisdiction because the Washington Law Against Discrimination contains 9424 MACDONALD v. GRACE CHURCH SEATTLE provisions that prohibit sex discrimination and retaliation by parties other than “employers.” MacDonald further argues, for the first time on appeal, that the exemption of nonprofit religious organizations from employment discrimination liability under the Washington Law Against Discrimination violates the Establishment and Equal Protection Clauses of the United States Constitution. She contends that because the nonprofit religious organization exemption is unconstitutional, the defendants were not exempt from her charges, the Washington Commission had subject matter jurisdiction to consider her charges, and there- fore the 300-day filing deadline applies. Exercising our dis- cretion, we decline to consider this constitutional argument raised for the first time in these appellate proceedings. We have jurisdiction under 28 U.S.C. § 1291 and affirm the district court’s dismissal of MacDonald’s Title VII claims. The Washington Commission did not have subject matter jurisdiction over MacDonald’s charges and therefore the 180- day deadline applies for the required filing with the EEOC. MacDonald did not file her charges with the EEOC within the 180-day time limit, and as a result her Title VII claims were properly dismissed. I. BACKGROUND On February 21, 2003, MacDonald filed a charge with the Washington Commission and the EEOC, alleging gender dis- crimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., by defendants Grace Church Seattle (Grace), The Pacific Northwest Presbytery of the Presbyterian Church in America (PNWP), and The Pres- byterian Church in America (PCA).1 MacDonald, an office administrator for Grace, alleged that she had been sexually 1 Grace is a local church. The PNWP is a regional presbytery. The PCA is the national body of the denomination.  MACDONALD v. GRACE CHURCH SEATTLE 9425 harassed by Grace’s pastor, who was her supervisor. Mac- Donald alleged that the last discriminatory act occurred on April 30, 2002, when she was allegedly terminated from her employment by the defendants in retaliation for reporting the pastor’s sexual harassment. She filed her charges with the EEOC and with the Washington Commission more than 180 days, but less than 300 days, after the last act of alleged dis- crimination. On July 2, 2003, the EEOC dismissed MacDon- ald’s charges. MacDonald then filed this action alleging gender discrimi- nation and retaliation under Title VII, wrongful discharge in violation of the public policy of the State of Washington, and invasion of privacy under the common law of the State of Washington. MacDonald alleged that the defendants Grace, PNWP and PCA were all her “employer” as defined in Title VII. MacDonald did not plead any claims under the Washing- ton Law Against Discrimination. The district court granted the defendants’ motions to dis- miss, holding that MacDonald’s Title VII claims were untimely because she failed to file her charge with the EEOC within 180 days of the last alleged discriminatory employ- ment practice.2 The district court held that the longer 300-day filing period was not available to MacDonald because the Washington Commission, the relevant FEP agency, did not have subject matter jurisdiction over her charges because non- profit religious organizations are exempt from the Washing- ton Law Against Discrimination’s employment discrimination provisions. MacDonald filed a motion for reconsideration, which the district court denied. MacDonald argued that the Washington 2 The district court also dismissed with prejudice MacDonald’s invasion of privacy claim and dismissed without prejudice her discharge in viola- tion of public policy claim. MacDonald does not appeal the dismissal of those claims. 9426 MACDONALD v. GRACE CHURCH SEATTLE Commission had jurisdiction over her claims and thus she was entitled to the 300-day filing period because the EEOC regu- lations designated the Washington Commission as a FEP agency to hear her discrimination claims without any excep- tion for charges against a nonprofit religious organization. She also argued that the Washington Commission had subject matter jurisdiction over her retaliatory discharge claim on the ground that the defendants were “persons,” in addition to being her “employers,” under the retaliation provision of the Washington Law Against Discrimination. The district court disagreed, denied MacDonald’s motion for reconsideration, and this appeal followed. II. STANDARD OF REVIEW In dismissing MacDonald’s complaint, the district court mistakenly applied Federal Rule of Civil Procedure 12(b)(6). See Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 954 (9th Cir. 2004). “A Rule 12(b)(6) motion must be made before the responsive pleading.” Id. (citing Fed. R. Civ. P. 12(b)(6)). “Here, the [d]efendants filed their motion to dis- miss after filing their answer.” Id. “Thus, the motion should have been treated as a motion for judgment on the pleadings, pursuant to Rule 12(c) or 12(h)(2).” Id. Accordingly, we treat the district court’s dismissal of MacDonald’s Title VII claims as a grant of a motion for judgment on the pleadings. See id. at 954-55. “We review de novo a district court’s dismissal of a com- plaint [by] judgment on the pleadings.” See id. at 955. We accept as true all allegations in MacDonald’s complaint and treat as false those allegations in the answer that contradict MacDonald’s allegations. See id. We review a district court’s denial of a motion for reconsideration for an abuse of discre- tion. See Smith v. Pacific Props. & Dev. Corp., 358 F.3d 1097, 1100 (9th Cir. 2004).  MACDONALD v. GRACE CHURCH SEATTLE 9427 III. DISCUSSION A. Title VII Time Limits for Filing Charges with the EEOC [1] Title VII establishes two potential time limitations peri- ods within which a plaintiff must file an administrative charge with the EEOC. See 42 U.S.C. § 2000e-5(e)(1).3 Generally, a Title VII plaintiff must file an administrative charge with the EEOC within 180 days of the last act of discrimination. See id. However, the limitations period is extended to 300 days if the plaintiff first institutes proceedings with a “State or local agency with authority to grant or seek relief from such prac- tice.” Id. [2] The EEOC’s regulations provide that the 180-day time limit applies if the State or local FEP agency4 lacks subject matter jurisdiction over a charge: A jurisdiction having a FEP agency without subject matter jurisdiction over a charge (e.g., an agency which does not cover sex discrimination or does not cover nonprofit organizations) is equivalent to a 3 42 U.S.C. § 2000e-5(e)(1) provides that: A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred . . . except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred . . . . 4 FEP agency means “a State or local agency which the [EEOC] has determined satisfies the criteria stated in section 706(c) of title VII [42 U.S.C. § 2000e-5(c)].” 29 C.F.R. § 1601.3(a); see also 29 C.F.R. § 1601.70. 9428 MACDONALD v. GRACE CHURCH SEATTLE jurisdiction having no FEP agency. Charges over which a FEP agency has no subject matter jurisdic- tion are filed with the Commission upon receipt and are timely filed if received by the Commission within 180 days from the date of the alleged viola- tion. 29 C.F.R. § 1601.13(a)(2). MacDonald filed her administrative charge with the EEOC more than 180 days, but less than 300 days, after the last alleged discriminatory act. She simultaneously filed an administrative charge with the Washington Commission, the relevant FEP agency. The parties dispute whether the 180-day or the 300-day time limit applies. MacDonald contends that the 300-day time limit applies because the Washington Commission is a FEP agency with subject matter jurisdiction over her charges. The defendants argue, and the district court held, that the 180-day time limit applies because the Washington Commission did not have subject matter jurisdiction over MacDonald’s charges because the defendants, as nonprofit religious organi- zations, are exempt from employment discrimination charges under the Washington Law Against Discrimination. See Wash. Rev. Code § 49.60.040(3). B. The Washington Commission’s Designation as a FEP Agency without Exception [3] MacDonald contends that the Washington Commission is a FEP agency with subject matter jurisdiction over all dis- crimination charges because of its designation as such an agency by the EEOC. Pursuant to 29 C.F.R. § 1601.70(a), the EEOC may designate state and local agencies as “FEP agen- cies.” If the EEOC determines that a state or local agency does not come within the definition of a FEP agency for pur- poses of a particular ground of discrimination, the agency is  MACDONALD v. GRACE CHURCH SEATTLE 9429 deemed a “Notice Agency” as opposed to a FEP agency. See 29 C.F.R. § 1601.71(b). The EEOC lists designate FEP agen- cies at 29 C.F.R. § 1601.74(a).5 For some charges, the EEOC has explicitly footnoted exceptions to an agency’s designation as a FEP agency and has instead deemed it a Notice Agency for those types of charges.6 See, e.g., 29 C.F.R. § 1601.74(a) n.2 (“The Arlington Human Rights Commission has been des- ignated as a FEP agency for all charges except those alleging a violation of Title VII by a government, government agency, or political subdivision of the State of Virginia. For these types of charges it shall be deemed a ‘Notice agency,’ pursu- ant to 29 C.F.R. § 1601.71(b).”). The Washington Commis- sion is designated as a FEP agency without any exception for any particular charge. See 29 C.F.R. § 1601.74(a). MacDon- ald argues that because the EEOC has explicitly footnoted exceptions for certain charges for other agencies, but not for the Washington Commission, the Washington Commission has subject matter jurisdiction over all discrimination charges. We disagree. [4] The EEOC footnotes in 29 C.F.R. § 1601.74(a) are not the exclusive list of exceptions to a FEP agency’s subject mat- ter jurisdiction over particular charges. If they were, the dis- tinction between FEP agencies with and without subject matter jurisdiction in 29 C.F.R. § 1601.13(a)(2) would be super- fluous.7 In addition, none of the FEP agency exceptions foot- 5 Approximately 120 state and local agencies are designated as FEP agencies in 29 C.F.R. § 1601.74(a). 6 There are ten exceptions footnoted, deeming certain agencies as Notice agencies rather than FEP agencies for particular types of charges. See 29 C.F.R. § 1601.74(a). 7 29 C.F.R. § 1601.13(a)(2) provides that: A jurisdiction having a FEP agency without subject matter juris- diction over a charge (e.g., an agency which does not cover sex discrimination or does not cover nonprofit organizations) is equivalent to a jurisdiction having no FEP agency. Charges over which a FEP agency has no subject matter jurisdiction are filed 9430 MACDONALD v. GRACE CHURCH SEATTLE noted in 29 C.F.R. § 1601.74(a) resembles the additional two examples of FEP agencies without subject matter jurisdiction provided in 29 C.F.R. § 1601.13(a)(2): “e.g., an agency which does not cover sex discrimination or does not cover nonprofit organizations.”8 See 29 C.F.R. § 1601.74(a). Although the Washington Commission is not included in the footnotes in 29 C.F.R. § 1601.74(a), the exception for nonprofit religious organizations set forth in the Washington Law Against Dis- crimination is similar to the example of a FEP agency’s lack of subject matter jurisdiction over a nonprofit organization set forth in 29 C.F.R. § 1601.13(a)(2). Further, decisions by other with the Commission upon receipt and are timely filed if received by the Commission within 180 days from the date of the alleged violation. If, as MacDonald contends, the EEOC footnotes in 29 C.F.R. § 1601.74(a) are the exclusive list of exceptions to a FEP agency’s subject matter juris- diction over particular charges, then there would be no need in 29 C.F.R.§ 1601.13(a)(2) to refer to “a FEP agency without subject matter jurisdiction over a charge.” Instead, 29 C.F.R.§ 1601.13(a)(2) would refer to a “Notice Agency.” This provides some indication that a FEP agency’s lack of subject matter jurisdiction over a charge is not limited solely to those charges for which it is deemed a Notice Agency (i.e., the EEOC footnotes in 29 C.F.R. § 1601.74(a)). 8 Two generic examples of “a FEP agency without subject matter juris- diction” over particular charges are set forth in 29 C.F.R. § 1601.13(a)(2). One example is “an agency which does not cover sex discrimination” charges; the other example is an agency which “does not cover [charges against] nonprofit organizations.” 29 C.F.R. § 1601.13(a)(2). MacDonald argues that the EEOC footnotes in 29 C.F.R. § 1601.74(a) are the exclu- sive list of exceptions to a FEP agency’s subject matter jurisdiction over particular charges. That argument fails, however, because none of the allegedly exclusive exceptions involves the two generic examples of non- jurisdiction provided in 29 C.F.R. § 1601.13(a)(2). It would be bizarre for the regulations to, on the one hand, set forth a specific and exclusive list of exceptions and then, on the other hand, give two generic examples of additional exceptions that do not appear in the supposed “exclusive” list. This supports the view that there are charges over which a FEP agency may lack subject matter jurisdiction in addition to those listed in the EEOC footnotes in 29 C.F.R. § 1601.74(a).  MACDONALD v. GRACE CHURCH SEATTLE 9431 courts support the view that the footnotes in 29 C.F.R. § 1601.74(a) do not provide the exclusive exceptions to a FEP agency’s subject matter jurisdiction. See Dezaio v. Port Auth., 205 F.3d 62, 65-66 (2d Cir. 2000) (determining that the New York State Division on Human Rights lacked subject matter jurisdiction over charge against Port Authority even though it is designated in 29 C.F.R. § 1601.74(a) as a FEP agency with- out exception); Vitug v. Multistate Tax Comm’n, 860 F.Supp. 546, 550-51 (N.D. Ill. 1994) (determining that the Illinois Department of Human Rights lacked subject matter jurisdic- tion over charge against small employer even though it is des- ignated in 29 C.F.R. § 1601.74(a) as a FEP agency without exception). [5] As a result, the EEOC’s designation in 29 C.F.R. § 1601.74(a) of the Washington Commission as a FEP agency without exception as to any charge is not determinative of whether the Washington Commission had subject matter jurisdiction over MacDonald’s charges. To decide that ques- tion, we must examine Washington State law to determine whether the Washington Law Against Discrimination pre- cluded the Washington Commission’s consideration of Mac- Donald’s charges. C. Permissibility of Looking to State Law to Determine a FEP Agency’s Subject Matter Jurisdiction MacDonald argues that EEOC v. Commercial Office Prod. Co., 486 U.S. 107 (1988), prohibits engaging in an analysis of state law to determine whether the Washington Commis- sion had subject matter jurisdiction over her charges. In Com- mercial Office, the Supreme Court held that a plaintiff who filed an administrative discrimination charge that was untimely under state law was nonetheless entitled to the 300- day time limit for filing with the EEOC. See id. at 123. The defendant employer had argued that the 300-day federal filing time limit was inapplicable in the absence of a timely filing under state law because the state agency lacked the requisite 9432 MACDONALD v. GRACE CHURCH SEATTLE “authority to grant or seek relief.” See id. at 122-23. The Supreme Court rejected this argument, stating that “the words ‘authority to grant or seek relief’ refer merely to enabling leg- islation that establishes state or local agencies, not to state limitations requirements.” Id. at 123. In holding that “state time limits for filing discrimination claims do not determine the applicable federal time limit,” the Supreme Court rea- soned that: Title VII also is a remedial scheme in which lay per- sons, rather than lawyers, are expected to initiate the process. The importation of state limitations periods into § 706(e) [42 U.S.C. § 2000e-5(e)] not only would confuse lay complainants, but also would embroil the EEOC in complicated issues of state law. In order for the EEOC to determine the timeli- ness of a charge filed with it between 180 and 300 days, it first would have to determine whether the charge had been timely filed under state law, because the answer to the latter question would establish which of the two federal limitations periods should apply. This state-law determination is not a simple matter. The EEOC first would have to deter- mine whether a state limitations period was jurisdic- tional or nonjurisdictional. And if the limitations period was nonjurisdictional, like Colorado’s in this case, the EEOC would have to decide whether it was waived or equitably tolled. The EEOC has neither the time nor the expertise to make such determina- tions under the varying laws of the many deferral States and has accordingly construed the extended 300-day period to be available regardless of the state filing. Id. at 123-24. [6] Contrary to the position asserted by MacDonald, the Supreme Court in Commercial Office indicated that it is per-  MACDONALD v. GRACE CHURCH SEATTLE 9433 missible to look to “enabling legislation that establishes state or local agencies” to determine whether an agency has the “authority to grant or seek relief.” Id. at 123. In the present case, the State of Washington’s enabling statute is the Wash- ington Law Against Discrimination and it specifies whether the Washington Commission has the “authority to grant or seek relief” regarding MacDonald’s charges. The Washington Law Against Discrimination limits the jurisdiction of the Washington Commission “[t]o receive, impartially investi- gate, and pass upon complaints alleging unfair practices as defined in this chapter.” Wash. Rev. Code § 49.60.120(4) (emphasis added). Further, under Wash. Rev. Code § 49.60.120(7), the Washington Commission’s jurisdiction is expressly limited to claims that would constitute an unfair practice under the Washington Law Against Discrimination: “[T]he powers which may be exercised by the commission under this subsection permit investigations and complaint dis- positions only if the investigations are designed to reveal, or the complaint deals only with, allegations which, if proven, would constitute unfair practices under this chapter.” Wash. Rev. Code § 49.60.120(7) (emphasis added). Because the Washington Law Against Discrimination, which is the enabling statute, limits the Washington Commission’s subject matter jurisdiction, we must analyze the scope of that state law. [7] In addition, 29 C.F.R. § 1601.13(a)(2) indicates that it is permissible to look to state law to determine whether a FEP agency has subject matter jurisdiction over a charge. This reg- ulation explicitly requires ascertaining whether or not a FEP agency has subject matter jurisdiction in order to determine whether the 180-day or 300-day time limit applies. See 29 C.F.R. § 1601.13(a)(2). Commercial Office did not consider 29 C.F.R. § 1601.13(a)(2) because it concerned state time limits as opposed to a state agency’s subject matter jurisdic- tion. [8] Subsequent to Commercial Office, other courts have looked to state law to ascertain whether a state or local agency 9434 MACDONALD v. GRACE CHURCH SEATTLE had subject matter jurisdiction over a discrimination charge to determine whether the 180-day or 300-day time limit applies. See Dezaio, 205 F.3d at 65-66 (looking to New York anti- discrimination laws and bi-state Compact creating Port Authority to determine that the New York State Division on Human Rights lacked subject matter jurisdiction over charge against Port Authority); Vitug, 860 F.Supp. at 550-51 (looking to Illinois Human Rights Act to determine that the Illinois Department of Human Rights lacked subject matter jurisdic- tion over employer with less than fifteen employees). [9] We conclude that it is appropriate to look to the Wash- ington Law Against Discrimination to determine whether the Washington Commission had subject matter jurisdiction over MacDonald’s charges. D. The Washington Commission’s Subject Matter Jurisdiction Over MacDonald’s Charges The Washington Law Against Discrimination exempts nonprofit religious organizations, such as the defendants, from the definition of “employer.” See Wash. Rev. Code § 49.60.040(3) (“ ‘Employer’ . . . does not include any reli- gious or sectarian organization not organized for private prof- it.”). Because MacDonald alleges that the defendants were her “employer,” her charges against them as employers are exempt from the Washington Commission’s subject matter jurisdiction, and thus the 300-day time limit does not apply. To avoid this result, MacDonald argues for the first time on appeal that such an exemption violates the Establishment and Equal Protection Clauses of the United States Constitution. She also argues that the Washington Law Against Discrimina- tion contains provisions that prohibit sex discrimination and retaliation by parties other than “employers” and therefore applies to the defendants. We first turn to her constitutional claims.  MACDONALD v. GRACE CHURCH SEATTLE 9435 1. Constitutional Issues For the first time on appeal, MacDonald argues that the exemption of nonprofit religious organizations from employ- ment discrimination charges under the Washington Law Against Discrimination violates the Establishment and Equal Protection Clauses of the United States Constitution. She con- tends that because the Washington state law exemption for nonprofit religious organizations is unconstitutional, the Washington Commission had subject matter jurisdiction over her charges against the defendants and the 300-day filing deadline applies. [10] “We will review an issue that has been raised for the first time on appeal under certain narrow circumstances . . . [:] (1) to prevent a miscarriage of justice; (2) when a change in law raises a new issue while an appeal is pending; and (3) when the issue is purely one of law.” Kimes v. Stone, 84 F.3d 1121, 1126 (9th Cir. 1996) (internal citations omitted). “The decision to consider an issue not raised below is discretionary, and such an issue should not be decided if it would prejudice the other party.” Id. [11] We decline to consider the constitutionality of the non- profit religious organization exemption set forth in the Wash- ington Law Against Discrimination for “employers” discriminating on the basis of sex. None of the three narrow circumstances which must exist for us to consider an issue raised for the first time on appeal is present in this case. Pri- marily, MacDonald’s constitutional challenge is not a pure question of law, but rather depends on a determination of fac- tual matters including whether the Washington Law Against Discrimination’s nonprofit religious organization exemption prevents “potentially serious encroachments on protected reli- gious freedoms.” Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 18 n.8 (1989); cf. Elvig v. Ackles, 98 P.3d 524, 525 (Wash. Ct. App. 2004) (affirming the dismissal of a minister’s sexual harassment claims because adjudicating the case “would 9436 MACDONALD v. GRACE CHURCH SEATTLE require a civil court to impermissibly examine decisions made by a church tribunal”). Accordingly, we exercise our discre- tionary power not to review MacDonald’s constitutional claims which she raises for the first time in this appeal. 2. MacDonald’s Charges Under the Washington Law Against Discrimination Apart from her constitutional claims, which we do not con- sider, MacDonald does not contend that her sexual harass- ment charge survives under Wash. Rev. Code § 40.60.180, which exempts nonprofit religious organizations from dis- crimination by “employers” on the basis of sex. See also Wash. Rev. Code § 49.60.040(3). However, MacDonald con- tends that other provisions of the Washington Law Against Discrimination, namely Wash. Rev. Code §§ 49.60.010,9 49.60.030,10 and 49.60.210(1),11 prohibit sex discrimination 9 Wash. Rev. Code § 49.60.010 provides: This chapter shall be known as the “law against discrimination”. It is an exercise of the police power of the state for the protection of the public welfare, health, and peace of the people of this state, and in fulfillment of the provisions of the Constitution of this state concerning civil rights. The legislature hereby finds and declares that practices of discrimination against any of its inhabi- tants because of race, creed, color, national origin, families with children, sex, marital status, age, or the presence of any sensory, mental, or physical disability . . . are a matter of state concern, that such discrimination threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foun- dation of a free democratic state. A state agency is herein created with powers with respect to elimination and prevention of dis- crimination in employment, in credit and insurance transactions, in places of public resort, accommodation, or amusement, and in real property transactions because of race, creed, color, national origin, families with children, sex, marital status, age, or the pres- ence of any sensory, mental, or physical disability . . . ; and the commission established hereunder is hereby given general juris- diction and power for such purposes. 10 Wash. Rev. Code § 49.60.030 provides in relevant part:  MACDONALD v. GRACE CHURCH SEATTLE 9437 and retaliation by parties other than “employers” and there- fore apply to the defendants. [12] MacDonald’s arguments fail because the Washington Supreme Court broadly held in Farnam v. CRISTA Ministries, 807 P.2d 830, 837 (Wash. 1991), that nonprofit religious employers are exempt from all provisions of the Washington Law Against Discrimination. See also City of Tacoma v. Franciscan Found., 972 Pd. 566, 569 (Wash. Ct. App. 1999) (stating that the Washington Law Against Discrimination authorizes the exemption of nonprofit religious employers from “the law’s reach”). This view is also supported by the Washington Supreme Court’s decision in Griffin v. Eller, 922 P.2d 788, 789-90 (Wash. 1996). In Griffin, the Washington Supreme Court relied on Farnam to hold that small employers are statutorily exempt from all provisions of the Washington (1) The right to be free from discrimination because of race, creed, color, national origin, sex, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person is recognized as and declared to be a civil right. This right shall include, but not be limited to: (a) The right to obtain and hold employment without discrimina- tion; ... (2) Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 . . . . 11 Wash. Rev. Code § 49.60.210(1) provides that “[i]t is an unfair prac- tice for any employer . . . or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any prac- tices forbidden by this chapter . . . .” See also Wash. Rev. Code § 49.60.040(1) (expansively defining “person” as including “corpora- tions”). 9438 MACDONALD v. GRACE CHURCH SEATTLE Law Against Discrimination.12 See id. at 790 (“Having previ- ously determined in Farnam that [the Washington Law Against Discrimination] does not support a private cause of action against an exempt employer, we are controlled by that precedent.”). In Griffin, the Washington Supreme Court affirmed the dismissal of the plaintiff employee’s sexual harassment and retaliation claims under the Washington Law Against Discrimination.13 See id. at 789. [13] Based on the Washington Supreme Court’s decisions in Farnam and Griffin, we read Washington State case law as exempting nonprofit religious employers, such as the defen- dants, from sexual harassment and retaliation charges under the Washington Law Against Discrimination.14 Thus, the Washington Commission did not have subject matter jurisdic- tion over MacDonald’s charges. Accordingly, the 180-day time limit applies. See 29 C.F.R. § 1601.13(a)(2); see also 12 The Washington Law Against Discrimination exempts employers with fewer than eight employees, in addition to nonprofit religious organiza- tions, from the definition of “employer.” See Wash. Rev. Code § 49.60.40(3). 13 For her argument that provisions of the Washington Law Against Dis- crimination other than Wash. Rev. Code § 49.60.180 cover her charges, MacDonald relies primarily on Marquis v. City of Spokane, 922 P.2d 43, 51 (Wash. 1996), in which the Washington Supreme Court held that an independent contractor could bring a sex discrimination claim under Wash. Rev. Code § 49.60.030, even though she was not protected by Wash. Rev. Code § 49.60.180. However, in Griffin, the Washington Supreme Court distinguished between the expanded protections found in Marquis and the statutory employer exemptions of Wash. Rev. Code § 49.60.40(3). See 922 P.2d at 789-90. The Washington Supreme Court stated that “[u]nlike Marquis . . . we are here addressing the issue of a stat- utory exemption for small employers rather than statutory silence as to independent contractors.” Id. at 790. Accordingly, Marquis does not alter our reading of the Washington Supreme Court’s interpretation of the Washington Law Against Discrimination as exempting nonprofit religious employers. 14 When interpreting state law, a federal court is bound by decisions of the state’s highest court. See Nelson v. City of Irvine, 143 F.3d 1196, 1206 (9th Cir. 1998).  MACDONALD v. GRACE CHURCH SEATTLE 9439 Dezaio, 205 F.3d at 65-66 (holding that because the New York State Division on Human Rights lacked subject matter jurisdiction over discrimination claim against Port Authority, plaintiff was subject to 180-day, not 300-day, time limit for filing EEOC charge); Vitug, 860 F.Supp. at 550-51 (holding that because the Illinois Department of Human Rights lacked subject matter jurisdiction over discrimination claim against employer with less than fifteen employees, plaintiff was sub- ject to 180-day, not 300-day, time limit for filing EEOC charge). IV. CONCLUSION [14] Although the Washington Commission is generally considered a FEP agency, it does not have subject matter jurisdiction over charges against nonprofit religious employ- ers. See Wash. Rev. Code § 49.60.040(3). We conclude that federal law recognizes such a limitation on a FEP, see 29 C.F.R. § 1601.13(a)(2), Title VII’s 180-day time limit applies here, and MacDonald is not entitled to the longer 300-day fil- ing deadline. We affirm the district court’s dismissal of Mac- Donald’s Title VII claims and its denial of her motion for reconsideration. AFFIRMED. 

559 F.2d 1206 U. S.v.Rosado No. 77-1049 United States Court of Appeals, Second Circuit 5/9/77 1 S.D.N.Y. 2 AFFIRMED* * Oral opinion delivered in open court in the belief that no jurisprudential purpose would be served by a written opinion. An oral opinion or a summary order is not citable as precedent. Local Rule Sec. 0.23

92 F.3d 1202 Jimmie Lee Rushingv.U.S. NO. 95-4606 United States Court of Appeals,Eleventh Circuit. July 17, 1996 S.D.Fla., 86 F.3d 1170 1 DENIALS OF REHEARING EN BANC.

514 So.2d 130 (1987) Mary B. VALLEY v. The AMERICAN INSURANCE COMPANY. No. 87-C-2008. Supreme Court of Louisiana. November 6, 1987. Denied.

In the United States Court of Federal Claims No. 17-517 Filed: May 22, 2017 ************************************* ALLTRAN EDUCATIONS, INC., * Preliminary *Injunction, Rule * of the United * States Court of Federal Claims 65(d). Plaintiff, * * v. * * THE UNITED STATES, * * Defendant, * * and * * CBE GROUP, INC., PREMIERE * CREDIT OF NORTH AMERICA, LLC, * GC SERVICES LIMITED PARTNERSHIP, * FINANCIAL MANAGEMENT SYSTEMS, * INC., VALUE RECOVERY HOLDINGS, * LLC, and WINDHAM PROFESSIONALS, * INC. * * * Intervenor-Defendants. * ************************************* CONTINUATION OF PRELIMINARY INJUNCTION On May 2, 2017, the court issued a Preliminary Injunction, enjoining the United States Department of Education (“ED”) from: (1) authorizing the purported awardees to perform on the contract awards under Solicitation No. ED-FSA-16-R-0009; and (2) transferring work to be performed under the contract at issue in this case to other contracting vehicles to circumvent or moot this bid protest. ECF No. 40. The purpose of the May 2, 2017 Preliminary Injunction was to protect the interests of all parties and afford the Government an opportunity to reach a global solution to the related bid protests challenging Solicitation No. ED-FSA-16-R-0009.1 For this reason, the court stated that the Preliminary Injunction would remain in place until “COB May 22, 2017, the first business day after the Department of Justice represented that the ED [would] file a notice announcing corrective action, in response to the [Government Accountability Office’s (“GAO”) March 27, 2017 Decision in Gen. Revenue Corp., B-414220.2, Mar. 27, 2017, 2017 WL 1316186.]” ECF No. 40. On May 19, 2017, the Government filed a Notice Of Corrective Action, advising the court that the ED intended to take corrective action consistent with the GAO’s March 27, 2017 Decision. ECF No. 41. The ED expects to complete this corrective action on, or before, August 25, 2017. ECF No. 41 at 9. On May 22, 2017, the court convened a status conference to determine whether to extend the May 2, 2017 Preliminary Injunction. During the May 22, 2017 Status Conference, Continental Services, Inc., Account Control Technology, Inc., Progressive Financial Services, Inc., Collection Technology, Inc., Performant Recovery, Inc. and Van Ru Credit Corporation requested that the Preliminary Injunction remain in place while the ED takes corrective action. The Government, CBE Group, Inc., Premiere Credit of North America, LLC, GC Services Limited Partnership, Financial Management Systems, Inc., Value Recovery Holdings, LLC, Windham Professionals, Inc. and Alltran Education, Inc. requested that the court allow the May 2, 2017 Preliminary Injunction to expire. Pioneer Credit Recovery, Inc. informed the court that it did not oppose lifting the Preliminary Injunction, so long as the ED continued to abide by its April 3, 2017 declaration (Continental Services, No. 17-449, ECF No. 23) that the December 9, 2016 Contracts, awarded under Solicitation No. ED-FSA-16-R-0009, would remain stayed until the resolution of this bid protest. After hearing the parties’ positions, the court indicated that it was inclined to lift the May 2, 2017 Preliminary Injunction, but it was concerned that the ED would transfer accounts that had been serviced by Progressive Financial, Inc., Collection Technology, Inc., Performant Recovery, Inc. and Van Ru Credit Corporation under United States General Services Administration (“GSA”) Schedule Nos. GS-23F-0239K, GS-23F-0227N, GS–23F–0286K, GS-23F-0204K (collectively the “prior accounts”), because those contracts expired on April 21, 2017. This would appear unfair, because the GAO sustained challenges to Solicitation No. ED-FSA-16-R-009 brought by those contractors. In other words, the GAO determined that but-for the ED’s alleged errors during the procurement process, Progressive Financial, Inc., Collection Technology, Inc., Performant Recovery, Inc. and Van Ru Credit Corporation might have received contracts on December 9, 2016, under which they could continue to service their prior accounts. Therefore, the court asked the Government whether it could allow Progressive Financial, Inc., Collection Technology, Inc., Performant Recovery, Inc. and Van Ru Credit Corporation to 1 Plaintiffs filed challenges to Solicitation No. ED-FSA-16-R-0009 in the following seven cases: (1) Continental Services Group, Inc. v. United States, No. 17-449; (2) Pioneer Credit Recovery, Inc. v. United States, No. 17-499; (3) Account Control Technology, Inc. v. United States, No. 17-493; (4) Alltran Education, Inc. v. United States, No. 17-517; (5) Progressive Financial Services, Inc. v. United States, No. 17-558; (6) Collection Technology, Inc. v. United States, No. 17-578; and (7) Van Ru Credit Corporation v. United States, No. 17-633. 2 continue servicing prior accounts until the ED completes the proposed corrective action. The Government informed the court that it could not make that representation, without conferring with Dr. Patrick Bradfield, Head of Contracting at Federal Student Aid. Dr. Bradfield responded, by telephone from his home, that Progressive Financial, Inc., Collection Technology, Inc., Performant Recovery, Inc. and Van Ru Credit Corporation could not continue servicing their prior accounts, because they did not have existing contracts with the ED, but he did not know if there was a legal means for the ED to enter into a temporary contractual relationship with those parties and would have to consult with the ED’s attorneys before making that determination. Dr. Bradfield informed the court that he would not be able to consult with counsel until, at least, May 23, 2017. For these reasons, the court has determined to continue the May 2, 2017 Preliminary Injunction until June 1, 2017, to afford Dr. Bradfield an opportunity to determine whether the ED can enter into a temporary contractual relationship with Progressive Financial, Inc., Collection Technology, Inc., Performant Recovery, Inc. and Van Ru Credit Corporation that will allow those companies to continue to service their prior accounts until the ED completes the proposed corrective action. IT IS SO ORDERED. s/Susan G. Braden SUSAN G. BRADEN Chief Judge 3 

102 S.W.3d 268 (2003) In the Interest of N.V.D., a child. No. 09-01-073-CV. Court of Appeals of Texas, Beaumont. Submitted February 6, 2003. Decided March 13, 2003. Terri C. Mendez, Conroe, for appellant. David K. Walker, County Atty., Suzanne Laechelin, Asst. County Atty., Conroe, for appellee. *269 Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ. OPINION PER CURIAM. Tammy Lynn Dougherty appeals the jury verdict terminating her parental rights with her son, N.V.D. The Texas Department of Protective and Regulatory Services ("Department") initiated the suit shortly after N.V.D.'s first birthday, after the child was diagnosed with failure to thrive and hospitalized for pneumonia and dehydration. Dougherty presents three issues in her appeal. In issue one Dougherty complains that the trial court failed to conduct a permanency review hearing and sign a permanency review order within statutory guidelines. The trial court timely extended the dismissal date from September 18, 2000, to March 11, 2001. See Act of May 31, 1997, 75th Leg., R.S., ch. 1022, § 90, 1997 Tex. Gen. Laws 3733, 3768 (amended 2001) (current version at Tex. Fam.Code Ann. § 263.401 (Vernon 2002)). Dougherty does not challenge the trial court's jurisdiction, but argues that she was harmed by the trial court's failure to conduct a subsequent permanency review hearing within 120 days of the previous permanency review hearing. The initial permanency hearing must be conducted within 180 days of the date the trial court renders a temporary order appointing the Department as temporary managing conservator of the child. See Tex. Fam.Code Ann. § 263.304(a) (Vernon 2002). The initial permanency review hearing was timely held on January 24, 2000. A subsequent permanency hearing must be held no later than the 120th day after the date of the last permanency review hearing. Tex. Fam.Code Ann. § 263.305 (Vernon 2002). The trial court timely conducted the April 24, 2000, permanency review. The Department concedes that the November 30, 2000, subsequent permanency hearing was not timely conducted. The delay is attributable to the fact that the appellant obtained a continuance of the July 24, 2000, trial setting, over the Department's objection. At the July 10, 2000, hearing on the motion for continuance, Dougherty's counsel advised the trial court that her client had originally intended to relinquish her rights, but had gone away for a few months and experienced a change of heart, so that counsel needed additional time to obtain another home study. The trial court conducted a pre-trial hearing on August 21, 2000, but did not conduct a permanency review hearing at that time. There is nothing in the record to indicate that trial counsel requested a permanency review hearing at this time. The trial court's docket sheet indicates that a September 7, 2000, trial setting was also continued on the motion of the respondent. Dougherty raised the failure to conduct a permanency review hearing for the first time in a motion for summary judgment filed November 8, 2000. At a November 20, 2000, hearing, the Department's counsel advised the court that the Department had conducted permanency planning team meetings with the foster family and any interested members of the child's family. The trial court conducted a permanency review hearing on November 30, 2000, and denied the motion for summary judgment on December 7, 2000. Dougherty argues that the trial court's inaction deprived her of the opportunity to work toward reunification. According to the appellant, the trial court doubled the frequency of the visits after the November 30, 2000, hearing. Had the extra visits commenced in August, she reasons, the evidence from those visits "would have made a significant difference in a jury finding." Because it did so in November, *270 Dougherty assumes that the trial court would have ordered home visits in August. This conclusion is far too speculative, considering that Dougherty had disappeared for several months, did not exercise her visitation rights between November 17, 1999, and June 23, 2000, and at the November 30, 2000, hearing, Dougherty's counsel was still trying to obtain an amended home study that would alter the previous recommendation against permitting N.V.D. to return to the Dougherty household. The appellant assumes the quality of evidence gleaned from three extra months of contact would have improved her chances of convincing the jury that she was capable of parenting, but she does not specify what additional evidence would have been developed had the home visits commenced on an earlier date. As it was, Dougherty was not deprived of access to her child during the period of time in question and the jury did hear testimony about home visits. The appellant asserts that "[s]ince no permanency review hearing was conducted the Court could not determine whether the intervention by the grandmother, parenting classes, or a change of circumstances would alleviate or mitigate the cause necessitating the placement of the child in foster care or work towards reunification of the family." Actually, the trial court conducted three permanency review hearings. Parenting classes and intervention by the maternal grandmother did not affect the placement of the child in November 2000, so we have no reason to believe that those factors would have differently influenced the court in August 2000. The delay in conducting a subsequent permanency hearing was unfortunate. However, that delay was attributable to Dougherty's requests to continue the trial setting, and trial counsel's failure to timely request a permanency review hearing. The trial court conducted the hearing as soon as the lapse was brought to its attention, and the appellant has not demonstrated that the delay probably caused the rendition of an improper judgment. Further, we believe that, had trial counsel timely requested a permanency review hearing, and the court denied the request, the proper remedy would be to file a writ of mandamus with the appellate court. Issue one is overruled. Issue two urges, "The Department failed to make reasonable efforts toward reunification after the removal of the child as set forth by the statutory guidelines." The appellant argues that the Department violated federal law by not making reasonable efforts towards reunification of the family. See 42 U.S.C.A. § 671(a)(15) (West Supp.2002). Our legislature implicitly incorporated the requirements for federal funding into the Family Code. See Tex. Fam.Code Ann. §§ 261.001-265.003 (Vernon 2002)(Subtitle E, Protection of the Child). In its initial order for protection, the trial court found that "all reasonable efforts, consistent with time and circumstances and pursuant to 42 U.S.C. §§ 671(a)(15) and 672(a)(1), have been made by the Petitioner to prevent or eliminate the need for removal of the child the subject of this suit from the home and to make it possible for the child to return home, but it is not in the child's best interest to remain at home." At that time, the Department had provided family-based services for two months, including in-home counseling, a psychological examination for Dougherty, day care, and payment of an electric bill. Dougherty does not dispute the propriety of the initial removal, but argues that the trial court erred in failing to grant her Motion Notwithstanding the Verdict based upon the Department's subsequent failure to make reasonable efforts to reunify the family. The original petition pleaded for termination as an alternative *271 to reunification. The family service plan dated October 5, 1999, identifies adoption as the Department's long range goal for permanency. The requirement to show by clear and convincing evidence that the termination is in the best interest of the child subsumes the reunification issue and guarantees the constitutionality of termination proceeding. Edwards v. Texas Dep't of Protective and Regulatory Servs., 946 S.W.2d 130, 139 (Tex.App.-El Paso 1997, no writ). A separate consideration of alternatives to termination is not required. Id. Therefore, we will consider issue two in conjunction with the appellant's challenge to the jury's finding that the parent-child relationship between Dougherty and N.V.D. should be terminated. Issue three contends the "evidence was factually insufficient to support the jury finding that termination of the appellant's parental rights was in the best interest of the child." The appellate standard for reviewing termination findings is whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations. Interest of C.H., 89 S.W.3d 17, 25 (Tex.2002). The factors examined in ascertaining the best interest of a child include: 1) the desires of the child; 2) the emotional and physical needs of the child now and in the future; 3) the emotional and physical danger to the child now and in the future; 4) the parental abilities of the individuals seeking custody; 5) the programs available to assist these individuals to promote the best interest of the child; 6) the plans for the child by these individuals or by the agency seeking custody; 7) the stability of the home or proposed placement; 8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and 9) any excuse for the acts or omissions of the parent. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976). The appellant argues that N.V.D.'s treating physician misdiagnosed him with failure to thrive due to failure to feed. The medical evidence supports the diagnosis. At birth N.V.D. weighed eight pounds, above average, and was twenty inches in height. By three months of age, N.V.D. had fallen to the 5th percentile on the weight chart. Dougherty's testifying expert, a pediatrician named Allen Kline testified that a baby experiencing a lack of caloric intake should rapidly advance to the 10th to 75th percentile on the growth chart once he is cared for properly. Dr. Kline did not see a rapid weight gain following removal in N.V.D.'s case. Generally speaking, some children initially diagnosed as failure to thrive actually have constitutional growth failure. After examining the child, Dr. Kline reported that he could neither say that N.V.D. had failure to thrive, nor that N.V.D. did not have failure to thrive. On September 6, 2000, he stated, "After review of all the medical records available, it appears that the mother and maternal grandmother are incompetent care givers and that this child would flourish better in a caring foster environment. They both smoke and neither seem to understand the importance of staying with the child while hospitalized. They also went to the ER after midnight with a two week old rash." After examining the child a second time, on October 17, 2000, Dr. Kline reported that, at two years of age, N.V.D.'s skeletal bone age was delayed six months. Dr. Kline stated, "This in itself is not a diagnostic finding to separate organic from non-organic [failure to thrive] but does add to the definition that [failure to thrive] does exist." At trial, Dr. Kline stated that he could rule out an organic cause for N.V.D.'s failure to thrive and agreed that the May 1999 diagnosis *272 of failure to thrive was "an adequate judgment." While an intern, Dr. Emily Frye attended N.V.D. during his July 1999 hospitalization for failure to thrive and severe eczema. She was told that the maternal grandmother was the child's primary care giver. She recalled that N.V.D. was usually alone in the hospital, although the family was asked to stay with him. The child gained 70 grams every day that he was hospitalized. The family was provided with a food plan and medication for the eczema; they were encouraged to make a food journal for recording everything eaten by the child. They were told not to smoke around the child. Further monitoring revealed that N.V.D.'s growth rate and skin condition worsened. Dougherty never personally brought the child to the clinic after the hospitalization. In August 1999, Frye reported that the child, who had gained one pound while hospitalized, had decreased in weight from 18 pounds 6 ounces to 17 pounds 12 ounces from his previous visit. When N.V.D. was hospitalized in September, Dr. Frye noted that neither the mother nor the grandmother was following the instructions for the baby's care. When Dr. Frye told the grandmother that N.V.D. needed to be given his bottle, the grandmother placed the bottle in the crib without picking up the child or encouraging him to feed. When Dr. Frye examined him in September 2000, N.V.D. was still below normal in weight, but his length and head circumference were catching up. The curve indicated on N.V.D.'s growth chart was a positive finding. Dr. Glenn Minter, Emily Frye's supervising physician, testified that N.V.D's weight became lower on the graph than the length and the head circumference, indicating failure to thrive. Medical tests revealed no organic cause for the condition. Dr. Minter testified that a non-organic cause of failure to thrive usually implies lack of feeding, care, and attention. The medical personnel treating N.V.D. in September 1999 noted in N.V.D.'s medical records that N.V.D. was not being adequately changed and fed, that his mother yelled at the baby for vomiting and did not hold him, and she was "very oblivious to the child's needs." In Dr. Minter's opinion, N.V.D.'s major problem was failure to thrive for failure to feed. Dr. Kline opined that Dougherty's rights should not be terminated because she has not abused the child; her problem is a lack of parenting skills. He noted that by obtaining a certificate of completion of a course of Systematic Training for Effective Parenting, Dougherty, her mother, and her mother's companion had demonstrated that they really did want the child. Dougherty also relies upon the testimony of the Department's psychologist, Michael R. Gilhousen, that a person with an I.Q. of 69, such as the appellant, is capable of learning. However, Gilhousen, also testified that, in his opinion, Dougherty would not be able to raise her child on her own. According to Gilhousen, the appellant suffers from a mental or emotional illness or mental deficiency that renders her unable to care for the physical, emotional, and mental needs of the child, now and throughout his minority. The Department argues that N.V.D. is medically needy due to severe eczema and allergies. He requires daily skin treatments and a weekly allergy shot. He is allergic to cigarette smoke, and Dougherty has not quit smoking. Neither have the other two adult occupants of the home. At trial, Dougherty could not recall what N.V.D.'s food allergies were, but stated that a list was on the refrigerator. The lack of bonding between mother and child was noted by the hospital staff. Dougherty *273 does not have a high school diploma or GED; she is unemployed and supported entirely by her mother. Dougherty's mother testified that she had previously made a sworn statement that it was not in N.V.D.'s best interest for Dougherty to be his sole managing conservator. Although Dougherty's mother was willing to raise the child at the time of trial, she had initially declined to accept responsibility for the child and had been referred to Child Protective Services several times during Dougherty's childhood. The grandmother indicated that appellant had been called a failure-to-thrive baby too. She testified that she had been effectively acting as N.V.D.'s mother during the time he was diagnosed with failure to thrive and removed from her home. Dougherty contends that there is no evidence to establish that the emotional and physical needs of the child, now and in the future, would be met by the termination of the parent-child relationship. We understand the appellant's argument to be that, by failing to work to reunify the family, the Department failed to rule out the possibility that skills gained in her parenting classes would enable her to raise N.V.D. Dougherty did not describe what skills she developed or training she received in her parenting class. Neither could Dougherty's mother relate her experience with the parent class that she took in September, other than to say, "Well, I believe anytime you take up anything like that, you are going to learn something. You learn to be a little more patient, listen a little more. Don't jump the gun so fast, so to speak." The jury heard testimony regarding the in-home visit on December 19, 2000. The CASA advocate, Sharon Kerr, testified that, over the course of observing eleven visits at the Department and five hours of in-home visits, it was very apparent to her that Dougherty did not know how to properly care for the child. Although she did not smell smoke when she arrived for the in-home visit, by the time she left both she and the baby reeked of smoke because Dougherty kept going to a bedroom to smoke. The foster mother had provided food, but at lunch time, the Doughertys made no effort to feed the child. We must give due consideration to the evidence that the jury could have found to be clear and convincing. Unless its finding is so against the great weight of the evidence that it is clearly wrong and unjust, we cannot disturb the jury's verdict. Although appellant disputed the medical diagnosis of failure to thrive for failure to feed, the totality of the evidence is more than sufficient to allow the factfinder to form a firm belief or conviction that the diagnosis was accurate. The evidence that Dougherty was incapable of ever caring for N.V.D. on her own was essentially unchallenged. The extent and efficacy of the family support system was disputed, but the jury could reasonably form a firm belief or conclusion that the support available to Dougherty would not be sufficient to enable her to meet N.V.D.'s needs. Notwithstanding the evidence that the Department never considered reunification as a viable plan for permanency in this case, the evidence is not so weak that the jury could not form a firm belief that termination of the mother's parental rights was in the child's best interest. Issues two and three are overruled. The judgment is affirmed. AFFIRMED.

130 Ill. App.3d 241 (1984) 473 N.E.2d 342 JOHN E. BALLWEG, Adm'r of the Estate of Donna Ballweg, Deceased, Plaintiff-Appellee, v. THE CITY OF SPRINGFIELD et al., Defendants (The Coleman Company, Inc., et al., Defendants and Third-Party Plaintiffs-Appellants, v. The City of Springfield et al., Third-Party Defendants; Philip Henrici, Third-Party Defendant-Appellee). No. 4-83-0836. Illinois Appellate Court — Fourth District. Opinion filed December 13, 1984. Supplemental opinion filed on denial of rehearing February 8, 1985. *242 *243 John L. Swartz, of Giffin, Winning, Lindner, Newkirk, Cohen & Bodewes, P.C., and Grady E. Holley, of Holley, Keith & Mehlick, both of Springfield, for appellants. Charles J. Gramlich and Eric A. Artman, both of Gramlich & Morse, of Springfield, for appellee Philip Henrici. Londrigan, Potter & Randle, P.C., of Springfield, for appellee John E. Ballweg. Affirmed in part, and reversed in part and remanded. JUSTICE MILLS delivered the opinion of the court: Hobie Cat II. A new trial must take place. A boating accident on Lake Springfield resulted in the electrocution deaths of Donna Ballweg and Jana Welch. The administrator of Ballweg's estate brought the present action against the manufacturer of the boat, Coast Catamaran Corporation (Coast), and Coast's parent company, the Coleman Company (Coleman). Judgment was entered on a jury verdict in favor of Ballweg for $304, 388.35 compensatory damages and $1,021,833 punitive damages. Coast and Coleman appeal. The evidence relating to the circumstances of the accident was essentially the same as that set forth in Ogg v. City of Springfield (1984), 121 Ill. App.3d 25, 458 N.E.2d 1331, a suit brought by the administrator of Jana Welch's estate against the city of Springfield (city) and Coleman. We recount the evidence here only to the extent necessary for our disposition. *244 Ballweg, Welch, and Philip Henrici were sailing a Hobie Cat catamaran on Lake Springfield near Springfield. Henrici manned the tiller and controlled the mainsail, while Welch operated the jib sail. As the boat passed through a channel of the lake, its mainmast came into contact with an overhead power line spanning the channel. The rear end of the boat momentarily dipped and Henrici received an electrical shock when his legs became immersed in water. The boat began rocking, causing repeated contact between the mast and the power lines. Flames flashed from the mast and from beneath the boat. Ballweg and Welch jumped into the water and, as the mast contacted the power lines again, the two women went limp in the water and sank. Their bodies were subsequently recovered by divers. Henrici, who had remained on the boat, was rescued. Because of errors in the admission of evidence we must reverse and remand for a new trial. We also shall address defendants' allegations of error respecting the damages, jury instructions, and pleadings in order to afford guidance to the trial court upon retrial. I Over defendants' objections, plaintiff introduced into evidence several charts listing accidents involving Hobie Cats and power lines over a 10-year period. The charts show the date of the accident, the State in which it occurred, and the number of resulting deaths and injuries. The injuries total 15 and the deaths total 21. There were two accidents with unknown injuries and deaths. The nature of each accident is not described other than by the charts' titles which state, "Hobie Cat Power Line Accidents." Defendants argue that this evidence should not have been introduced because plaintiff failed to show that the prior accidents were similar to the accident in the present case. • 1 The supreme court held in Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill.2d 434, 396 N.E.2d 534, that evidence of prior occurrences may be admissible to establish the dangerousness of a product. The prior accidents must, however, be "substantially similar" to the accident in question. Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill.2d 434, 396 N.E.2d 534; Moore v. Remington Arms Co. (1981), 100 Ill. App.3d 1102, 427 N.E.2d 608. • 2, 3 In the present case, plaintiff alleged that the Hobie Cat was unreasonably dangerous because of its design, which provided an electrical path from the power lines to the water, electrifying the water surrounding the boat. To admit evidence of prior accidents, plaintiffs were required to show that the injuries and deaths of the prior accidents were caused by a design defect substantially similar to that *245 alleged in the present case. No such showing was made, and, therefore, the introduction of the evidence of prior accidents was improper. Moreover, the nature of this evidence was sufficiently prejudicial to require reversal. Defendants argue that, even if some of the prior accidents can be shown to be substantially similar to this case, plaintiff must also prove that defendants received notice of these accidents prior to Ballweg's accident. No authority is cited by defendants for this proposition. Illinois courts have only required, as a prerequisite to the admission of prior accidents, that they be substantially similar to the accident in question. See Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill.2d 434, 396 N.E.2d 534; Moore v. Remington Arms Co. (1981), 100 Ill. App.3d 1102, 427 N.E.2d 608. II Over defendants' objections, plaintiff presented testimony that the city of Springfield (city) had taken precautionary measures with respect to the power lines crossing Lake Springfield which included placing warnings in the area of the lines and eventually running some of the lines under water. Defendants argue that this evidence was irrelevant and immaterial. • 4 In support of the admission of this evidence, plaintiff cites Sutkowski v. Universal Marion Corp. (1972), 5 Ill. App.3d 313, 281 N.E.2d 749, wherein the court held that, in a products liability case, evidence that a product has been changed after the occurrence of an accident is relevant and material in determining that an alternative design is feasible. Sutkowski is inapposite to the present case. Evidence of the city's remedial acts may have been relevant in a suit against the city, but it clearly has no relevance in determining an alternative design of defendants' Hobie Cat. Nor can we see the relevance of this evidence to any other issue in this case. The trial court's failure to sustain defendants' objections to this evidence was erroneous. III Defendants next challenge the award of punitive damages, arguing that the pleadings provided no basis for the imposition of punitive damages. Plaintiff's second amended complaint sought punitive damages only under the Survival Act (Ill. Rev. Stat. 1981, ch. 110 1/2, par. 27-6). After the jury returned its verdict, plaintiff was allowed to amend his complaint to add counts for punitive damages under the Wrongful *246 Death Act (Ill. Rev. Stat. 1981, ch. 70, pars. 1, 2) and under a common law action for funeral and medical expenses. Plaintiff concedes that he was not entitled to punitive damages under the Survival Act or the Wrongful Death Act. (See Froud v. Celotex Corp. (1983), 98 Ill.2d 324, 456 N.E.2d 131; National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill.2d 160, 383 N.E.2d 919; Howe v. Clark Equipment Co. (1982), 104 Ill. App.3d 45, 432 N.E.2d 621; Winter v. Schneider Tank Lines, Inc. (1982), 107 Ill. App.3d 767, 438 N.E.2d 462.) Plaintiff argues, however, that punitive damages could be awarded on his common law claim for medical and funeral expenses. The supreme court has recognized a common law cause of action in which the spouse of the deceased or the estate's administrator may recover medical and funeral expenses which are not recoverable under the Wrongful Death Act. In Saunders v. Schultz (1960), 20 Ill.2d 301, 170 N.E.2d 163, the court held that the decedent's spouse — who had become personally liable for funeral expenses under "An Act to revise the law in relation to husband and wife" (Ill. Rev. Stat. 1955, ch. 68, par. 15) — could bring an action individually at common law to recover pecuniary losses which were not recoverable under the Wrongful Death Act. By way of dicta, the court extended this cause of action to administrators as well, stating: "[W]e believe that the common law should be construed to permit the recovery of such funeral and medical expenses in an action either by the decedent's estate, or, as in the instant case where no such claim was made, by the surviving spouse." Saunders v. Schultz (1960), 20 Ill.2d 301, 310, 170 N.E.2d 163, 168. • 5 The injury which provides the basis for a Saunders-type action is derivative of the injury to the decedent. An analogous situation would be that of a spouse seeking medical expenses in a loss of consortium action. Although the spouse sues in his own name on his own behalf, the damages sued for are incurred through the injury to the other spouse. (See Hammond v. North American Asbestos Corp. (1982), 105 Ill. App.3d 1033, 435 N.E.2d 540.) In the same manner, a spouse or administrator suing for medical or funeral expenses in a Saunders-type action is seeking damages incurred by an injury to the decedent. The supreme court has denied punitive damages in consortium actions on the theory that such actions are indirect or derivative in nature and recovery is intended only as compensation. (Hammond v. North American Asbestos Corp. (1983), 97 Ill.2d 195, 454 N.E.2d 210.) For the same reason, we hold that punitive damages are not recoverable in a Saunders-type action for medical and funeral expenses. *247 IV • 6 Defendants next argue that the jury's $5,000 award for decedent's pain and suffering was against the manifest weight of the evidence because there was no evidence that decedent sustained any physical injury. The only evidence cited by plaintiff in support of the award is testimony by Philip Henrici, wherein he stated: "[When the back of the boat went down] I received a shock, like a shock you get from putting your finger in a light socket. * * * I looked at Jana and Donna, and they were both very surprised. Apparently, they had also been shocked." Defendants stated that Henrici was shocked because, when the boat dipped, his legs were immersed in lake water which had become electrified, whereas decedent and Welch were at the other end of the boat and there was no evidence that they had touched the water or received a shock while on the boat. We find that the testimony of Philip Henrici, standing alone, was insufficient to establish pain and suffering by the decedent. On remand, the jury shall not be instructed to consider pain and suffering as an element of damages. V • 7 Defendants next argue that the trial court erred in instructing the jury with regard to decedent's lost earnings and loss of society. The jury was given a damage instruction which stated in part: "Where a decedent leaves parents the law recognizes the presumption that they sustained some substantial pecuniary loss by reason of the death. * * * In determining pecuniary loss to the parents and brothers and the weight to be given to the presumption of pecuniary loss to the parents, you may consider what benefits of pecuniary value, including money, goods, society, companionship and services the decedent might have been expected to contribute to the parents and brothers had the decedent lived." Defendants acknowledge that plaintiff was entitled to an instruction of lost earnings and loss of society but argue that the instruction given was erroneous insofar as it contained presumptions of lost earnings and loss of society. The supreme court in Bullard v. Barnes (1984), 102 Ill.2d 505, 468 N.E.2d 1228, specifically abolished the presumption of lost earnings in wrongful death cases. In addition, the majority recognized loss *248 of society as an element of damages and held that there was a presumption of lost society where the decedent was a minor child. The majority stated, however, "This case does not present, and we therefore need not decide, the question of whether the loss-of-society presumption applies to children who have reached the age of majority." (Bullard v. Barnes (1984), 102 Ill.2d 505, 517, 468 N.E.2d 1228, 1234.) In his special concurrence, Justice Clark stated that the loss of society presumption should apply to children who have reached the age of majority. Because Donna Ballweg was not a minor at the time of the accident, we must decide whether a presumption of loss of society should pertain to cases where the defendant has reached the age of majority. In Bullard, the supreme court defined "presumption" as "an inference which common sense draws from the known course of events." (102 Ill.2d 505, 517, 468 N.E.2d 1228, 1234.) Because of the obvious disparity from family to family in the relationships between parents and their adult children, we find it reasonable to require a plaintiff to prove loss of society, where it exists, rather than to presume such a loss in all cases. We conclude, therefore, that the jury should not have been instructed to presume either a loss of earnings or a loss of society. VI • 8 Defendants next argue that the trial court erred in failing to instruct the jury with the second paragraph of Illinois Pattern Jury Instructions (IPI), Civil, No. 12.04 (2d ed. 1971). The instruction states in whole: "More than one person may be to blame for causing an injury. If you decide that a [the] defendant[s] was [were] negligent and that his [their] negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame. [However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant.]" The trial court gave the jury a modified version of IPI Civil No. 12.04 which omitted the second paragraph. Defendants had tendered a modified version of No. 12.04 which contained the second paragraph, but this instruction was not given. The notes on use to IPI Civil No. 12.04 state: "The second paragraph should be used only where there is evidence tending to show that the sole proximate cause of the occurrence was the conduct of a third person." (IPI Civil No. *249 12.04, at 75.) Defendants argue they raised as a defense that decedent's injury was proximately caused by the conduct of Henrici (who was piloting the boat when it struck the power lines), and the city (which maintained the power lines in a dangerous condition). • 9 All that is required to justify the giving of an instruction is that there be some evidence in the record to justify the theory of the instruction. (Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App.3d 80, 463 N.E.2d 792.) We believe there was some evidence in the record to support defendants' theory that the conduct of Henrici and the city was the sole proximate cause of decedent's death. The trial court erred in failing to instruct the jury with the second paragraph of IPI Civil No. 12.04. VII • 10 Defendants next argue that the trial court erred in striking their defense based on decedent's contributory negligence. In their answer to plaintiff's amended complaint, defendants alleged: "* * * that the Plaintiff's decedent, at the time and place alleged, was guilty of contributory negligence, which contributory negligence was a proximate cause of death and the ensuing damages claimed and that, in the event any judgment is entered against this Defendant, that said comparative fault should act to reduce any judgment in favor of the Plaintiff commensurate with the degree of fault attributable to Plaintiff's decedent." In Coney v. J.L.G. Industries, Inc. (1983), 97 Ill.2d 104, 454 N.E.2d 197, the supreme court held that the doctrines of misuse and assumption of the risk would no longer bar a plaintiff's recovery but that such misconduct would be compared in the apportionment of damages. A plaintiff's recovery would be reduced by the amount which the trier of fact found his misconduct contributed to cause the damages. The court stated, however, that a plaintiff's unobservant, inattentive, ignorant or awkward failure to discover or guard against a defect should not be compared as a damage-reducing factor. In applying Coney, the appellate court has held that a plaintiff's ordinary contributory negligence is not a damage-reducing factor in a strict liability action. Simpson v. General Motors Corp. (1983), 118 Ill. App.3d 479, 455 N.E.2d 137; Pell v. Victor J. Andrew High School (1984), 123 Ill. App.3d 423, 462 N.E.2d 858. Defendants merely alleged that decedent was contributorily negligent and there was no allegation of fact amounting to misuse or assumption of the risk. Moreover, upon reviewing the record, we find no *250 evidence constituting misuse or assumption of the risk on decedent's part. Consequently, the dismissal of this portion of defendants' answer was not prejudicial to them. VIII Finally, defendants argue that the trial court erred in dismissing their counterclaims against the city of Springfield and Philip Henrici. Both the city and Henrici had settled with the plaintiff. The counterclaims against them were dismissed pursuant to "An Act in relation to contribution among joint to tortfeasors" (Contribution Act), which provides that a tortfeasor who obtains a settlement in good faith from the plaintiff is discharged from all liability for contribution to any other tortfeasor. (Ill. Rev. Stat. 1981, ch. 70, par. 302(c), (d); see Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App.3d 80, 463 N.E.2d 792.) Defendants argue that the settlements were not made in good faith and, therefore, do not discharge the city or Henrici from liability for contribution. A. PLAINTIFF'S SETTLEMENT WITH THE CITY • 11 The city obtained a covenant not to sue from the plaintiff for the sum of $37,500. Defendants argue that this sum illustrates the bad faith of the settlement because the city's liability to plaintiff was, according to defendants, much greater than this. Defendants state that in Ogg the jury awarded Welch's administrator $100,000 in compensatory damages. Defendants claim that the city's share of this judgment was $60,000, while theirs was $40,000. Defendants then conclude that the city's settlement with plaintiff for $37,500 was "substantially less than the amount for which the city was found responsible in the Ogg case." The only authority cited by defendants which even remotely supports this type of analysis for determining good faith is LeMaster v. Amsted Industries, Inc. (1982), 110 Ill. App.3d 729, 442 N.E.2d 1367. In LeMaster, the court stated that the ratio of the settlement to the final verdict was one measure of good faith. We adopt the rationale of Lowe, which rejected this type of test for the reason that "[i]t is virtually impossible to use an unknown factor, i.e., the jury's verdict, to test good faith prior to trial." Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App.3d 80, 94, 463 N.E.2d 792, 803. Defendants' attempt to distinguish Lowe by arguing that they are not comparing the settlement in this case with an unknown factor — the verdict in this case — but rather with a known factor — the verdict in Ogg. We find such a comparison inapposite, for as was stated in *251 Lowe, albeit in a different context, "No case has a brother." (124 Ill. App.3d 80, 119, 463 N.E.2d 792, 819.) Moreover, even if the verdict in Ogg were to be used as a basis for comparison, one would be hard pressed to conclude that a payment of $37,500 to settle a potential liability of $60,000 is evidence of bad faith. The dismissal of the counterclaim against the city of Springfield is affirmed. B. PLAINTIFF'S SETTLEMENT WITH PHILIP HENRICI • 12 Defendants argue that the settlement between plaintiff and Henrici was in bad faith because plaintiff's cause of action against Henrici was barred by the statute of limitations at the time the settlement was entered into. Henrici acknowledges that the statute of limitations had expired on plaintiff's claim against him. However, he maintains that the release settled a "potential outstanding liability" resulting from plaintiff's settlement with the city. The covenant not to sue between plaintiff and the city contains an assignment of the city's contribution rights to plaintiff. Henrici apparently argues that his payment to plaintiff was in settlement of the city's contribution rights which were held by plaintiff. This argument fails, however, because any contribution rights which the city may have possessed prior to its settlement with plaintiff were lost once the city and plaintiff settled. Section 2(e) of the Contribution Act provides: "A tortfeasor who settles with a claimant pursuant to paragraph (c) is not entitled to recover contribution from another tortfeasor whose liability is not extinguished by the settlement." (Emphasis added.) Ill. Rev. Stat. 1981, ch. 70, par. 302(e). It appears, therefore, that plaintiff gave no consideration for his settlement with Henrici. The issue of consideration in settlements, as it bears upon good faith, was raised in LeMaster and we find the case instructive on that point. The plaintiff in LeMaster had given a release to his employer in return for a payment which exceeded the employer's liability under the Workers' Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.). In addition, the employer agreed to waive its right to seek reimbursement for worker compensation payments previously made to plaintiff. The court stated: "[T]he settlement and release agreement between the plaintiff and [his employer] did not constitute a good-faith settlement because, effectively, the plaintiff had no rights outside of the Workers' Compensation Act which he could relinquish in return for the lien waiver and the cash payment. [Citation.] Between the plaintiff and [his employer], an equitable bargain was simply *252 not entered into * * *." LeMaster v. Amsted Industries, Inc. (1982), 110 Ill. App.3d 729, 736, 442 N.E.2d 1367, 1373. We agree with LeMaster insofar as it holds that a settlement lacking in consideration does not constitute a good faith settlement. Such an arrangement violates the two-fold purpose of the Contribution Act, which is (1) to encourage the settlement of disputed claims between the parties, and (2) to obtain an equitable sharing of the damages among those responsible for them. See Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App.3d 80, 463 N.E.2d 792. The dismissal of the contribution claim against Henrici is reversed. Affirmed in part, reversed in part and remanded. GREEN, P.J., and WEBBER, J., concur. SUPPLEMENTAL OPINION ON DENIAL OF REHEARING JUSTICE MILLS delivered the supplemental opinion of the court: I Ballweg has filed a petition for rehearing, arguing for the first time on appeal that the trial court erred in denying his motion for summary judgment on the grounds that defendants were collaterally estopped from denying liability because of the judgment in Ogg. • 13 We are fully aware that Ballweg raised in his appellee's brief an estoppel argument relating to the trial court's ruling on a jury instruction. But, at no time prior to the filing of the petition for rehearing has Ballweg argued that a trial on the issue of liability was precluded because of collateral estoppel. The argument, therefore, is abandoned. See First Granite City National Bank v. Champion (1970), 130 Ill. App.2d 970, 268 N.E.2d 35. Moreover, we do not believe Ballweg is entitled to avail himself of collateral estoppel under the circumstances of the present case. Ballweg was not a party in Ogg and, therefore, collateral estoppel would not apply here under the traditional application of the doctrine. But see Illinois State Chamber of Commerce v. Pollution Control Board (1979), 78 Ill.2d 1, 398 N.E.2d 9. Ballweg's petition for rehearing is denied. II • 14 We are disturbed by Henrici's petition for rehearing. Our *253 original opinion was based on factual representations made by Henrici in his appellee's brief and undisputed by the parties. Henrici now claims that "[t]he able young lawyer who authored the brief of the Third Party Defendant Henrici was laboring under a misapprehension of the facts * * *." The author of Henrici's petition for rehearing further claims that, although he reviewed the appellee's brief, he "did not catch the significance of the language describing the covenant as an assignment nor the language which distorted the way settlement actually occurred." Henrici now asserts that the settlement described in his appellee's brief was never executed and that the actual covenant not to sue — between Ballweg, Henrici, and the city, dated June 27, 1983 — contained no assignment of contribution rights from the city to Ballweg. Since the putative assignment had been the only basis for Henrici's argument that Ballweg provided consideration for the settlement with Henrici, it is singularly curious that the author of the petition for rehearing did not "catch the significance of the language describing the covenant as an assignment." Nevertheless, we have allowed Henrici to supplement the record on appeal with the covenant not to sue between Ballweg, Henrici, and the city. As noted in the petition for rehearing, this settlement contains no assignment of contribution rights from the city to Ballweg. The covenant states on its face that the sole consideration provided by Ballweg to Henrici was Ballweg's promise to refrain from asserting any claim against Henrici under section 2 of the Wrongful Death Act (Ill. Rev. Stat. 1981, ch. 70, par. 2) arising out of the accidental death of Donna Ballweg on August 13, 1978. This covenant not to sue was entered into well after the statute of limitations had run on any wrongful death action which Ballweg had against Henrici. We continue to hold, therefore, that a settlement which is entered into after the limitations period has expired on the plaintiff's claim against the settling defendant is not in good faith under section 2(c) of the Contribution Act (Ill. Rev. Stat. 1981, ch. 70, par. 302(c)). Henrici's petition for rehearing is denied. GREEN, P.J., and WEBBER, J., concur.

490 So.2d 744 (1986) STATE of Louisiana, Plaintiff-Appellee, v. Clifton PIERSON, Defendant-Appellant. No. 85-538. Court of Appeal of Louisiana, Third Circuit. June 25, 1986. Harold Savoie, Lafayette, for defendant-appellant. Paula Kobetz Woodruff, Lafayette, for plaintiff-appellee. Before GUIDRY, DOUCET and MANSOUR,[*] JJ. GUIDRY, Judge. The State of Louisiana instituted this action against Clifton Pierson pursuant to La.R.S. 46:236.1 F to prove paternity and obtain child support for four minor children, Rella Thorn, Clifton Thorn, Elcobie Thorn and Travis Thorn. The State alleged that defendant was the biological father of the four children. The State further alleged that Linda Thorn, mother of the four children, now deceased, and defendant had engaged in sexual intercourse with each other from approximately the fall of 1974 to September 1980, and that defendant acknowledged that he was the natural father of the children by his actions and oral admissions. The petition finally alleged that an AFDC grant had been made on behalf of the children, and that defendant was financially able to pay child support. Domicillary service was had on the defendant on June 22, 1982. Defendant failed to make a timely appearance or file any pleadings. A preliminary default was entered on September 23, 1982. A default judgment, which recognized defendant as the natural father of the children and ordered him to pay $400.00 per month to the Department of Health and Human Resources, Child Support Enforcement Division, *745 was rendered and signed on February 5, 1985. Defendant was personally served with a copy of this judgment on February 7, 1985. Defendant filed for an order of appeal on April 3, 1985 which was granted on April 8, 1985. On appeal, Pierson urges that the judgment of the trial court should be reversed and set aside because it was rendered on insufficient proof. This court, ex proprio motu, issued a rule to show cause why the appeal of the defendant-appellant, Clifton Pierson, should not be dismissed for untimely filing. MOTION TO DISMISS The first issue is whether an appeal from a judgment rendered pursuant to La. R.S. 46:236.1[1] et seq is governed by the provisions of La.C.C.P. arts. 3942 and 3943, or the provisions of La.C.C.P. art. 2087. If La.C.C.P. arts. 3942 and 3943 apply, then this appeal is untimely. On the other hand, if La.C.C.P. art. 2087 applies then the appeal is timely. La.C.C.P. art. 3942 states: "An appeal from a judgment granting or refusing an annulment of marriage, a separation from bed and board, or a divorce can be taken only within thirty days from the applicable date provided in Article 2087(1)-(3). Such an appeal shall suspend the execution of the judgment in so far as the judgment relates to the annulment, separation, or divorce." La.C.C.P. art. 3943 states: "An appeal from a judgment awarding custody of a person or alimony can be taken only within the delay provided in Article 3942. Such an appeal shall not suspend the execution of the judgment in so far as the judgment relates to custody or alimony." La.C.C.P. art. 2087 states: "Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of: (1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely; (2) The court's refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or (3) The date of the mailing of notice of the court's refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914. When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised, or reversed as to any party may take a devolutive appeal therefrom within the delays allowed in the first Paragraph of this Article or within ten days of the mailing by the clerk of the *746 notice of the first devolutive appeal in the case, whichever is later." In the instant case, the judgment was signed on February 5, 1985, and served upon the defendant on February 7, 1985. Since no motion for new trial was filed, the seven day delay period for applying for a new trial expired on February 14, 1985 (seven days from the day after service of the notice of judgment). La.C.C.P. arts. 1974 and 2087. The defendant-appellant then either had 30 days from that date or 60 days from that date within which to perfect his appeal, depending on which procedural article is applicable to judgments rendered under La.R.S. 46:236.1 et seq. La.C.C.P. art. 3943 pertains to judgments awarding custody of a person or alimony. The term "alimony" has been held to include child support awards. See Verrett v. Verrett, 397 So.2d 840 (La.App. 4th Cir. 1981). However, the judgment in the instant case goes beyond a mere judgment of child support, it also determines the issue of paternity vis-a-vis the State and the defendant. The initial and most important determination in these proceedings is one of paternity. Without initial proof of paternity, the State cannot secondarily demand child support payments. La.C.C. art. 240; Haynes v. Cargo, 422 So.2d 267 (La. App. 4th Cir.1982). Appeals in paternity suits are governed by the provisions of La.C.C.P. art. 2087. Because the trial court had to first make a determination of paternity and then make an ancillary decision on child support, we hold that appeals from judgments rendered under La.R.S. 46:236.1 F are governed by the delays set forth in La.C.C.P. art. 2087. Since such judgments go beyond the issue of child support, they cannot be governed by the delays in La.C.C.P. art. 3943 which apply to judgments solely awarding alimony or custody. Therefore, defendant-appellant's appeal in this case was timely. PATERNITY PROOF Defendant contends that the State did not prove paternity in this case by a preponderance of the evidence. The judgment in this case was obtained by default. La.C.C.P. art. 1702 states in pertinent part as follows: "A. A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case ..." A prima facie case, sufficient to confirm a judgment of default, is established only when the plaintiff proves the essential allegations of his petition to the same extent as if those allegations had been specifically denied. Perrodin v. Zander, 441 So.2d 12 (La.App. 3rd Cir.1983), writ denied, 444 So.2d 120 (La.1984). In the instant case the plaintiff alleged that defendant and the deceased mother of the children had sexual relations over a period of years, and that defendant had acknowledged that the children were his through actions and admissions. At the hearing in this matter, the State presented two witnesses, the maternal grandmother of the children and the sister of the deceased mother. The transcript of evidence is less than two pages. No evidence whatever was adduced to support the State's allegation that defendant and the mother had engaged in sexual intercourse over a period of some six years. There is no evidence indicating how the alleged natural father acknowledged either by actions or admission, or both, that the Thorn children were his biological children. Each witness was simply asked the leading question, whether defendant had admitted that he was the father of the children, to which each witness responded "yes". Further, no evidence was adduced concerning needs of the children or the defendant's financial ability to meet those needs. In this connection the only evidence presented were the following questions and the responses of the maternal grandmother: "Q. Do you need support to help raise the children? A. Yes. . . . . . *747 Q. Would four hundred ($400.00) dollars a month help support the children? A. Yes." Clearly, the evidence adduced in this matter did not make proof of the essential allegations of the State's petition sufficient for the rendition of a default judgment. Therefore, the judgment of the trial court must be reversed and set aside. However, in the interest of justice, we will remand this matter to the trial court for a new trial, with the opportunity being allowed each party to file any additional pleadings and such evidence as may be desired. La. C.C.P. art. 2164; Sanchez v. Sanchez, 460 So.2d 24 (La.App. 1st Cir.1984); Roark v. May, 367 So.2d 397 (La.App. 3rd Cir.1978), writ denied, 368 So.2d 123 (La.1979). For the above and foregoing reasons, the judgment of the trial court is reversed and set aside. This matter is remanded to the trial court for further proceedings in accordance with law and the views expressed hereinabove. REVERSED AND REMANDED. NOTES [*] Judge Alfred A. Mansour of the 9th Judicial District Court participated in this decision as Judge Pro Tempore of the Third Circuit Court of Appeal. [1] La.R.S. 46:236.1 states in pertinent part as follows: "... B. The department is hereby authorized to develop and implement a program of family support in AFDC cases designed to: . . . . . (3) Establish paternity. . . . . . F. The department, except when it is not in the best interest of the child, may without the necessity of written assignment, subrogation, tutorship proceedings, separation proceedings, or divorce proceedings, take direct civil action, including actions to establish filiation against an alleged biological parent notwithstanding the existence of a legal presumption that another person is the parent of the child solely for the purpose of fulfilling its responsibility under this Section, in any court of competent jurisdiction, to obtain an order, judgment, or agreement of support against the responsible person in any case in which an AFDC grant has been made for or on behalf of a child or children or in any case in which the department has agreed to provide services for a non-AFDC applicant. The amount of such support shall be set only by order of the court or by the consent of the parties, but in either case the department shall be designated as payee. A separate and distinct cause of action in favor of the department is hereby created, and suits brought under this provision need not be ancillary to or dependent upon any other legal proceeding...."

343 F.3d 72 UNITED STATES of America, Appellee,v.Alan SIMMONS, Defendant-Appellant. Docket No. 02-1172. United States Court of Appeals, Second Circuit. Argued: February 5, 2003. Decided: September 3, 2003. 1 COPYRIGHT MATERIAL OMITTED David V. Kirby, First Assistant United States Attorney (Peter Hall, United States Attorney, and Gregory L. Waples, Assistant United States Attorney, on the brief), Burlington, Vermont, on behalf of the Appellee. 2 Elizabeth D. Mann, Assistant Federal Public Defender, Burlington, Vermont, on behalf of Defendant-Appellant. 3 Before: JACOBS and POOLER, Circuit Judges, and GLEESON, District Judge.1 4 GLEESON, United States District Judge. 5 Alan Simmons appeals from a judgment convicting him on his pleas of guilty to knowingly transporting a minor in foreign commerce for the purpose of engaging in illegal sexual conduct (Count One), and to using a minor to engage in sexually explicit conduct for the purpose of producing a videotape of the conduct (Count Two), in violation of 18 U.S.C. § 2423(a) and 18 U.S.C. § 2251(a), respectively. Simmons was sentenced principally to consecutive prison terms totaling 168 months, to be followed by three years of supervised release. He makes two arguments on appeal: (1) that the district court erred in upwardly departing to Criminal History Category IV based on Simmons's record of convictions in Canada; and (2) that the district court erred by imposing, as a condition of supervised release, a prohibition on the possession or viewing of any "pornographic material." 6 Finding no merit in either of Simmons's arguments on appeal, we affirm. FACTS A. The Offenses 7 In December of 1992, Simmons, who was then 41 years old, took a ski trip from his home in Ontario, Canada to Jay Peak in Vermont. He brought along his two sons, who were 9 and 12 years old, and 15-year-old B.B., whom Simmons had coached in a girls' hockey league and whose mother Simmons had dated. Following an afternoon of skiing, the four ate dinner and retired to a hotel room to watch videos. Simmons prepared soft drinks for the children, who did not wake up until approximately noon the next day. This was unusual for B.B., who was an early riser. Although she noticed that she was tired, she did not suspect anything out of the ordinary. 8 Four years later, while executing a search warrant at Simmons's home in connection with an alcohol and tobacco smuggling case, Canadian authorities seized a 38-minute videotape of Simmons sexually abusing an apparently unconscious adolescent female. The tape begins with the female lying prone on a bed, her sweatshirt pulled up to expose her breasts. Then Simmons is seen pulling down the girl's sweatpants and manipulating her left leg several times to expose her genital area to the camera. The camera focuses in on the victim's genital area, which Simmons can be seen touching with his fingers, his lips and his penis. The videotape concludes with Simmons masturbating and ejaculating onto the victim's pubic hair. Throughout the videotape, the victim appears to be unconscious. 9 Subsequent investigation revealed that the videotape was made in the Vermont hotel room in 1992, and that the victim was B.B. Another videotape seized by the Canadian authorities from Simmons's home showed him engaging in various sexual acts with seemingly unconscious adult females. Several women who dated Simmons reported that they suffered blackouts after consuming drinks he prepared, and woke up hours later in sexually compromising positions. 10 On December 19, 1996, a federal grand jury in Vermont returned an indictment charging Simmons with transporting a minor in foreign commerce for the purpose of engaging in illegal sexual activity, in violation of 18 U.S.C. § 2423, and with sexual exploitation of a child, in violation of 18 U.S.C. § 2251(a). Simmons pled guilty to both counts on September 24, 2001, and he was sentenced on March 5, 2002. B. The Sentencing 11 1. The Criminal History Calculation and Upward Departure 12 The presentence report ("PSR") placed Simmons in Criminal History Category I despite his many prior convictions because they were all obtained in Canadian courts. See U.S.S.G. § 4A1.2(h). According to the PSR, Simmons's criminal history consisted of the following convictions and sentences: 13 Date of Conviction Offense Sentence 7/29/71 Theft over $50 10 days 8/24/71 Possession of Stolen Property 3 months 14 6/14/72 Breaking and Entering 6 months 4/15/85 Possession of Unregistered Restricted Weapon $400 fine or 30 days 4/17/85 Breach of Recognizance 45 days 6/26/85 Assault 18 months Extortion 18 months Concurrent 12/20/96 Uttering Threats 15 days 5/7/97 Conspiracy of Unlawful Possession of Imported Goods 3 months 6/17/97 Possession of Child Pornography 2 years Sexual Assault 1 year Consecutive Possession of Prohibited Weapon 6 months Concurrent Careless Storage of Prohibited Weapon 1 month Concurrent 15 In its presentencing memorandum, the government sought an upward departure to Criminal History Category V, asserting that category to be the one Simmons would have been in had his convictions occurred in the United States. Simmons countered that there was no justification for an upward departure, and even if there were, a correct tally of points based on the foreign convictions would place Simmons in Criminal History Category III. 16 At the sentencing hearing on March 5, 2002, the district court first observed as follows: "As I understand it from the circuit what I have to do is go through each category and consider whether that category adequately reflects the seriousness of the defendant's record." (Tr. at 51.)2 It further observed "that the convictions of the defendant in Canada are very similar to convictions here in this country." (Id.) The appropriate criminal history category for sentencing, the court concluded, should be the category that would apply if the foreign convictions had occurred in the United States. 17 Addressing each of Simmons's convictions separately, the district court chose not to consider the first three, which occurred in 1971 and 1972, because they were too old and would not be counted even if they had occurred in the United States. See U.S.S.G. § 4A1.2(e). The court accorded one criminal history point to the April 1985 conviction for possessing an unregistered restricted weapon. It declined to consider the 1985 conviction for "Breach of Recognizance." Because there was no background information available for that charge, Simmons was given the "benefit of the doubt" as to its underlying facts. (Tr. at 53.) 18 The June 1985 convictions for assault and extortion, for which Simmons received concurrent 18-month sentences, were counted by the district court despite the absence of explanatory information about them in the PSR. Reasoning that "these seem to be offenses for which it's not difficult to figure out what happened" (Id. at 54), the court accorded a total of three criminal history points to them. 19 The court added one point for the 1996 conviction for uttering threats and two points for the May 1997 conviction for unlawful possession of imported goods. As for the 1997 conviction for possession of child pornography, no points were allocated because it was based on the same videotape on which Simmons's abuse of B.B. was recorded. The court did count, however, the 1997 convictions for sexual assault and possession of a prohibited weapon, according a total of two points to them in calculating the departure. 20 Because the total points allocated to the Canadian convictions was nine, the district court departed upward under U.S.S.G. § 4A1.3 to the corresponding category, Criminal History Category IV. It summarized its methodology as follows: "[The case law] says I'm supposed to pause at each category to consider which category reflects the seriousness of his record. But it seems to me what I've done is gone through and pointed out the various offenses... which ... would and do reflect the seriousness of the defendant's record...." (Tr. at 56.) 21 With a total offense level of 32 and an upward departure to Criminal History Category IV, the applicable sentencing range was 168-210 months. As stated above, Simmons was sentenced to consecutive terms of imprisonment totaling 168 months. 22 2. The Special Condition Prohibiting the Possession or Viewing of Pornography 23 The district court imposed a three-year term of supervised release to follow the 168-month prison term, with the following special condition: "The defendant shall not possess or view any pornographic material, including videotapes, films, magazines, books and photographs, nor shall he subscribe to `adult-only' movie channels." (J., Sheet 3C — Supervised Release.)3 DISCUSSION A. The Upward Departure 24 Section 4A1.1 of the United States Sentencing Guidelines is a sentencing judge's starting point for calculating the criminal history category of a defendant. The section prescribes, inter alia, the allocation of criminal history points to "each prior sentence," with the number of points per sentence depending on the length of the prison term, if any, imposed as part of the sentence. U.S.S.G. § 4A1.1(a), (b), (c). The total number of criminal history points places the defendant in one of the six criminal history categories that comprise the horizontal axis of the Guidelines' sentencing table. U.S.S.G., Ch. 5, Pt. A. 25 Not all of a defendant's prior sentences, however, constitute a "prior sentence" under the Guidelines. For purposes of tallying criminal history points, sentences resulting from military offenses, tribal court convictions and foreign sentences are not counted. U.S.S.G. § 4A1.2. The exclusion of such sentences creates the obvious risk that a defendant's criminal history category will fail to reflect the seriousness of his or her criminal history. Thus, the guideline provision excluding foreign sentences explicitly adds that such sentences may be considered as a ground for departure under U.S.S.G. § 4A1.3. U.S.S.G. § 4A1.2(h). Section 4A1.3 authorizes a departure (upward or downward) "[i]f reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes...." The section specifically identifies prior sentences not used in calculating the defendant's criminal history category, including foreign sentences, as the type of information on which a departure might be based. 26 Simmons contends that the district court erred by upwardly departing to Criminal History Category IV. Specifically, he contends that it was an error to consider the 1985 convictions for assault and extortion in calculating the degree of the upward departure because there was no information available about either offense. According to Simmons, the district court violated the admonition in the commentary to § 4A1.3 that criminal history departures are authorized only "in the limited circumstances where reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's criminal history." U.S.S.G. § 4A1.3, Commentary at 330 (Nov.2002) (emphasis added). We disagree. 27 An appeals court reviews de novo whether a particular factor is a permissible basis for a departure. United States v. Karro, 257 F.3d 112, 120 (2d Cir.2001) (citing Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)). The inadequacy of a defendant's criminal history category is not merely a permissible basis for an upward departure, it is what Koon described as an "encouraged" basis for such a departure. See 518 U.S. at 94-95, 116 S.Ct. 2035. 28 At least until recently, it was the law in this circuit that the decision to depart (as distinct from whether the ground cited is a permissible one) was reviewed for abuse of discretion. United States v. Carpenter, 320 F.3d 334, 342 (2d Cir.2003). Congress recently changed that in The Prosecutorial Remedies and Other Tools To End the Exploitation of Children Today Act of 2003 ("PROTECT Act"), Pub.L. No. 108-21, § 401(d), 117 Stat. 650, 670 (2003), codified at 18 U.S.C. § 3742(e)(3)(B)(iii), which mandates de novo review of whether a departure is "justified by the facts of the case." The PROTECT Act is silent on its applicability to appeals that were pending when it was enacted. However, we need not address that issue here, as we would affirm the departure in this case even under the more stringent standard. 29 A sentencing court considering an upward departure under § 4A1.3 is not required by our cases to pause at each category above the applicable one to consider whether the higher category adequately reflects the seriousness of the defendant's record. While such an obligation was suggested by United States v. Tropiano, 50 F.3d 157, 162 (2d Cir.1995); see also United States v. Khalil, 214 F.3d 111, 123 (2d Cir.2000) (stating in dicta that Tropiano required such a sequential method), we have made it clear on other occasions that, as long as the reasons for such a departure are fully explained, "a mechanistic, step-by-step procedure is not required." United States v. Kassar, 47 F.3d 562, 566 (2d Cir.1995), abrogated on other grounds by Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998); see also United States v. Franklyn, 157 F.3d 90, 100 (2d Cir.1998). Indeed, this case illustrates the inappropriateness of requiring the step-by-step analysis. The explanation for the departure was that the seriousness of Simmons's past criminal conduct was best measured by calculating criminal history points for his Canada convictions as though they were United States convictions. This was an entirely sensible explanation. Indeed, though Simmons contends there was insufficient information to consider two of the 1985 convictions, he does not challenge the district court's methodology for an upward departure based on foreign convictions. That methodology hinged on the total number of criminal history points attributed to the Canada convictions, and it resulted in a departure to Criminal History Category IV. In light of the court's explanation, it would be senseless formalism to pause at Criminal History Categories II and III to consider whether they would have adequately reflected the seriousness of Simmons's criminal past. Thus, while it remains true that a sentencing court can meet its obligation to explain an upward departure by proceeding sequentially from the applicable category through each higher category until it settles on the one that fits the defendant, such a step-by-step inquiry is not required in every case. 30 The requirement in § 4A1.3, which is reiterated in its accompanying commentary, that a departure be based on "reliable information" was not disregarded in this case when the district court considered the 1985 convictions and sentences for assault and extortion. It is true that the background information for those convictions was unavailable due to the passage of time. On the other hand, the nature of those offenses is not obscure. As the district court stated, "these seem to be offenses for which it's not difficult to figure out what happened." (Tr. at 54.) Indeed, where it was difficult to figure out the nature of a prior conviction, as was true with respect to the 1985 "Breach of Recognizance" conviction, Simmons was given the benefit of the doubt, and the sentence was not counted. Moreover, the foreign convictions at issue here occurred in Canada, and were considered by a district court sitting in Vermont. The court expressly stated that Canada convictions "are very similar to convictions here in this country" (Tr. at 51), and Simmons does not suggest otherwise. Simmons's argument, if accepted, would result in a per se rule that foreign convictions could never form the basis for a § 4A1.3 departure if only the name of the offense of conviction and the length of sentence imposed were available. We decline to adopt such a rule. We acknowledge that some foreign convictions, particularly those occurring in nations with less familiar criminal justice systems than the one at issue here, may require further inquiry and development before they may properly support an upward departure. But we find no error in the failure to do so here. 31 Finally, we take comfort in the knowledge that if Simmons's convictions for assault and extortion were something other than what they seem, i.e., something other than an assault and an extortion, he was in the best position to know it. Implicit in his argument on appeal is that "the label ascribed to the conduct" may have led the sentencing court to an erroneous belief that Simmons engaged in violent conduct. (Appellant's Br. at 10.) We see no reason in this case why, if that were true, Simmons's counsel could not have pointed that out to the district court. B. The Special Condition 32 Simmons contends that the imposition of the special condition prohibiting his possession or viewing of pornographic material was an abuse of discretion for two reasons. First, he asserts that the prohibition does not provide adequate notice of what is prohibited. Second, Simmons asserts that the condition is neither reasonably related to a legitimate sentencing purpose nor sufficiently tailored to serve only such a legitimate purpose. We follow our recent decision in United States v. Cabot, 325 F.3d 384, 385 (2d Cir.2003), and conclude, accordingly, that it was not error to impose this condition. We also use this case as an opportunity to further explain our reasoning in Cabot. Simmons did not object at sentencing to the imposition of the special condition of supervised release. Generally, such a failure to object results in the application of plain error review, "which precludes us from correcting an error unless it affects a defendant's `substantial rights.'"4 United States v. Keigue, 318 F.3d 437, 441 (2d Cir.2003) (quoting Fed.R.Crim.P. 52(b)); United States v. Zillgitt, 286 F.3d 128, 138 (2d Cir.2002) (reviewing sentencing error first raised on appeal for plain error); United States v. Miller, 263 F.3d at 4 (same). However, in United States v. Sofsky, we stated that "in the sentencing context there are circumstances that permit us to relax the otherwise rigorous standards of plain error review to correct sentencing errors." 287 F.3d 122, 125 (2d Cir.2002), cert. denied, 537 U.S. 1167, 123 S.Ct. 981, 154 L.Ed.2d 907 (2003). In Sofsky, the challenged condition of supervised release was not recommended in the PSR, and the defendant had no prior knowledge that it would be imposed. Id. "Both because the alleged error relate[d] only to sentencing and because Sofsky lacked prior notice," we found a departure from the strict application of plain error review warranted. Id. at 125-26; cf. United States v. Gordon, 291 F.3d 181, 191 (2d Cir.2002) (holding that Sofsky did not apply because the government had notice in the presentence report of the court's decision to group the defendant's tax evasion and mail fraud counts under U.S.S.G. § 3D1.2(c)). Both justifications are present in this case. Simmons's challenge is limited to sentencing and he had no prior notice of the special condition that was imposed.5 Accordingly, while plain error review is required in this case, the circumstances permit us to "entertain [t]his challenge without insisting on strict compliance with the rigorous standards of Rule 52(b)." Sofsky, 287 F.3d at 125-26. 33 Although district courts enjoy broad discretion in imposing conditions of supervised release, that discretion is not unlimited. United States v. Bello, 310 F.3d 56, 59 (2d Cir.2002); United States v. A-Abras, Inc., 185 F.3d 26, 32 (2d Cir.1999); United States v. Germosen, 139 F.3d 120, 131 (2d Cir.1998). Special conditions of supervised release must be reasonably related to: "(i) the nature and circumstances of the offense and the history and characteristics of the defendant, and (ii) the purposes of sentencing, including the need to afford adequate deterrence, to protect the public from further crimes of the defendant, and to provide the defendant with needed training or treatment." Germosen, 139 F.3d at 131 (citing U.S.S.G. § 5D1.3(b), 18 U.S.C. § 3553(a)(2), and 18 U.S.C. § 3583(d)). However, the condition imposed may "`involve[ ] no greater deprivation of liberty than is reasonably necessary for the purposes of sentencing.'" Id. (quoting 18 U.S.C. § 3583(d)(2)); A-Abras, 185 F.3d at 31 (same). Furthermore, the condition must be consistent with any pertinent policy statements issued by the Sentencing Commission. 18 U.S.C. § 3583(d)(3); Sofsky, 287 F.3d at 126. 34 Simmons argues that the prohibition on "pornographic material" imposed as a condition of his supervised release violates his right to due process, and thus was an abuse of discretion, because that term is too vague to give him notice of what conduct will constitute a violation. Due process requires that the conditions of supervised release be sufficiently clear to "`give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.'" Cabot, 325 F.3d at 385 (quoting Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)); see also LoFranco v. United States Parole Comm'n, 986 F.Supp. 796, 810-11 (S.D.N.Y.1997). A statute violates due process of law if it "either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). Although a condition of supervised release applies only to the releasee, rather than to the general public, "[a] probationer [ ] has a[ ] due process right to conditions of supervised release that are sufficiently clear to inform him of what conduct will result in his being returned to prison." United States v. Guagliardo, 278 F.3d 868, 872 (9th Cir.2002); see also Cabot, 325 F.3d at 385; LoFranco, 986 F.Supp. at 811 (special condition prohibiting petitioner from associating with "outlaw motorcycle gangs" was unconstitutionally vague). 35 For purposes of evaluating artistic or cultural merit, the term "pornography" is notoriously elusive. In that context, determining whether material deserves the label of pornography is a subjective, standardless process, heavily influenced by the individual, social and cultural experience of the person making the determination. As we observed in Cabot, "[o]ne man's pornography may be another's keepsake." 325 F.3d at 385 (quoting Giano v. Senkowski, 54 F.3d 1050, 1056 (2d Cir.1995)). According to some, Vladamir Nabokov's novel Lolita, or the film adaptation of the book, or "Edouard Manet's Le Dejeuner sur L'Herbe is pornographic (or even some of the Calvin Klein advertisements)." United States v. Loy, 237 F.3d 251, 264 (3d Cir.2001). Whether Sally Mann's photographs of her three prepubescent children, sometimes nude or partially clothed, or Robert Mapplethorpe's explicit images of sexual practices, fall within the scope of pornography are matters of considerable debate. 36 However, while the lack of clarity in the term is undeniable in the unregulated sphere of cultural debate, it is, as we suggested in Cabot, significantly eliminated in the context of federal criminal law. 325 F.3d at 385. In fact, federal law provides considerable guidance as to the meaning of the term pornography in 18 U.S.C. § 2256, which defines terms used in the statute both Simmons and Cabot were convicted of violating.6 37 In upholding the prohibition on pornographic matter imposed as a condition of supervised release in Cabot, we explicitly relied on the fact that the statutory scheme under which Cabot was convicted defines the term "child pornography." 325 F.3d at 385 (emphasis in original). The statute provides, in pertinent part: 38 (8) "child pornography" means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where — 39 (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; 40 (B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct; 41 (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or 42 (D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct. 43 18 U.S.C. § 2256(8) (emphasis added). In defining child pornography, the law first, and not surprisingly, defines the more general category of pornography. Subsections (A) through (D) serve to narrow the scope of that definition to child pornography specifically. When the references to minors are omitted, what remains is the definition of the broader category of pornography: "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct." Further specificity is provided by the statute's definition of "sexually explicit conduct" as "actual or simulated — (A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (B) bestiality; (C) masturbation; (D) sadistic or masochistic abuse; or (E) lascivious exhibition of the genitals or pubic area of any person." 18 U.S.C. § 2256(2). 44 This definition of pornography avoids reference to subjective standards and is sufficiently specific to give adequate notice as to what conduct violates a prohibition on pornographic material. See, e.g., United States v. Phipps, 319 F.3d 177, 193 (5th Cir.2003) (upholding prohibition on "sexually oriented or sexually stimulating materials" on review for plain error); United States v. Bee, 162 F.3d 1232, 1235 (9th Cir.1998) (prohibition on possessing "sexually stimulating" material was not an abuse of discretion). While it is unnecessary for district courts imposing such a prohibition to explicitly reference this statutory definition of pornography, we urge them to do so in future cases, particularly since in other contexts the term is inherently vague. 45 Simmons also argues that this special condition is neither reasonably related to a legitimate sentencing purpose nor sufficiently tailored to serve only such a legitimate purpose. We disagree. While incarcerated in Canada, Simmons refused to participate in the Sexual Behavior Clinic, and was evaluated there as "at high risk for general and violent recidivism." (PSR ¶ 37.) Given that Simmons often videotaped his sexual attacks upon his victims, it was reasonable for Judge Murtha to conclude that there was a connection between Simmons's viewing and possessing sexually explicit material and his criminal behavior. The nature and circumstances of Simmons's crimes also support our conclusion that the special condition imposed is not overly broad. Among the videos seized by Canadian authorities from Simmons's home were videos of him engaging in various sexual acts with seemingly unconscious adult women. In July of 1997, Simmons pled guilty to sexual assault on one of those women in Ontario Provincial Court. (PSR ¶ 11.) Clearly, Simmons poses a potential threat not only to minor females, but to adults as well. Accordingly, it was reasonable for Judge Murtha to impose a prohibition on pornography generally, not only on child pornography. CONCLUSION 46 For the foregoing reasons, we affirm the judgment of the district court. Notes: 1 The Honorable John Gleeson of the United States District Court for the Eastern District of New York, sitting by designation 2 "Tr." refers to the transcript of the sentencing hearing held on March 5, 2002 3 As pronounced orally, the special condition did not explicitly enumerate films or photographs. (Tr. at 64.) However, those items are clearly embraced by the category "pornographic material," and Simmons does not base his appellate challenge on this variance between the oral pronouncement and the written judgment 4 "For there to be `plain error,' there must be (1) an error that (2) is `plain' and (3) `affects substantial rights'; if these elements are satisfied, then the court may correct the error, but only if (4) the error `seriously affect[s] the fairness, integrity or public reputation of the judicial proceedings.'"United States v. Miller, 263 F.3d 1, 4 (2d Cir.2001) (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). 5 Our review of the PSR reveals no recommendation that such a condition should be imposed 6 Both Simmons and Cabot pled guilty to using or persuading a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, in violation of 18 U.S.C. § 2251(a)

648 N.E.2d 932 (1995) 271 Ill. App.3d 383 208 Ill.Dec. 10 Concetta F. CRUZ, Administrator of the Estate of James Cruz, Deceased, Plaintiff-Appellant v. ILLINOIS MASONIC MEDICAL CENTER, a corporation; Richard J. Fantus, M.D.; and Michele Mellet, M.D., Defendants-Appellees. No. 1-94-0617. Appellate Court of Illinois, First District, Second Division. March 21, 1995. *934 Susan E. Loggans & Associates, P.C., Chicago, (Susan E. Loggans, of counsel), for appellant. Sachnoff & Weaver, Ltd., Chicago (Brian D. Roche, Joel M. Neuman, of counsel), Joan M. Lebow, Illinois Masonic Medical Center, Chicago (Joan M. Lebow, of counsel), for appellees. *933 Presiding Justice SCARIANO delivered the opinion of the court: On July 23, 1990, James Cruz was injured in an automobile accident and taken to defendant Illinois Masonic Medical Center where, after being injected with Nacuron, he went into full cardiac and respiratory arrest and had to be revived by a defibrillator. Mr. Cruz regained consciousness about nine days later but remained in a "vegetable state" until his death on April 23, 1993. Before his death, however, on February 21, 1991, plaintiff, individually and as guardian of her husband's estate, filed an action ("Cruz I") against defendants, which included claims based on negligence, res ipsa loquitur, and loss of her consortium. On April 29, 1992, the parties settled the case for $2.5 million,[1] plaintiff agreeing both individually and as guardian "not to further prosecute or again sue" defendants for damages arising out of the incidents complained of in the Cruz I litigation. On May 20, 1992, the parties stipulated to a dismissal of the case with prejudice, and the trial court entered an order to that effect. Thereafter, pursuant to the provisions of Circuit Court of Cook County Rule 6.4, the probate court approved the settlement and ordered that from the net amount thereof a "permanent budget for [their] care and support" be created in order to provide that the Cruz children[2] and plaintiff as an individual receive monthly payments of $2,750 and $2,000, respectively. On May 10, 1993, plaintiff, as administrator of her deceased husband's estate, filed a wrongful death action (Cruz II) against defendants. Defendants moved to dismiss plaintiff's complaint (735 ILCS 5/2-619 (West 1992)), arguing that because the decedent had already settled his cause of action against them while he was still living, plaintiff's wrongful death action was barred as a matter of law pursuant to section 1 of the Wrongful Death Act (the "Act").[3] (740 ILCS 180/1 (West 1993).) The trial judge agreed with defendants, and on January 21, 1994, he dismissed plaintiff's second amended complaint with prejudice. This appeal followed. Defendants' motion to dismiss admits all facts well pleaded in plaintiff's complaint; we thus apply a de novo standard in reviewing the issues raised on appeal; in any event, the parties raise only questions of law. Toombs v. City of Champaign (1993), 245 Ill.App.3d 580, 583, 185 Ill.Dec. 755, 756, 615 N.E.2d 50, 51 (de novo standard applied on review of a motion to dismiss ruling); Ranquist v. Stackler (1977), 55 Ill.App.3d 545, *935 550, 13 Ill.Dec. 171, 175, 370 N.E.2d 1198, 1202 (statutory construction raises question of law requiring application of de novo standard of review); International Ins. Co. v. Sargent & Lundy (1993), 242 Ill.App.3d 614, 622-623, 182 Ill.Dec. 308, 314, 609 N.E.2d 842, 848 (whether language of release is clear and explicit is a matter of law). We first address the issue of whether a decedent's settlement, prior to his death, of his personal action against a negligent defendant forecloses, pursuant to section 1 of the Act (740 ILCS 180/1 (West 1993)), the subsequent bringing of a wrongful death action in behalf of the decedent's spouse and next of kin when the suit is based on the same negligent acts of that defendant.[4] We hold that it does not. Section 1 of the Act reads: "Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to [a] felony." 740 ILCS 180/1 (West 1993).[5] Defendant asserts that the "if death had not ensued" language of section 1 has been interpreted to create a condition precedent to bringing a wrongful death action, i.e., that the action may be brought only if the decedent has not recovered, during his lifetime, for personal injury arising from the same conduct alleged to have caused his death. Defendant relies on Wyness v. Armstrong World Indus., Inc. (1989), 131 Ill.2d 403, 411, 137 Ill.Dec. 623, 627, 546 N.E.2d 568, 572; Biddy v. Blue Bird Air Service (1940), 374 Ill. 506, 514, 30 N.E.2d 14, 18; Little v. Blue Goose Motor Coach Co. (1931), 346 Ill. 266, 271, 178 N.E. 496, 498; Mooney v. Chicago (1909), 239 Ill. 414, 423, 88 N.E. 194, 196; and Kessinger v. Grefco, Inc. (1993), 251 Ill.App.3d 980, 987, 191 Ill.Dec. 356, 360, 623 N.E.2d 946, 950, appeal denied (1994), 154 Ill.2d 561, 197 Ill.Dec. 487, 631 N.E.2d 709. Since the above mentioned cases were decided, however, this court has twice answered the question we confront in this case in the negative. Dettman-Brunsfeld v. Szanto (1994), 267 Ill.App.3d 1050, 204 Ill. Dec. 908, 642 N.E.2d 809; Varelis v. Northwestern Memorial Hospital (1994), 266 Ill. App.3d 578, 203 Ill.Dec. 590, 640 N.E.2d 17, appeal allowed (1994), 158 Ill.2d 566, 206 Ill.Dec. 847, 645 N.E.2d 1369. In Varelis, plaintiffs Theodora, a widow, and James Varelis, the administrator of the decedent's estate, filed a wrongful death action against the defendant after Theodora and the decedent (her late husband), during his lifetime, had recovered damages resulting from the same medical malpractice which the plaintiffs alleged caused his death.[6] (Varelis, 266 Ill.App.3d at 580, 203 Ill.Dec. at 591, 640 N.E.2d at 18) Reversing the trial court's dismissal of the action, the appellate court rejected the defendant's contention, similar to that of defendants here, that the language *936 of section 1 of the Act, as well as Illinois case law interpreting that section, barred the suit. The court explained that the argument advanced by the defendant failed to distinguish between the separate and distinct damages recoverable under a wrongful death action and those awarded in a survival action, stating: "A personal injury action is * * * appropriately equated with a survival action. A survival action is brought after the death of an injured person by a representative of his estate in order to adjudicate those statutory and/or common law actions which had already accrued to the decedent prior to his death. (Citation.) In other words, a survival action allows for recovery of damages for injury by the decedent up to the time of death. (Citation.) In contrast, a wrongful death action allows the decedent's next of kin to recover damages for their loss based on the wrongful actions of another which were committed against the decedent. (Citation.) Thus, a wrongful death action's damages do not accrue until after the death of the injured person and addresses the injury suffered by the next of kin due to the loss of the decedent, as opposed to the damages in a survival action which accrue during the decedent's lifetime and address the injuries personally suffered by the decedent prior to his death. (Citation.) Hence, the precipitating `injury' for plaintiffs in a wrongful death action, unlike in a personal injury action, is death." (Emphasis in original.) Varelis, 266 Ill.App.3d at 581-582, 203 Ill. Dec. at 592, 640 N.E.2d at 19. Similarly, in Dettman-Brunsfeld, the decedent, in the suit she brought to a conclusion before she died, was awarded $1,250,000[7] after the jury found that the defendant's medical treatment of her was negligent. Following the decedent's death, the administrator of her estate filed a wrongful death claim against the defendant seeking pecuniary damages in behalf of the decedent's mother and two sisters, one of whom was the administrator, for loss of society damages alleged to have been caused by the defendant's same negligent treatment. (Dettman-Brunsfeld, 267 Ill.App.3d at 1051-52, 204 Ill. Dec. at 909, 642 N.E.2d at 810.) The trial court granted the defendant's section 2-619 motion to dismiss the action, stating that "`the language of [section 1 of the Act] is so clear that it really doesn't leave much room for doubt.'" (Dettman-Brunsfeld, 267 Ill. App.3d at 1052, 204 Ill.Dec. at 909, 642 N.E.2d at 810.) Relying heavily on Varelis, the appellate court disagreed, and reversed the lower court's dismissal. Dettman-Brunsfeld, 267 Ill.App.3d at 1053, 204 Ill.Dec. at 910, 642 N.E.2d at 811. We agree particularly with Justice Egan's specially concurring opinion in Dettman-Brunsfeld that: "[T]he statement of Mooney that there is only one cause of action[ ] no longer represents the view of the Illinois Supreme Court. In support of its holding that there was only one cause of action, the Mooney court cited Holton v. Daly (1882), 106 Ill. 131. But Holton was expressly overruled by the supreme court in Murphy v. Martin Oil Co. (1974), 56 Ill.2d 423, 431, 308 N.E.2d 583. In Murphy, the supreme court held that the heirs of a decedent could maintain a survival action and a wrongful death action." (Emphasis in original.) Dettman-Brunsfeld, 267 Ill. App.3d at 1057, 204 Ill.Dec. at 912-13, 642 N.E.2d at 813-14 (Egan, P.J., specially concurring). We note that in Wyness, the court was deciding an issue involving the two year filing provision of the Act, i.e., section 2, not section 1 of the Act; thus it is not directly on point here. (Wyness, 131 Ill.2d at 406, 137 Ill.Dec. at 624, 546 N.E.2d at 569.) Moreover, in reaching its decision in Wyness, the supreme court, unmistakably cognizant of its holding in Mooney, clearly distinguished between the type of damages recoverable in a survival action and those that can be awarded in a wrongful death action, a distinction which, because the court virtually, if not conclusively, equated survival damages with personal injury damages, supports our conclusion here. (Wyness, 131 Ill.2d at 410-411, *937 137 Ill.Dec. at 623, 546 N.E.2d at 571.) Consequently, the conclusion is ineluctable, for "[t]he precipitating `injury' for the plaintiffs in a wrongful death action, unlike the injury in a personal injury action, is the death; that the death must also be the result of a wrongfully caused injury suffered by the deceased at the hands of another does not alter the analysis." Wyness, 131 Ill.2d at 414-415, 137 Ill.Dec. at 628, 546 N.E.2d at 573. Therefore, since a survival action and a wrongful death action are not mutually exclusive, both may not only be simultaneously maintained against a defendant, but recovery under one is not an absolute bar to recovery under the other. (See Murphy v. Martin Oil Co. (1974), 56 Ill.2d 423, 431, 308 N.E.2d 583, 586; Ellig v. Delnor Community Hosp. (1992), 237 Ill.App.3d 396, 401, 177 Ill.Dec. 829, 812-13, 603 N.E.2d 1203, 1206-1207; Illinois Pattern Jury Instructions, Civil, No. 31.00 (3d ed. Supp.1994) (hereinafter IPI Civil 3d No. 31.00 (Supp.1994)).) The force of reason dictates, therefore, that since a personal injury action is "appropriately equated with a survival action" (Dettman-Brunsfeld, 267 Ill.App.3d at 1054, 204 Ill.Dec. at 911, 642 N.E.2d at 812, citing Varelis, 266 Ill.App.3d at 581, 203 Ill.Dec. at 592, 640 N.E.2d at 19.), a personal injury action cannot, accordingly, be mutually exclusive of a wrongful death action. Such reasoning becomes all the more forceful when one considers that the predominant, if not the sole, purpose of the Act is to compensate the surviving spouse and next of kin for the pecuniary injuries they sustain because of the decedent's death. In re Estate of Finley (1992), 151 Ill.2d 95, 101, 176 Ill.Dec. 1, 3, 601 N.E.2d 699, 701; see also 740 ILCS 180/2 (West 1993). Defendants fear that the same damages comprehended in the settlement of Cruz I may be required to be paid out again in the wrongful death action, thus resulting in a "double recovery." They overlook, however, that a decedent's spouse and next of kin are in no way legally entitled to share in the decedent's personal injury award, and that therefore, the potential for "double recovery [8]" exists only when the prospective beneficiary of an award in a wrongful death case has previously recovered damages he or she personally suffered at the hands of the defendant.[9] We note that this issue was squarely addressed in Varelis, where the defendant argued that it would be "fundamentally unfair" to allow the plaintiffs to maintain a wrongful death action because it had already satisfied the decedent's personal injury award, which included damages based on loss of consortium and loss of services. (Varelis, 266 Ill. App.3d at 584, 203 Ill.Dec. at 594, 640 N.E.2d at 21.) Varelis observed that such a concern could be adequately addressed by the defendant's availing itself of the affirmative defense of collateral estoppel, which would bar plaintiff's being awarded damages already litigated in the personal injury action.[10]*938 (Varelis, 266 Ill.App.3d at 584, 203 Ill.Dec. at 594, 640 N.E.2d at 21; see also Dettman-Brunsfeld, 267 Ill.App.3d at 1055, 204 Ill.Dec. at 642 N.E.2d at 812.) We agree. Whether the decedent's prior action resulted in a settlement or a judgment, the more equitable approach to avoid overlapping recovery is to submit to the determination of the trial court the issue of exactly what damages were recovered in such prior action and by whom.[11] See Gaudet v. Sea-Land Services, Inc. (5th Cir.1972), 463 F.2d 1331, 1333 n. 1, aff'd (1974), 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (but the Supreme Court apparently rejected this approach, and instead advanced a theory of "trusteeship," which has been justly criticized, see Restatement (Second) Judgments, § 46, Reporter's Notes, at 22 (1982)).[12] By submitting this issue to the determination of the trial court, a balance is achieved between the legitimate concern of double recovery, and the widely recognized and accepted belief that a decedent's spouse and next of kin suffer separate, distinct, and recoverable damages[13] due to the death of their loved one. Such a balance is vastly more appealing, and just, than yielding to defendant's unwarranted fear of double recovery by responding with a "blanket approach" to bar recovery. Equity demands that the trial court be allowed to discern between wrongfully caused injuries which have been compensated, and those which have yet to be redressed. Therefore, we hold that plaintiff's wrongful death cause of action was not foreclosed simply because her husband, prior to his death, settled his personal injury action against defendants. Next, unlike the plaintiffs in Varelis and Dettman-Brunsfeld, here, coupled with the settlement reached in Cruz I, plaintiff executed a release in her individual capacity as well as in her capacity as her husband's legal guardian. Consequently, we must address whether that release foreclosed the bringing of the instant wrongful death action. Although any recovery under the Act is for the exclusive benefit of the surviving spouse and next of kin (Forthenberry v. Franciscan Sisters Health Care Corp. (1987), 156 Ill.App.3d 634, 637, 108 Ill.Dec. 740, 742, 509 N.E.2d 166, 168; 740 ILCS 180/2 (West 1993)), the decedent's personal representative possesses the sole right of action and the right to control the litigation. (Johnson v. Libertyville (1986), 150 Ill.App.3d 971, 973, 104 Ill.Dec. 211, 213, 502 N.E.2d 474, 476; *939 740 ILCS 180/2 (West 1993).) Furthermore, the law of contracts governs releases, the applicable principles of which are plain and simple: the parties' intent must be ascertained according to the words of the agreement and the circumstances surrounding its execution; a release will not be construed to release claims not within the contemplation or legal authority of the parties; where a release is clear and explicit, the court will enforce it as written; and whether a release is clear and explicit is a matter of law. International Ins. Co., 242 Ill.App.3d at 622-623, 182 Ill.Dec. at 314, 609 N.E.2d at 848. Accordingly, this court must examine the release at issue, the pertinent language of which reads: "Know all men by these premises that plaintiffs, Concetta Francesca Cruz, Individually and as Guardian of the Estate of James Cruz, a disabled person * * * hereby release, acquit, discharge and covenant on behalf of James Cruz, a disabled person, themselves and their heirs, legal representatives, and assigns not to further prosecute or again sue [defendants] * * * for any injuries allegedly developed in the future by the Cruz', not to prosecute same for any past, present, or future damages, lost wages or other expenses incurred by the Cruz' as a result of the alleged negligence [in Cruz I]." As the above language plainly indicates, plaintiff entered into the release as an "Individual[ ] and as Guardian of the Estate of James Cruz," and in signing it, she was not, nor could she have been, acting as James Cruz' personal representative; and she was not, nor could she have been, acting on behalf of any of his next of kin.[14] Therefore, while the release may bar whatever recovery may have been based on the damages suffered by plaintiff as an individual,[15] it does not, nor could it, bar recovery based on damages suffered by the decedent's next of kin [16] as a result of Mr. Cruz's death. As we have noted above, the circuit court is the proper forum to sort out and bar those damages that could result in a double recovery. For all of the aforementioned reasons, we reverse the judgment of the trial court, and remand this cause for further proceedings consistent with the views expressed herein. Reversed and remanded. HARTMAN and McCORMICK, JJ., concur. NOTES [1] Although unclear in the record, at oral argument on appeal, plaintiff explained that the settlement was comprised of 80% for Mr. Cruz and 20% for loss of her consortium. [2] At the time of the settlement plaintiff and Mr. Cruz had two children, a son age 9, and a daughter age 12. [3] Plaintiff's complaint in Cruz II, in addition to containing a wrongful death count, included survival and res ipsa loquitur counts. Plaintiff's second amended complaint, in response to defendant's motion to dismiss, omitted the survival count. The res ipsa loquitur count was not addressed on appeal. [4] See Restatement (Second) Judgments § 46 (1982), discussing the majority and minority views on this issue and citing the authorities on both sides. [5] Section 2 of the Act further provides: "Every such action shall be brought by and in the names of the personal representatives of such deceased person, and, except as otherwise hereinafter provided, the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the surviving spouse and next of kin of such deceased person. * * * * * * Every such action shall be commenced within 2 years after the death of such person * * *." 740 ILCS 180/2 (West 1993). Mr. Cruz died on April 23, 1993, and on May 10, 1993, plaintiff filed her wrongful death claim. [6] The jury awarded her husband $2,248,434 as damages for personal injury, and Theodora $573,500 as damages for loss of consortium. Varelis, 266 Ill.App.3d at 580, 203 Ill.Dec. at 591, 640 N.E.2d at 18. [7] Because she was found to be comparatively negligent, her damage award was reduced by 40% to 750,000. Dettman-Brunsfeld, 267 Ill. App.3d at 1051, 204 Ill.Dec. at 909, 642 N.E.2d at 810. [8] Defendants seem to suggest that an order of the probate court entered in an estate for a person certified as being in a "vegetable state," providing for a monthly income to his spouse and children, payable from the proceeds of a settlement of the disabled person's personal injury action, as was done in this case, is support for their argument that they would be subject to being required to duplicate their payment of damages in the instant wrongful death action. Significantly, defendants cite no authority that would sustain their position, reason enough to reject a totally meritless argument. 134 Ill.2d R. 341(e)(7); Sohaey v. Van Cura (1992), 240 Ill. App.3d 266, 273, 180 Ill.Dec. 359, 381, 607 N.E.2d 253, 275; Chicago Title & Trust Co. v. Weiss (1992), 238 Ill.App.3d 921, 927, 179 Ill. Dec. 78, 83, 605 N.E.2d 1092, 1097; Sementa v. Tylman (1992), 230 Ill.App.3d 701, 706, 172 Ill. Dec. 327, 331, 595 N.E.2d 688, 692. [9] The potential for the greatest overlap of damages exists between a decedent's recovery for loss of future wages and a wrongful death plaintiff's subsequent claim for support where the support derives wholly or in part from such wages. See Sea-Land Services, Inc. v. Gaudet (1974), 414 U.S. 573, 603 n. 11, 94 S.Ct. 806, 824 n. 11, 39 L.Ed.2d 9, 31 n. 11 (Powell, J., dissenting, joined by Stewart, C.J., and Rehnquist, J.). [10] In most of the states which hold that the wrongful death statute creates a cause of action in favor of the beneficiaries that is independent of the decedent's claim for his injuries, the defense of collateral estoppel precludes re-litigating the defendant's liability (or absence thereof). (See Restatement (Second) Judgments, § 46, comment c, at 19 (1982).) "In any event, double recovery of damages is not permitted. In some jurisdictions this is done by defining the measures of recovery in the respective actions in mutually exclusive terms. In others, where the measures of damage overlap, the beneficiaries are precluded from seeking items of damage recoverable by the decedent in his action.'' Restatement (Second) Judgments, § 46, comment c, at 19 (1982). [11] Such a determination requires close attention to the measurement of damages, and is currently required when both a survival action and a wrongful death action are simultaneously maintained against a defendant. (See IPI Civil 3d No. 31.00 (Supp.1994).) Of course, the task is made easier when the judgment in the prior case is itemized; indeed, 735 ILCS 5/2-1109 (West 1992) requires such itemization in jury cases. [12] Addressing this issue of "double recovery," the Restatement (Second) Judgments states: "A more practical [approach] is to require differentiation among the items of damage in the [decedent's] own action and, to the extent that does not clarify what is left for recovery by the beneficiaries, to limit the latter to items of damage not assertable in the personal injury action." Restatement (Second) of Judgments, § 46, Reporter's Notes, at 22 (1982). [13] "[T]he trend in * * * more recent decisions under the [Act] has been to expand the scope of pecuniary injury to encompass nonmonetary losses" (Bullard v. Barnes (1984), 102 Ill.2d 505, 514, 82 Ill.Dec. 448, 452, 468 N.E.2d 1228, 1232), i.e., loss of society, which IPI Civil 3d No. 31.11 (Supp.1994) defines as "the mutual benefits that each family member receives from the other's continued existence, including love, affection, care, attention, companionship, comfort, guidance, and protection. For example, in determining damages, a jury (in addition to funeral expenses and loss of support) may consider evidence of the decedent's: 1) felicity, care, attention, and guidance to family members (Allendorf v. Elgin, J. & E.R. Co. (1956), 8 Ill.2d 164, 179, 133 N.E.2d 288, 295); 2) personal services rendered around the home (Allendorf, 8 Ill.2d at 179, 133 N.E.2d at 295 (father's loss of services recoverable); Dodson v. Richter (1962), 34 Ill. App.2d 22, 28, 180 N.E.2d 505, 508 (housewife's loss of services recoverable)); and 3) marital services, companionship, happiness and sexual intercourse (Malfeo v. Larson (1990), 208 Ill. App.3d 418, 425, 153 Ill.Dec. 406, 411, 567 N.E.2d 364, 369). [14] For the purposes of the Act, the phrase "next of kin" refers to those blood relatives of the decedent in existence at the time of the decedent's death that would take his property if he died intestate. In Re Estate of Finley (1992), 151 Ill.2d 95, 101, 176 Ill.Dec. 1, 3, 601 N.E.2d 699, 701. [15] These usually include pain and suffering, medical expenses, property damage, disability, and loss of earnings. See IPI Civil 3d No. 30.04 (Supp.1994); IPI Civil 3d No. 31.10, comment (Supp.1994). [16] These are referred to in footnote 14.

Case: 16-50171 Document: 00513785309 Page: 1 Date Filed: 12/06/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 16-50171 FILED December 6, 2016 Lyle W. Cayce MICHELLE HENDERSON, Clerk Plaintiff - Appellant v. REPUBLIC OF TEXAS BIKER RALLY, INCORPORATED, Defendant - Appellee Appeal from the United States District Court for the Western District of Texas USDC No. 1:15-CV-392 Before WIENER, CLEMENT, and HIGGINSON, Circuit Judges. PER CURIAM:* While attending the Republic of Texas Biker Rally (“Rally”), Michelle Henderson was seriously injured when a golf cart operated by a fellow attendee struck her, pinning her beneath it. Henderson sued Republic of Texas Biker Rally, Inc. (“ROT”) for negligence. ROT moved to dismiss, asserting defenses of insufficient process under Federal Rule of Civil Procedure 12(b)(4) and * 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: 16-50171 Document: 00513785309 Page: 2 Date Filed: 12/06/2016 No. 16-50171 insufficient service of process under Rule 12(b)(5). The district court granted ROT’s motion. Henderson appeals. We AFFIRM. I The Rally is organized by ROT and hosted annually in Austin, Texas. Henderson attended the Rally in 2013 and was seriously injured when she was struck by a golf cart. She filed suit against ROT and others in Texas state court, bringing a cause of action for negligence against ROT. The case was eventually removed to federal district court. ROT moved to dismiss on the grounds that Henderson failed to effectively serve ROT prior to the expiration of Texas’s two-year statute of limitations for negligence claims. ROT argued that: (1) Henderson’s service on ROT was insufficient because her attempts at service failed to abide by Texas law or the Federal Rules; and (2) even if her service was adequate, it was untimely. The district court granted the motion. II “We review a dismissal for failure to effect timely service of process for an abuse of discretion.” Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d 444, 445 (5th Cir. 1996). “Generally, an abuse of discretion only occurs where no reasonable person could take the view adopted by the trial court.” Ratliff v. Stewart, 508 F.3d 225, 229 (5th Cir. 2007). District courts enjoy broad discretion in Rule 12(b)(4) and 12(b)(5) contexts, so our review is particularly deferential when a district court dismisses an action for ineffective service. See George v. U.S. Dept. of Labor, Occupational Safety & Health Admin., 788 F.2d 1115, 1116 (5th Cir. 1986) (“The district court enjoys a broad discretion in determining whether to dismiss an action for ineffective service of process.”). Finally, “once the validity of service of process has been contested, the plaintiff bears the burden of establishing its validity.” Carimi v. Royal Caribbean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992). 2  Case: 16-50171 Document: 00513785309 Page: 3 Date Filed: 12/06/2016 No. 16-50171 III Texas has a two-year statute of limitations for negligence claims. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a). Under Texas law, a plaintiff must both file suit and serve process on the defendant within the limitations period or her claim is time-barred. See Rigo Mfg. Co. v. Thomas, 458 S.W.2d 180, 182 (Tex. 1970) (noting that the Supreme Court of Texas “long ago established the rule that the mere filing of a suit will not interrupt or toll the running of a statute of limitation; that to interrupt the statute, the use of diligence in procuring the issuance and service of citation is required”). If a defendant files suit within the limitations period, and then diligently and continually attempts to serve the defendant but is unable to do so until after the limitations period expires, the date of service will relate back to the date suit was filed. See Parsons v. Turley, 109 S.W.3d 804, 808 (Tex.App.–Dallas 2003, pet.) (“The duty to use due diligence continues from the date the suit is filed until the date the defendant is served.”) A plaintiff must satisfactorily “present evidence regarding the efforts that were made to serve the defendant, and to explain every lapse in effort or period of delay.” Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007). A corporation in the United States can be served either: (A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or (B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant. Fed R. Civ. P. 4(h)(1). Rule 4(e)(1) allows for service to be effected by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is 3  Case: 16-50171 Document: 00513785309 Page: 4 Date Filed: 12/06/2016 No. 16-50171 made.” Under Texas law, a corporation may be served through the corporation’s registered agent, president, or vice president. See Tex. Bus. Orgs. Code Ann. §§ 5.201, 5.255(1). If a corporation fails to maintain a registered agent in Texas or the registered agent cannot be served through reasonable diligence, a plaintiff may serve the Texas Secretary of State instead. See id., § 5.251. IV Henderson’s cause of action accrued on the date of the golf cart incident—June 13, 2013. The statute of limitations for her negligence claims expired two years later, on June 13, 2015. Henderson filed suit in Texas state court on July 30, 2014, well within the limitations period. On June 11, 2015, two days before the limitations period expired, Henderson requested that ROT waive service. The waiver request was served on Lynn Castagna, who Henderson evidently believed was ROT’s outside counsel at the time. Henderson then attempted to serve ROT’s registered agent on June 12, 2015, but was unsuccessful. Finally, Henderson served ROT’s registered agent at the Rally held on June 15, 2015—two days after the limitations period expired. We must decide two issues: (1) whether the June 11, 2015 waiver request was effective; and (2) if not, whether Henderson diligently attempted to serve ROT such that the untimely service on June 15, 2015 related back to the date she filed suit. 1 Rule 4(d) describes how a plaintiff may request that a defendant waive service. If the defendant is a corporation, the request must be addressed “to an officer, a managing or general agent, or any other agent authorized by 1 The district court determined that, regardless of whether Henderson’s efforts were diligent, she failed to properly serve ROT according to Texas law. We assume without deciding that the eventual service was legally proper and address only whether she exercised due diligence as a matter of law. 4  Case: 16-50171 Document: 00513785309 Page: 5 Date Filed: 12/06/2016 No. 16-50171 appointment or by law to receive service of process.” Fed R. Civ. P. 4(d)(1)(A)(ii). Here, Henderson addressed the waiver request to “Republic of Texas Biker Rally, Inc. c/o Lynn Castagna,” and provided the business address for Castagna’s law firm. As the district court noted, “Ms. Castagna is not ROT’s registered agent, president, or vice president under Texas law, nor is she an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process.” Henderson v. Republic of Tex. Biker Rally, Inc., 2015 WL 6829514, at *3 (W.D. Tex. Nov. 6, 2015). Henderson’s waiver request was thus ineffective. We next turn to the diligence issue. A lack of diligence may be established as a matter of law if “one or more lapses between service efforts are unexplained or patently unreasonable.” Proulx, 235 S.W.3d at 216. Here, there is no dispute that Henderson did not serve ROT’s registered agent until June 15, 2015—two days after the limitations period expired. Henderson argues that she diligently attempted to serve ROT, so the date of service should relate back to the date she filed suit. Henderson attempted to serve ROT’s registered agent on August 16, 2014 and then again on September 7, 2014, but was unsuccessful. Her next attempt at service did not come until nine months later on June 12, 2015—the day before the limitations period expired. Henderson offers no excuse for this extended delay. She notes only that ROT changed registered agents in December 2014. But Henderson admits she did not discover the change until nearly six months later, even though that information was public and readily available. Henderson has not explained the more than nine-month gap between her failed attempts to serve ROT. Texas courts have regularly held that comparable gaps conclusively negate a finding of diligence as a matter of law. See Proulx, 235 S.W.3d at 217 (collecting cases). Consequently, the eventual date of service does not relate back to the date Henderson’s suit was filed. 5  Case: 16-50171 Document: 00513785309 Page: 6 Date Filed: 12/06/2016 No. 16-50171 Because Henderson did not effect service on ROT until after the limitations period expired, her negligence claim is time-barred. V ROT asks us to find that Henderson’s appeal is frivolous, and to order her to pay ROT’s reasonable attorney’s fees and double ROT’s costs under Federal Rule of Appellate Procedure 38. We decline to find that Henderson’s appeal is “wholly without merit.” Howard v. St. Germain, 599 F.3d 455, 458 (5th Cir. 2010). ROT’s request for attorney’s fees and extra costs is denied. VI The district court’s ruling is AFFIRMED. 6 

343 F.3d 540 Billy LEWIS, Plaintiff-Appellee-Cross-Appellant,v.BANK OF AMERICA NA, Etc.; et al., Defendants,Bank of America NA, formerly known as NationsBank of Texas NA; Mark Thomason; Walter F. Smith, Jr.; Sally Walters, Defendants-Appellants-Cross-Appellees. No. 02-10605. United States Court of Appeals, Fifth Circuit. September 2, 2003. COPYRIGHT MATERIAL OMITTED William A. Roberts (argued), The Roberts Law Firm, Dallas, TX, for Billy Lewis. William Frank Carroll, Thomas Butler Alleman (argued), Jill Gaston Adams, Winstead, Sechrest & Minick, Dallas, TX, for Defendants-Appellants-Cross-Appellees. Appeal from the United States District Court for the Northern District of Texas. Before DAVIS, CYNTHIA HOLCOMB HALL* and EMILIO M. GARZA, Circuit Judges. Opinion by Judge CYNTHIA HOLCOMB HALL; dissent by Judge EMILIO M. GARZA. CYNTHIA HOLCOMB HALL, Circuit Judge: 1 Bank of America, formerly known as NationsBank of Texas ("the Bank"), and its former employee, Mark Thomason, appeal a jury verdict holding them jointly liable for fraud and breach of contract and awarding damages of $380,101.75 to Billy Lewis. Lewis cross-appeals, arguing that the jury instructions improperly limited the scope of compensable damages. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we REVERSE. FACTS 1. Billy Lewis's Defined Benefit Plans 2 Billy Lewis was employed by the General Cable Corporation ("General Cable") from 1958 to 1992.1 During his employment with General Cable, Lewis participated in the General Cable 401(k) defined benefit retirement savings plan, accumulating a balance of $96,200.71. In 1986, Lewis founded the Billy Lewis Sales Company, a plastics trading business. In connection with this business, Lewis created a second defined benefit plan. By 1991, Lewis had accumulated a balance of approximately $428,000 in his Billy Lewis Sales Company defined benefit plan. 3 2. Loan Negotiations Between Lewis and the Bank 4 In 1992, Lewis's son started Eau De Vie., Inc., a wholesale and retail liquor business operating as "Spirits Liquor." In order to help his son's new business obtain financing, Lewis contacted the Bank to discuss the possibility of a $100,000 loan. The Bank arranged a meeting at the Spirits Liquor facility between Lewis and loan officer Mark Thomason. During this meeting, Lewis offered to pledge either the Spirits Liquor inventory or his personal land holdings as collateral. Thomason rejected both suggestions, and informed Lewis that the Bank would be willing to execute the proposed loan only on a cash-secured basis. Thomason proposed that Lewis liquify his defined benefit holdings and place the funds into CDs at the Bank.2 Thomason told Lewis that, by doing so, the funds could be used as collateral for a loan at the rate of two percent over the rate of return on the CD. 5 Lewis agreed to the terms offered by Thomason, and entered into a written loan agreement with the Bank. The documents forming the written loan agreement between Lewis and the Bank included a letter requiring Lewis to secure the loan with collateral "in a form satisfactory" to the Bank. Between December 10, 1992, and January 21, 1993, Lewis transferred a total of $528,496.76 from his Billy Lewis Sales Company defined benefit plan to the Bank. On January 4, 1993, the Bank issued a $100,000 loan to Lewis for the Spirits Liquor business. Shortly thereafter, the Bank agreed to provide additional financing to Spirits. By January 28, 1993, the loan balance was $528,000. On August 12, 1993, Spirits Liquor sought an additional $100,000 loan to cover an overdraft on the company's checking account. Lewis agreed to secure the loan by transferring funds to the Bank from his General Cable 401(k) plan. Between August 19, 1993, and October 5, 1993, Lewis withdrew a total of $96,200.71 from his General Cable 401(k) plan and used the funds to purchase CDs at the Bank. 6 Lewis maintained the CDs until 1996, when Spirits Liquor concluded its relationship with the Bank. Lewis redeemed the CDs at that time, using the proceeds to satisfy the outstanding balance on the Spirits Liquor loans. 7 3. Tax Consequences of the Spirits Liquor Loans 8 In early 1994, Lewis's accountant Bud Lowry discovered a series of 1099 tax forms characterizing Lewis's 1992 and 1993 withdrawals from his Billy Lewis Sales Company and General Cable 401(k) retirement plans as taxable income. Lowry immediately contacted the Bank to request written documentation that the funds had been transferred to tax-deferred IRA accounts at the Bank. The Bank refused the request, and notified Lowry that Lewis's funds were held in non-IRA CDs. Lowry's subsequent attempts to obtain documents designating Lewis's accounts as IRA CDs were similarly unsuccessful. When Lewis filed his 1993 tax return, he did not declare the withdrawals from his defined benefit plans as income. 9 In the Spring of 1996, Lewis received a notice of deficiency from the IRS in the amount of approximately $700,000.3 Subsequent negotiations between the IRS and Lewis's accountants ultimately resulted in a settlement reducing Lewis's liability to $323,000. 10 4. Procedural History of the Instant Lawsuit 11 On August 1, 1996, Lewis filed a complaint in Dallas County District Court. On December 4, 1996, Lewis amended his complaint to allege, inter alia, that the Bank was a custodian of Lewis's defined benefit plan. On January 2, 1997, the defendants removed the action to federal court on the grounds that the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. ("ERISA") created federal question jurisdiction. Lewis subsequently amended the complaint to specifically state claims arising under ERISA. 12 On March 11, 2002, a jury trial commenced in the District Court for the Northern District of Texas. At the conclusion of Lewis's case in chief, Lewis withdrew his ERISA claims. The defendants rested their case, and moved for judgment as a matter of law as to all claims. The district court denied the motion as to the Bank and Thomason, granted the motion as to Bank employees Walter Smith and Sally Walters, and submitted Lewis's fraud and breach of contract claims to the jury. 13 The jury entered a verdict in favor of Lewis on March 14, 2002. The district court entered judgment on March 29, 2002. On April 8, 2002, the Bank and Thomason renewed their motion for judgment as a matter of law. On April 9, 2002, the district court denied the motion and entered an amended final judgment. Defendants timely appealed. STANDARD OF REVIEW 14 We review a district court's ruling on a Rule 50 motion for judgment as a matter of law de novo. Delano-Pyle v. Victoria County, 302 F.3d 567, 572 (5th Cir.2002). Where, as here, an appellant has fully complied with Rule 50, we review a jury verdict for sufficiency of the evidence. Id. ERISA PREEMPTION 15 ERISA preempts "any and all State laws insofar as they may now or hereafter relate to any employee benefit plan." 29 U.S.C. § 1144(a). Although the term "relate to" is intended to be broad, "pre-emption does not occur ... if the state law has only a tenuous, remote, or peripheral connection with covered plans, as is the case with many laws of general applicability." New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 661, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995) (internal citation and quotation omitted). 16 Where, as here, the facts underlying a state law claim bear some relationship to an employee benefit plan, our task is to evaluate the nexus between the state law and ERISA, in view of ERISA's statutory objectives. Travelers, 514 U.S. at 656, 115 S.Ct. 1671. Relevant statutory objectives include establishing uniform national safeguards "with respect to the establishment, operation, and administration of [employee benefit] plans," 29 U.S.C. 1001(a), and "establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans." 29 U.S.C. 1001(b). Lewis's fraud and contract claims against the Bank, a non-fiduciary,4 and its employees bear little relationship to these objectives. Congress clearly did not intend to broadly immunize non-fiduciary parties such as the Bank from liability under traditional state law contract and tort causes of action. The district properly determined that Lewis's claims were not preempted. BREACH OF CONTRACT 17 At trial, Lewis argued that the Bank breached an oral contract to place Lewis's funds in tax-deferred IRA CDs. The elements of a breach of contract claim under Texas law are: 1) the existence of a valid contract; 2) performance or tendered performance by the plaintiff; 3) breach of the contract by the defendant; and 4) damages to the plaintiff resulting from the breach. Palmer v. Espey Huston & Assocs., 84 S.W.3d 345, 353 (Tex.App.2002). The jury entered a verdict in favor of Lewis on the contract claim, finding that the Bank had "agreed to place the funds from the Billy Lewis Sales Company Defined Benefit Plan [and 401(k) plan] in tax-deferred IRA CDs." On appeal, the Bank contends that the breach of contract claim should not have been submitted to the jury because Lewis did not present evidence that he suffered damages as a result of the alleged breach. 18 Pursuant to 26 U.S.C. § 408, if an individual pledges an IRA "as security for a loan, the portion so used is treated as distributed to that individual" and is taxed accordingly. 26 U.S.C. § 408(e)(4). Pledging IRA funds as security for a loan thus has the same tax effect as withdrawing the same funds from an IRA and investing them in non-IRA CDs. Accordingly, the Bank correctly observes that performance of the alleged contract to place Lewis's funds in an IRA account would have created precisely the same mandatory tax consequences as the Bank's alleged breach. Because a causal link to economic damages is a requisite element of an action for breach of contract, the district court erred by submitting the contract claim to the jury. FRAUDULENT INDUCEMENT 19 At trial, Lewis argued that the defendants fraudulently induced him "to withdraw funds from the Billy Lewis Sales Company Defined Benefit Plan [and 401(k) plan] and place it [sic] in non-tax deferred CDs." The jury entered a verdict in Lewis's favor. The elements of a fraudulent inducement claim are: 1) a material misrepresentation was made; 2) when the misrepresentation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; 3) the speaker made the misrepresentation with the intent that the other party should act on it; 4) the plaintiff detrimentally relied on the misrepresentation. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex.2001). 20 In order for a reasonable jury to have concluded that the Bank committed fraud, the jury must have identified a material misrepresentation by the Bank. Lewis's counsel suggested in his closing argument that the relevant misrepresentation was the Bank's alleged statement that it would place Lewis's funds into IRA CDs. If this was the relevant misrepresentation, however, Lewis's fraud claim suffers from a similar defect as his contract claim. As noted above, a pledge of IRA funds as collateral for a loan is treated as a premature withdrawal and renders such funds taxable. 26 U.S.C. § 408(e)(4). Accordingly, any misrepresentation as to whether Lewis's funds would be deposited in IRA CDs, as opposed to regular CDS, had no practical consequence and was therefore immaterial. See Gen. Am. Life Ins. Co. v. Martinez, 149 S.W.2d 637, 641 (Tex.App. 1941)("One could hardly be said to rely on an immaterial misrepresentation. If he does, he is not entitled to relief.").5 21 Lewis also argues that the Bank misrepresented its ability to shelter Lewis from taxes and early withdrawal penalties. As we have previously noted, mere failure to disclose information is not actionable "misrepresentation" under Texas law, absent a fiduciary relationship. Mitchell Energy Corp. v. Samson Resources Co., 80 F.3d 976, 985 (5th Cir.1996) (citing Tempo Tamers, Inc. v. Crow-Houston Four, Ltd., 715 S.W.2d 658, 669 (Tex.App.1986)). Therefore, Lewis had the burden of proving not only that the Bank failed to disclose the tax consequences of pledging his funds as collateral, but also that the Bank actively misrepresented such consequences, and did so either intentionally or recklessly. Moreover, Lewis bore the burden of proving that he justifiably relied on any such misrepresentation. 22 The sole piece of evidence that the Bank affirmatively misrepresented the tax consequences of the proposed transaction was the following exchange between Lewis and his attorney: 23 Q (Lewis's Attorney): Okay, in that initial conversation [with Thomason], did you ask him, will this remain in a tax-exempt status? 24 A (Lewis): Yes, I did. 25 Q: And what did he say? 26 A: He assured me that it would. 27 Lewis provided no further details about the context of the exchange or the specific nature of Thomason's "assurance." Because Lewis's testimony omitted critical details such as the specific nature of both his inquiry and Thomason's response, it is not clear whether the parties were discussing the tax consequences of the loan transaction as a whole. Notably, Lewis did not testify that Thomason told him that his retirement funds could be pledged as collateral without incurring taxes or penalties. Certainly, Lewis did not testify that Thomason represented an ability to circumvent the Internal Revenue Code, which treats IRA pledges as taxable withdrawals. A fraud claim should not be submitted to a jury unless the plaintiff has presented more than a mere scintilla of evidence that the defendant intentionally or recklessly made a material misrepresentation of fact. FirstMerit, 52 S.W.3d at 758. Lewis's conclusory testimony regarding a single, ambiguous statement by Thomason was insufficient to meet this minimum standard. 28 Common law fraud, moreover, requires a plaintiff to show not only that a misrepresentation was made, but also that he or she justifiably relied on the alleged misrepresentation. Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex.2001). The "justifiable reliance" element of common law fraud does not require a plaintiff to demonstrate reasonableness. Field v. Mans, 516 U.S. 59, 70-71, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995) (citing Restatement (Second) of Torts § 545A, comment b). However, a fraud plaintiff "cannot recover if he blindly relies upon a misrepresentation the falsity of which would be patent to him if he had utilized his opportunity to make a cursory examination or investigation." Id. at 71, 116 S.Ct. 437 (citing Restatement § 541, comment a). Moreover, a person may not justifiably rely on a representation if "there are `red flags' indicating such reliance is unwarranted." In re Mercer, 246 F.3d 391, 418 (5th Cir.2001) (applying the "justifiable reliance" fraud standard in the federal bankruptcy setting). 29 The record is devoid of evidence that Lewis perceived Thomason, a loan officer, to be an expert in tax law or investment planning. Nonetheless, according to Lewis's testimony, he blindly relied on Thomason's oral "assurance" by transferring more than $600,000 in funds to the Bank, without requesting written confirmation or consulting with a tax or investment professional. Following his meeting with Thomason, Lewis received a letter from the Bank summarizing the proposed loan transaction, stating that the collateral must be "in a form acceptable to" the Bank, and making no reference to sheltering Lewis from the tax consequences of the transaction. Subsequently, Lewis signed and executed a series of loan documents, each of which listed his CDs as collateral, and none of which characterized the CDs as IRAs or as tax-deferred. Lewis, an individual with both a business background and familiarity with retirement accounts, should have viewed this series of events as a red flag warranting further investigation of the tax consequences of the loan transaction. Viewing the circumstances in their entirety, including Lewis's access to professional accountants,6 the amount of money involved in the transaction, and the ambiguous nature of Thomason's "assurance," Lewis's decision to enter into the transaction without undertaking additional investigation into its tax consequences was not justifiable. Accordingly, a reasonable jury could not have found that Lewis actually and justifiably relied on any misrepresentation by the Bank. The district court erred by submitting the fraudulent inducement claim to the jury. CONCLUSION 30 Lewis failed to present sufficient evidence in support of his breach of contract and fraudulent inducement claims.7 We REVERSE the judgment in its entirety, and direct the district court to enter judgment in favor of Appellants. Notes: * U.S. Circuit Judge, Ninth Circuit, sitting by designation. 1 Prior to 1988, General Cable was known as "Capital Wire and Cable Corporation." 2 Lewis contends that Thomason told him that his funds would be placed into tax-deferred IRA CDs. Thomason denies making such a representation 3 The $700,000 notice of deficiency contained several items related to the Spirits Liquor loan, and several unrelated items. The percentage attributable to the Spirits Liquor loan is not clear from the record 4 Lewis does not challenge the district court's ruling that neither Thomason nor the Bank was a fiduciary 5 The dissent takes the position that the materiality of a representation should be determined solely by reference to its effect on the recipient. The dissent correctly observes that, under Texas law, a representation cannot be deemed "material" if it has no effect on the plaintiff's actionsSee Manges v. Astra Bar, Inc., 596 S.W.2d 605, 611 (Tex.App. 1980) ("In order to show materiality, proof must be made that the misrepresentation induced the complaining party to act."). It does not follow, however, that a plaintiff's decision to react to an otherwise inconsequential representation renders that representation per se material. As Texas courts have recognized, "reliance on a misrepresentation is distinct from the materiality thereof, although the distinction may not at all times be clear." Gen. Am. Life Ins. Co. v. Martinez, 149 S.W.2d 637, 641 (Tex.App.1941). 6 Our review of the record indicates that Lewis had access to tax professionals during all relevant time periods. Indeed, Lewis and his CPA, Bud Lowry, met with Bank officials during the time period between the original $528,000 loan and the subsequent $100,000 loan 7 Because we reverse the judgment in its entirety, we need not address Lewis's contention that the jury verdict improperly limited the jury's consideration of damages. Similarly, we need not address the Bank's additional objections to the verdict form, entry of judgment, and Lewis's closing argument 31 EMILIO M. GARZA, Circuit Judge, dissenting in part: 32 Although I agree with the majority that Billy Lewis ("Lewis") failed to present sufficient evidence in support of his breach of contract claim against Bank of America ("the Bank"), I do not agree that Lewis failed to present sufficient evidence in support of his fraudulent inducement claim. 33 Contrary to the majority opinion's conclusion, a reasonable jury could have determined that Lewis presented sufficient evidence on every element of his fraudulent inducement claim. See In re FirstMerit Bank, 52 S.W.3d 749, 758 (Tex.2001)(elements of fraudulent inducement). From the evidence presented at trial, a reasonable jury could have concluded that the Bank, through its loan officer, Mark Thomason ("Thomason"), falsely assured Lewis that it could accept retirement funds withdrawn from Lewis' defined benefit plan and 401(k) as collateral for a loan, and that those funds would retain their tax-deferred status; that this representation, made by Thomason in his initial conversation with Lewis, was false; that Thomason was at least reckless as to the truth of this representation; that the representation was made with the intent that Lewis should act on it by transferring his retirement funds to the Bank; that Lewis transferred his retirement funds to the Bank; that, but for Thomason's representation, Lewis would not have transferred his retirement funds to the Bank; and that, as a direct result of his transferring funds from tax-deferred instruments into non-tax-deferred CDS at the Bank, Lewis was injured. 34 The majority opinion reasons that Lewis failed to present evidence from which a reasonable jury could have concluded that the Bank made a "material misrepresentation." See In re FirstMerit Bank, 52 S.W.3d at 758. According to the majority opinion, the relevant misrepresentation — the Bank's alleged statement that Lewis' funds would be placed in tax-deferred IRA CDs — was immaterial solely because pledging IRA funds as collateral for a loan is treated as a premature withdrawal and renders such funds taxable. It reasons that "any misrepresentation as to whether Lewis's funds would be deposited in IRA CDS, as opposed to regular CDS, had no practical consequence and was therefore immaterial." I disagree. The relevant inquiry concerning the materiality of the alleged misrepresentation is whether, from the evidence presented, a reasonable jury could have concluded that Lewis would not have signed the loan agreement (thereby pledging funds withdrawn from his defined benefit plan and 401(k) as collateral) if Thomason had not represented to Lewis that the funds would be placed in tax-deferred instruments. See Broaddus Co. v. Binkley, 126 Tex. 374, 88 S.W.2d 1040, 1042-43 (1936)(reasoning that the test as to whether representations made by a broker to procure the execution of a contract constituted a "material inducement" was whether the contract would have been signed without such representations having been made).1 Lewis' testimony supports that he would not have signed the loan agreement if Thomason had not represented (falsely) to him that his retirement funds would be placed in tax-deferred CDS. Lewis testified that Thomason "assured" him that the funds withdrawn from his defined benefit plan and 401(k) would remain in a tax-exempt status, and that, if he had known that these funds would be taxed if pledged as collateral for the loan, he would not have pledged those funds as collateral in the first place.2 Thus, contrary to the majority opinion's view, Lewis' testimony supports that his reliance on Thomason's false "assurance" of tax-exempt status had real financial consequences. The jury believed Lewis. I see no reason why we should second-guess the jury's credibility determination. See Mississippi Chemical Corp. v. Dresser-Rand Co., 287 F.3d 359, 365 (5th Cir.2002)(explaining that, when reviewing the district court's ruling on a motion for judgment as a matter of law, it is our duty to "draw[] all reasonable inferences and resolv[e] all credibility determinations in the light most favorable to the non-moving party"). 35 In spite of the jury's decision to believe Lewis' testimony, the majority opinion dismisses as insufficient the "sole piece of evidence" supporting that the Bank affirmatively misrepresented the tax consequences of the proposed loan transaction — Lewis' "single, ambiguous statement" at trial that Thomason "assured" him that his retirement funds, once pledged as collateral for the loan, would remain in a tax-exempt status. It reasons that, because Lewis' testimony provided no greater detail about the "context of the exchange or the specific nature of Thomason's `assurance'... it is not clear [from Lewis' testimony] whether the parties were discussing the tax consequences of the loan transaction as a whole." The majority opinion is not correct in dismissing so readily Lewis' testimony concerning Thomason's false "assurance." Viewed in context, it is easy to see that Lewis' testimony regarding Thomason's false "assurance" was made in a conversation between Thomason and Lewis related specifically to the placement of Lewis' retirement funds (to be pledged as collateral) into tax-deferred CDS at the Bank. According to Lewis' testimony, in their initial conversation, he and Thomason specifically discussed pledging the securities in Lewis' defined benefit plan as collateral for the loan: 36 Q (Lewis' Attorney): [W]hat did [Thomason] say he wanted for collateral? 37 A (Lewis): Well, I had told him — at that point, I told him I had a ... defined benefit plan, is the only other thing I had that could be used as liquid collateral, because he was asking for liquid collateral. 38 . . . 39 Q: What did [Thomason] say when you told him you had a defined benefit plan? 40 A: He jumped right on it and said, I'll take it and place it in CD's and charge you two-percent interest. 41 Lewis also testified that, in that initial conversation, Thomason affirmatively misrepresented the tax consequences of pledging the securities in his defined benefit plan as collateral: 42 Q (Lewis' Attorney): Okay. In that initial conversation [with Thomason], did you ask him, will this remain in tax-exempt status? 43 A (Lewis): Yes, I did. 44 Q: And what did he say? 45 A: He assured me that it would. 46 Thus, contrary to the majority opinion's reasoning, it is clear from Lewis' testimony that Thomason made his "assurance" of tax-exempt status in response to Lewis' question about whether his retirement funds could be pledged as collateral without incurring taxes. 47 The majority opinion also reasons that, "[v]iewing the circumstances in their entirety," including Lewis' "business background and familiarity with retirement accounts," his "access to professional accountants," the large amount of money involved in the transaction, and "the ambiguous nature of Thomason's `assurance,'" Lewis' decision to enter into the transaction "without undertaking additional investigation into its tax consequences was not justifiable." It suggests that Lewis' fraud claim fails because he "blindly" relied on Thomason's assurance of tax-exempt status, even though he should have been forewarned by a number of "red flags" — such as the fact that a letter he received from the Bank summarizing the proposed loan transaction stated that the collateral must be "in a form acceptable to" the Bank, but makes no reference to sheltering Lewis from the tax consequences of the transaction, and the fact that none of the loan documents characterized the CDS as IRAs or as tax-deferred. 48 Because the issue of justifiable reliance is a close question in this case, I simply cannot agree with the majority opinion that no reasonable jury could have concluded that Lewis justifiably relied on Thomason's assurance of tax-deferred status. Even assuming that the "red flag" occurrences cited by the majority opinion can be fairly characterized as "red flags," there is nothing in the record which suggests that Lewis' "business background" and/or "familiarity with retirement accounts" made him qualified to recognize these particular "red flags." Lewis is not an expert in tax law or investment planning. Nor is it obvious why a person like Lewis should not be able to trust a bank loan officer's assurance that money transferred to the loan officer's bank will be placed in tax-deferred instruments. A reasonable jury could have concluded that, even though Lewis had access to tax professionals during the relevant time period, Lewis did not know or understand that he would need to call upon those tax professionals to check the veracity of Thomason's assurance to him that the money transferred to the Bank would be placed in tax-deferred instruments. After all, Lewis testified that no person at the Bank ever warned him that, if he pledged this money as collateral, it would be taxable, even if placed in IRA CDS. And, although the letter from the Bank, stating that the collateral must be "in a form acceptable to" the Bank, did not positively confirm that the transferred funds were being placed in tax-deferred instruments, this letter did not specifically indicate that the money would be placed in non-tax-deferred instruments. Moreover, contrary to the conclusion reached by the majority, it is not obvious that Lewis should have seen it as a "red flag" when the loan documents presented to him did not specifically indicate that the CDS to be pledged as collateral would be tax-exempt, IRA CDS. Lewis testified that Thomason not only assured him that his retirement funds would be placed in tax-deferred instruments, but also specifically told him that he did not need to sign any "forms" to set up an IRA.3 Because it was not unreasonable for the jury to infer from the evidence that Lewis justifiably relied on Thomason's "assurance" of tax-exempt status, we should refrain from overturning its verdict on this ground. See Richter v. Bank of America, 939 F.2d 1176, 1187 (5th Cir.1991)(deferring to the jury's reasonable inferences from the evidence in a case where the justifiable reliance issue was "close"). 49 For the foregoing reasons, I do not agree with the majority's decision to reverse the judgment in its entirety. I fear that, in concluding that Lewis failed to present sufficient evidence in support of his fraudulent inducement claim, the majority has lost sight of our traditionally deferential standard of review for jury verdicts, as well as our duty to "draw[] all reasonable inferences and resolv[e] all credibility determinations in the light most favorable to the non-moving party" when reviewing the district court's ruling on a motion for judgment as a matter of law. Mississippi Chemical Corp., 287 F.3d at 365. I, therefore, respectfully dissent. Notes: 1 See also Manges v. Astra Bar, Inc., 596 S.W.2d 605, 611 (Tex.Civ.App.Corpus Christi 1980, writ ref'd n.r.e.) ("In order to show materiality, proof must be made that the misrepresentation induced the complaining party to act."); Sawyer v. Pierce, 580 S.W.2d 117, 124 (Tex.Civ.App. Corpus Christi 1979, writ ref'd n.r.e.) ("In order to make [the misrepresentation] material, proof must be made that it induced the complaining party to enter into the contract."). See generally Askew v. Smith, 246 S.W.2d 920, 923 (Civ.App. Tex.Dallas 1952, no writ) (explaining that, where one of the parties to a contract takes advantage of the other party's ignorance of the law by so misrepresenting the law as to induce such other party to part with rights or property which he might have retained, the misrepresentation is considered such fraud as to justify a court of equity in giving relief). 2 Lewis testified that, at the time that the money was transferred, he believed that the money was going into IRA CDs: Q (Lewis' Attorney): At the time that money was transferred, just so we're clear on this, you thought it was going to IRA CD's? A (Lewis): Yes, sir. Lewis' testimony also supports that, if Lewis had known that the funds would be taxed if he used them as collateral for the loan, he would not have pledged the funds as collateral: Q (Lewis' Attorney): Did anyone at NationsBank — I mean, you were asked did any-body give you tax advice. Did anyone at NationsBank tell you, if you pledge this money as collateral, it will be taxable even if it's in an IRA? A (Lewis): No, sir, they did not. . . . Q: You were asked if you wanted to provide your son collateral for his business loan, and you said yes. A: Yes, this is correct. Q: Would you have provided collateral if you knew it took — changed your IRA to a taxable IRA? A: Absolutely not. I would not have paid the bank two-percent interest knowing that I had to pay taxes anyhow. That's ridiculous. 3 On direct examination, Lewis testified that Thomason told him that he did not need to sign any forms to set up an IRA: Q (Lewis' attorney): You were asked if you — and the way the question was asked concerned signing forms. Did you believe that, when your money left the defined benefit plan from Shearson, that it had been transferred into an IRA. A (Lewis): Yes, I did. Q: And why did you believe that? A: Well, because of what I was told [by Thomason]. Q: Did you ask Mr. Thomason where the forms were? A: Yes, I did. Q: Did he tell you, there are no forms coming? A: Eventually, that was his last statement, yes. . . . Q: I'm sorry. At that time, what did he tell you precisely? A: He said, I've checked into it, and there's — there are no forms that you need to sign.

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS JESUS DELEON, Appellant, v. THE STATE OF TEXAS, Appellee. § § § § § § No. 08-09-00196-CR Appeal from the Criminal District Court No. 1 of Dallas County, Texas (TC# F05-71783-H) MEMORANDUM OPINION Pending before the Court is a voluntary motion to dismiss filed by Appellant pursuant to Tex.R.App.P. 42.2(a). The motion is in compliance with Rule 42.2(a). Accordingly, we grant the motion and dismiss the appeal. September 23, 2009 DAVID WELLINGTON CHEW, Chief Justice Before Chew, C.J., McClure, and Rivera, JJ. (Do Not Publish)

690 F.Supp. 580 (1988) Patrick KATCHAK, et al., Plaintiffs, v. GLASGOW INDEPENDENT SCHOOL SYSTEM and John W. McCarley, Defendants. Civ. A. No. c-87-0176-BG(M). United States District Court, W.D. Kentucky, Bowling Green Division. February 16, 1988. *581 Daniel T. Taylor, III, Louisville, Ky., H. Jefferson Herbert, Jr., Glasgow, Ky., for plaintiffs. F.C. Bryan, Bryan, Fogle & Chenoweth, Mt. Sterling, Ky., Uhel O. Barrickman, Richardson, Barrickman, Dickinson & Ropp, Glasgow, Ky., for defendants. FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER MEREDITH, District Judge. This case is before the Court on the motion of plaintiffs for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure and the defendants' motion to dismiss for failure to state a claim. This Court having reviewed the record, heard evidence presented at the January 27, 1988 hearing on the matter and otherwise being sufficiently advised, enters the following findings of fact and conclusions of law. Findings of Fact 1. Plaintiff's are high school seniors at Glasgow High School, Glasgow, Kentucky, and are both members of the Beta Club and the Glasgow High School Baseball Team. 2. Defendants are the Glasgow Independent School District and the principal, John W. McCarley, at Glasgow High School. 3. The conduct of students at Glasgow High School is subject to the provisions of the Discipline Code of the Glasgow Independent Schools (Defendants' Exhibit No. 2) and the Glasgow High School Handbook ("Handbook") (Defendants' Exhibit No. 1). 4. A copy of the Handbook is distributed to all Glasgow High School students within the first week of the new school year. In October of 1987, John W. McCarley, Glasgow High School Principal, read over the public address system portions of the Handbook. In the three previous years in which plaintiffs were also students, McCarley read the entire Handbook to all the students and responded to questions that the students raised regarding the Handbook provisions. 5. Section II of the General School Regulations and Code of Conduct in the Handbook states: All students are encouraged to participate in extra-curricular activities of the school; however, any student proved to be using or in possession of alcoholic beverages ... will be suspended from all extracurricular activities for an indefinite period, but not less than the remainder of the school year. 6. As members of the Glasgow High School Beta Club, plaintiffs participated in a Beta Club Convention at the Galt House in Louisville, Kentucky, on December 4, 5 and 6, 1987. Kay Gupton, Glasgow High School Guidance Counselor, and James Nelson, Glasgow High School Teacher, served as sponsors for the event. 7. Prior to participation in the Convention, plaintiffs were required to sign an acknowledgment of their understanding and acceptance of the Beta Convention Code of Conduct. (Plaintiffs' Exhibit No. 1). Paragraph 2 of the Code of Conduct prohibited possession of alcoholic beverages at extra-curricular activities. 8. Gupton and Nelson testified that they were first alerted to students drinking alcoholic beverages at the Convention on Saturday morning at 2:30 A.M., December 5, 1987. Plaintiffs were not involved in this incident. 9. While conducting room checks at 12:30 P.M. on Sunday, December 6, 1987, Nelson and Gupton testified that they found two adjoining student rooms to be in a mess and found a towel in the trash can with the odor of alcohol and evidence of vomit. Gupton later asked Katchak if he *582 had been drinking alcohol and he admitted that he had. 10. Upon their return to Glasgow, Nelson and Gupton testified that they gathered all the students involved in the Beta Convention in the cafeteria. Nelson and Gupton asked those that had been drinking to stay and all others to leave. Hodges left then returned within two to three minutes. Hodges asked Nelson if he would have gotten away with the drinking if he had not returned to the cafeteria. 11. Principal McCarley testified that he talked individually with the thirty students who participated in the Convention with one or both sponsors present. Nineteen of those students were brought back to McCarley. McCarley, with the Assistant Principal, Coy Meadows, talked with those nineteen students who were told of the charges against them, of the evidence, were asked if they understood and then announced that they were suspended for five days. Each student was given an opportunity to ask questions and an opportunity to respond. 12. Letters of suspension were mailed to each student by McCarley stating the suspension period, December 9 through 15, 1987, and, in addition, the suspension from extra-curricular activities. 13. The suspensions were reviewed by the School Board and approved. 14. Initially, suspended students were prohibited from taking make-up tests but that policy was subsequently relaxed. However students were not allowed to take quizzes or turn in homework for the suspension period. 15. Katchak and Hodges, as baseball team members, were precluded from participation in this extra-curricular activity. Katchak and Hodges were either not participants in or were not precluded from participation in any other extra-curricular activity. 16. David Johnson, Glasgow High School Math Teacher, testified that letter grades for both Katchak and Hodges were the same even without the quiz and homework assignment credit. Johnson acknowledged that the numeric grade would vary though the letter grade did not and that the numeric grade was a part of the permanent school record. 17. Neither Katchak nor Hodges applied for extra-curricular scholarship programs and thus were unaffected by any impact the suspension had on scholarship programs. 18. Katchak alleged that the suspension will adversely affect his opportunity to obtain a college baseball scholarship but supported that allegation only with letters of interest which were primarily generated by the Glasgow High School Baseball Coach, Sam Royce. Conclusions of Law 1. Injunctive relief is an extraordinary remedy and is proper only upon a finding of four crucial factors: (1) the likelihood of plaintiff's success on the merits; (2) whether the injunction will save the plaintiff irreparable injury; (3) whether the injunction would harm others; and (4) whether the public interest would be served by the injunction. In Re DeLorean Motor Co. v. DeLorean, 755 F.2d 1223, 1228 (6th Cir.1985). Balancing all four factors is necessary unless fewer are dispositive of the issue. DeLorean, 755 F.2d at 1228. 2. This action is founded on asserted Constitutional violations of the due process and equal protection clauses of the United States Constitution. Plaintiffs were on notice that their drinking at a school activity would subject them to suspension from school and extra-curricular activities. The Beta Convention Code of Conduct prohibited possession of alcoholic beverages and warned that violators "may be subject to further punishment as deemed necessary by school officials." (Plaintiffs' Exhibit No. 1). The school Handbook warned that persons using or possessing alcoholic beverages during extra-curricular events "will be suspended from all extracurricular activities." (Defendants' Exhibit No. 1). *583 Furthermore, Kentucky Revised Statutes 158.150 provides in pertinent part: (1) All pupils admitted to the common schools shall comply with the lawful regulations for the government of the schools: (b) ... the use or possession of alcohol ... off school property at school sponsored activities constitutes cause for suspension ... from school. No evidence was introduced which demonstrated that plaintiffs were not aware of the ramifications of their actions. 3. The due process requirements for suspension adopted from Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) and codified in Kentucky Revised Statutes 158.150(2) are: "A pupil shall not be suspended from the common schools until after at least the following due process procedures have been provided: (a) The pupil has been given oral or written notice of the charge or charges against him which constitute cause for suspension; (b) The pupil has been given an explanation of the evidence of the charge ... if the pupil denies them; and (c) The pupil has been given on opportunity to present his own version of the facts relating to the charge ..." Principal McCarley testified that each of the above requirements were met and no proof controverts that testimony. Plaintiffs have failed to demonstrate that they were denied procedural due process. 4. The substantive due process argument espoused in the case at bar is that the punishment, that is the five day suspension from school and the suspension from the basesball team, is unreasonable in light of the drinking infraction. Judge Bertelsman of the Eastern District of Kentucky very ably set forth the Constitutional road-map for deciding the above-described argument in Petrey v. Flaugher, 505 F.Supp. 1087 (E.D.Ky.1981): "1. A substantive due process or Ninth Amendment right, not expressly found in the text of the Constitution, must be one that is fundamental, ... 2. After, but only after, a right has been identified as fundamental in the light of history and tradition, the law regulating it is subjected to strict scrutiny by the court, to determine if the regulation is justified by a sufficient, but not necessarily compelling state interest. 3. Students do not shed their constitutional rights, including those of substantive and procedural due process, at the schoolhouse gate. 4. However, the prerogative of managing the public schools belongs to the states and the boards of education and administrators to whom the state has delegated it. The federal courts have the power to supersede their decisions only where their actions are clearly unconstitutional." Petrey, 505 F.Supp. at 1090. In Petrey, the student was expelled from high school when he was caught smoking marijuana on school property. Though the facts in the case sub judice are less severe and certainly, the punishment is less severe than in Petrey, the principles are identical. "There is no constitutional right to be free from an appropriate degree of discipline, if one is affiliated with an organization where discipline is necessary, such as ... a high school. Even enumerated rights, such as those guaranteed by the First Amendment, are limited by the need for discipline, commensurate with the nature of the organization to which one belongs." Petrey, 505 F.Supp. at 1091. The appropriate nature of the discipline in the case at bar, is evidenced by the holding of the Kentucky Court of Appeals in Clark County Board of Education v. Jones, 625 S.W. 2d 586 (Ky.App.1981). In Clark County the trial court voided a school regulation that mandated suspension for the use of alcohol even though it was a first offense. The Kentucky Court of Appeals reversed the trial courts decision holding that the school regulation did not exceed the scope of K.R.S. 158.150. More simply put, mandatory suspension for alcohol use on a school sponsored trip was appropriate. *584 Plaintiffs have failed to adduce proof or caselaw that demonstrates that the five-day suspension from school and the suspension from playing baseball was unreasonable. Students have no fundamental constitutional right to be free from appropriate discipline. Absent a fundamental right, the Court must determine if a rational relationship exists between the Handbook provision prohibiting use of alcohol and the potential suspension for a violation thereof. The Petrey court found that "rather than having a right to be free from discipline, a young person has a need to be subjected to constructive discipline." Petrey, 505 F.Supp. at 1091. "The traditions of our culture recognize that due discipline in the rearing of the young is necessary and wholesome, rather than a violation of personal rights." Petrey, 505 F.Supp. at 1091. This Court finds that no grounds exist for determining that the actions of the high school principal or the school board were unconstitutional. Absent such a finding, the plaintiffs are unlikely to succeed on the merits of their case and cannot meet the threshold requirement for imposition of injunctive relief. 5. Furthermore, no evidence was introduced at the hearing which would support a finding of irreparable injury. As defendants note, Katchak's chances of a baseball scholarship were at this time, somewhat speculative, despite the letters of interest he received. The impact of the missed quiz and homework assignments were de minimis where the letter grade did not change and the grade reflects performance for only a nine-week period rather than a semester grade. 6. The Court finds and common sense tells us that enjoining the imposition of discipline by Glasgow High School would far outweigh any speculative harm that might occur to the plaintiffs. Appropriate discipline is the vehicle by which curious, energetic young people must be managed so that a proper learning environment is maintained. Furthermore, the public has a strong interest in cultivating that learning environment by maintaining proper discipline in the public schools. The Court finds that in balancing the DeLorean criteria, injunctive relief is clearly improper and unwarranted. 7. Pursuant to the provisions of Rule 12(b) of the Federal Rules of Civil Procedure, a motion to dismiss under Rule 12(b)(6) may be treated as a motion for summary judgment where "matters outside the pleading are presented to and not excluded by the court." In a motion for summary judgment, the Court must consider whether any genuine issues of material fact exist and if not, whether defendant is entitled to judgment as a matter of law. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The Court, having found that the discipline imposed was not unreasonable and thus constitutional and that no material factual disputes exist, defendant is entitled to judgment as a matter of law. (The record should reflect that the Court took the plaintiffs' advice and considered all tendered affidavits regarding the motion to dismiss.) Conclusion Finally, during the course of the hearing when the learned counsel for the plaintiffs was making reference on occasion to the Bard from Stratford-on-Avon, William Shakespeare, I told him I was surprised he did not summon up the words of the noted English poet, Alexander Pope, who said in his "Essay on Criticism: `To err is human, to forgive, divine.'" Alas, he took the Court's advice and did so in his response to the defendants' motion to dismiss. However, the law on the issue at hand as stated in the Conclusions of Law more closely emulates something else Alexander Pope wrote in the Eighteenth Century. The lines I refer to were on a small card which was attached to the high school diploma which I received some twenty-five years ago and for some inexplicable reason remain *585 indelible in my mind: "Tis education forms the common mind, just as the twig is bent the tree's inclined." Education as we know it is just as crucial today in the development of any young man or young woman as it was in Pope's time. An integral part of that education is discipline. There are rules of discipline that each of us have to abide by throughout our lives, whether we are in high school, college, or adults required to obey the laws of our land. The two primary plaintiffs in question appear to be nice young men who can have very bright futures if they apply themselves and abide by the rules, be it in high school or life. All of us have made mistakes which we have had to pay for in some fashion. If we learn that lesson as "twigs," hopefully it will remain with us as "trees." I have to believe it is much more desirable to discover this basic principle sooner, when the stakes are lower, than later. Both the current law and Pope's aphorism on education seem to endorse that basic principle. I concur. IT IS HEREBY ORDERED that the motion for preliminary injunction be and hereby is denied and the motion to dismiss for failure to state a claim treated here as a motion for summary judgment be and hereby is granted for the reasons stated herein. This is a final and appealable Order. JUDGMENT This case is before the Court on the motion of plaintiffs' for a preliminary injunction, the motion to dismiss on behalf of defendants converted to a motion for summary judgment pursuant to Rule 12 of the Federal Rules of Civil Procedure and the motion to strike affidavits on behalf of defendants. The Court being sufficiently advised and having filed simultaneously herewith Findings of Fact and Conclusions of Law; IT IS HEREBY ORDERED that the motion for preliminary injunction be and hereby is denied. IT IS FURTHER ORDERED that the motion for summary judgment be and hereby is granted. IT IS FURTHER ORDERED that the defendants' motion to strike affidavits be and hereby is denied and the Court further states that all affidavits filed were considered by the Court in rendering its decision. This is a final and appealable Order.

517 F.Supp.2d 416 (2007) Ghollam NIKBIN, Plaintiff, v. ISLAMIC REPUBLIC OF IRAN, et al., Defendants. Civil Action No. 04-008(JDB). United States District Court, District of Columbia. September 28, 2007. *417 *418 *419 William F. Pepper, Paul David Wolf, Washington, DC, Liam George Pepper, London Great Britain, Raymond D. Kohlman, Seekonk, MA, for Plaintiff. MEMORANDUM OPINION (Findings of Fact and Conclusions of Law) JOHN D. BATES, District Judge. Plaintiff Ghollam Nikbin ("Nikbin") has filed this civil action against the Islamic Republic of Iran, the Iranian Ministry of Intelligence and Security ("MOIS"), the Islamic Revolutionary Guards ("Revolutionary Guards"), two individuals, Ali Akbar Hashemi Rafsanjani ("Rafsanjani") and Ali Akbar Fallahian Khuzestani ("Khuzestani"), and Does 1-10. Plaintiff seeks money damages for injuries arising from acts of torture committed against him while he was in the custody of the Iranian government. His amended complaint asserts various state-law causes of action and a claim under the Flatow Amendment, 28 *420 U.S.C. § 1605 (note). On July 28, 2006, the Clerk of Court declared all of the named defendants in default, see Clerk's Entry of Default, Docket Entry Nos. 29, 30, 31, and to this date defendants have not responded to the suit. This Court undertook its independent obligation to verify that jurisdiction existed over all of Nikbin's claims, and for the reasons described in the Court's January 11, 2007 memorandum opinion, the Court dismissed all claims against defendants Rafsanjani, Khuzestani, and Does 1-10 for want of personal jurisdiction. See Nikbin v. Islamic Republic of Iran, 471 F.Supp.2d 53 (D.D.C.2007).[1] Before this Court can enter a default judgment against the remaining defendants Iran, MOTS, and the Revolutionary Guards, plaintiff is required by the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1602-1611 (2000), to establish his remaining claims "by evidence satisfactory to the court." § 1608(e). Accordingly, the Court held an evidentiary hearing on February 2, 2007, and now issues the following findings of fact and conclusions of law. FINDINGS OF FACT I. Background and Events of 1994-1998 Ghollam Nikbin was born in Ashghabad, Iran, on August 12, 1947. Tr. 10:4-13. In Iran, Nikbin finished high school and graduated from Tehran University. Tr. 10:22-11:5. Following his graduation from the university in 1975, Nikbin came to the United States to pursue a Masters of Business Administration degree, which he obtained from Long Island University in 1979. Tr. 11:12-18. He then worked briefly for Merrill Lynch in New York City until his visa was revoked following the taking of the hostages in Tehran in 1979. Tr. 11:19-12:18. After his visa was revoked, Nikbin applied for political asylum and ultimately relocated to Salt Lake City, Utah. Tr. 12:19-13:21. In 1982, Nikbin converted to Mormonism prior to marrying a woman who was a member of the Mormon Church, Tr. 13:22-14:8, and in 1984 Nikbin received his U.S. "green card." Tr. 14:12-13. One year after he received his green card, Nikbin and his wife separated, and they were later divorced. Tr. 14:12-15. In 1991, Nikbin became a naturalized citizen of the United States. Tr. 15:3-5. With a desire to be closer to his family, Nikbin moved back to Iran in 1993. Tr. 15:6-14. The heart of Nikbin's complaint concerns acts that occurred while he was in Iran during the years 1994 through 1998. Shortly after he returned to Iran, his family arranged a marriage for him with an Iranian woman. Tr. 17:15-18:1. Nikbin suggested that they marry in Cyprus to escape the surveillance of the religious police, but his future wife's family insisted on a ceremony in Iran. Tr. 16:2-17. During the wedding celebration, in accordance with Islamic rules, there were two separate sites for men and women. Tr. 16:12-17. But at the end of the party, a violation of Iranian law apparently occurred when several boys began dancing with their mothers. Members of the Munkerat and Mafasad Society — Iranian government officials charged with enforcing Islamic law — observed this event, disrupted the celebration, and arrested twenty-seven people, including Nikbin. Tr. 16:18-24. Nikbin and the wedding guests were taken to jail and were held for one month. Every morning during their detention, *421 Nikbin and the twenty-six wedding guests were taken to court where they waited to appear before a judge, and every afternoon they were returned to the jail. Tr. 33:4-22. When Nikbin appeared before the judge, he was sentenced to forty lashes with a whip as his punishment for violating the law. Tr. 16:13-17:4; 33:23-34:7. The lashes were inflicted from his ears down to his feet, with the majority of lashes falling upon his back. Tr. 17:10-12. Following this experience, Nikbin decided to leave Iran. Tr. 18:15-19. He altered his plans, however, when he learned that his wife was pregnant and that his family wanted him to stay in the country until the child was born. Tr. 18:16-19:10. During this waiting period, Nikbin remained in Iran but became outspoken against the Iranian regime. Tr. 19:17-20:10. After being informed by acquaintances that the secret police had been asking about his activities and religious practices, Nikbin became nervous about the repercussions of his actions. Tr. 20:11-21. Once his daughter was born, Nikbin completed his arrangements to leave the country, and he purchased a plane ticket for May 28,1995. Tr. 19:8-10. On that date, Nikbin went to the Tehran airport, but he was stopped at the departure area. Tr. 22:1-9. An Iranian official asked to see his passport and directed him to a room where he waited for an hour and a half until three or four additional Iranian officials arrived. Tr. 22:6-24. They escorted him to a car, hit him on the head, had him close his eyes, and drove him to a location where he was thrown into a jail cell. Tr. 22:21-23:9. That night in his jail cell he heard screams from other prisoners, which gave him great anxiety and made him fearful of what would happen to him. Tr. 23:16-24:11. When officials eventually questioned him about his religious practices, they accused him of converting to Mormonism, and Nikbin denied the accusation. Tr. 23:14-15. He was then left in his cell for a few days before he was taken to an interrogation room where he was confronted with his baptismal certificate from the Mormon Church. Tr. 24:21-25:3. During that confrontation, Iranian officials forced Nikbin to lie on his back with his legs in the air. The interrogators then hit him and shocked him repeatedly on the soles of his feet with an electrical cable. Tr. 26:5-7. Nikbin experienced severe pain as a result of this incident and had difficulty feeling his legs for several days. Tr. 26:7-12. Some days later, Nikbin learned that the punishment for apostasy was decapitation. After hearing this, Nikbin's fear heightened each time he heard an official walk down the hallway and each time he was taken to an interrogation room. Tr. 25:14-19. The Iranian officials continued to question him about his activities as a Mormon and about other individuals suspected of converting to Mormonism. Tr. 26:20-23. During these interrogation sessions, Nikbin was subjected to numerous acts that resulted in physical pain and mental anguish. In one interrogation session, Nikbin was hung upside down from the ceiling by his right foot for a prolonged period of time. The uncomfortable position caused intense pain and made it difficult for Nikbin to breathe. Tr. 26:18-23. Throughout the interrogations, Nikbin suffered physical injuries, lost five teeth, and eventually had to have three operations due to the injuries he suffered. Tr. 25:5-11. On the advice of his family, Nikbin eventually feigned insanity to get transferred to a mental hospital, as a means of avoiding the capital punishment of decapitation. Tr. 28:4-14. As a patient in the mental hospital, Nikbin was expected to take certain medications. When he refused, he was *422 forcibly injected with drugs on three different occasions. Tr. 28:15-29:10. After he finished his treatment at the mental hospital, Nikbin was returned to the city jail and eventually his family was able to buy his freedom by bribing Iranian officials. Tr. 29:11-30:3. Upon his release after three and a half years in custody, Nikbin made plans to leave Iran. Tr. 25:16-17. When he went to the airport, however, government officials again detained him and took him to a room for questioning. Tr. 30:17-23. In that room, Iranian officials assaulted Nikbin by repeatedly forcing a coke bottle up his rectum. Tr. 30:21-25. Nikbin believes the Iranian officials assaulted him to. "teach [him] a lesson" about what they would do to him if he talked about the horrors he experienced while he was in Iranian custody. Tr. 30:23-24. Following the assault, he was released and allowed to board the plane. All the way to New York Nikbin was in pain from the assault, and he experienced severe bleeding which was visible on the airplane seat. Upon his arrival, in New York, he was sent immediately to Bellevue Hospital. Tr. 31:1-3. Nikbin was admitted to Bellevue Hospital for seven months of treatment, which included several operations to remedy the injuries he sustained while he was in Iranian custody. Tr. 31:20-22. Nikbin was profoundly affected by his experiences in Iran. Though he now resides in New York, he testified that he has nightmares every night from the events that occurred while he was in Iranian custody. Tr. 31:10-12. For three and a half years, he lived in constant fear and anxiety of being subjected to acts of torture. Tr. 25:14-19. Even though he was released more than eight years ago, that fear still resides in Nikbin. Tr. 25:20-24. Wherever he goes, he constantly scans the environment around him fearing repercussions from the defendants. Tr. 32:7-33:2. To this day, Nikbin still continues to receive mental health treatment twice a week from one doctor and every two weeks from another doctor. Tr. 32:3-6. Regarding Nikbin's injuries, the Court heard testimony from Dr. Howard Berens, a psychiatrist whom this Court finds to be qualified as "an expert in the field of psychiatry and mental illnesses, including PTSD (Post-Traumatic Stress Disorder), delusional behavior, panic disorder, and depression." Tr. 46:15-18. Dr. Berens' testimony confirms that Nikbin was suicidal following his experiences in Iran and that Nikbin continues to suffer from severe depression, post-traumatic stress disorder, intense panic disorder, and hypervigilance due to the events he was exposed to in Iran. Tr. 45:19-46:10; 44:4-23. "He's always worried about what's going to happen to him and what dangers there are in the situation." Tr. 39:17-19. This hypervigilance causes Nikbin to be in a constant state of agitation. Tr. 39:19-22. Nikbin is highly susceptible to flashbacks and often experiences dissociative episodes where he will unknowingly stare off into space during conversations. Tr. 39:24-40:6. Nikbin is also affected by social events around him, and various social triggers, such as the mention of Iran, will cause him to break down and cry out regardless of whether he is on the street, at work, or on the subway. Tr. 31:16-19; 43:9-13. Thus, Nikbin's emotional state continues to affect his daily life and his ability to function in a professional work environment. Tr. 43:1-13. While Nikbin capably performed as a supervisor and manager prior to 1994, he no longer has the ability to perform in that capacity. Tr. 43:7-13. According to Dr. Berens, Nikbin has a fragmented psyche based on the torture, the humiliation, and the fear he experienced. He no longer feels like the *423 person he was prior to his experiences in Iran, Tr. 44:4-18, and according to Dr. Berens, there is no cure for Nikbin that will ever make him feel like himself again. Tr. 46:10-11. The goals of Nikbin's treatment include "health maintenance and relapse prevention." Tr. 46:11-13. II. Iran, MOIS, and the Revolutionary Guards Iran was designated a state sponsor of terrorism in 1984 and has been on the State Department's list of state sponsors of terrorism ever since. See Dammarell v. Islamic Republic of Iran, 404 F.Supp.2d 261, 273-74 (D.D.C.2005) ("Dammarell IV"); see also 22 C.F.R. § 126.1(d) (2006); 31 C.F.R. § 596.201 (2006); Determination Pursuant to Section 6(i) of the Export Administration Act of 1979 — Iran, 49 Fed. Reg. 2836, 2836 (Jan. 23, 1984). Regarding Iran, MOIS, and the Revolutionary Guards, the Court heard testimony from Dr. Mohammad Parvin, a professor whom this Court finds to be qualified as an expert on the social, political, and legal system of, and situation in, Iran from the mid-1970s to the present. Tr. 67:2-5. According to Dr. Parvin, the "power structure in Iran is very complicated," but there are two main bodies that deal with intelligence and that make arrests within the country. Tr. 76:4-7. These two institutions are MOIS and the Revolutionary Guards. Tr. 76:7-9. Dr. Parvin testified that the President of Iran routinely communicates with both organizations and ultimately has direct control over both organizations. Tr. 78:15-79:3. The founder of the Islamic regime of Iran formed the Revolutionary Guards to preserve the Islamic regime. Tr. 76:13-77:13. The Revolutionary Guards conduct surveillance on the people within Iran, watching "every aspect of their activities within every society, every organization, every party, every group that they get together." Tr. 77:15-25. The Revolutionary Guards ensure that the people within the regime follow Islamic rule without question. Tr. 77:22-24. The Revolutionary Guards also have the power to act on the information they obtain from their surveillance to detain individuals and to conduct interrogations. Tr. 77:24-25. MOIS is a distinct body from the Revolutionary Guards, but their duties overlap to some extent. MOIS "gather[s] information on Iranian people inside and outside Iran." Tr. 78:4-9. MOIS also has the power to detain individuals and to conduct interrogations. Tr. 78:10-14. Dr. Parvin testified that, in fact, members of both MOIS and the Revolutionary Guards are normally present during all interrogations. Tr. 78:10-14. Dr. Parvin testified that representatives of both organizations routinely use various methods to inflict physical pain and mental suffering on prisoners to obtain confessions, which are then used as a basis to convict various individuals. Tr. 71:9-22. The Iranian officials regularly lash prisoners within their custody with electrical cables. They often handcuff prisoners with their hands behind their backs and then hang the prisoners for prolonged periods of time. Tr. 73:8-23. Members of MOIS and the Revolutionary Guards also often blindfold prisoners, take them to an interrogation room, and let them sit and wait, imagining and fearing the events that will ensue. Tr. 75:4-16. According to Dr. Parvin, the Iranian system relies on putting people under great emotional stress and anticipation of the torture that will be inflicted until an individual confesses. Tr. 75;17-20. CONCLUSIONS OF LAW I. Jurisdiction Under the Foreign Sovereign Immunities Act The Foreign Sovereign Immunities Act ("FSIA") provides the sole basis for *424 obtaining jurisdiction over a foreign state in a United States court. See 28 U.S.C. § 1330; Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). The "interlocking provisions" of that statute, Mar. Int'l Nominees Establishment v. Republic of Guinea, 693 F.2d 1094, 1099 (D.C.Cir.1982), compress subject-matter jurisdiction and personal jurisdiction into a single, two-pronged inquiry: (1) whether service of the foreign state was accomplished properly, and (2) whether one of the statutory exceptions to sovereign immunity applies. See § 1330. Under the FSIA's service-of-process provisions, "if the core functions of the entity are governmental, it is considered the foreign state itself; if commercial, the entity is an agency or instrumentality of the foreign state." Roeder v. Islamic Republic of Iran, 333 F.3d 228, 234 (D.C.Cir. 2003). This Court has previously held, pursuant to the core-functions test of the FSIA, that the core-functions of both MOIS and the Revolutionary Guards are governmental. Thus, these entities are to be considered the foreign state itself. See Dammarell IV, 404 F.Supp.2d at 274-75 (MOIS); Salazar v. Islamic Republic of Iran, 370 F.Supp.2d. 105, 117 (D.D.C.2005) (Revolutionary Guards). As explained more fully in the Court's January 11, 2007 memorandum opinion, plaintiff properly accomplished service on Iran, MOIS, and the Revolutionary Guards on May 17, 2006. See Nikbin, 471 F.Supp.2d at 59-60; 28 U.S.C. 1608(c)(1). Thus, the remaining jurisdictional question is whether or not a statutory exception to sovereign immunity applies to Nikbin's claims. Under 28 U.S.C. 1605(a)(7), the terrorism exception to sovereign immunity denies immunity in any case in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources (as defined in section 2339A of title 18) for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency. § 1605(a)(7) (emphasis added). This exception applies only if the foreign state was designated as a state sponsor of terrorism at the time of the act or as a result of the act, the foreign state was afforded a reasonable opportunity to arbitrate the claim in accordance with accepted international rules of arbitration, and the claimant or the victim was a national of the United States when the act occurred. 1605(a)(7)(A)-(B). In its previous opinion, the Court concluded that these three requirements were met in this case. See Nikbin, 471 F.Supp.2d at 61. The term "torture" as used in 1605(a)(7) takes its meaning from section three of the Torture Victim Protection Act of 1991 ("TVPA"). 1605(e)(1). The TVPA defines torture as any act, directed against an individual in the offender's custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind. *425 28 U.S.C. § 1350 (note). The D.C. Circuit has emphasized that to meet this definition the foreign state must impose severe pain or suffering and do so "cruelly and deliberately, rather than as the unforeseen or unavoidable incident of some legitimate end." Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 92-93 (D.C.Cir.2002). The nature and degree of suffering inflicted on the victim must be extraordinary to "warrant the universal condemnation that the term `torture' both connotes and invokes." Id. at 92. The suffering must also be inflicted for a purpose similar in nature to the "common motivations that cause individuals to engage in torture" that are listed by example in the statute. Id. at 93. Accordingly, "torture is a label that is `usually reserved for extreme, deliberate and unusually cruel practices, for example, sustained systematic beating, application of electric currents to sensitive parts of the body, and tying up or hanging in positions that cause extreme pain.'" Simpson v. Socialist People's Libyan Arab Jamahiriya, 326 F.3d 230, 234 (D.C.Cir.2003) (quoting S. Exec. Rep. No. 101-30, at 14 (1990)). Based upon this definition, Nikbin presented satisfactory evidence at the hearing on February 2, 2007, to prove that three acts of the defendants were the very kinds of cruel and inhuman activities that concerned Congress when it passed the TVPA. See S. Exec. Rep. No. 101-30, at 14. Specifically, the Court now concludes that striking Nikbin repeatedly on the soles of his feet with an electrical cable, hanging Nikbin upside down from the ceiling during an interrogation session, and assaulting Nikbin with a coke bottle prior to his departure from Iran all bring the defendants within the so-called terrorism exception to sovereign immunity found in § 1605(a)(7). This Court previously put Nikbin off notice that the allegations in his complaint were insufficient to demonstrate that his periods of detention were acts so unusually cruel or outrageous as to constitute torture. See Nikbin, 471 F.Supp.2d at 62-63. Nikbin failed to present any additional evidence of the conditions of his confinement at the hearing before this Court. Hence, for the reasons articulated in the Court's January 11, 2007 memorandum opinion, the Court concludes that Nikbin's periods of detention do not constitute torture in and of themselves. See id. The Court also concludes that the sentence of forty lashes that Nikbin received for acts at his wedding celebration does not constitute torture under the FSIA. The stringent definition of torture explicitly excludes "pain or suffering arising only from or inherent in, or incidental to, lawful sanctions." 28 U.S.C. § 1350 (note). Nikbin describes the lashing as his punishment for acts at the wedding celebration that violated Iranian law. Tr. 16:25-17:4; 33:4-34:7. The sentence was imposed upon him by a judge after Nikbin made an appearance at an Iranian court and after Nikbin attended a limited judicial hearing. Tr. 33:9-22. According to Dr. Parvin, judges in Iran have the power to sentence people to various means of corporal punishment, including lashing, for violating the law in Iran. Tr. 80:9-18. Nikbin's claim regarding the lashing is thus somewhat different than a typical police-brutality claim, in which the physical abuse is independent of the sentence imposed. See, e.g., Price, 294 F.3d at 86 (describing allegations that prison guards beat plaintiffs while they were incarcerated in a political prison pending the outcome of their trial). The evidence presented at the hearing indicates that Nikbin's pain and suffering from the forty lashes was "inherent in, or incidental to, lawful *426 sanctions." 28 U.S.C. § 1350 (note). Thus, the Court concludes that Nikbin's claim regarding his punishment of forty lashes does not constitute torture under the FSIA. In so concluding, of course, the Court does not condone such treatment, but merely concludes that under Iranian law, although certainly not under United States law, lashing represents a lawful sanction. This Court may only exercise subject-matter jurisdiction over claims for personal injuries caused by an act of torture. 28 U.S.C. §§ 1330, 1605(a)(7); see Kilburn v. Socialist People's Libyan Arab Jamahiriya, 376 F.3d 1123, 1127, 1129 (D.C.Cir. 2004) (stating that causation is a jurisdictional requirement in all § 1605(a)(7) cases). This Court has found that the defendants have lost immunity for striking Nikbin repeatedly on the soles of his feet with an electrical cable, for hanging Nikbin upside down from the ceiling during an interrogation session, and for assaulting Nikbin with a coke bottle prior to his departure from Iran, and hence the Court has subject-matter jurisdiction over Nikbin's claims that arise from these acts. II. Substantive Liability It is now well established that the terrorism exception of § 1605(a)(7) "merely waives the immunity of a foreign state without creating a cause of action against it." Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1033 (D.C.Cir.2004). "Rather, . . . a plaintiff proceeding under the FSIA must identify a particular cause of action arising out of a specific source of law." Acree v. Republic of Iraq, 370 F.3d 41, 59 (D.C.Cir.2004); see also Dammarell v. Islamic Republic of Iran, No. 01-cv-2224, 2005 WL 756090, at *17 (D.D.C. Mar.29, 2005) ("Dammarell II") ("As a general rule, state law should provide a cause of action against a foreign nation in a section 1605(a)(7) claim."). The Court will now address Nikbin's state-law claims for assault, battery, and intentional infliction of emotional distress ("IIED"). See Am. Compl. ¶¶ 38-74.[2] The Court will apply the law of New York, where the plaintiff is domiciled. See Dammarell II, 2005 WL 756090, at *22 (concluding that, under District of Columbia's choice-of-law analysis, "the general rule in these claims should be the application of the law of the state of domicile of the plaintiff"). A. Assault "Under New York law, lain "assault" is an intentional placing of another person in fear of imminent harmful or offensive contact.'" Girden v. Sandals Inn, 262 F.3d 195, 203 (2d Cir.2001) (quoting United Nat'l Ins. Co. v. Waterfront N.Y. Realty Corp., 994 F.2d 105, 108 (2d Cir.1993)). As Dr. Parvin testified, the defendants routinely and intentionally place individuals in fear of physical punishment in order to coerce confessions. Based on this testimony, it was clearly the intent of these defendants to place Nikbin in fear of imminent offensive contact when they struck him on the soles of his feet and when they hung him upside down during *427 an interrogation session. It was also clearly the intent of the defendants to place Nikbin in fear of imminent harmful contact when they detained him on his second attempt to depart from Iran and used a coke bottle to "teach [him] a lesson." Based on Nikbin's testimony, these acts succeeded in causing him to fear imminent harmful contact. Thus, the Court concludes that Nikbin has proven his claim for assault. B. Battery Under New York law, "[a] `battery' is an intentional wrongful physical contact with another person without consent." Girden, 262 F.3d at 203 (quoting United Nat'l Ins. Co., 994 F.2d at 108). "In the case of a battery, the slightest unlawful touching of the person of another is sufficient, for the law cannot draw the line between different degrees of violence and therefore totally prohibits the first and lowest stage, since every individual's person is sacred and no other has the right to touch it." United Nat'l Ins. Co., 994 F.2d at 108 (citation omitted). "[T]he required intent is merely that the defendant intentionally made bodily contact and that the intended contact was itself offensive or without consent." Campoverde v. Sony Pictures Entm't, No. 01 Civ. 7775, 2002 WL 31163804, at *11 (S.D.N.Y. Sept. 30, 2002) (quoting Rivera v. Puerto Rican Home Attendants Servs., Inc., 930 F.Supp. 124, 133 (S.D.N.Y.1996)). Here, the defendants clearly intended to make bodily contact with Nikbin without his consent when they struck his feet, hung him upside down, and assaulted him with the coke bottle. Since the test of offensiveness "is what an `ordinary person not unduly sensitive' would find offensive," id. (citation omitted), the defendants' conduct more than satisfies that test by falling within the definition of torture under the FSIA. Thus, the Court concludes that Nikbin has proven his claim for battery. C. Intentional Infliction of Emotional Distress A plaintiff seeking to establish a claim for intentional infliction of emotional distress must demonstrate four elements: "(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress." Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 596 N.Y.S.2d 350, 612 N.E.2d 699, 702 (1993). Taking these elements one by one, the Court concludes that Nikbin has proven his claim. First, under New York law, "[l]iability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. (citation omitted). Here, the defendants repeatedly struck Nikbin on the soles of his feet with an electrical cable, leaving him unable to feel his legs for several days. They hung Nikbin upside down from a ceiling by his right foot during an interrogation session, causing him to experience extreme pain and making it difficult for him to breathe. And, they assaulted Nikbin with a coke bottle in an extremely offensive and mortifying manner, causing him to bleed in the seat of the airplane during his flight to New York. As discussed above, these acts were the very kinds of cruel and inhuman activities that concerned Congress when it passed the TVPA. Second, Dr. Parvin testified that the defendants routinely commit these acts on individuals within their custody with the *428 intent to cause fear, pain, and suffering. Based on Dr. Parvin's testimony and based on the testimony of Nikbin, it is clear that the defendants intended to cause Nikbin severe emotional distress. Third, there must be a causal connection between the conduct and the injury. Here, Dr. Berens' testimony confirms that Nikbin's injuries and distress arose from the torture that Nikbin was subjected to in Iran. And finally, the "emotional distress must be so severe that no reasonable person could be expected to endure it." McGovern v. Nassau County Dept. of Soc. Servs., No. 6959/06, 2007 WL 2127348, at *7 (N.Y.Sup. Ct. June 6, 2007). It is easy to so conclude here. Dr. Berens testified that Nikbin was suicidal after he left Iran, and Dr. Berens also testified that Nikbin continues to suffer from severe depression, post-traumatic stress disorder, intense panic disorder, and hypervigilance. Thus, the Court concludes that Nikbin presented sufficient evidence to fulfill this requirement. In sum, the Court concludes that the actions of the defendants and Nikbin's resulting emotional distress satisfy the requirements of an TIED claim under New York law. III. Damages For assault, battery, and intentional infliction of emotional distress, a plaintiff may recover compensatory damages "for the injury itself [and for] conscious pain and suffering including mental and emotional anxiety." Deborah S. v. Diorio, 153 Misc.2d 708, 583 N.Y.S.2d 872, 878 (N.Y.Civ.Ct.1992), aff'd as modified, 160 Misc.2d 210, 612 N.Y.S.2d 542 (N.Y.App. Term 1994). "To obtain damages against a non-immune foreign state under the FSIA, a plaintiff must prove that the consequences of the foreign state's conduct were `reasonably certain (i.e., more likely than not) to occur, and must prove the amount of damages by a reasonable estimate consistent with this [Circuit]'s application of the American rule on damages.'" Salazar, 370 F.Supp.2d at 115-16 (alteration in original) (quoting Hill v. Republic of Iraq, 328 F.3d 680, 681 (D.C.Cir.2003)). Nikbin has demonstrated that his physical and emotional injuries were reasonably certain outcomes of the defendants' actions, and Nikbin has provided the Court with a reasonable estimate of his damages.[3] In assessing Nikbin's damages, it is important to consider the context of his injuries. Nikbin was subjected to three heinous acts of torture, two of which are well known methods that were cited by Congress when it passed the TVPA. See Simpson, 326 F.3d at 234 (referring to the "`application of electric currents to sensitive parts of the body, and tying up or hanging in positions that cause extreme pain'") (quoting S. Exec. Rep. No. 101-30, at 14 (1990)). These deliberate acts of cruelty were designed to instill fear in Nikbin, and they made him apprehensive *429 about additional acts of torture that would be committed. Since Nikbin was struck repeatedly on the soles of his feet with an electrical cable just days after he was originally detained at the airport, Nikbin's anxiety about additional mistreatment grew and developed for three and a half years while he was in custody. In fact, to this day Nikbin stills suffers from anxiety and hypervigilance based on his fear. From the acts of torture, Nikbin experienced physical injuries that required several operations and seven months of treatment. Nikbin also experienced mental and emotional injuries that still require treatment on a weekly basis. Nikbin experienced suicidal ideation and has been diagnosed with post-traumatic stress disorder, severe depression, and intense panic disorder. These injuries continue to affect his ability to hold a job, and he is no longer capable of working in a managerial position. Based on the evidence of Nikbin's physical and emotional suffering, the Court finds that Nikbin is entitled to an award of $2,600,000 in compensatory damages. The Court will therefore enter judgment against Iran, MOIS, and the Revolutionary Guards in the amount of $2,600,000. CONCLUSION For the foregoing reasons, and upon consideration of the entire record herein, this Court finds that Nikbin is entitled to a default judgment against Iran, MOIS, and the Revolutionary Guards for assault, battery, and intentional infliction of emotional distress in the amount of $2,600,000. A separate default judgment and order is issued herewith. ORDER Plaintiff Ghollam Nikbin has moved for reconsideration of the Court's January 10, 2007 order and January 11, 2007 memorandum opinion dismissing the claims against defendant Ali Akbar Hashemi Rafsanjani ("Rafsanjani") for want of personal jurisdiction. See Nikbin v. Islamic Republic of Iran, 471 F.Supp.2d 53 (D.D.C. 2007). While there is no Federal Rule of Civil Procedure that expressly addresses motions for reconsideration, see Lance v. United Mine Workers of Am.1974 Pension Trust, 400 F.Supp.2d 29, 31 (D.D.C.2005), plaintiff has styled his motion pursuant to Federal Rule of Civil Procedure 60(b), claiming relief is warranted based upon excusable neglect, newly discovered evidence, and the particular circumstances of this case. See Pl.'s Mot. for Reconsider. at 1. "[A] district court enjoys significant discretion in deciding whether to grant or deny a Rule 60(b) motion." Computer Prof'ls for Soc. Responsibility v. U.S. Secret Serv, 72 F.3d 897, 903 (D.C.Cir.1996). Based upon the large measure of discretion that is afforded district courts, "[r]elief under Rule 60(b)(1) motions is rare." Hall v. Cent. Intelligence Agency, 437 F.3d 94, 99 (D.C.Cir. 2006). Additionally, it is well established that Rule 60(b)(6) "relief should be only sparingly used" in "extraordinary circumstances." Computer Prof'ls, 72 F.3d at 903 (quoting Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C.Cir. 1980)). For the reasons stated below, the Court holds that plaintiff is not entitled to Rule 60(b) relief in this action.[1] *430 To challenge the dismissal of the official-capacity claims brought against Rafsanjani, plaintiff argues that Rafsanjani should no longer be entitled to service of process under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1608(a), because he is no longer President of Iran. When an individual defendant is sued in his official capacity as an officer of a foreign state, however, he is entitled to the same sovereign-immunity protections under the FSIA that are afforded to the foreign state. See Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1023, 1030 (D.C.Cir.1997); El-Fadl v. Cent. Bank of Jordan, 75 F.3d 668, 671 (D.C.Cir.1996); see also Belhas v. Ya'Alon, 466 F.Supp.2d 127, 130-31 (D.D.C.2006) (finding that a retired Israeli military official who was sued for actions taken in his official capacity was still entitled to the protections of the FSIA). Since plaintiff has sued Rafsanjani in his official capacity, the protections of the FSIA apply, and based on the analysis discussed at length in the Court's January 11, 2007 memorandum opinion, the Court reaffirms its prior holding that the requirements for service of process found in § 1608(a) govern the official-capacity claims against Rafsanjani. See Nikbin, 471 F.Supp.2d at 63-67. Plaintiff also argues that under Federal Rule of Civil Procedure 4(m) he should have been given notice of the possibility of dismissal and should have been afforded an opportunity to show good cause for his failure to serve defendant Rafsanjani in his official capacity. Rule 4(m), however, "does not apply to service in a foreign country pursuant to subdivision (f) or (j)(1)." Fed. R. Civ. Proc. 4(m); see also Fed. R. Civ. Proc. 4(j)(1) ("Service upon a foreign state or a political subdivision, agency, or instrumentality thereof shall be effected pursuant to 28 U.S.C. § 1608."). Furthermore, in a previous order dated July 13, 2006, this Court gave plaintiff adequate notice that service was at issue when it required plaintiff to file proof by July 27, 2006, that service had been properly accomplished for the individual defendants. Finding no reason to change its previous assessment of plaintiff's failure to accomplish service upon Rafsanjani pursuant to the requirements of § 1608(a), the Court denies plaintiff's motion for reconsideration as to the official-capacity claims. Finally, regarding plaintiff's claims brought against defendant Rafsanjani in his personal capacity, plaintiff argues that Rafsanjani has sufficient contacts with the United States to justify the exercise of personal jurisdiction. To the extent that plaintiff asserts additional information in the affidavit from Dr. Mohammad Parvin, that information could have been presented earlier and does not constitute new evidence that was previously unavailable to plaintiff. In any event, the information in the affidavit still fails to demonstrate the continuous and systematic contacts required for the exercise of general personal jurisdiction over Rafsanjani. *431 See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). The Court also finds nothing in plaintiff's motion that warrants revisiting the prior holding that plaintiff's allegations do not support the exercise of specific personal jurisdiction over Rafsanjani. See Nikbin, 471 F.Supp.2d at 72-73. Accordingly, upon consideration of plaintiff s motion for reconsideration, and the entire record herein, and for the reasons explained above, it is this 28th day of September, 2007, hereby ORDERED that [46] plaintiffs motion for reconsideration is DENIED. SO ORDERED. NOTES [1] Nikbin filed a motion for reconsideration regarding the Court's dismissal of the claims against Rafsanjani, but the Court has denied Nikbin's motion in a separate order released simultaneously with this memorandum opinion. See Order, Sept. 28, 2007. [2] Although Nikbin asserts a state-law cause of action for arbitrary detention (false imprisonment), this Court lacks jurisdiction over that claim since Nikbin has failed to prove that his detention in and of itself constituted torture for purposes of § 1605(a)(7). Nikbin also asserts torture as a cause of action in his amended complaint but he fails to demonstrate that such a cause of action exists under New York law, and the Flatow Amendment, 28 U.S.C. § 1605 (note), cannot provide the cause of action for Nikbin's torture claim since the Flatow Amendment does not supply a cause of action against foreign states. See Acree, 370 F.3d at 59 (citing Cicippio-Puleo, 353 F.3d at 1033). In any event, Nikbin's other causes of action subsume his torture claim. [3] Upon review of Nikbin's estimate, the Court must reduce Nikbin's requested amount of damages based upon this Court's lack of jurisdiction over Nikbin's claim for arbitrary detention. Although Nikbin also requests an award of punitive damages, "a foreign state except for an agency or instrumentality thereof shall not be liable for punitive damages" under the FSIA. 28 U.S.C. § 1606; see also Hartford Fire Ins. Co. v. Socialist People's Libyan Arab Jamahiriya, Civ. No. 98-3096, 2007 WL 1876392, at *7-8 (D.D.C. June 28, 2007). Since MOIS and the Revolutionary Guards are considered to be the foreign state itself, along with Iran, § 1606 shields the defendants from Nikbin's claim for punitive damages. See Dammarell IV, 404 F.Supp.2d at 274-75; Salazar, 370 F.Supp.2d at 117 (declining plaintiff's request for punitive damages against Iran, MOIS, and the Revolutionary Guards). [1] Alternatively, plaintiff's motion for reconsideration could be considered under Federal Rule of Civil Procedure 59(e). "A Rule 59(e) motion is discretionary and need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Ciralsky v. Cent. Intelligence Agency, 355 F.3d 661, 671 (D.C.Cir.2004) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir.1996)). Though courts have often treated motions to reconsider as motions to alter or amend a judgment under Rule 59(e), see Emory v. Sec'y of Navy, 819 F.2d 291, 293 (D.C.Cir.1987), plaintiff did not file his motion for reconsideration within the ten-day time limit of that rule. See Fed. R. Civ. Proc. 59(e). "An untimely motion under Rule 59(e) may be considered as a motion under Rule 60(b) if it states grounds for relief under the latter rule." Computer Prof'ls, 72 F.3d at 903; see also Hall, 437 F.3d at 98 (finding that the district court properly analyzed a motion for reconsideration under Rule 60(b) when the motion was not filed within the ten-day time limit of Rule 59(e)). Hence, the Court has used the Rule 60(b) analysis proposed by plaintiff, but the Court reaches the same disposition of plaintiff's motion under a Rule 59(e) analysis.

117 P.3d 314 (2005) 200 Or. App. 715 STATE of Oregon, Respondent, v. Joseph Zachary SCOTT, Appellant. 20-02-15828; A121454. Court of Appeals of Oregon. Submitted on Record and Briefs June 20, 2005. Decided July 27, 2005. Erin Galli Rohr and Chilton, Ebbett & Rohr, LLC filed the brief for appellant. Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jonathan H. Fussner, Attorney-In-Charge, filed the brief for respondent. Before LANDAU, Presiding Judge, and BREWER, Chief Judge,[*] and ORTEGA, Judge. PER CURIAM. Defendant was convicted on five counts of sodomy in the third degree. ORS 163.385. The trial court imposed upward durational departure sentences on each conviction based on findings of unusual vulnerability of the victim and harm to the victim beyond what is ordinarily contemplated by the sentencing guidelines. The court also imposed consecutive sentences on three of the counts. On appeal, defendant challenges only his sentences. He first argues that, under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the court erred in imposing departure sentences based on facts that defendant did not admit and that the court did not submit to a jury. He concedes that he did not advance such a challenge to the trial court, but argues that the sentences should be reviewed as plain error. The state concedes that, under our decisions in State v. Gornick, 196 Or.App. 397, 102 P.3d 734 (2004), rev. allowed, 338 Or. 583, 114 P.3d 504 (2005), and State v. Perez, 196 Or.App. 364, 102 P.3d 705 (2004), rev. allowed, 338 Or. 488, 113 P.3d 434 (2005), the sentences are plainly erroneous. We accept the state's concession and, for the reasons discussed in those cases, exercise our discretion to correct the error. Defendant also argues that the imposition of consecutive sentences likewise runs afoul of Blakely and Apprendi and is plain error. We rejected the same argument in State v. Fuerte-Coria, 196 Or.App. 170, 100 P.3d 773 (2004), rev. den., 338 Or. 16, 107 P.3d 26 (2005). Sentences vacated; remanded for resentencing; otherwise affirmed. NOTES [*] Brewer, C.J., vice Richardson, S.J.

621 F.Supp. 153 (1985) D.H. DEW, Jr., Plaintiff, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, A.E. Chance, Defendants. Civ. A. No. W85-0087(L). United States District Court, S.D. Mississippi, W.D. September 24, 1985. *154 Don Barrett, Barrett, Barrett, Barrett & Patton, Lexington, Miss., for plaintiff. Clifford K. Bailey, III and Kenna L. Mansfield, Jr., Wells, Wells, Marble & Hurst, Jackson, Miss., for defendants. MEMORANDUM OPINION AND ORDER TOM S. LEE, District Judge. This cause is before the court on motion by defendants Illinois Central Gulf Railroad Company (Railroad) and A.E. Chance to dismiss Chance as a defendant. Plaintiff D.H. Dew, Jr. filed timely response to the defendants' motion, and the court has considered the memoranda with attachments submitted by both parties. Plaintiff alleges that the Railroad negligently designed, constructed and thereafter maintained a bridge over Tcheva Creek in Yazoo County, Mississippi so as to cause log and debris jams with attendant flooding damage to the lands and crops of plaintiff. The action was originally filed in the Circuit Court of Yazoo County against the Railroad and two unnamed Railroad employees. By amended complaint, plaintiff named A.E. Chance and Dean Hopson[1] as the Railroad employees with direct supervisory control over the maintenance of the Tcheva Creek bridge. Plaintiff alleged that Chance and Hopson, both Mississippi residents, were negligent in the performance of their duties, resulting in property damage to plaintiff. The Railroad thereafter removed the action to this court pursuant to 28 U.S.C. § 1441, alleging fraudulent joinder of Chance and Hopson by plaintiff for purposes of defeating diversity jurisdiction. Before any discovery was undertaken, Dew filed his motion to remand. The motion was overruled by the magistrate on the strength of the affidavit of A.E. Chance wherein he denied any immediate supervisory responsibility for the maintenance of the Tcheva Creek bridge. The Railroad's motion to dismiss Chance followed accordingly. The parameters of a district court's review of a fraudulent joinder claim are well defined in this circuit. Viewing all contested factual allegations and resolving all uncertainties as to the current state of the controlling substantive law in favor of the plaintiff, the court must determine that "there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court" (emphasis original) before declaring that such in-state defendant was fraudulently joined. Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir.1983), reh. denied, 714 F.2d 137, cert. denied, 464 U.S. 1039, 104 S.Ct. 701, 79 L.Ed.2d 166 (1984); B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir.1981); Keating v. Shell Chemical Co., 610 F.2d 328, 332 (5th Cir. 1980); Tedder v. F.M.C. Corp., et al, 590 F.2d 115, 119 (5th Cir.1979). The parties may submit affidavits and deposition transcripts along with their motions, and the court may consider such evidence along with the factual allegations contained in the complaint when determining the issue of fraudulent joinder. B., Inc., 663 F.2d at 549; Keating, 610 F.2d at 332. The court is constrained, however, to find that the *155 in-state defendant was properly joined and that there is incomplete diversity where "there is even a possibility that a state court would find a cause of action stated against any one of the named in-state defendants on the facts alleged by the plaintiff." B., Inc., 663 F.2d at 550. Affidavits and deposition testimony submitted with the memoranda in the instant cause raise a significant issue of fact relating to Chance's supervisory responsibility over the maintenance of the Tcheva Creek bridge.[2] Correspondingly, while it is clear under Mississippi law that a railroad is liable for damage caused by the obstruction of a natural watercourse by a railroad line, New Orleans N.E.R. Co. v. Burdette, 183 So. 915 (Miss.1938), it is not clear that a railroad employee who is negligent in failing to perform or in performing an undertaken task is never individually liable to any person injured thereby.[3] Under the stringent test for fraudulent joinder applied in this circuit and resolving all contested factual and legal issues most favorably to the plaintiff, this court cannot conclude that there is no possibility that Dew would be able to establish a cause of action against Chance in a Mississippi court. The defendants have not met their burden of proving fraudulent joinder in this case. It is, therefore, ordered that defendants' motion to dismiss A.E. Chance is denied. It is further ordered that this cause be remanded to the Circuit Court of Yazoo County, Mississippi because the retention of Chance in the case destroys complete diversity of citizenship between the parties and deprives this court of subject matter jurisdiction. NOTES [1] Hopson was subsequently dismissed from the action by agreed order dated July 8, 1985. [2] Defendants forcefully assert that Chance, as engineering superintendent of the Railroad's entire southern district, had only the broadest supervisory control over maintenance of the Tcheva Creek bridge and that a railroad building and bridge supervisor, C.F. Cantrell, had direct responsibility for maintenance and repair of the bridge, including removal of drift accumulation. The court notes, however, deposition testimony of both Chance and Cantrell to the effect that removal of the drift and debris from the Tcheva Creek bridge was eventually accomplished by a private contractor, Vaughn Construction Company; that Chance signed the contract on behalf of the Railroad; and that Cantrell had no responsibility for drift removal on contract jobs. [3] Defendant analogizes Chance's position in relation to Dew with that of a county supervisor charged by statute with maintenance and repair of county roads, who is sued by a plaintiff injured through negligence in maintenance and repair of a road. Mississippi law limits the supervisor's liability to tasks he personally undertakes, which, when done negligently, proximately cause the plaintiff's injury. Lee v. Sills, 95 Miss. 623, 49 So. 259 (1909), Jackson v. Gordon, 173 Miss. 759, 163 So. 502 (1935); Berry v. Warren, 304 So.2d 284 (Miss.1974). The court is not convinced that such analogues, though useful, clearly preclude the cause of action asserted by Dew against Chance. Chance's liability, if any, does not arise by statute; nor is Chance's alleged liability totally passive in nature in light of the fact that he contracted on behalf of the Railroad to remove the debris from Tcheva Creek Bridge.

21 So.3d 826 (2009) N.V. v. STATE. No. 3D09-1949. District Court of Appeal of Florida, Third District. August 25, 2009. Decision Without Published Opinion Belated Appeal granted.

141 Ill. App.3d 664 (1986) 490 N.E.2d 1049 LEONARD DAVIS, Plaintiff-Appellant, v. JOHN HINDE, Defendant-Appellee. No. 2-85-0536. Illinois Appellate Court — Second District. Opinion filed March 17, 1986. Jeffrey D. Schultz and David A. Novoselsky, both of Chicago, for appellant. Michael Resis and Glen E. Amundsen, both of Querrey, Harrow, Gulanick & Kennedy, of Waukegan, for appellee. Reversed and remanded. JUSTICE UNVERZAGT delivered the opinion of the court: Plaintiff, Leonard Davis, appeals pursuant to Supreme Court Rule 308 (87 Ill.2d R. 308) from an order of the circuit court of Lake County which imposed sanctions on his failure to comply with discovery. The trial court certified two questions of law concerning those sanctions, and we allowed leave to appeal. Plaintiff seeks to have the sanctions reversed. The action from which this interlocutory appeal arises involved a personal injury suit filed by plaintiff, a bus driver, alleging that a vehicle owned and operated by defendant, John Hinde, struck the rear of a bus operated by Davis while the bus was stopped. Before plaintiff's discovery deposition was taken, defendant requested the names of clients represented by plaintiff's attorney within the last three years who were also treated by plaintiff's physicians. Although plaintiff did not object within 28 days, he did so thereafter, claiming that the names were privileged. The trial court ordered disclosure within *665 14 days. Plaintiff did not comply with the order and filed a motion to reconsider which was denied. When plaintiff's attorney continued to refuse to comply, defendant filed a motion for sanctions which was granted. Plaintiff's second motion for reconsideration was also denied, and pursuant to Supreme Court Rule 308 (87 Ill.2d R. 308) two questions of law were certified. Plaintiff was granted leave to appeal by this court. The questions of law presented are: (1) Whether the recent Illinois Supreme Court decision of Sears v. Rutishauser (1984), 102 Ill.2d 402, entitles a defendant in a personal injury case to the production during discovery of a list of the names and addresses of all clients of plaintiff's attorney's law firm who had been treated by plaintiff's physicians within the last three years, and (2) Whether, pursuant to Sears v. Rutishauser (1984), 102 Ill.2d 402, the trial court abused its discretion in ordering sanctions when plaintiff's attorney did not comply with the said discovery order for production. In Sears v. Rutishauser (1984), 102 Ill.2d 402, our supreme court addressed the question of whether a defense counsel should be allowed to cross-examine plaintiff's expert witness concerning the number and frequency of referrals the expert had received from plaintiff's attorney and the financial benefit derived from them. The court concluded that such cross-examination should be permitted in this State. In reaching this conclusion, however, the court warned that the thorough cross-examination of medical doctors must be tempered with protection of the doctor-patient privilege as well as avoidance of subtrials on issues remote from the subject of the lawsuit or pertaining to cases having no relation to the litigation (102 Ill.2d 402, 408). Also, it specifically stated that the subpoena of the doctor's patients' records in that case would have violated the doctor-patient privilege (102 Ill.2d 402, 411). The court perceived the underlying motivation for such questioning to be the search for the truth, which is often quite difficult in cases where there is conflicting medical testimony concerning the severity of plaintiff's injuries. Therefore, the court viewed the opportunity to weigh the credibility of each witness as having great importance in securing an informed jury decision in such cases. In the present case, for the purposes of discovery, pursuant to Supreme Court Rule 214 (87 Ill.2d R. 214) defendant requested plaintiff's attorney to produce a list of the names of every client represented by his firm who had also been treated by plaintiff's treating doctors. Defendant's stated purpose was to try to establish the existence of a lucrative business relationship between a Chicago based law *666 firm and Lake County clients receiving treatments for soft-tissue injuries in Lake County and that the opinion of the testifying doctor was the natural and expected result of his employment. Asserting both the attorney-client and physician-patient privilege, plaintiff's attorney declined to turn over the requested material, even though the court ordered him to do so. Although the rationale of the Sears court's decision was similar to the stated purpose of the production request in the present case, namely to provide a safeguard against errant expert testimony, we conclude that the present court's ruling exceeded the boundaries set forth in Sears. This court has recently reasserted that generally the identity of a lawyer's client is outside the scope of the attorney-client privilege except in those cases when application is shown to be in the public interest, or will harm the client in some substantial way. (Shatkin Investment Corp. v. Connelly (1984), 128 Ill. App.3d 518.) In the present case, however, by identifying the clients as requested, the attorney would at the same time be revealing the names of patients who were being treated or who have in the past been treated by plaintiff's doctors. With the Sears holding in mind, two questions must then be answered: first, does the revelation of a patient's name in the circumstances described violate the doctor-patient privilege and second, would the revelation of the names result in subtrials remote from the subject of the present lawsuit? In People v. Florendo (1983), 95 Ill.2d 155, the court held that the public interest in maintaining the breadth of the grand jury's power to conduct investigations necessary to ferret out criminal activity outweighed the interest of a patient in maintaining confidentiality in his or her medical dealings with a physician. Plaintiff interprets Florendo to mean that the doctor-patient privilege may only be abridged when the public has an overriding interest. Although we question whether such a strict interpretation of Florendo is warranted, it is nevertheless true that the court distinguished several cases on the basis that they involved discovery proceedings in civil trials where the identity of a physician's other patients as well as the nature of their treatment was sought. (95 Ill.2d 155, 160-61.) Just the disclosure of a patient's name does not necessarily violate the physician-patient privilege. (Geisberger v. Willuhn (1979), 72 Ill. App.3d 435.) Among the cases both in Illinois and in other jurisdictions that have dealt with the question of whether, in a medical malpractice action, discovery may be had of the names of other patients to whom the defendant physician has given treatment similar to that allegedly injuring the plaintiff, there has been general agreement that such information is privileged and may not be obtained through discovery. *667 This was especially true where the obtaining of the names of such patients would or might provide the person seeking the discovery with information which under any and all circumstances would be privileged and not subject to discovery (Annot., 74 A.L.R.3d 1055 (1976)). In Parkson v. Central Du Page Hospital (1982), 105 Ill. App.3d 850, the court held that even though the Illinois statute on the physician-patient privilege exempts civil malpractice actions, that exception would be limited to only disclosure of the records of the patient who brought the action. The Parkson court favorably cited other jurisdictions where it was held that the statutory physician-patient privilege prohibits a physician from revealing to a plaintiff in a civil malpractice action the identities, ailments and treatments of his patients who are not parties to the litigation. (105 Ill. App.3d 850, 854.) Defendant argues that the mere disclosure of names does not reflect what treatment, if any, the patients received from the physician in question. The record indicates, however, that defendant stated to the trial court that if he had the names and addresses he requested he would be able to subpoena the claim files and get information necessary for proper cross-examination without violating anyone's privileges. It is not entirely clear which files defendant is referring to. Nevertheless, even though the names supplied alone would not reveal the patient's diagnoses and treatment, since defendant appears to be interested only in soft-tissue injuries, in order to get the information desired it appears that a review of those records at some point in time would be necessary. Consequently, we view defendant in the present case, as in Parkson, as ultimately seeking specific medical information about nonparty patients. In Lebrecht v. Tuli (1985), 130 Ill. App.3d 457, the court referred to the Sears decision to illustrate the permissible inquiry allowed in order to show the bias or interest of an expert witness. In that case, defense counsel sought to establish the origin of the expert physician's relation to plaintiff's counsel. The court found that the trial judge did not abuse its discretion by allowing such cross-examination. In making this determination the court specifically noted that defense counsel did not inquire into collateral matters such as other lawsuits. 130 Ill. App.3d 457, 478. Although it is arguable that the revelation of an arrangement between attorneys and doctors, such as defendant suggests, would be in the public interest, the matter is collateral to the issue of plaintiff's immediate action. Furthermore, even if the names were supplied, other patients contacted and their waivers and records obtained, it would be impossible to determine from a cursory questioning of the *668 doctors either at a deposition or at trial whether each particular case varied in any way from plaintiff's problem so as to validly establish the generalization defendant seeks. In our opinion, this would necessarily result in the time consuming subtrials remote from the subject of the lawsuit as warned against by the Sears court. We conclude, therefore, that the request for production in its present form was too broad and that for the purpose of showing bias and attacking credibility it should have been limited to the number and frequency of referrals from plaintiff's attorney and any financial benefit derived therefrom. Since we have concluded that the order compelling production of the names in question was not proper under Sears, the second certified question no longer applies. For the reasons stated, we conclude that the production requested by defendant was beyond the limits set forth in Sears v. Rutishauser (1984), 102 Ill.2d 402, and based on this conclusion, the sanctions were incorrectly imposed by the trial court. The judgment of the circuit court of Lake County is reversed and remanded for further proceedings not inconsistent with this opinion. Reversed and remanded. SCHNAKE and STROUSE, JJ., concur.

501 P.2d 486 (1972) MERCANTILE BANK & TRUST CO., Plaintiff-Appellee, v. James M. HUNTER, Defendant-Appellant. No. 71-382. Colorado Court of Appeals, Div. II. August 9, 1972. Rehearing Denied August 29, 1972. *487 Holme, Roberts & Owen, Donald K. Bain, Denver, for plaintiff-appellee. Hopkins, Hurth & Yeager, John M. Yeager, Boulder, for defendant-appellant. Selected for Official Publication. ENOCH, Judge. This is an action by plaintiff-appellee Mercantile Bank & Trust Co. (Bank) to recover $37,500 from defendant-appellant James M. Hunter (Hunter) on a check payable to and indorsed by Hunter, deposited with the Bank and subsequently dishonored by payor bank. Summary judgment was granted in favor of Bank and we affirm. The undisputed facts disclose the following sequence of events. A check, made payable to Hunter in the amount of $37,500 was drawn by one Allen Lefferdink on the Atlantic Trust Bank, Ltd., Guernsey Channel Islands Via U.K. Hunter indorsed the check and deposited it in his checking account in the Bank on November 3, 1969. The Bank credited Hunter's account in the amount of the check and on the following day, Hunter withdrew the full amount of the deposit. The Bank forwarded the check for collection to the United Bank of Denver National Association, formerly Denver United States National Bank (Denver U.S.), which in turn forwarded the check on November 5, 1969 to the foreign payor bank for payment. Denver U.S. received no response from the foreign bank even though it sent tracers, and on January 26, 1970, Denver U.S. notified the Bank, which in turn notified Hunter that there had been no response. It was not until March 12, 1970 that Denver U.S. received word from a bank in London, England that payment had been stopped on the check. The following day, the check was returned to Denver U. S. marked "Payment Stopped." The check was immediately returned to the Bank and Hunter was notified. Hunter refused to reimburse the Bank and the Bank then initiated this action. I. Hunter's theory is that the Bank is a holder of a foreign bill of exchange and that Hunter, as an indorser thereof, is discharged from liability because the Bank did not formally protest the dishonor of the check. In support of this argument, Hunter relies upon certain provisions in Article Three of the Uniform Commercial Code, which generally provide that an indorser is discharged unless the holder of the instrument in question makes a timely protest of any dishonor of the instrument. C.R.S.1963, XXX-X-XXX(1); XXX-X-XXX(3); XXX-X-XXX(1) (a). These provisions of Article Three, however, must be considered in conjunction with the provisions of Article Four on bank deposits and collections. C. R.S.1963, XXX-X-XXX(2), since the Bank does not seek recovery as a holder but as an agent for collection. Under C.R.S. 1963, XXX-X-XXX, as applied to the facts of this case, Hunter was, and remained, the owner of the check; the Bank was the agent for collection; and the credit given for the deposit was only a provisional settlement. The risk of loss on the check remained in Hunter, as its owner, and not upon the agent Bank. C.R.S.1963, XXX-X-XXX, Comment 4. When a depositary bank has made a provisional settlement for an item for its depositor, but failed to receive final settlement from the payor bank, the depositary bank may revoke the provisional settlement and obtain a refund from the depositor. C.R.S.1963, XXX-X-XXX. The Bank's failure to make a formal protest is immaterial since Hunter's liability is based not on his indorsement of the check, but on his status as depositor and withdrawer of the funds. C.R.S.1963, XXX-X-XXX. The trial court was correct in entering judgment for the Bank in the full amount of the check. *488 II. Hunter further alleges, in the alternative, that summary judgment should not have been granted as it precluded him from pleading the defense of final settlement which he asserts would have required a factual determination as to when the check was presented to the payor bank for payment. Under this theory, Hunter contends that the provisional settlement between himself and the Bank became final because Atlantic Trust Bank Ltd. failed to timely dishonor the check, and that therefore, the Bank lost its right of refund against Hunter. We find no merit in these arguments. Hunter filed only a motion for summary judgment. He neither filed an answer nor did he ask the trial court for leave to plead this defense. No request was made for an evidentiary hearing. A litigant cannot complain that the trial court denied him the opportunity of presenting a defense when he in fact made no effort to present one. See Sullivan v. Davis, 172 Colo. 490, 474 P.2d 218. We have, in any event, considered the question of final settlement as raised in the briefs and find the defense inadequate as a matter of law. C.R.S.1963, XXX-X-XXX, does provide, as Hunter contends, that if a payor bank retains a demand item beyond its midnight deadline without settling it, it is accountable for the amount of the item. However, the rule that a payor bank is "accountable" for an item does not mean that there has been a final settlement which would preclude a depositary bank from charging the amount of the item back to its depositor. C.R.S.1963, XXX-X-XXX, sets forth the circumstances under which a provisional settlement becomes final. There is no provision that mere accountability of a payor bank for a check is a final settlement unless the check is actually paid by the payor bank. Since nothing occurred here to cause the provisional settlement to become a final settlement under C.R.S.1963, XXX-X-XXX, the Bank still had a right of refund under C.R.S.1963, XXX-X-XXX. Judgment affirmed. DWYER and PIERCE, JJ., concur.

378 F.Supp. 818 (1974) UNITED STATES of America ex rel. Arthur LURRY v. Robert L. JOHNSON, Superintendent, Graterford Prison. Civ. A. No. 73-2866. United States District Court, E. D. Pennsylvania. May 23, 1974. *819 Nolan N. Atkinson, Jr., Philadelphia, Pa., for plaintiff. Mark Sendrow, Asst. Dist. Atty., Philadelphia, Pa., for defendant. MEMORANDUM AND ORDER BECHTLE, District Judge. Presently before the Court is a petition for a writ of habeas corpus in which relator attacks his March 23, 1972, conviction by a jury for rape, statutory rape, sodomy, and corrupting the morals of a minor child.[1] Realtor contends that he was denied the right of confrontation of an adverse witness guaranteed by the Sixth Amendment when the state trial judge permitted a records custodian from Philadelphia General Hospital to read into evidence certain portions of a medical report compiled by a staff physician who had conducted a physical examination of the two young girls immediately after the alleged rape. The record establishes that the relator through direct appeal has sufficiently exhausted his available state remedies so as to merit this Court's consideration of his constitutional claims. Pursuant to Rule 46 of the Local Rules of Civil Procedure, this habeas corpus matter was initially referred to United States Magistrate Edwin E. Naythons. In a report filed on January 25, 1974, Magistrate Naythons recommended that we conduct an evidentiary hearing to determine *820 whether petitioner is entitled to habeas corpus relief. The report specifically suggested that the Commonwealth be required to present evidence concerning the absence of the examining physician at the trial of this matter. This Court concurred with Magistrate Naythons insofar as the report recommended that an evidentiary hearing be held. A hearing was scheduled for February 22, 1974, for the sole purpose of determining why the doctor whose report was read into evidence by the records custodian was not available to testify at relator's trial. In lieu of the scheduled hearing, the Commonwealth stipulated that no effort was made by the prosecution to ascertain the availability of the examining physician for trial. The Commonwealth further stipulated that no subpoena was issued upon the doctor. In order to properly focus upon the precise issue presented in the petition for habeas corpus relief, it is necessary to briefly outline the relevant testimony adduced during Lurry's trial. The evidence is substantially as follows: On December 14, 1970, Linda Cunningham, Michelle Daniels, and Geraldine Howell were shopping in downtown Philadelphia. At the time of this occurrence, Linda was fifteen years old and Michelle was sixteen. The girls, by chance, met the defendant and two companions at a penny arcade. After walking around for a short time, the group (consisting at that point of six people) went to a liquor store on Chestnut Street, at which time defendant and one of his friends bought some vodka. The six individuals then went to a house near the intersection of 38th and Aspen Streets in Philadelphia. Upon arriving at the house, the group went to one of the bedrooms on the second floor and ate sandwiches purchased from a store located near the house in question. Shortly thereafter, Geraldine and David Wilkes, one of relator's friends, left the house. Linda and Michelle testified that relator physically threatened them and forced each girl to have sexual intercourse with him without their consent. The victims also testified that relator ordered Earl Wilkes, another companion, to take Michelle Daniels to the other bedroom and threatened to kill Earl unless he raped Michelle. Both girls also testified that Earl Wilkes and the relator alternately forced them to engage in sexual intercourse several more times that night. Finally, the two girls stated that Lurry physically coerced them to commit sodomy upon him. Officer Harold Hooks of the Philadelphia Police Department testified that in the early morning hours of December 15 he was approached near the intersection of 38th and Haverford Streets by members of the Cunningham, Daniels and Howell families. Based on information received, the officer proceeded to a particular house on Aspen Street. Once inside the house, Officer Hooks went up to the second floor. He there found relator asleep in bed clad only in underwear and the two girls in another bedroom in a frightened and hysterical state. The medical records librarian from Philadelphia General Hospital then read into evidence parts of the medical reports prepared by Dr. Thomas V. Sedlacek in conjunction with his examination of Michelle Daniels and Linda Cunningham on December 15, 1970. The pelvic examination of Michelle Daniels revealed a torn and bleeding hymen and evidence of trauma, tenderness, and inflammation of internal sexual organs. Laboratory specimens were collected, including smears and saline washings taken from the vaginal area. A clinical microscopic examination of the specimens was performed and revealed the presence of male spermatozoa. With regard to Linda Cunningham, the pelvic examination disclosed lacerations of the vagina, torn hymen, and similar indicia of tenderness and inflammation. The microscopic analysis of specimens taken from Linda Cunningham also revealed the presence of male spermatozoa. *821 On behalf of the relator, David Wilkes testified that before he left the house on Aspen Street with Geraldine Howell the other two girls had not been verbally threatened or sexually abused. Arthur Lurry, the relator herein, testified on his own behalf and denied having sexual intercourse with either of the two girls. Lurry admitted being in the house with the girls on the night in question, but testified that he ordered all three girls and both of his male companions to leave one of the bedrooms so he could go to sleep. According to the relator's testimony at trial, the very next thing he remembered was being awakened by policemen the following morning. The basis of petitioner's constitutional claim is that the testimony concerning the medical reports was not subject to cross-examination because the records custodian had no personal knowledge or understanding of the contents of the report. Relator argues that the admission in evidence of the medical reports without an opportunity to cross-examine the doctor as to his findings contained therein violated his constitutional right to confrontation guaranteed by the Sixth Amendment. The Commonwealth's position is that the medical reports were properly admitted in evidence pursuant to the Pennsylvania Uniform Business Records Act, 28 P.S. § 91b and, as such, the relator's right to confront an adverse witness was not violated. It is further submitted by the prosecution that the examinations performed and the reports prepared reflect the routine and customary practices of the staff gynecologists at Philadelphia General Hospital, thus insuring the reliability and accuracy of the findings. Discussion As discussed above, the testimony relative to the medical findings of Dr. Sedlacek was introduced in evidence pursuant to the Pennsylvania Uniform Business Records Act. Relator contends initially that the hospital records were outside the scope of the statutory exception to the hearsay rule and, therefore, inadmissible to prove the truth of the matter asserted therein. It is not the function of this Court to determine whether the trial judge erred in construing the applicability of a state evidentiary rule. United States ex rel. Brown v. Russell, 455 F.2d 464, 465 (3rd Cir. 1972); United States ex rel. Almeida v. Rundle, 383 F.2d 421, 426 (3rd Cir. 1967); United States ex rel. Dessus v. Commonwealth of Pa., 316 F.Supp. 411, 417 (E.D.Pa.1970). Federal habeas corpus relief is available only when the relator alleges violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); United States ex rel. Little v. Twomey, 477 F.2d 767, 770 (7th Cir. 1973); Jones v. Swenson, 469 F.2d 535, 538 (8th Cir. 1972). From the viewpoint of the disposition of the instant petition, the Court will assume that the medical records were properly admitted pursuant to the Pennsylvania statute. However, the proper admission of evidence under an exception to the hearsay rule does not resolve the question of whether such admission constituted a violation of petitioner's Sixth Amendment rights. Federal constitutional standards must be applied to the factual context of the state conviction in order to determine the issues raised by petitioner's allegations of constitutional deprivation. California v. Green, 399 U.S. 149, 156, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1969); Phillips v. Neil, 452 F.2d 337, 345 (6th Cir. 1971). Thus, the precise issue before this Court is whether the admission in evidence of the medical reports via the testimony of the records custodian in the absence of the examining physician violated relator's right of confrontation. In order to properly resolve the above-stated issue, particular emphasis must be placed upon the contents of those portions of the respective reports read into evidence. A careful review of the medical report has convinced the Court that the findings contained therein reflect objective, physically observable, factual evidence of forcible intercourse. *822 The medical findings and diagnoses of Dr. Sedlacek were based on the patients' observable physical condition and did not involve an opinion or judgment susceptible to disagreement or varying interpretations among competent physicians. The microscopic examination of the smears and saline washings which revealed the presence of male spermatozoa involved not a complex analysis of subjective symptoms but rather a routine hospital procedure based on clearly objective data. The presence of male spermatozoa, the ruptured and bleeding hymen, and related internal lacerations are factual phenomena disclosed by clinical examinations undertaken by competent hospital personnel. The medical reports, prepared by the doctor simultaneously with the physical examinations, were submitted and filed in the regular course of the hospital's business. In addition, the examinations were conducted and the reports prepared under conditions in which the motive to falsify or exaggerate is simply not present. That medical reports prepared in the regular course of a hospital's operation, where the necessity for accuracy and preciseness is critical, are inherently reliable is self-evident. While nonconsensual intercourse is the primary element of the crime of rape, the hospital records merely corroborated the victims' testimony that they had been subjected to forcible sexual intercourse by the relator. The two young girls testified in length with respect to the nature and extent of the sexual assaults perpetrated by Arthur Lurry and Earl Wilkes. The case of United States v. Johns-Manville Corporation, 231 F.Supp. 690 (E.D.Pa.1964), involved the admission of documentary evidence pursuant to the Federal Business Records Act, 28 U.S.C. § 1732(a), which is the Federal counterpart of the Pennsylvania Uniform Business Records Act, 28 P.S. § 91b. The trial judge in the above case recognized that all documents arguably covered by 28 U.S.C. § 1732(a) may not be admissible in a criminal trial and "that the trial judge has the duty to determine whether such documents are constitutionally admissible under the Sixth Amendment guarantee of confrontation." 231 F.Supp. at p. 695. In accord, McDaniel v. United States, 343 F.2d 785, 789 (5th Cir. 1965). This Court has studied at considerable length the entire transcript of the state court proceedings and the legal memoranda submitted by the Commonwealth and the relator. Based upon such review, the Court has concluded that relator's constitutional right of confrontation was not violated by the admission of the medical reports pursuant to the statutory exception to the hearsay rule. The conflict between the values protected by the confrontation doctrine and the admission of evidence pursuant to well-settled exceptions to the hearsay law has been recognized by several courts. See, e. g., California v. Green, supra 399 at p. 155, 90 S.Ct. 1930; United States v. Lipscomb, 435 F.2d 795, 802 (5th Cir. 1970); Olney v. United States, 340 F.2d 696 (10th Cir. 1965). To resolve this apparent conflict, the trial judge must consider the offense charged, the essential elements of the offense, the character of the evidence sought to be introduced, and, most importantly, the reliability and trustworthiness of the proffered evidence. Only when the above factors have been weighed and analyzed in the context of a particular case may the necessity for actual confrontation and cross-examination be determined. In regard to the instant case, the Court believes that the medical reports were sufficiently reliable and trustworthy to warrant their admission through the testimony of the records custodian. As indicated above, the reports contained medical findings based on objective physical data not reasonably susceptible to varying interpretations. The custodian testified that the reports were kept in the regular course of the hospital's business. *823 Finally, we are unable to perceive the necessity or importance of cross-examination of the examining physician under the facts of this case. The defendant testified on his own behalf and denied raping or assaulting the two girls. The hospital records did not directly implicate the relator in the crimes charged but corroborated the detailed testimony of the victims. The jury could have believed or disbelieved the testimony of Arthur Lurry, notwithstanding the contents of the report, in that both Linda and Michelle testified as to the participation of Earl Wilkes in the sexual attacks. For the reasons heretofore stated, relator's petition for a writ of habeas corpus will be denied. NOTES [1] Petitioner was tried before the Honorable George J. Ivins in the Court of Common Pleas of Philadelphia County on Bills of Indictment Nos. 1603-1610, inclusive. All post-trial motions in arrest of judgment and for a new trial were denied and Lurry received a sentence of 7½ to 15 years on the charge of rape and concurrent terms on the other related convictions.

645 F.2d 76 U. S.v.Alexander 80-1256 UNITED STATES COURT OF APPEALS Seventh Circuit 1/21/81 1 N.D.Ill. AFFIRMED

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FILED Audrey Obama-Carter, ) APR 2 5 2011 ) Clerk. U.S. District & Bankruptcy Plaintiff, ) Courts for the DIstrict of ColumbIa ) v. ) Civil Action No. United States, et aI., ) ) 11 0783 ) ) Defendants. ) MEMORANDUM OPINION This matter is before the Court on its initial review of the plaintiff s pro se complaint and application for leave to proceed in Jorma pauperis. Pursuant to 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint upon a determination that it, among other grounds, is frivolous. 28 U.S.C. § 1915(e)(2)(B)(i). The plaintiff sues a host of political figures and celebrities. See Complaint ("CompI.") Caption. Her accusations of rape, blackmail and extortion allegedly after she married President Barack Obama, see Compi. at I, and allegations that, inter alia, Oprah Winfrey willed her "3/4 of her estate but commited [sic] crimes on me and the State of New Jersey ... made her give me her entire estate .... , id. at 2, and Donald Trump "did not allow [her], Audrey Carter and President Obama to live together .... ," id., are the type of fantastic or delusional scenarios warranting dismissal under § 1915(e)(2) as frivolous. Neitzke v. Williams, 490 U.S. 319, 325 (1989); accord Best v. Kelly, 39 F.3d 328, 330-31 (D.C. Cir. 1994). ) Date: April W ,2011 I ) A separate Order of dismissal accompanies this Memorandum Opinion. /~ 

996 A.2d 1063 (2010) COMMONWEALTH of Pennsylvania, Respondent v. John LYNCH, Petitioner. Nos. 403-05 EAL 2009. Supreme Court of Pennsylvania. June 23, 2010. ORDER PER CURIAM. AND NOW, this 23rd day of June, 2010, the Petition for Allowance of Appeal is GRANTED. The issue, as stated by Petitioner, is: Whether Petitioner's traffic court convictions in 2007 for violations of 75 Pa. C.S. § 1543(b)(1) and other summary offenses under the Vehicle Code, based on incidents which occurred on August 31, 2004, September 6, 2004 and September 13, 2004, were barred by the two-year limitation period provided by 42 Pa.C.S. § 5553(e) at the time of the offenses at issue? Justice ORIE MELVIN did not participate in the consideration or decision of this matter.

278 S.W.2d 830 (1955) Bascom GILES et al., Petitioners, v. J. N. BASORE et al., Respondents. No. 4666. Supreme Court of Texas. March 2, 1955. Rehearing Denied May 25, 1955. *831 John Ben Shepperd, Atty. Gen., and Burnell Waldrep, Asst. Atty. Gen., Austin, Rex G. Baker, Nelson Jones and Wm. J. Merrill, Houston, for petitioners. Vinson, Elkins, Weems & Searls and Tarlton Morrow, Houston, Dan Moody and Cecil Rotsch, Austin, for respondents. GRIFFIN, Justice. The Court of Civil Appeals has made a clear and concise statement of the issues involved in this cause, as follows: "This suit involves the title to certain land in the delta of the Trinity River. The appellants, defendants in the trial court, are the State of Texas, the School Land Board of Texas, and the Humble Oil & Refining Company, holder of oil, gas and mineral leases on a part of the area in controversy. Appellees, plaintiffs in the trial court, claim title under a grant from the State of Coahuila and Texas to Thomas Jefferson Chambers dated September 23, 1834 of two and one-half leagues of land. "A jury was taken in the case but at the conclusion of evidence, the case, by consent of all parties, was withdrawn from the jury and submitted to the court, and judgment was rendered in favor of appellees, plaintiffs and intervening plaintiffs, and against the appellants, the defendants and intervening defendants for the title and possession of the lands, to wit: "That portion of the lands granted originally to Thomas Jefferson Chambers on September 23, 1834, lying in Chambers County, Texas, and generally described as follows: "The portion of the Delta between Turtle Bayou Pass and Jack's Pass as it existed at the time of the grant to Thomas Jefferson Chambers, namely, September 23, 1834, and as has been extended by natural processes since that date, excluding lands under the bed of the Trinity River, including its several mouths (called passes), identified on said plat and in the field notes, and excluding other lands under other waters within the above general description which are below the vegetation line." Giles v. Basore, Tev.Civ. App., 266 S.W.2d 926. *832 We attach a map or plat of the lands sued for, which shows the general location and character of the area of the Trinity River Delta. There is no dispute as to any material fact. The following facts were stipulated: "`The sole claim of plaintiffs and intervenors Guy C. Jackson, Jr., et al., to the land in controversy, is under the grant from the State of Coahuila and Texas, dated September 23, 1834, to Thomas Jefferson Chambers, of Two and One-half Leagues of land on Turtle Bay between the mouth of Turtle Bayou and the Trinity River. It is the contention of the State and Humble Oil & Refining Company that the Chambers Grant is invalid and that said grant does not cover the land in controversy. If said grant is held to be valid, said plaintiffs and intervenors have title to such of the land in controversy, if any, as is covered by said grant.' "Further stipulation was that the land lies in a typical river delta, that in 1834 the topography of the area was substantially as shown on the United States Coast & Geodetic Survey Map of 1851, marked exhibit `C', that the *833 topography has changed slowly and imperceptibly as the result of natural processes, that the land was on September 23, 1834 within ten leagues of the coast, and that Chambers was appointed Circuit Judge under the Jury Law and the land herein was made to him as compensation for his services." Id., 266 S.W.2d at page 929. The petitioners contend that the Chambers Grant is void because it was not approved by the Federal executive of Mexico. If this contention be sustained, the judgments entered by the trial court and the Court of Civil Appeals are erroneous, and defendants below were entitled to recover. We think the Chambers Grant was valid and has been so held by previous opinions of this Court. Chambers v. Fisk, 22 Tex. 504; State v. Balli, 144 Tex. 195, 190 S.W.2d 71. It is true that under the Colonization Law of the Mexican National Government dated August 18, 1824, Article 4, 1 Laws of Texas 97, and the First Colonization Law of the State of Coahuila and Texas, March 24, 1825, 1 Laws of Texas 99, Section 7, the consent of the Federal Executive of Mexico was essential to the validity of the grants of land within the 10 coast leagues and 20 border leagues of vacant lands in Texas. Edwards v. Davis, 3 Tex. 321; Id., 10 Tex. 316; Republic of Texas v. Thorn, 3 Tex. 499; Jones v. Borden, 5 Tex. 410; Bissell v. Haynes, 9 Tex. 556; Goode v. McQueen's Heirs, 3 Tex. 241; Smith v. Power, 14 Tex. 146; Wilcox v. Chambers, 26 Tex. 180, 181; State v. Balli, supra. In 1832 by Colonization Act, Decree 190, 1 Laws of Texas 299, the act of March 24, 1825, was repealed, but the substance of Section 7 was retained, except that the National Government's consent was required to settlements within the 10 and 20 league area only in the event such settlements "were not composed of two-thirds Mexicans." On March 26, 1834, the Congress of Coahuila and Texas passed Decree 727, 1 Laws of Texas 357-362, which contained no prohibition against sales of lands within the 10 and 20 league limits. This Decree did affirmatively provide that "the vacant lands of the state shall be sold at public auction." This law was not repealed by any act of the National Government, but the National Government sent their representatives, Noriega and Almonte, to Texas to negotiate for the purchase of state lands in payment of the obligations owed by the State of Coahuila and Texas to the National Government. In its letter of instructions to Noriega, special reference was made to the Act of March 26, 1834, and directions were given to Noriega to secure a setting aside of the requirements of sale of the state lands at public auction in so far as dealings with the National Government were concerned. This was accomplished by Act of May 2, 1834. This last act dispensed with the Act of March 26, 1834, "until the executive, in a manner and on terms advantageous to the state, might negotiate with the president for such lands as might be needed by the federal government." Republic of Texas v. Thorn, 3 Tex. 499, 507. Article 15, of the Constitution of Coahuila and Texas, adopted March 11, 1827, provided that "all kinds of vacant property within its limits, and all intestate property without a legal successor, shall belong to the state." Article 4 of this Constitution, after delegating the state's powers and rights to the general congress in all subjects relating to the Mexican Confederacy further provides: "* * * but in all that belongs to the internal government and administration of said state, it retains its liberty, independence, and sovereignty." Article 165 of the Mexican Federation, 1 Laws of Texas 93, provided that "Congress alone has the right to interpret the constitution in doubtful cases." This was followed in Article 97, Section IV of the Constitution of Coahuila and Texas, first subsection of which provided that the State Congress shall have power "* * * to enact, interpret, amend or repeal the laws relative to the administration and internal government of the state in all its branches." (Emphasis added.) Under the Mexican *834 system of government the courts had no power to declare a law passed by either the National or State Congress unconstitutional or in conflict with the Constitution or other laws of Congress. This power was specifically given only to the legislative bodies, and to the Executive council of government. First Article of Section Fifth, 1 Laws of Texas 86. With this background of the National Mexican Constitution and of the Constitution of Coahuila and Texas in mind, let us examine the Juror Law, passed by the Congress of Coahuila and Texas on April 17, 1834. This law was passed in order to placate the citizens of Texas who were accustomed to jury trial in the courts of those lands from which they had migrated to Texas. In 1833, a convention of the citizens of Texas had been called for the purpose of selecting a committee to go to Mexico City and present a number of grievances of Texas citizens to the National Executive, who, by this time, was to all intents and purposes, a dictator. One of the grievances was the lack of a jury system. After much delay, Stephen F. Austin, one of those selected by the Texas Convention, succeeded, in November, 1833, in securing an audience with Santa Anna and his council. As a result of this audience, the Secretary of State wrote Austin on December 7 that certain requests of Austin had been approved. "Among these has been one to request the Governor of the State to promote the enjoyment of all rights of (to which) those colonists are entitled, the same as all other Mexican citizens in civil and criminal matters. For this purpose the means that should be put in practice for more honest and suitable administration of the justice and one of the other branches has been indicated, one of them being the establishment of a jury system, all in conformity with the desire of the colonists. It has not been possible on the part of the Federal Government to do anything more because it is outside of its attributes." Also there are shown instructions to Noriega whereby he is directed to cooperate in the matter of adopting measures for the benefit of the colonists regulating their government and internal administration, "keeping in mind that in the judgment of His Excellency one of the most convenient measures would be the establishment of juries, a subject on which views the Government has already made known to Your Lordship." These instructions were issued the latter part of 1833. Noriega came to Montclova, the state capital at that time. On April 18, 1834, the Congress of Coahuila and Texas passed the Juror Law, which established a judicial circuit in Texas including all of the territory within Texas. It also directed that the annual salary of the judge should be $3,000 per annum, and that the first year's salary should be paid in vacant lands situated within the judicial district at the rate of $100 per "sitio" (league). Under this law, Chambers was appointed and qualified as Superior Judge, made proper application for the 30 leagues of land, and 29½ leagues of this land were awarded to him in September, 1834. The lands involved in the litigation were contained in the 2½ leagues awarded in Chambers County. On April 28, 1834, Noriega wrote a letter to the Secretary of Foreign and Internal Relations at Mexico City in which he states that the desires of the General Government had been satisfied with regard to the establishment of jurors in Texas, and this complaint by the foreign colonists has been removed. Austin, while still a prisoner in Mexico City, wrote Oliver Jones on May 30, 1834, that he had been assured by the Minister of Relations that by order of the vice-president he had recommended to the State Government the establishment of a jury system. To this letter Austin appended a postscript of June 2, 1834, wherein he says he has just been informed of the establishment of a jury system, and he recommends that the people of Texas return thanks for such laws. Further, there was passed no act, decree or edict of the National Government repealing, or annulling the Juror Law, although the National Government, under date of April 24, 1835, did repeal the 400 sitios law passed by the State Congress. *835 The Juror Law being passed by the Congress of Coahuila and Texas and providing for payment of salary in vacant lands within the State of Texas and said law being known to the National Government and no repealing law having been passed, and the facts showing this Law had the approval of the Supreme Executive, we hold it valid. For a more detailed discussion of the validity of the Juror Law we refer to Chambers v. Fisk and State v. Balli, supra, in each of which cases, the reasons for upholding the Chambers' title are set out at great length. Petitioners claim that in accordance with an act of the Congress of the Republic of Texas on February 4, 1841, it was necessary for those claiming under the Chambers Grant to file suit to perfect title within one year after the passage of the Act. The Act of 1841 was directed at those claims where fraud was alleged in the original grant. The Chambers title was never attacked on this ground. On December 22, 1840, Roglin, the then acting Commissioner of the General Land Office of the Republic of Texas, in response to a request of the Congress for a list of large grants in either the 10 leagues or the 20 leagues, listed these 2½ leagues as located in the 10 leagues, and not in the 20 leagues territory. The law of 1841 referred to could not affect those titles which had been perfected prior to the passage of the Act. McMullen v. Hodge, 5 Tex. 34; Warren v. Shuman, 5 Tex. 441; Hart v. Gibbons, 14 Tex. 213; Jones v. Montes, 15 Tex. 351; Steddum v. Kirby Lumber Co., 110 Tex. 513, 221 S.W. 920; Manry v. Robison, 122 Tex. 213, 56 S.W.2d 438. Petitioners admit in their application that if the Chambers Grant was valid and conveyed a valid title to Chambers, the 1841 act would have no application. Petitioners contend that the limits of the Chambers Grant, if it is held to be valid, are determined by the boundaries of the tracts as they existed in 1834 at the time the grant was made. A reference to the plat attached shows that Tracts Nos. 5, 6, 7, 8 and 9 were, at the time of trial, completely surrounded by the waters of Trinity Bay. The evidence discloses that these tracts were not in existence in 1834, but have been formed by the deposits of silt, soil, logs from the Trinity River during flood stage and its normal flow into the Bay. It is undisputed that the floor of the Bay, on which these tracts have arisen and been formed, was not a part of the mainland at the time of the grant in 1834, or at any time since. Under the Mexican law in force in 1834, and under the Texas laws in force since the forming of the Republic in 1836, the bed of the Bay was the property of the State. All bodies of land arising from or upon such stateowned bay floor, become and are the property of the State of Texas. See the reasoning in Manry v. Robison, supra; State v. Grubstake Inv. Ass'n, 117 Tex. 53, 297 S.W. 202; Humble Oil & Refining Co. v. Sun Oil Co., 5 Cir., 190 F.2d 191, 195; Fulton v. Frandolig, 63 Tex. 330, 332. We hold that title to Tracts Nos. 5, 6, 7, 8 and 9 never vested in General Chambers nor in his heirs or assigns; but that title only vested in the State of Texas, and those who have acquired rights therein in accordance with our laws. As to Tracts Nos. 1, 2, 3, 4, and 10, the situation is entirely different. The evidence shows that these tracts were in existence in 1834, but that their boundaries at that time were shown by the dotted lines on the attached map or plat. Since then the action of the Trinity River has extended the surface of these tracts until at the time of trial they were as shown on the plat. This addition or extension of the surface of these tracts has been brought about by gradual and imperceptible deposition of silt, soil, logs by the Trinity River through the operation of natural causes, and such process is known as accretion. The Humble Oil & Refining Co. v. Sun Oil Co. and State v. Balli cases, supra, contain an exhaustive and thorough discussion of the law applicable to such process, and we see no need to repeat it here. In the Balli case there were three judges who dissented from the majority opinion giving title to Padre *836 Island to the heirs and assigns of Nicolas and Juan Balli. However, only one judge dissented from the court's holding that the area added to Padre Island since the grant to the Ballis passed to the Ballis title under the doctrine of accretion. Since this question was so thoroughly discussed in the Balli case, and the holding of the court was that the owners of the land forming the seashore became the owners of the added land, we regard the issue as settled in this state. Accordingly, we hold that the Chambers title to Tracts Nos. 1, 2, 3, 4 and 10 vested in General Chambers at the time of the grant. These tracts as they exist with their present limits and boundaries are the property of those holding under the Chambers' title. Petitioners contend that the field notes of the original grant as set out in the trial court's judgment and which call for the western mouth of the Trinity River are void and of no force and effect, and that in any event the original grant is limited to the first mouth of the Trinity reached, and cannot extend beyond this. We believe the case of Knight v. United Land Association, 142 U.S. 161, 12 S.Ct. 258, 35 L.Ed. 974, 986, 991, controls our cause and that in following the shoreline of a bay—as here called for—the survey, when it comes to a smaller body of water or a river entering the bay, should go from headland to headland rather than up the river or smaller body of water to the limits of the tide. Also, we believe that the cases of State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065 and Horton v. Pace, 9 Tex. 81, 84 control. The judgment of the trial court was very careful to preserve to the state the title to and ownership of the river beds and navigable waters surrounding each of the 10 tracts involved in this suit. Finally, it is claimed by petitioners that if the Chambers' title is held valid it will invalidate numerous other titles in that vicinity. The answer to this contention is that the ownership of such other titles is not put in issue herein; nor are the owners of such other titles parties to this suit. Such being true, we have not attempted to pass upon such other titles, and if such titles are put in issue in other litigation, the owners thereof can urge each and every right, title or claim which they have to their respective lands. The judgments of the trial court and the Court of Civil Appeals vesting title in the Chambers' heirs and assigns to Tracts Nos. 5, 6, 7, 8 and 9 are hereby reversed, and judgment is rendered that the plaintiffs (respondents in this Court) take nothing in their suit for title to these tracts; judgment is also here rendered in favor of the State of Texas and those claiming under it (petitioners herein) for the title and possession of Tracts Nos. 5, 6, 7, 8 and 9. Otherwise the judgments of both courts below are affirmed. Petitioners and respondents shall each pay one-half of the costs of this litigation.

545 F.2d 1032 UNITED STATES of America, Plaintiff-Appellee,v.Eliseo ANDRADE, Defendant-Appellant. No. 76-2329Summary Calendar.* United States Court of Appeals,Fifth Circuit. Jan. 24, 1977. Kenneth L. Yarborough (Court-appointed), Corpus Christi, Tex., for defendant-appellant. Edward B. McDonough, Jr., U.S. Atty., Mary L. Sinderson, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of Texas. Before AINSWORTH, CLARK and RONEY, Circuit Judges. PER CURIAM: 1 Appellant's vehicle was stopped for routine determination of citizenship at the permanent Border Patrol checkpoint 7 miles south of Falfurrias, Texas. During that questioning, the Border Patrolman noticed a strong odor of marihuana emanating from the vehicle. A search revealed 225 pounds of marihuana in the trunk. 2 This Court has previously held the checkpoint seven miles south of Falfurrias to be a permanent one. United States v. McCrary, 5 Cir. 1976,543 F.2d 554; United States v. Garza, 5 Cir. 1976, 539 F.2d 381, 382; United States v. Cantu, 5 Cir. 1974, 504 F.2d 387, 389. Stopping vehicles at a permanent Border Patrol checkpoint to inquire into the occupants' citizenship does not offend the Fourth Amendment or require a judicial warrant. Sifuentes v. United States, aff'd sub nom. United States v. Martinez-Fuerte, --- U.S. ----, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). A search at a permanent checkpoint is valid, if, after stopping the vehicle, the Border Patrolman finds probable cause for the search. United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975); United States v. Santibanez, 5 Cir. 1975, 517 F.2d 922. The odor of marihuana emanating from appellant's vehicle gave the officer probable cause to detain appellant and search his car. United States v. McCrary, supra; United States v. Kidd, 5 Cir. 1976,540 F.2d 210; United States v. Garza, supra ; United States v. Torres, 5 Cir. 1976, 537 F.2d 1299. 3 In conformity with the requirements established by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we have carefully considered this cause in its entirety, and conclude that there is no arguable merit in the appeal. It is therefore ordered that the motion filed by Kenneth L. Yarbrough for leave to withdraw as court-appointed counsel for appellant is GRANTED, and the appeal is DISMISSED. See Local Rule 20. See also United States v. Minor, 5 Cir. 1971, 444 F.2d 521 and United States v. Crawford, 5 Cir. 1971, 446 F.2d 1085. * Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 330 CAF 12-01556 PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, VALENTINO, AND MARTOCHE, JJ. IN THE MATTER OF JENNIFER MCLAUGHLIN, PETITIONER-RESPONDENT, V MEMORANDUM AND ORDER TIMOTHY MCLAUGHLIN, RESPONDENT-APPELLANT. BETZJITOMIR & BAXTER, LLP, BATH (SUSAN BETZJITOMIR OF COUNSEL), FOR RESPONDENT-APPELLANT. THE LAW OFFICE OF NANCY M. ERACA, ELMIRA (NANCY M. ERACA OF COUNSEL), FOR PETITIONER-RESPONDENT. Appeal from an order of the Family Court, Steuben County (Marianne Furfure, A.J.), entered November 15, 2011 in a proceeding pursuant to Family Court Act article 8. The order directed respondent to observe certain conditions of behavior. It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: Respondent husband appeals from an order of protection issued in connection with Family Court’s determination that he committed acts constituting the family offense of disorderly conduct against petitioner wife (see Family Ct Act § 812 [1]; Penal Law § 240.20 [1]). Although the order of protection has expired, the appeal is not moot inasmuch as respondent challenges only the court’s finding that he committed a family offense and, “ ‘in light of enduring consequences which may potentially flow from an adjudication that a party has committed a family offense,’ the appeal . . . is not academic” (Matter of Hunt v Hunt, 51 AD3d 924, 925; see Marquardt v Marquardt, 97 AD3d 1112, 1113). Contrary to respondent’s contention, petitioner met her burden of establishing by a preponderance of the evidence that respondent committed the family offense of disorderly conduct (see Family Ct Act § 832; Matter of Hagopian v Hagopian, 66 AD3d 1021, 1022; Matter of R.M.W. v G.M.M., 23 Misc 3d 713, 717-718; cf. Matter of Bartley v Bartley, 48 AD3d 678, 678-679). Although respondent’s conduct did not take place in public, section 812 (1) specifically states that, “[f]or purposes of this article, ‘disorderly conduct’ includes disorderly conduct not in a public place.” In addition, disorderly conduct may be committed when a person “recklessly creat[es] a risk” of annoyance or alarm through violent or threatening behavior (Penal Law § 240.20  -2- 330 CAF 12-01556 [1]). We thus reject respondent’s contention that the statute “requires more than a ‘risk.’ ” We further reject respondent’s contention that the Acting Family Court Judge abused her discretion in refusing to recuse herself. “Absent a legal disqualification, . . . a Judge is generally the sole arbiter of recusal” (Matter of Murphy, 82 NY2d 491, 495), and it is well established that a court’s recusal decision will not be overturned absent an abuse of discretion (see People v Moreno, 70 NY2d 403, 405-406). Respondent contends that the Judge was biased against his attorney, who had filed a complaint against the Judge with the Judicial Conduct Committee. Although the Rules of the Chief Administrator of the Courts governing judicial conduct provide that “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3 [E] [1]), respondent’s claim of bias is not supported by the record and is thus insufficient to require recusal. There is no evidence that any alleged bias had “ ‘result[ed] in an opinion on the merits [of this case] on some basis other than what the [J]udge learned from [her] participation in the case’ ” (Board of Educ. of City Sch. Dist. of City of Buffalo v Pisa, 55 AD2d 128, 136; see e.g. Fecteau v Fecteau, 97 AD3d 999, 1002; People v Strohman, 66 AD3d 1334, 1335-1336, lv dismissed 13 NY3d 911; Matter of Petkovsek v Snyder, 251 AD2d 1086, 1086-1087). Finally, we reject respondent’s contention that the court erred in admitting in evidence an audio recording of the incident made by the parties’ son. While there is no dispute that the parties were not aware that he was recording the incident and did not give consent thereto, the eavesdropping statutes are implicated only when the recording is made “by a person not present thereat” (Penal Law § 250.00 [2]; see CPLR 4506 [1], [2]). The parties’ son, who made the recording from his bedroom, was “present” for the purposes of the statutes (see People v Kirsh, 176 AD2d 652, 652-653, lv denied 79 NY2d 949). Entered: March 22, 2013 Frances E. Cafarell Clerk of the Court 

103 F.Supp.2d 1099 (1999) William MARSHALL and Brenda Marshall, Plaintiffs, v. WELLCRAFT MARINE, INC. Genmar, Inc. Defendant, Pompanette, Inc. Bomar, Inc., Defendant. No. IP 98-1722-C B/S. United States District Court, S.D. Indiana, Indianapolis Division. November 4, 1999. *1100 *1101 R Stephen Donovan, Mooresville, IN, for plaintiffs. Albert J Dahm, Baker & Daniels, Fort Wayne, IN, Suzann Weber Lupton, Baker & Daniels, Indianapolis, IN, for defendants. ENTRY GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BARKER, Chief Judge. Plaintiffs, William and Brenda Marshall ("Marshalls"), originally filed this products liability and breach of contract and warranty action in the Morgan Superior Court. Defendants, Wellcraft Marine, Inc., a subsidiary of Genmar Industries, and Pompanette, Inc., a division of Bomar, Inc, removed the case to this court based upon both diversity of citizenship and federal question jurisdiction. Plaintiffs contend that while navigating their 46-foot yacht from Florida to the Bahamas, a design defect in the yacht's "portlights" caused the yacht to take on sea water, which damaged the yacht and the Marshalls' personal property, and which electrically shocked William Marshall as he attempted to prevent the ship from sinking. Defendants contend that maritime law governs plaintiffs' products liability claim, which must be dismissed because, according to defendants, only the yacht sustained damage during the incident. Defendants also move for dismissal of plaintiffs' breach of contract and warranty claims. For the reasons discussed below, we GRANT defendants' motion for summary judgment with respect to the breach of contract and warranty claims, but we DENY their motion with respect to the products liability claim governed by maritime law. Background[1] In April 1996, the Marshalls purchased a used 1994 Wellcraft 46 Cockpit Motoryacht, operating under the name of "JUST ENOUGH," from a Florida boat dealer. See Defs.' Statement of Material Facts ("Def.St.Facts") ¶ A1; W. Marshall Decl. ¶ 2. The Marshalls were second owners of the 46-foot pleasure craft. See Def. St. Facts ¶ 2. Defendant Wellcraft Marine ("Wellcraft") manufactured the yacht in 1993, which included two Model 819-stud portlights, also referred to by the parties as "portholes," which defendant Pompanette, *1102 Inc., manufactured.[2]See Defs.' Mot. Summ. J. ¶ 1; Hudak Decl. ¶ 8. In 1994, defendant Wellcraft sold its boats subject to the "Wellcraft Limited Warranty on New 1994 Model Wellcraft Boats." Hudak Decl. ¶ 7 (Ex. A, Limited Warranty). This warranty, which lasted either one or five years depending upon the item damaged, extended to the "first retail purchaser of its 1993 and later model year products." Id. The portlights on JUST ENOUGH failed during the Marshalls' voyage from Florida to the Bahamas, prompting the lawsuit now before us. The parties agree that during the morning of June 13, 1997, the Marshalls departed from a Florida port with three other boats (later joined by a fourth) and began what they anticipated would be an enjoyable vacation in the Bahamas. See Def. St. Facts ¶ B1; Compl. ¶ 7. That evening, at roughly the half-way point during the group's crossing to Grand Bahama Island, William Marshall discovered that both portlights were either completely broken or seriously leaking. See Def. St. Facts ¶ B2; Compl. ¶ 8. Panic ensued, exacerbated by the approach of a "micro-storm" that increased the flow of water into the Marshalls' boat. Compl. ¶ 9. The influx of salt water into the yacht's cabin apparently short-circuited the electrical equipment, including navigational and communication devices. See W. Marshall Decl. ¶ 5. William Marshall attempted to stem the flow of water through the portlights by jamming bedding, canvas, and other items into the open holes, all the while receiving shocks from contact with electrically-charged water. Id. ¶ 6. Despite the Marshalls' inability to communicate with the other vessels in their convoy, they soon discovered JUST ENOUGH's plight and provided assistance. See Compl. ¶¶ 12, 17. JUST ENOUGH continued traveling under its own power, with the Marshalls managing to bail enough water to keep their boat afloat, mainly by engaging bilge pumps and reducing speed to minimize water intake. See W. Marshall Decl. ¶ 8; Compl. ¶ 17. The Marshalls also benefitted from the micro-storm's passing, which presumably minimized the size of waves hitting the hull and reduced the amount of water entering through the portlights. Fortunately, JUST ENOUGH proved true to its name, as the disabled yacht and accompanying boats safely reached the Bahamas the next morning. The Marshalls contacted Wellcraft upon arriving in the western Bahamas to apprise them of their ordeal. James Guess ("Guess"), Director of Customer Service at Wellcraft, arranged for overnight delivery of higher quality portlights to the Ocean Reef Marina, Grand Bahama Island, in order to accommodate the Marshalls' return to Florida. See Guess Decl. ¶ 5; Hudak Decl. ¶ 12. Guess testified that although he believed that the Marshalls were excluded from warranty coverage, Wellcraft's commitment to customer service prompted him to offer Wellcraft's assistance under the circumstances. See Guess Decl. ¶ 4. (Mark Hudak, who replaced Guess as Director of Customer Service in the Spring of 1998, also testified that although he continued Guess' efforts to assist the Marshalls through their ordeal, he did not act under the belief that a warranty entitled the Marshalls to any recovery. See Hudak Decl. ¶¶ 9-11). At some point within the next few days, a service yard in the Bahamas apparently effectuated the necessary repairs at Wellcraft's expense, and the Marshalls eventually returned to Florida after completing their vacation without further complications. In the months following the incident, the Marshalls and James Guess worked together via phone and letter in an attempt to restore JUST ENOUGH to its preincident condition. On September 5, 1997, *1103 the Marshalls sent Wellcraft a lengthy list of requests, entitled "Compromise of settlement," which proposed that Wellcraft repair JUST ENOUGH, upgrade and improve the vessel from its pre-incident condition, and compensate the Marshalls for lost and damaged personal property, various expenses, and "injuries, trauma, and stress." Guess Decl. (Ex. A, Pls.' Sept. 5, 1997, letter). Specifically, in addition to repairing the yacht (repairs valued at over $40,000), the Marshalls requested an electronics upgrade (valued at over $18,000), the addition of a Jacuzzi in the Master Stateroom (among other improvements), over $5,000 for alleged lost or damaged personal property (which included a $700 "surcharge" for "inconvenience of replacement"), over $9,000 for lost use of the vessel, $25,000 for alleged injuries and "horror and trauma," and approximately $400 for reimbursement of other out-of-pocket expenses, such as a propeller change in the Bahamas. Id. The parties disagree on what concessions Wellcraft made to accommodate the Marshalls' requests. By all accounts, Wellcraft agreed to repair JUST ENOUGH and to upgrade the vessel with an electronics package, in addition to paying for the cost of repairs in the Bahamas. William Marshall also claims that Wellcraft represented that it would replace any damaged or lost personal property and that James Guess agreed to compensate the Marshalls "for any personal loss." W. Marshall Decl. ¶¶ 12, 15. James Guess testified that he informed the Marshalls that Wellcraft would not compensate them for any personal property or loss of use, although he agrees that Wellcraft committed to repair the boat and find a suitable method to compensate the Marshalls for their inconvenience. See Guess Decl. ¶ 7. In an October 30, 1997, letter from Guess to William Marshall, Guess confirmed that Wellcraft had authorized repairs to JUST ENOUGH and that those efforts had commenced. The letter also documented that the parties were negotiating for the electronic equipment upgrade, with Guess requesting that Marshalls "let me know what electronics you are looking for, I have an open mind, however, I need to know what you want." Id. (Ex. B). The letter also notified the Marshalls that Wellcraft had issued a check for almost $900 to cover the transportation costs and other expenses associated with delivering JUST ENOUGH to Rybovich Spencer ("Rybovich"), a boat yard specializing in "building, customizing and repairing high-end yachts." Guess Decl. ¶ 8. The parties previously had agreed that Rybovich would perform the necessary repairs, so the Marshalls had delivered JUST ENOUGH to that boat yard sometime in September 1997. See Withey Decl. ¶ 6. Rybovich apparently performs most of its work on custom yachts, not on pre-manufactured boats similar to JUST ENOUGH, and its repair rates are therefore higher than other boat yards. Id. ¶ 3. However, Wellcraft acceded to paying a premium rate to ensure a comprehensive and quality repair to the Marshalls' boat. Similarly, the Marshalls had researched a number of other marine yards in Central Florida, which proved unable to complete the repairs without subcontracting a substantial portion of the work. See W. Marshall Decl. ¶ 16. These other repair yards also disavowed any responsibility for the quality or scheduling of any subcontracted labor. Id. Hence, the Marshalls requested and received Wellcraft's authorization to have Rybovich complete the authorized repairs. James Guess' October 30, 1997, letter to William Marshall concluded with Guess notifying Marshall that Wellcraft would send him a $870 check for the propeller (repaired in the Bahamas) and the dinghy, both of which were damaged during the course of the portlight incident. Over the course of approximately seven months, from September 21, 1997, to April 12, 1998, Rybovich completed repairs, upgrades, and additional work requested by the Marshalls. During that period, Rybovich submitted two separate service proposals to the Marshalls and Wellcraft, dated October 9, 1997, and December 17, *1104 1997. Rybovich partially relied on two marine surveyors' reports of the damage to JUST ENOUGH (the Marshalls arranged both reports and hired the surveyors) in arriving at their service proposals.[3] Thurber Withey, Rybovich's project manager for the restoration of JUST ENOUGH, testified that he submitted two proposals so that Rybovich could begin repairs on the items in the October 9, 1997, proposal while the remaining repairs were being negotiated by the parties, which additional repairs were eventually memorialized in the December 17, 1997, service proposal, although even the latter proposal stated, "electronics to be discussed with customer." Withey Decl. (Ex. D). Wellcraft made no representation regarding the length of time required to complete the repairs. See Def. St. Facts ¶ D6.[4] Delays inevitably occurred in the rehabilitation of JUST ENOUGH, primarily due to the availability schedule by which Rybovich allocates its resources to repair yachts and because of the extensiveness of the repairs. When work on a particular boat stops because of a lack of materials or absent the required consent to proceed with the next task, Rybovich pulls a boat out of rotation and allocates its resources elsewhere. See Withey Decl. ¶ 12. When materials arrive or when Rybovich secures work authorization, the boat returns to the rotation, but again must await the availability of resources. Id. Rybovich apparently removed JUST ENOUGH from service rotation on various occasions while it awaited decisions from both parties on certain repair items. See Def. St. Facts ¶¶ 20-29. For instance, Wellcraft acknowledges that in approving specific repair items, its need to obtain authorization from supervisory personnel occasionally delayed its ability to give Rybovich immediate approval for certain repairs. Id. ¶ 20; Guess Decl. ¶ 15. The Marshalls also bear responsibility for delays in selecting such items as interior fabrics and the content of electronic components to be installed on the boat. See Withey Decl. ¶ 15; Guess Decl. ¶ 16; Def. St. Facts ¶¶ 20-29. In fact, Wellcraft flew Brenda Marshall to Florida and provided an interior decorator to assist her in designing a custom interior for the boat, an expense also absorbed by Wellcraft. See Guess Decl. ¶ 10. By April 12, 1998, Rybovich completed the agreed-upon repairs previously detailed in their two service proposals. Wellcraft's investment in rehabilitating JUST ENOUGH to its pre-incident condition totaled approximately $46,000, not including the cost of additional upgrades. See Def. St. Facts ¶¶ 18-19. As compensation for the inconvenience suffered by the Marshalls during the portlight incident, James Guess testified that Wellcraft provided the Marshalls with both the electronics package upgrade, valued at approximately $18,000, and the professional consultation in custom designing JUST ENOUGH's interior. See Guess Decl. ¶ 10. The parties agree that despite the repairs and the upgrades, Wellcraft did not specifically compensate the Marshalls for any lost or damaged personal property *1105 identified in the Marshalls' September 5, 1997, letter to Wellcraft or for loss of use to JUST ENOUGH. However, the costs to recondition the Marshalls' yacht did include expenses such as monthly dock charges while Rybovich repaired the boat. See Hudak Decl. (Exs. G, H, repair records and invoices). Upon completion of the repairs and upgrades, the Marshalls also requested that Wellcraft repair or replace batteries, an ice-maker, a starter and a "Y" valve, which the Marshalls apparently claimed had failed due to the time the yacht spent under repair.[5]See Def. St. Facts ¶ D4; Compl. ¶ 26. After investing more than $60,000 in JUST ENOUGH, Wellcraft apparently had had more than enough, declining plaintiffs' additional requests based on its belief that the purported damage to these items was not linked to the portlight incident, but rather was associated with age and wear of the craft. See Hudak Decl. ¶ 18. Plaintiffs filed their six-count complaint in state court on November 10, 1998, and, as we have previously noted, defendants filed their notice of removal to federal district court on December 15, 1998. Plaintiffs' six counts run together without clearly-defined boundaries, but we are able to determine that plaintiffs originally alleged products liability claims based on strict liability and negligence, and various breach of contract and implied warranty claims based on the portlight failures and the length of time to repair the yacht. Defendants contend in their summary judgment motion that the products liability claims fail under maritime law, arguing that any personal injury or property damage suffered by plaintiffs was de minimis. Defendants also observe that plaintiffs have now abandoned most of their contract and warranty claims, scarcely mentioning them in their response to summary judgment. Nonetheless, defendants maintain that the parties never entered any express or implied contracts, and that plaintiffs were not entitled to the protections in Wellcraft's limited warranty because they were not the first retail purchasers. Defendants deny that any other express or implied warranties existed based on Wellcraft's advertisements of their products. We now proceed to address the legal merits of the parties' summary judgment contentions. Summary Judgment Standards Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); American Automotive Accessories, Inc. v. Fishman, 175 F.3d 534, 542 (7th Cir.1999). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir.1998). However, neither the mere existence of some alleged factual dispute between the parties, Baulos v. Roadway Express, Inc., 139 F.3d 1147, 1152 (7th Cir.1998), nor the existence of "some metaphysical doubt as to the material facts," Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 571 (7th Cir.1998) (internal quotations omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), is sufficient to defeat a motion for summary judgment. In considering a motion for summary judgment, *1106 a court must draw all reasonable inferences in the light most favorable to the non-movant. See Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 392 (7th Cir. 1992). Yet, if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish her case, summary judgment is not only appropriate, but also required. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Herman v. City of Chicago, 870 F.2d 400, 404 (7th Cir.1989). Discussion I. Products Liability and Maritime Law The parties initial dispute concerns whether maritime law governs plaintiffs' products liability claims, so we begin by addressing that threshold issue. Defendants invoke maritime law, claiming that it prohibits products liability claims when the only alleged injury occurs to the product itself. Defendants contend that any alleged personal injury suffered by plaintiffs, whether property loss or physical injury, is sufficiently nominal that the only reasonable conclusion is that the allegedly defective yacht injured only itself during the portlight incident. We agree with defendants that maritime law controls plaintiffs' products liability tort claims, but we find that plaintiffs have adduced sufficient evidence of property loss and personal injury to warrant a maritime products liability claim for damages incurred from those alleged losses. A. Maritime Law Governs the Marshalls' Products Liability Claims An application of maritime law to plaintiffs' products liability claims depends on whether this case falls within our admiralty jurisdiction. See Lambert v. Babcock & Wilcos, Co., 70 F.Supp.2d 877, 883 (S.D.Ind.1999). In Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S.Ct. 1043, 1048, 130 L.Ed.2d 1024 (1995), the Supreme Court held that a court has admiralty jurisdiction over a tort claim if that claim "satisf[ies] conditions both of location and of connection with maritime activity." The parties do not dispute that this case easily satisfies the location test since the portlight incident occurred on the navigable waters of the Atlantic Ocean. Grubart, 513 U.S. at 534, 115 S.Ct. at 1048. The only question that remains is whether the Marshalls' tort claim meets the "connection with maritime activity" test. We conclude that it does. Our assessment of the connection test devolves into two separate inquires. First, we must ask whether the incident giving rise to the alleged tort had "a potentially disruptive impact on maritime commerce." Id. (quoting Sisson v. Ruby, 497 U.S. 358, 364 n. 2, 110 S.Ct. 2892, 2896 n. 2, 111 L.Ed.2d 292 (1990)); Great Lakes Dredge & Dock Co. v. City of Chicago, 3 F.3d 225, 228 (1993), aff'd, Grubart, 513 U.S. 527, 115 S.Ct. 1043. Second, we ask whether the general character of the activity giving rise to the incident establishes a "substantial relationship to traditional maritime activity." Id. In Lambert, 70 F.Supp.2d at 883-84, we recently had occasion to explicate the Supreme Court's methodology in defining a potentially disruptive impact on maritime commerce. We observed that in Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990), the Supreme Court assessed the relationship between admiralty jurisdiction and disruptions of maritime commerce. In that case, a fire erupted in the washer/dryer unit of a large pleasure yacht docked at a recreational marina on Lake Michigan. The fire spread to other recreational vessels and the marina itself. No commercial vessels were damaged since none were docked at the marina at the time of the fire. The Court held that the jurisdictional inquiry does not require an assessment of the incident's actual effects on maritime commerce. Rather, admiralty jurisdiction exists if an incident creates a "potential hazard to maritime commerce," even though maritime commerce is in no way disturbed. Id., 497 U.S. at 362, 110 S.Ct. at 2895 *1107 (quoting Foremost Ins. Co. v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982)) (emphasis added). Moreover, in determining the existence of such a "potential hazard," a court should not consider the particular facts of the case before it, but "must assess the general features of the type of incident involved to determine whether such an incident is likely to disrupt commercial activity." Id., 497 U.S. at 363, 110 S.Ct. at 2896. The Supreme Court concluded that the fire in Sisson "plainly satisf[ied]" this requirement, even though the fire only involved pleasure boats, since it could have damaged commercial vessels had any been docked at the time, and since the damage to the marina itself might have disrupted commercial maritime traffic. Id. In this case, the hobbled JUST ENOUGH represented a potential disruption to maritime commerce in a number of ways. A yacht in distress on the high seas, crippled in its ability to rely on electronic navigational instruments and taking on water in the middle of a storm, easily could prompt commercial vessels in the vicinity to lend assistance, thereby diverting such vessels from their charted courses and disrupting their commercial operations. In a more hazardous scenario, a disabled recreational yacht may pose a threat of collision to commercial vessels, especially where, as here, the yacht travels through poor conditions during the night with malfunctioning electrical equipment, unable to communicate with approaching crafts and potentially without operational external lights marking its position. While we can imagine other disruptions to maritime commerce under the facts of this case, these examples suffice despite the fact that the likelihood of their occurrence is remote, for "a remote possibility of impact on maritime commerce [is] ... enough to support admiralty jurisdiction." Great Lakes Dredge, 3 F.3d at 228. Therefore, we find the incident prompting the Marshalls' products liability claims potentially disruptive to maritime commerce under the "connection with maritime activity" prong of the Grubart test. We now turn to the second part of the inquiry under the connection prong and ask whether the "general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity." Grubart, 513 U.S. at 539, 115 S.Ct. 1043. "[T]he relevant `activity' is defined not by the particular circumstances of the incident, but by the general conduct from which the incident arose." Sisson, 497 U.S. at 364, 110 S.Ct. at 2897. In Sisson, for example, the relevant activity was not the boat catching fire, but the storage and maintenance of the boat at the marina on navigable water. Id. Further, in a case involving the collision of two pleasure crafts engaged in noncommercial activity on a river (water skiing and recreational fishing), the Supreme Court defined the relevant activity as navigation of boats generally, regardless of their commercial or recreational nature. See also Foremost Ins. Co. v. Richardson, 457 U.S. 668, 675, 102 S.Ct. 2654, 2658, 73 L.Ed.2d 300 (1982) (identifying the "traditional concern that admiralty law holds for navigation"). In this case, the plaintiffs were clearly engaged in the quintessential maritime activity of using a waterway as a medium of transportation from one destination to another. Though the plaintiffs' voyage included a recreational element, in that the passengers were on vacation aboard a yacht, the purpose of the trip is not controlling. The voyage from Florida to the Bahamas ordinarily takes a full day and night, and the fact that plaintiffs (under other circumstances) might have enjoyed the ride does not detract from the fact that their primary purpose was to navigate from port A to port B. Indeed, the allegedly defective boat almost prevented them from doing just that; it certainly impeded their ability to navigate in a serious and potentially life-threatening fashion. If the storage and maintenance of a pleasure boat docked at a marina is substantially related to a traditional maritime activity, it is at least as likely that the navigation of a pleasure boat during actual maritime voyages between those dockings *1108 also involves traditional maritime activity. See Sisson, 497 U.S. at 367, 110 S.Ct. 2892; Lewinter v. Genmar Indus., Inc., 26 Cal.App.4th 1214, 1218-19, 32 Cal.Rptr.2d 305 (Cal.Ct.App.1994) (finding that maritime law governed tort claim arising out of a pleasure yacht's hull failure while at sea; merging its analysis on the two prongs of the connection test but concluding that the navigation of the pleasure boat bore a substantial relationship to traditional maritime activity). We do not regard this resolution as a close call under applicable law. Accordingly, we conclude that maritime law governs plaintiffs' products liability tort claims. B. Plaintiffs Have Demonstrated Sufficient Personal Injury Beyond Harm To The Yacht Itself To Withstand Summary Judgment On The Maritime Products Liability Claims While maritime law anchors our analysis of plaintiffs' products liability claims, we are unable to conclude that the record, construed in a light most favorable to plaintiffs, requires dismissal of these claims as a matter of maritime law. Defendants argue that the record demonstrates that the Marshalls suffered only an economic loss to the yacht itself, and not any personal property damage or physical injury. Therefore, defendants contend that the Supreme Court's decision in East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986), which prohibits tort recovery for damages sustained to a product itself, warrants summary judgment on plaintiffs' products liability tort claims. We find that defendants' argument in this regard is a non-starter, for the record clearly demonstrates at least a material issue of fact as to the personal property damage and physical injury alleged by plaintiffs. In East River, the Supreme Court explained the distinction between tort and contract principles in the context of commercial maritime products liability claims. In East River, charterers of supertankers brought suit against turbine manufacturers seeking damages resulting from the alleged design and manufacturing defects that caused the supertankers to malfunction on the high seas. The malfunctioning devices, turbine engines and an alleged improperly installed valve, resulted in damage to the turbines only, without causing any concomitant personal property damage or physical injury to individuals. The plaintiffs-charterers brought suit in tort against the manufacturers, originally alleging products liability claims based on strict liability and negligence, as well as breach of contract and warranty claims. Reasoning that a product injuring itself causes purely monetary harm, since "no person or other property is damaged," the Court found that the failure of a product to function properly is the essence of a warranty action, "through which a contracting party can seek to recoup the benefit of its bargain." Id., 476 U.S. at 867-68, 870, 106 S.Ct. at 2300, 2302. Hence, damages to a product itself, such as loss due to repair costs, decreased value, and lost profits, flow from "expectation interests," (see Trans States Airlines v. Pratt & Whitney Canada, Inc., 86 F.3d 725, 729-30 (1996)), and represent the "core concern of contract law" into which tort law ought not intrude. Id. Otherwise, contract law would drown in a sea of tort. Id. (citing G. Gilmore, The Death of Contract 87-94 (1974)). Accordingly, the Court dismissed plaintiffs' tort claims, finding that no products liability claim lies in admiralty when the only injury claimed is economic loss to the product itself. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 21, cmts. (d), (e), at 293-306 (1998). Plaintiffs suggest that the economic loss doctrine described in East River applies only to commercial transactions, not to the consumer context of this case, citing Sherman v. Johnson & Towers Baltimore, Inc., 760 F.Supp. 499 (D.Md.1990) (Nickerson, J.). Judge Nickerson subsequently revisited that holding, finding that "every admiralty decision of which this Court is aware reaching the question of whether the East *1109 River rule is applicable to recreational vessels has determined that the rule should apply." Reliance Ins. Co. v. Carver Boat Corp., 1997 WL 714900, at *2, 1997 A.M.C. 2522 (D.Md. May 29, 1997) (finding that second owner of a recreational yacht that caught fire could not recover from the manufacturer for any damage to the boat itself under East River, but finding that plaintiffs could recover in tort for any damage to personal property on board the vessel at the time of the fire) (collecting authorities); D. Nixon, Products Liability & Pleasure Boats, 29 J. MAR. L. & COM. 243, 244 (1998) ("The East River distinction between contract and tort has generally been held to apply in recreational boating cases as well."); O'Donnell, Weiss & Kaplan, On Differences Between Blood and Red Ink: A Second Look At The Policy Arguments For The Abrogation Of the Economic Loss Rule In Consumer Litigation, 19 Nova L.Rev. 923, 926 (1995) ("[W]e urge the courts to prohibit strict liability claims for pure economic injury, even when the potential plaintiff is not a commercial entity."). Indeed, the vast majority of courts considering the issue have concluded that a consumer, like a commercial party, may not recover for damage to a product itself under a maritime products liability tort claim. See Sbarbaro v. Yacht Sales Int'l, Inc., 1996 A.M.C. 133 (S.D.Fla.1995); Somerset Marine, Inc. v. Forespar Prods. Corp., 876 F.Supp. 1114 (C.D.Cal.1994); Lewinter v. Genmar Indus., Inc., 26 Cal. App.4th 1214, 32 Cal.Rptr.2d 305 (Cal.Ct. App.1994); Stanton v. Bayliner Marine Corp., 123 Wash.2d 64, 866 P.2d 15 (1993), cert. denied, 513 U.S. 819, 115 S.Ct. 78, 130 L.Ed.2d 32 (1994); Karshan v. Mattituck Inlet Marina & Shipyard Inc., 785 F.Supp. 363 (E.D.N.Y.1992); Sisson v. Hatteras Yachts, Inc., No. 87 C 0652, 1991 WL 47543 (N.D.Ill. Apr.2, 1991); but see Farley v. Magnum Marine Corp., N.V., 1995 A.M.C. 2800 (S.D.Fla.1995); compare Alloway v. General Marine Indus., L.P., 149 N.J. 620, 695 A.2d 264, 267-75 (1997) (applying state law, not maritime law, but adopting East River's holding in instances when a product injures only itself, concluding that East River precludes tort recovery even in consumer transactions, but finding that the law of that state generally allows plaintiffs to recover economic loss under warranty theories without privity restrictions) with Wellcraft Marine v. Zarzour, 577 So.2d 414, 419 (Ala.1990) (applying state law and finding no distinction between consumer and commercial buyers for purposes of foreclosing recovery in tort when a product damages only itself, and agreeing with trial court that buyer could not recover on warranty claims because no privity of contract existed between buyer and manufacturer). We wish to emphasize that we do not perceive the Marshalls as lacking in either bargaining power or sophistication in this case. In East River, the Court found that since the commercial setting generally does not involve large disparities of bargaining power between parties, and since the commercial user may obtain insurance for the purchased product, tort law need not protect the user's interest in the product itself. In this case, not only did the Marshalls' secure over $40,000 worth of repairs from defendant Wellcraft (a commercial entity no less), their negotiating savvy also resulted in an $18,000 electronic upgrade that left their yacht superior to its pre-incident condition. The Marshalls also had obtained insurance on their yacht, providing another reason not to impose tort protections where the risk of loss to the product itself has been allocated in the marketplace.[6] *1110 A much different story unfolds, however, where an alleged defective product causes personal injury or property damage, for then, East River validates the application of tort principles to protect public safety. See East River, 476 U.S. at 866, 106 S.Ct. at 2300 (finding that tort protections apply to personal property loss since "[s]uch damage is considered so akin to personal injury that the two are treated alike") (citing Seely v. White Motor Co., 63 Cal.2d 9, 19, 45 Cal.Rptr. 17, 24, 403 P.2d 145 (1965)). And herein lies the real dispute between the parties, as they disagree on whether the Marshalls sustained damage to their persons or property. As we plot a course for resolving that issue, we must first address the natural question of what constitutes the "product itself" under the facts of this case, even though the parties did not discuss the matter. Indeed, our circuit has noted that "there is nothing obvious" about how to draw the line around a single "product." Trans States, 86 F.3d at 731 (applying Illinois law, not maritime law, and certifying question to Illinois Supreme Court whether an airplane's engine and its airframe were two products or one, with the Illinois Supreme Court answering that the two parts constituted a single product since the parties did not bargain separately for individual components). Fortunately, in terms of our analysis, the Supreme Court recently addressed what constituted the "product itself" under maritime law when a fishing vessel's alleged defective hydraulic system caught fire, leading to a flood that sank the ship. Saratoga Fishing Co. v. J.M. Martinac & Co., 520 U.S. 875, 877, 117 S.Ct. 1783, 1785, 138 L.Ed.2d 76 (1997). The Court noted at the outset of its discussion that "all agree that the `product itself' consists at least of a ship as built and outfitted by its original manufacturer and sold to an initial user." Id. The issue before the Court was whether destroyed equipment (a skiff, a fishing net, spare parts) that the initial purchaser added to the boat after its first sale was part of the ship itself when resold to a subsequent user. In Saratoga Fishing, the second owner of the ship filed an admiralty tort claim against the manufacturer of the hydraulic system and the company that built the vessel, seeking to recover for damages to the extra equipment added by the initial purchaser. The Court determined that the skiff, fishing net and other equipment constituted "other property" for which the plaintiff could recover under a tort theory since those items were not part of the ship itself: When a Manufacturer places an item in the stream of commerce by selling it to an Initial User, that item is the "product itself" under East River. Items added to the product by the Initial User are therefore "other property," and the Initial User's sale of the product to a Subsequent *1111 User does not change these characterizations. Saratoga Fishing, 520 U.S. at 879, 117 S.Ct. at 1786. In this case, the Marshalls have consistently alleged that the portlight incident damaged personal property, even requesting that defendants compensate them for those alleged losses. Defendants have never claimed that any of this personal property was part of the ship itself when Wellcraft initially sold it to the first purchaser. Rather, they contend that no evidence demonstrates that any property damage or physical injury even occurred and that, in any event, any personal loss was de minimis. See Defs.' Reply at 5-6. We find defendants' position unavailing, as the record as summarized below, with all reasonable inferences taken from it in the Marshalls' favor, demonstrates injury to the Marshalls' personal property. William Marshall testified that flooding caused by the allegedly defective yacht caused personal property damage, an assertion supported both by Marshall's personal knowledge and by common sense. In fact, the Marshalls sent Wellcraft a detailed, itemized list of damaged or lost personal property, which included replacement/repair values. Some of the alleged lost or damaged items include a TV/VCR ($400), a cordless drill ($225), customized towels, canvas, and pillows ($675), various electronic devices, tools, parts, photographs, food, supplies and clothing. William Marshall references this list in his declaration, contending that Wellcraft actually requested that he prepare it and that Wellcraft agreed to compensate him for some of those items. The defendants acknowledge the Marshalls' requests for reimbursement for personal property (although they claim that they have persistently refused to compensate the Marshalls for that property) and they actually include the Marshalls' September 5, 1997, letter as designated evidence in support of their statement of material facts. See Def. St. Facts ¶¶ 1, 5, 6; Guess Decl. ¶ 6 (Ex. A, Letter from William Marshall to James Guess). The alleged damage to these items, which strike us as analogous to the skiff and fishing net at issue in Saratoga Fishing, constitutes sufficient record evidence to withstand dismissal of the Marshalls' maritime products liability claims as a matter of law. While defendants simply discount the alleged damage to these items as de minimis, we find that injury to this "other property" is compensable under a maritime tort theory, in accord with Saratoga Fishing.[7] Moreover, in addition to personal property loss, William Marshall testified that he sustained physical injury from electrical shocks while attempting to prevent JUST ENOUGH from sinking. See W. Marshall Decl. ¶ 6. Defendants claim that this alleged injury qualified as "transitory sensations at most, resulting in no appreciable physical harm." Defs.' Reply at 6. We are not prepared to conclude that what William Marshall experienced was nothing, *1112 and perhaps defendants would even contend differently if their own agents had experienced the electrical shocks incurred by Mr. Marshall. Obviously, William Marshall was not electrocuted and in fact he did not require hospitalization. Nonetheless, we are not prepared to characterize electrical shocks as the type of physical harm that eludes tort recovery. Ultimately, a jury must make the determination as to the degree of physical injury experienced by William Marshall and the amount of damages, if any, to compensate him for the (perhaps painful) physical experience associated with the alleged electrical shocks. See RESTATEMENT (SECOND) OF TORTS § 905, cmt. (b) & Illustrations, at 456-57 (1979) ("Bodily harm is any impairment of the physical condition of the body, including illness or physical pain.... damages can be awarded although there is not impairment of a bodily function, and in some situations, even though the defendant's action is beneficial."). Accordingly, we shall not hold as a matter of law that the portlight incident caused only economic damage to the yacht itself. Defendants' motion for summary judgment on the Marshalls' products liability tort claims for any damages arising from personal property loss and bodily injury is DENIED. II. Breach of Contract and Warranty Claims Plaintiffs' original complaint included claims that the defendants breached a number of express and implied contracts and warranties pertaining to the construction, condition and repair of their yacht, JUST ENOUGH. Defendants move for dismissal of all these claims, with plaintiffs abandoning most of them on summary judgment and barely mustering any defense of the claims they do address. We conclude that plaintiffs' contract and warranty claims fail for a multitude of reasons, not the least of which is plaintiffs' complete failure to develop the legal or factual bases for these contentions. Defendants assert, and plaintiffs fail to dispute, that Florida law governs the Marshalls' breach of contract and warranty claims. Because these claims relate to alleged contracts and warranties regarding the construction and repair of the Marshalls' yacht, they fall within the province of state law and outside our admiralty jurisdiction.[8]See East River, 476 U.S. at 872 n. 7, 106 S.Ct. at 2303 n. 7 ("If the charterers claims were brought as breach-of-warranty actions, they would not be within the admiralty jurisdiction.... [s]tate law would govern the actions.") (citations omitted); Statia Terminals N.V. v. Huber Inc., No. Civ. A. 95-1633, 1997 WL 73558, at *2 (E.D.La. Feb.20, 1997). As a federal court sitting in diversity to resolve these remaining claims, we look first to Indiana's choice-of-law rules to determine the substantive law applicable to resolving questions of contract. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Stinnett v. Northwestern Mut. Life Ins. Co., 58 F.Supp.2d 1000, 1002 (S.D.Ind. 1999). Indiana's choice of law rule for contract actions "calls for applying the law of the forum with the most intimate contacts to the facts." See Employers Ins. of Wausau v. Recticel Foam Corp., 716 N.E.2d 1015, 1024 (Ind.Ct.App.1999); W.H. Barber Co. v. Hughes, 223 Ind. 570, 63 N.E.2d 417, 423 (1945). That approach requires consideration of "all acts of the parties touching the transaction," which includes assessing the places of contracting, negotiation, and performance, the location of the subject matter of the contract, and the domicile, residence, and places of incorporation and business of the parties. Travelers Indem. Co. v. Summit Corp. of America, 715 N.E.2d 926, 931 (Ind.App.1999). The Marshalls do not address the choice of law question nor do they dispute *1113 that Florida law governs the contract and warranty claims. Based upon the factors identified above, we agree with defendants that Florida has the most intimate contacts to this action. The Marshalls purchased the yacht in Florida, so any alleged contracts or warranties arising from that transaction originated in that state. Based on the limited record before us, the primary negotiation for any repairs, as well as any "performance," also occurred in Florida. After the portlight incident, the Marshalls retained two Florida-based surveyors to assess the damage to the yacht, which the surveyors accomplished at a Florida location. Based on those reports, the Marshalls requested that defendant Wellcraft hire a Florida-based service yard to effect the repairs in Florida. Also, defendant Wellcraft directed its correspondence regarding negotiated repairs to the Marshalls' Florida address. See Guess Decl. (Ex. A). Of course, the yacht, the subject of any alleged contract or warranties, sailed out of a Florida port prior to the incident in question, returned to a Florida port after the incident, and remained in Florida during the course of repairs. The one fact favoring the application of Indiana law, the Marshalls' Indiana residency, is offset by Wellcraft's business location in Florida, not to mention the apparent other significant contacts the Marshalls have to Florida. Overall, we conclude, based upon the balance of factors, that Florida has the most intimate contacts to the facts of this case. Having determined that Florida law governs any remaining breach of contract or warranty claims, we are left to identify the claims plaintiffs have not relinquished from a review of their reply to defendants' motion for summary judgment. A generous reading of plaintiffs' reply indicates that they claim: (1) that defendants breached an express warranty under the Uniform Commercial Code by publishing advertisements representing that Wellcraft built the yacht in question to give "years of hassle-free bluewater cruising," and (2) that defendants breached an express or implied contract to repair the yacht "in a prompt manner." Pls.' Reply at 8. Plaintiffs do not make mention of any of the other contract or implied warranty theories alleged in the original compliant, such as the implied warranty of merchantability or the implied warranty of fitness for a particular purpose, nor do they offer any factual or legal support for these putative claims. Defendants rejoin that any express or implied warranty claims fail as matter of law because the Marshalls are not in privity with the defendants. They also claim that the express warranty claim based on the advertisements fails because the advertisements qualify as Wellcraft's statement of opinion about the yacht and not as an express warranty. In regard to the alleged contract for prompt repair of the boat, defendants contend that they never reached any agreement or contract and that, in any event, no evidence suggests that defendants breached the contract. We conclude that plaintiffs' breach of contract and warranty claims require dismissal as a matter of law, as they lack integrity on a titanic scale. First, it is undisputed that no privity of contract exists between the Marshalls and the defendants.[9] The Marshalls *1114 fail to respond in their reply to defendants' argument, which constitutes an admission that no genuine issue of material fact exists on the privity issue. See Nabozny v. Podlesny, 92 F.3d 446, 457 n. 9 (7th Cir. 1996); Glass v. Dachel, 2 F.3d 733, 739 (7th Cir.1993). "The law of Florida is that to recover for the breach of a warranty, either express or implied, the plaintiff must be in privity of contract with the defendant." T.W.M. v. American Med. Sys., Inc., 886 F.Supp. 842, 844 (N.D.Fla. 1995) (citing Kramer v. Piper Aircraft Corp., 520 So.2d 37 (Fla.1988) & Intergraph Corp. v. Stearman, 555 So.2d 1282, 1283 (Fla.Dist.Ct.App.1990)); Elizabeth N. v. Riverside Group, Inc., 585 So.2d 376, 378 (Fla.Dist.Ct.App.1991) ("A warranty, whether express or implied, is fundamentally a contract. A contract cause of action requires privity.") (quoting Navajo Circle, Inc. v. Development Concepts Corp., 373 So.2d 689, 692 (Fla.Dist.Ct.App.1979)); Hernandez v. Coopervision, Inc., 691 So.2d 639, 641 (Fla.Dist.Ct.App.1997) (dismissing claims for implied warranties of merchantability and fitness for purpose due to lack of privity). A plaintiff who purchases a product, but does not buy it from the defendant, is not in privity with that defendant. T.W.M., 886 F.Supp. at 844 (citing White & Summers, Uniform Commercial Code § 11-2, at 528 (3rd ed.1988)); see Barrow v. Bristol-Myers Squibb Co., No. 96-689-CIV-ORL-19B, 1998 WL 812318, at *46 (M.D.Fla. Oct.29, 1998). Wellcraft's express, limited warranty extended only to the "first retail purchaser" of the yacht, and it is undisputed that plaintiffs were not the first retail purchasers and that they did not purchase the yacht from the defendants. Plaintiffs purchased the boat from an unidentified Florida seller, and we have no information pertaining to any negotiations or representations that may have occurred between the parties in that transaction. In any event, the undisputed lack of privity between plaintiffs and defendants alone strikes a fatal blow to plaintiffs' express or implied warranty claims in this case. Accordingly, we GRANT defendants' motion for summary judgment as to those claims.[10] Next, plaintiffs claim that they "contracted with Wellcraft for the boat to be repaired in a prompt manner." Pls.' *1115 Reply at 8. Yet, plaintiffs fail to adduce admissible evidence that defendants made any representations whatsoever about the length of time to complete the agreed-upon repairs to JUST ENOUGH. See supra note 4. In his declaration, William Marshall testified that he and his wife "were informed that the repairs" would take one or two months to complete, but he never identifies the source of that alleged information, when the alleged conversation occurred, or to what repairs the alleged source referred. W. Marshall Decl. ¶ 19. Of course, defendants' claim in their (undisputed) material facts that they never made any offers pertaining to a prompt repair of the Marshall's yacht. We simply find no evidence in the record to demonstrate that defendants made any such offer or that the parties reached a meeting of the minds on the length of time necessary to conduct repairs of JUST ENOUGH. See Holloway v. Gutman, 707 So.2d 356, 357 (Fla.Dist.Ct.App.1998) (recognizing that mutual assent is an absolute condition precedent to contractual formation). Moreover, any putative offer and acceptance between the parties lack the consideration necessary for contract formation. See Johnson Enter. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 1311 (11th Cir.1998) ("It is a fundamental principle of contract law that a promise is not enforceable unless it is supported by consideration."); RESTATEMENT (SECOND) OF CONTRACTS § 17 ("[T]he formation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange and a consideration."). While plaintiffs claim that they declined to pursue an insurance claim "in consideration for this agreement" for prompt repair of the yacht (see Pls' Reply at 8), plaintiffs provide no evidence that the parties bargained for plaintiffs' alleged forbearance or, for that matter, that defendants ever knew that plaintiffs had secured an insurance policy on the yacht or that plaintiffs actually did fail to pursue a claim. William Marshall does not even testify in his declaration that he informed the defendants that the policy existed or that he intended to forego pursuing an insurance claim in consideration for promptness in repair of the boat.[11] Accordingly, we find essential elements for contract formation missing from the alleged contract and GRANT defendants' motion for summary judgment on that claim.[12] Conclusion For the reasons discussed above, defendants' motion for summary judgment on plaintiffs' maritime products liability tort claims is DENIED. Defendants' motion for summary judgment on plaintiffs' state *1116 law breach of contract and warranty claims is GRANTED. NOTES [1] Plaintiffs failed to comply with Local Rule 56.1, which requires a party opposing summary judgment to file a "Response to Statement of Material Facts," with each stated material fact "substantiated by specific citation" to admissible evidence. See Local Rule 56.1(b)(2), (f)(2). Plaintiffs' "Factual Introduction" is neither numbered to correspond to defendants' "Statement of Material Facts," nor are any of plaintiffs' factual propositions substantiated by citation to admissible evidence. Therefore, we will assume the truth of the uncontroverted facts claimed by defendants that they also support with admissible evidence. See Local Rule 56.1(g); Flaherty v. Gas Research Inst., 31 F.3d 451, 453 (7th Cir.1994) ("District courts are not obliged in our adversary system to scour the record looking for factual disputes. They instead may deem the [uncontroverted] fact admitted.") (citations and quotations admitted). However, in an attempt to read the record in a light most favorable to plaintiffs, as we must, we cite to relevant portions of William Marshall's declaration (plaintiffs' primary evidence in support of their claims) where appropriate for a complete factual recitation. [2] The parties do not provide us with a description of a "portlight," but we have deduced from the record that the devices were sufficiently low on the both the port and starboard sides of the yacht's bow hull that their placement resulted in a flood of water entering the lower cabin. [3] One marine surveyor concluded that the portlight failure "appears to have been caused by a manufacture or design flaw. The portholes that were installed by the builder are evidently improper for service in the bow hull location." See Withey Decl. (Ex. B, AAA Accredited Marine Inc. report). [4] In his declaration, William Marshall claims that they "were informed that the repairs would take one or two months to complete," but he never identifies who said this, when the conversation occurred, or to what repairs the individual referred. W. Marshall Decl. ¶ 19. Nor do plaintiffs bother to consider the hearsay implications concerning what an unidentified person said to William Marshall, especially if the individual is a Rybovich employee. The inadmissible evidence in Marshall's declaration does not stop there, however, as Marshall includes a version of his written notes about telephone conversations with Thurber Withey, project manager at Rybovich. The notes themselves are inadmissible under F.R.E. 803(5) even assuming they would qualify as a recorded recollection, and the primary content of those notes, which consists of what Withey told Marshall, is hearsay. [5] The Marshalls fail to cite or provide any admissible evidence documenting that these items in fact failed or that either lack of use or the portlight incident caused their alleged failure; (William Marshall does not even speak to the issue in his declaration). While we suspect that Rybovich employees would possess such knowledge to either confirm or deny the allegations in plaintiffs' complaint, plaintiffs fail to offer deposition testimony, affidavits, or other admissible evidence substantiating their assertions. [6] The more complicated question that the parties do not brief is whether maritime tort law allows recovery for loss to the product itself in the context of resale after initial use where two consumers, the initial user/reseller and the subsequent user/buyer (e.g. the remote buyer), engage in a transaction. Indeed, the law of contracts may apply less forcefully in some consumer transactions, as it seems less likely that a consumer user/reseller will offer the subsequent user/buyer a warranty on a used product akin to the manufacturer's initial warranty on that product. See Saratoga Fishing Co. v. J.M. Martinac & Co., 520 U.S. 875, 882-83, 117 S.Ct. 1783, 1787-88, 138 L.Ed.2d 76 (1997). Also, since the downstream consumer purchaser is at least one step removed from the manufacturer or distributor, it is less probable that he/she would negotiate directly with a manufacturer for a warranty (putting aside the requirements of the Uniform Commercial Code for the moment). Yet, where a product only harms itself, the public safety concerns animating tort law subside. Moreover, consumers are not prevented from factoring the existence or absence of warranty into a product's purchase price. Ostensibly, a subsequent user/buyer who purchases a used boat from another consumer without a manufacturer's warranty receives a lower price in return. Rational consumers in that position, especially those purchasing expensive luxury yachts, may invoke the protections of insurance as they see fit, an option that may be preferable to importing tort law (and allocating risk of loss to the manufacturer in the process) to protect downstream consumers against economic loss incurred from injury to the product alone. Of course, if the defective product injured more than just itself, tort protections would engage irrespective of whether the manufacturer or initial user/reseller negotiated a warranty with a subsequent user/buyer for the value of the product itself. In the end, the parties to this litigation have not developed any of these issues, so based upon the Marshalls' demonstrated sophistication and for purposes of this particular case only, we will follow the vast majority of courts that apply East River to both consumer and commercial transactions. [7] Of course, the evidence adduced at trial may affect whether the Marshalls can recover for the items listed in William Marshall's letter (or other items not identified), but these items provide a sufficient basis for our conclusion that the portlight incident damaged more than the ship itself. For instance, we suspect that damage to some of the items listed, such as the engine compartment or the galley, constitutes injury to component parts of the craft as sold by Wellcraft sold to the initial purchaser, unlike other items, such as personal photographs, that clearly constituted separate personal property not included by the manufacturer. That said, plaintiffs alleged personal property loss totaling in the thousands of dollars, an amount we do not regard as de minimis on its face. Cf. Veeder v. NC Machinery Co., 720 F.Supp. 847, 853 (W.D.Wash.1989) (noting that oil spray on cleanable surfaces and a rug was de minimis "other property damage"). And while this amount may not be overwhelming compared to the total value of the boat (neither party provides us with that figure or the Marshalls' purchase price) or in light of the amount defendants have already reimbursed the Marshalls compared to their losses, the value of the skiff, fishing net, and spare parts in Saratoga Fishing also was likely just a portion of the value of the tuna vessel at issue in that case. [8] For purposes of clarity, we note that plaintiffs assert the breach of contract and warranty claims against the manufacturers of the yacht and the portlights, and not against Rybovich, the boat yard that actually performed the repairs after the portlight incident. [9] For a discussion of privity and various judicial formulations of the doctrine in the context of warranty claims under the U.C.C., see W. Stallworth, An Analysis of Warranty Claims Instituted by Non-Privity Plaintiffs In Jurisdictions That Have Adopted Uniform Commercial Code Section 2-318 (Alternative A), 20 Pepp. L.Rev. 1215 (1993); W. Stallworth, An Analysis of Warranty Claims Instituted by Non-Privity Plaintiffs In Jurisdictions That Have Adopted Uniform Commercial Code Section 2-318 (Alternatives B & C), 27 Akron L.Rev. 197 (1993); Hawkland Uniform Commercial Code Series § 2-318:1, 2-318:2 (noting that Alternative A states, such as Florida and Indiana, recognize that the Code assumes a neutral position on vertical privity requirements, leaving development of the doctrine to state common law); U.C.C. § 2-313 official cmt. 2; White & Summers, Uniform Commercial Code (Vol.1) § 10-5, § 11 (4th ed.1995). We further note that the parties have not considered the interrelation of the economic loss doctrine and privity requirements in commercial or consumer transactions, so we refrain from any further elaboration on the subject in the case at bar. [10] We also find some merit in defendants' argument that the general statements in their advertisements qualify simply as Wellcraft's opinion concerning the quality of the boat and not as a warranty, thereby providing an independent basis to dismiss the express warranty claim. See, e.g., U.C.C. § 2-313 ("an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty"); Bayliner Marine Corp. v. Crow, 257 Va. 121, 509 S.E.2d 499 (1999). In fact, plaintiffs never offer any evidence, either through affidavit or deposition, that the advertisements served as a "basis of the bargain" or that they knew about or otherwise relied upon the advertisements when purchasing their yacht or, for that matter, at any time prior to initiating this litigation. See Hawkland UCC Series § 2-313:3 (observing that the tendency under the Code is that advertisements may create express warranties if the buyer relies on them); White & Summers, Uniform Commercial Code (Vol.1) § 9-5, at 195 (4th ed.1995). Additionally, we note generally (aside from the privity issue) that plaintiffs fail to analyze the elements of a warranty claim, identify or address the specifics of any one warranty theory, or cite any provision of either the Uniform Commercial Code or the Florida Code. See Liberles v. Cook County, 709 F.2d 1122, 1126 (7th Cir.1983) ("It is a well-settled rule that a party opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual, why summary judgment should not be entered."); U.C.C. § 2-313 (express warranties), § 2-314 (implied warranty of merchantability), § 2-315 (implied warranty of fitness for a particular purpose); Ch. 672, Fla.Stat.; In re Masonite Corp. Hardboard Siding Prods. Liab. Litig., 21 F.Supp.2d 593, 599-600 (E.D.La.1998) (discussing elements of warranty claims under Florida law); Czarnecki v. Roller, 726 F.Supp. 832, 842-44 (S.D.Fla.1989) (dismissing claims for implied warranties of merchantability and fitness for a particular purpose and explaining claims under Florida law). [11] We have acknowledged that the parties disagree on whether defendants offered to compensate plaintiffs for personal property loss, but plaintiffs never claim in their reply that the parties entered some type of express of implied contract for compensation for personal property loss. Even if plaintiffs had alleged the existence of a contract for reimbursement for personal property loss, it, like the alleged contract for promptness in conducting repairs of the boat, would fail for want of consideration (plaintiffs never identify any other form of consideration aside from the alleged forbearance on the insurance claim). Also, plaintiffs have not mentioned promissory estoppel, never mind advanced the theory, so we express no opinion on any such claim. [12] A practical problem regarding compensable damages also confronts plaintiffs' breach of contract and warranty claims, which are based on expectation damages. Expectation damages under the warranty claims, for instance, would give plaintiffs the full benefit of their alleged bargain by placing them in the position they would have been in had the portlights functioned properly. See East River, 476 U.S. at 873-74, 106 S.Ct. 2295. Such damages would include repair costs and consequential damages flowing from lack of use of the boat. Id. Yet, defendants already have completed over $40,000 worth of repairs to JUST ENOUGH according to the specifications provided by marine surveyors, whom the plaintiffs hired to assess the damage to the boat caused by the portlight incident. Also, defendants added over $18,000 worth of upgrades to JUST ENOUGH, an amount that at least partially compensates plaintiffs for any other damages flowing from lost use of their yacht.

74 F.3d 1258 NOTICE: Federal Circuit Local Rule 47.6(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.Edna A. D'OYLEY, Petitioner,v.OFFICE OF PERSONNEL MANAGEMENT, Respondent. No. 96-3031. United States Court of Appeals, Federal Circuit. Dec. 29, 1995. 1 68 M.S.P.R. 592. 2 DISMISSED. ORDER 3 The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) and to file the required Statement Concerning Discrimination, it is 4 ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.

396 So.2d 613 (1981) E. Rigby MAUPIN, Martha Ellen Maupin & Susan Maupin v. ESTATE OF J. Rigby PERRY, Deceased, Shouphie Habeeb, Executor and Robert J. Perry, Nephew. No. 52571. Supreme Court of Mississippi. June 3, 1981. Rehearing Denied July 8, 1981. Landman Teller, Jr., Teller & Teller, David M. Sessums, Varner & Parker, Vicksburg, for appellant. William M. Bost, Jr., Buddy Dees, Ellis, Braddock & Bost, Vicksburg, for appellee. Before PATTERSON, C.J., and LEE and HAWKINS, JJ. PATTERSON, Chief Justice, for the Court: This appeal is from the Chancery Court of Warren County wherein Shouphie Habeeb, in his capacity as executor, sought construction of the residuary clause in the will of J. Rigby Perry. Mr. Perry died testate on May 28, 1979, at the age of 103. He had never married and had no children. At the time of the execution of his will, August 31, 1978, Perry had only one living nephew, Robert Perry. It had been eighteen years prior to the will execution that he had a living niece, a fact which the testator was fully aware. The clause of which construction was sought, clause six, *614 disposed of the residue through the following words: All the rest and residue of my property, real, personal or mixed, wheresoever situated, I hereby devise and bequeath to my nieces and nephews who survive me, in equal shares. Shouphie Habeeb, the executor, sought construction of the term "nieces and nephews" as it had application to the existing facts at the time the will was made. At trial, a genealogical chart was introduced into evidence[1] which establishes without contradiction the heirs-at-law of the testator. See Appendix. The actual exhibit was not received by this Court; therefore, the chart is taken from a copy attached to one of the parties' brief. The Appellants, as shown on the genealogical chart, include the survivors of the Maupin and Farnsworth branches, except for the children of E. Rigby and Susan Maupin. Specifically, the Appellants and their relationships to the testator are as follows: (1) E. Rigby Maupin, great-nephew; (2) Susan Maupin (now Tarrance), great-niece; (3) Martha Maupin, great-niece; (4) Leone Farnsworth (now Dingman), great-niece; (5) Bruce Farnsworth, great-great nephew; (6) Perry Farnsworth, great-great nephew; (7) Blake Farnsworth, great-great nephew; and (8) Jim March, great-nephew, who survived Mr. Perry and then died. The Appellants contend that great and great-great nieces and nephews are included and should take under the term "nieces and nephews" in the residuary clause. At trial, numerous witnesses, interested and disinterested, gave testimony which evidenced that Perry, the testator, referred to the Appellants as niece or nephew rather than great or great-great niece or nephew. The trial court construed the term "nieces and nephews" to mean only the children of the brothers and sisters of the testator, to-wit: Robert J. Perry, the sole surviving nephew. The Court stated: [T]he court is of the opinion that the Testator considered the class composed in the residuary devise to have more than one member, probably several members, but the proof does not satisfy as to who the Testator intended to compose the class. The Executor, a longtime trusted friend of Testator, testified to the same dilemma. In the absence of satisfactory proof of the intention of the Testator, the Court must reluctantly resort to the rule of construction that, even if it appear some other meaning was intended, where that other meaning is not reasonably clear, the word will be construed according to its ordinary established meaning. It is therefor [sic] the opinion of this Court that "nieces and nephews" must be construed to be the children of the brothers and sisters of the Testator. We are of the opinion the court did not err in holding the residuary clause ambiguous. We so decide for three reasons. First, the testator used the plural term "nieces and nephews" at a time when he was aware that he had not had a niece for some eighteen years and that he only had one living nephew. Second, it is apparent the testator intended to include more than one person in the residuary clause when a later clause of the will states: Should any taker under this Will or anyone receiving an interest in property includable in my gross taxable estate but not passing under this Will, become an adverse party in a proceeding for the probate of this Will or become an adverse party in any other action the result of which would be to void or to avoid any provision of this Will, then such taker shall forfeit his or her entire interest hereunder and such interest shall pass as a part of the residue of my estate; provided, *615 however, that if such taker is one of the takers of the residue, that taker's interest shall be divided proportionately among the other takers of the residue. This paragraph shall not be construed to limit the appearance by anyone as a witness in any proceeding for the probate of this Will, nor to limit the appearnce [sic] of anyone in any capacity in a proceeding for its construction. (emphasis added). The third reason we think the clause is confusing is that the proof shows that Perry referred to various great and great-great nieces and nephews simply as his niece or nephew. When an ambiguity exists in the language of a will, parol evidence is admissible for the purpose of determining the intent of the testator. E.g., Strickland v. Delta Inv. Co., 163 Miss. 772, 137 So. 734 (1931). The first and most important rule in the construction of wills is that the intention of the testator should prevail. E.g., Rosenbaum v. Fliegelman, 375 So.2d 223 (Miss. 1979); Nobles v. Sanders, 370 So.2d 703 (Miss. 1979). However, we are unable, as the trial court was, to ascertain from the questioned clause and the evidence the intent of the testator. We do think he meant to leave the residue to more than one person for the reasons mentioned earlier. The evidence does not enable us to determine with reasonable certainty just which of the great and great-great nieces or nephews were intended to be included in the class in the residuary clause. To illustrate, the testimony does not show that the testator referred to the children of E. Rigby Maupin or Susan Maupin Tarrance, who were great-great nieces and nephews, as simply niece or nephew. These four children are in equal blood relationship to the testator as Bruce, Perry, and Blake Farnsworth, who as Appellants claim a share of the residue. We are of the opinion this Court should not speculate which of the "nieces and nephews" were to be included in and take under the questioned clause. The trial court, in our opinion, properly concluded the clause as used was ambiguous, but we think it erred in its resolution by giving literal construction to the word "nephew" thereby limiting the devise to that person. The ambiguity arises from the uncertainty of designating the intended recipients. Perhaps the situation can be better expressed by stating the testator's obvious intent was to benefit more than one nephew, but we are unable to designate which of the nieces and nephews were intended to be included in the class. From this inability of determination, we opine that we should indulge a rule of construction more likely to assure a just, natural and reasonable disposition of the residuary estate. To this end we think the residuary estate should descend under the laws of descent and distribution as this would more nearly accomplish the testator's intention of leaving the residue to more than one person, as well as being in accord with the general law. In Patterson v. Patterson, 150 Miss. 179, 191, 116 So. 734, 735 (1928) we stated: It is a cardinal rule of construction that a will should be so construed, if possible, as to effectuate the purpose of the testator, and in order to ascertain the purpose and intent of its maker, the whole text of the will must be taken into consideration; and where the language of the will is ambiguous and the intent of the maker obscure, a construction which will effect a just, natural, and reasonable disposition in accordance with the laws of descent and distribution is favored, unless there is a manifest intention to the contrary... . See also Mississippi School for the Blind v. Armstrong, 216 Miss. 348, 62 So.2d 369 (1953); In re Raworth's Estate, 211 Miss. 780, 52 So.2d 661 (1951); Cross v. O'Cavanagh, 198 Miss. 137, 21 So.2d 437 (1945). This parallels the general rule elsewhere. In 4 Bowe-Parker, Page on Wills § 32.14, at 289 (1961) it is stated: Until evidence of the surrounding circumstances is heard, it cannot be determined *616 whether or not a will is sufficiently definite. If, after the admission of all evidence which the law allows to be admitted, the court is unable from face of the will and from the consideration of such evidence, to determine testator's intention, the court will be compelled to declare the will, either in whole or in part, as void and unenforceable for uncertainty. Also, 80 Am.Jur. Wills § 1139, at 250 (1975) states: [T]he law favors that construction of a will which conforms most nearly to the general law of inheritance; and where the meaning of a will is ambiguous, a construction will be favored that will dispose of the property of the testator in the manner in which the law would have disposed of it had he died intestate. In sum, we are of the opinion the residuary clause is void because of its uncertainty and ambiguity and that the residuary estate mentioned in clause six of the will should descend under the laws in this state governing intestate property. The Appellee raises other issues not addressed in this opinion; however, we do not address these issues because they were not raised on direct appeal and the Appellee has filed no cross-appeal. Ricketts v. Ricketts, 152 Miss. 792, 119 So. 194 (1928). AFFIRMED IN PART; REVERSED IN PART AND REMANDED. SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.

216 F.2d 153 DISTRICT 65, DISTRIBUTIVE, PROCESSING AND OFFICE WORKERSUNION OF NEW YORK AND NEW JERSEY, FORMERLY LOCAL 65 et al.v.McKAGUE et al. No. 11259. United States Court of Appeals, Third Circuit. Argued April 19, 1954.Decided Aug. 17, 1954.Rehearing Denied Oct. 14, 1954, As Amended Oct. 26, 1954. Hymen Schlesinger, Pittsburgh, Pa. (Weisman, Allan, Spett & Sheinberg, New York City, on the brief), for appellants. Paul K. McCormick, Greensburg, Pa., for appellees. Before BIGGS, Chief Judge, and GOODRICH and McLAUGHLIN, Circuit judges. BIGGS, Chief Judge. 1 The suit at bar was brought by the appellants, whom we will refer to collectively as 'District 65" against Mr. Jay W. Kromer, Clerk of the Court of Quarter Sessions of the Peace, Westmoreland County, Pennsylvania, referred to hereinafter as 'District 65', against Mr. Jay McKague, Esquire, a member of the Bar of that County and attorney of record for a number of defendants indicted by a Grand Jury of that County. Mr. McKague will be referred to hereinafter as the 'Attorney'. The complaint alleges that District 65 put up cash bail for the defendants in the criminal action and that the Clerk illegally returned the bail money to the Attorney and that the Attorney illegally refuses to return the money to District 65. Motions to dismiss the complaint were filed by the Clerk and the Attorney. The court in its opinion indicated that it would dismiss the complaint as to the Clerk but would dismiss it conditionally as to the Attorney, the condition being that District 65 would amend its complaint within twenty days. See 115 F.Supp. 227. The court then entered the order of dismissal of November 3, 1953. This is the order appealed from. 2 It is desirable to point out now that the order of November 3 makes no differentiation between the right of District 65 to amend the complaint as to the clerk and the right of District 65 to amend the complaint as to the Attorney but District 65 deems the limitation of the opinion as binding upon it for District 65 states in its brief: 'The action as to Patrick McKague continues in the court below, as * * * (District 65) amended the complaint in accordance with the requirement of the order of the court.' We will interpret the order of the court, as District 65 construes it, viz., as permitting amendment to the complaint in respect to the Attorney only. Prior to the appeal the Attorney filed an answer and a counterclaim to the complaint. If the counterclaim be supported by adequate evidence it may eventuate that District 65 owes the Attorney money. 3 Jurisdiction of the complaint is based on diversity of citizenship and jurisdictional amount and apparently, insofar as the Clerk is concerned, also on the Fourteenth Amendment and the Civil Rights Acts. The amendment alleges fraud and collusion, both vigorously denied by the answer. The complaint is loosely and inartistically drawn but the appellants apparently intended to assert both joint and several causes of action against the Clerk and the Attorney growing out of the same operative facts to some degree. No further analysis of the complaint or the amendment is required in this opinion. 4 The appeal will be dismissed since the order appealed from is not a final decision of the court below within the purview of Section 1291, Title 28 U.S.C., and Rule 54(b) F.R.C.P. 28 U.S.C.1 Rule 54(b), as amended December 27, 1946, to be effective as of March 19, 1948, provides: 'Judgment Upon Multiple Claims. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims. ' 5 We have before us, therefore, multiple claims, including a counterclaim. The order appealed from disposes only of the claim asserted against the Clerk. The law as it existed prior to original Rule 54(b) was to the effect that an order terminating an action as to less than all of the parties 'jointly' claiming or 'jointly' charged lacked finality. Original Rule 54(b) did not change the law in this respect nor does present Rule 54(b) as it now exists subsequent to the 1946 amendment thereto. The amended rule does, however, attack the problem of finality from the point of view of multiple claims rather than from that of multiple parties.2 Rule 54(b), in its present form, as construed by this court, requires that the imprimatur or stamp of finality be put upon any judgment entered by the trial court disposing of a cause of action by an express determination that there is no just reason for delay and by an express direction to enter judgment. Absent such action by the trial court the last sentence of Section 54(b) comes into play and the judgment or order is not a final decision appealable within the purview of Section 1291, Title 28. See Bendix Aviation Corp. v. Glass, 3 Cir., 1952,195 F.2d 267. 6 No such imprimatur has been put upon the order appealed from by the court below. Indeed it is difficult to see how on the alleged operative facts the ends of justice would be served by the trial court treating the order appealed from as a final decision. 7 The appeal will be dismissed. 8 On Petition for Rehearing. 9 PER CURIAM. 10 This case was argued here on April 19, 1954. During the course of the argument the court pointed out that the judgment appealed from probably was not a final one within the purview of Section 1291, Title 28 U.S.C., a view which was adhered to when we filed our opinion on August 17 and an order dismissing the appeal was entered for want of jurisdiction. See Rule 54(b), Fed.Rules Civ.Proc. 28 U.S.C. 11 Counsel for the appellants stated when this court indicated that the appeal should be dismissed that he could procure an order from the court below in conformity with Rule 54(b), F.R.C.P. This court then unequivocally informed counsel that the court below was without jurisdiction to make such an order since the appeal was pending in this court. Thereafter, on May 24, disregarding our admonition, counsel for the appellants procured from the court below the following order: 'And now, this 24 day of May, 1954, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, it is hereby determined that no reason exists for delay in the entry of judgment of dismissal as against Jay W. Kromer, defendant.' This order as a supplemental record was eventually certified to the Clerk of this court on August 30, 1954, some thirteen days after our opinion and order dismissing the appeal had been entered. 12 A petition for rehearing has now been filed by the appellants on the ground that the order originally appealed from is now an appealable one by reason of the order of the court of May 24, 1954. We reject this contention. The court below was without jurisdiction to enter the order of May 24, 1954 since the appeal was pending in this court and the court below was without jurisdiction to enter any order which would affect the status of the appeal. But even if jurisdiction had existed in the court below to enter the order we would deem it to have been improvidently entered. In the next to last sentence of our opinion filed August 17 we stated, 'Indeed it is difficult to see how on the alleged operative facts the ends of justice would be served by the trial court treating the order appealed from as a final decision.' This was the equivalent of stating that the court below could not discreetly make 'an express determination' that there was no just reason for delay. We state for the guidance of the court below that if suits such as that at bar which present no major issue or guiding principle are to be cut up and brought piecemeal before appellate tribunals Rule 54(b) will not fulfill its function and continued disregard of the spirit of the Rule must inevitably lead to its modification or repeal. 13 The petition for rehearing will be denied. 1 We note that the final prayer of the complaint is for an injunction against the Attorney but since injunctive relief has been neither sought, granted nor denied as to the Clerk the provisions of Section 1292(1), Title 28 U.S.C. will not serve to sustain the appeal. Cf. Morgenstern Chemical Company v. Schering Corporation, 3 Cir., 1950, 181 F.2d 160, 162-163, and Hook v. Hook & Ackerman, Inc., 3 Cir., 1954, 213 F.2d 122 2 See Moore's Federal Practice, Vol. 6, paragraphs 54.27(3) et seq., pp. 208 et seq

Case: 13-15679 Date Filed: 09/08/2016 Page: 1 of 16 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 13-15679 ________________________ D.C. Docket No. 9:13-cv-80050-KLR TROY K. CONRAD, Petitioner - Appellant, versus SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent - Appellee. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (September 8, 2016)  Case: 13-15679 Date Filed: 09/08/2016 Page: 2 of 16 Before JORDAN, ROSENBAUM, and SILER, * Circuit Judges. SILER, Circuit Judge: In 2003, Florida prisoner Troy Conrad was convicted of second-degree murder and attempted second-degree murder. Ten years later, he filed the instant habeas proceeding pursuant to 28 U.S.C. § 2254, asserting that his Sixth Amendment right to effective assistance of counsel was violated when his trial counsel failed to object to a portion of the jury instructions on self-defense. Conrad argues that the forcible-felony provision of the instructions was circular, confusing, and misleading, and that it impermissibly negated his sole defense at trial—a self-defense justification. The magistrate judge found no error in the provision of the forcible-felony instruction and recommended that Conrad’s petition be denied. The magistrate judge further concluded that even if the instruction were erroneous, any error would not constitute fundamental error on appeal and therefore was not prejudicial under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). The district court adopted the magistrate judge’s report and recommendations. Conrad now appeals the district court’s denial of his petition for writ of habeas corpus. We AFFIRM. * Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by designation. 2  Case: 13-15679 Date Filed: 09/08/2016 Page: 3 of 16 BACKGROUND The State of Florida’s (“the State”) indictment alleged that on January 21, 2002, Conrad shot with a firearm Edgar Padilla, who ultimately died from his complications, and Carmelite Lefevre, who survived. The State charged Conrad with second-degree murder with a firearm and attempted second-degree murder with a firearm, both in violation of Florida law. During Conrad’s 2003 trial, the State theorized that Conrad, a drug addict, killed Padilla, his dealer, in an effort to obtain crack cocaine. It further alleged that Conrad attempted to kill Lefevre because she had witnessed Padilla’s murder. At trial, Conrad admitted shooting Padilla and Lefevre but asserted that he did so only in self-defense. He explained that he regularly purchased cocaine from Padilla, who had threatened that if Conrad “play[ed] with” Padilla’s money, Padilla would shoot him. Conrad testified that on the day of the shootings, he wanted to buy crack cocaine but owed Padilla approximately two hundred dollars for past purchases. When he paged Padilla that morning, Conrad possessed only twenty dollars, but he assured Padilla that he would repay the remainder of his debt by that afternoon. Padilla responded that if Conrad failed to produce the money, Padilla would “bust a cap” in Conrad—that is, shoot him. In Conrad’s mind, Padilla’s threat was not baseless: he knew that Padilla sometimes carried a gun wrapped in a towel and was a member of a violent gang. 3  Case: 13-15679 Date Filed: 09/08/2016 Page: 4 of 16 Later that day, Padilla arrived at Conrad’s home unannounced and demanded the money. When Conrad told him that he did not have it, Padilla became angry, grabbed Conrad by the shirt, and yelled at him to get the money or else Padilla would “bust a cap.” Conrad observed that Padilla had a towel with him at the time; he assumed that Padilla’s gun was wrapped inside the towel. Padilla then placed Conrad in the back seat of Padilla’s car and handed the towel to Lefevre, who was seated in the front passenger seat. Conrad recognized Lefevre, who had been present during previous drug transactions with Padilla. Conrad agreed to ask his mother for the money that Padilla demanded. When she refused, Padilla became livid. Conrad stated that he nodded off in the car and awoke to Padilla’s holding a gun. He heard Padilla say to Lefevre, “I ought to off this cracker.” At this time, Lefevre was holding the towel. Believing he was about to be killed, Conrad reached forward, grabbed the gun from Padilla, and fired four times. After firing the last shot, Conrad scrambled to his house, told his girlfriend to hide, and smeared ketchup onto his body so that he could pretend to be dead if Padilla retaliated. He maintained that he had no time to think at the time of the shooting but simply acted in fear for his life. When police arrived, Conrad willingly came out of his house but did not disclose that he had shot Padilla and Lefevre. Instead, he told the officers that a rival drug dealer had shot them. At 4  Case: 13-15679 Date Filed: 09/08/2016 Page: 5 of 16 trial, Conrad emphasized that when he grabbed Padilla’s gun, he believed that there was also a gun wrapped in the towel that Lefevre was holding and that he had no time to hesitate or think. The court’s instructions to the jury discussed the law governing self-defense as a legal defense to murder and attempted murder. As to the forcible-felony exception to the self-defense justification, the court explained: [T]he use of force likely to cause death or great bodily harm is not justified if you find, one, Troy Conrad was attempting to commit, committing or escaping after the commission of an aggravated battery and/or aggravated assault . . . . Neither party objected to this instruction. The jury found Conrad guilty of second-degree murder of Padilla and attempted second-degree murder of Lefevre. The court denied Conrad’s motion for a new trial and sentenced him to a term of life imprisonment for the second- degree murder conviction and a concurrent fifteen-year term for the attempted second-degree murder conviction. The state appellate court affirmed Conrad’s convictions. After his initial efforts to obtain post-conviction relief failed, Conrad filed a second post-conviction motion in state court, asserting for the first time that counsel’s failure to object to the forcible-felony instruction constituted ineffective 5  Case: 13-15679 Date Filed: 09/08/2016 Page: 6 of 16 assistance. The court denied Conrad’s motion, and the Florida Fourth District Court of Appeal affirmed. Conrad then filed this § 2254 action in federal court, maintaining that he was denied effective assistance in light of his trial counsel’s failure to object to the forcible-felony instruction. A magistrate judge recommended that Conrad’s petition be denied without a hearing. The district court adopted the magistrate’s report and recommendation over Conrad’s objection. Conrad appealed to this court, and we granted a certificate of appealability as to whether the district court erred in rejecting Conrad’s claim. ANALYSIS I. Standard of review “We review de novo a district court’s grant or denial of a habeas corpus petition.” Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010). We also review de novo a district court’s legal conclusions and its resolution of mixed questions of law and fact. Wellons v. Warden, 695 F.3d 1202, 1206 (11th Cir. 2012). Because Conrad’s petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Conrad must establish not only that his Sixth Amendment claim is meritorious, but also that the state court’s adjudication of that claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly 6  Case: 13-15679 Date Filed: 09/08/2016 Page: 7 of 16 established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d); see also Madison v. Comm’r, Ala. Dep’t of Corr., 677 F.3d 1333, 1336 (11th Cir. 2012). The Supreme Court has explained, The pivotal question [in a § 2554(d) claim] is whether the state court’s application of the Strickland standard was unreasonable. This is different from asking whether defense counsel’s performance fell below Strickland’s standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AEDPA, though, it is a necessary premise that the two questions are different. For purposes of § 2254(d)(1), “an unreasonable application of federal law is different from an incorrect application of federal law.” Williams v. Taylor, 529 U.S. 362, 410, 120 S. Ct. 1495, 1498 (2000). A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself. Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct. 770, 778 (2011). Conrad, therefore, confronts a “difficult” burden. Id. at 105. “The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so.” Id. (internal quotation marks and citations omitted). “When § 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is whether there is any reasonable argument that 7  Case: 13-15679 Date Filed: 09/08/2016 Page: 8 of 16 counsel satisfied Strickland’s deferential standard.” Id.; see also Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011) (en banc) (“Under AEDPA, our review of a final state habeas decision is greatly circumscribed and is highly deferential to the state courts.” (internal quotation marks omitted)). The merits of Conrad’s ineffective-assistance-of-counsel claim are “squarely governed” by Strickland, 466 U.S. 668; see Williams v. Taylor, 529 U.S. 362, 390, 120 S. Ct. 1495, 1497 (2000). Pursuant to Strickland, Conrad must demonstrate that “counsel’s performance was deficient” and that “the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687. To establish ineffectiveness, Conrad “must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688. To establish prejudice, he must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. But because AEDPA deference also governs Conrad’s claims, he must prove not only a reasonable probability of a more favorable outcome, but that no reasonable jurist could have reached the state court’s conclusion. If fair-minded jurists could disagree as to that decision’s soundness, the state court’s application of Strickland cannot be said to be unreasonable, and AEDPA precludes the grant of 8  Case: 13-15679 Date Filed: 09/08/2016 Page: 9 of 16 habeas relief. Evans v. Sec’y, Dep’t of Corrs., 703 F.3d 1316, 1326-27 (11th Cir. 2013) (en banc). As Conrad has failed to satisfy Strickland’s first prong, we need not reach the second prong. See Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one.”). We find that Conrad’s ineffective-assistance claim is unpersuasive. II. The relevant statute and the effect of Giles Conrad maintains that the state court’s decision was “contrary to” or unreasonably applied Strickland. See § 2254(d)(1). He asserts that the state court “misunderstood its own law” in its rejection of his ineffective-assistance claim. According to Conrad, the forcible-felony instruction is proper only where the defendant has committed an independent forcible felony other than the one for which he claims self-defense. The instruction at issue is based on Florida Statute § 776.041(1) (2002), which provides: The [self-defense] justification described in the preceding sections of this chapter is not available to a person who: (1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony . . . . 9  Case: 13-15679 Date Filed: 09/08/2016 Page: 10 of 16 See Williams v. State, 901 So. 2d 899, 900 (Fla. Dist. Ct. App. 2005) (noting that the instruction concerning situations when the defense of justifiable use of force is unavailable is drawn from Fla. Stat. § 776.041); see also Fla. Std. Jury Instr. (Crim.) 3.6(f). In 2002—the year prior to Conrad’s trial—the Florida Court of Appeal addressed a jury instruction that arose from this statute. Giles v. State, 831 So. 2d 1263 (Fla. Dist. Ct. App. 2002), held that the forcible-felony instruction is proper only where the forcible felony is a separate and independent one. Giles was convicted of aggravated battery after a fight with his opponent in a poker game resulted in Giles hitting the man in the mouth with a brick. Id. at 1264. The trial court instructed the jury, “The use of force not likely to cause death or great bodily harm is not justifiable if you find that the defendant was attempting to commit, committing or escaping after the commission of an aggravated battery.” Id. Accordingly, the court’s jury instruction on self-defense provided: The defendant would be justified in using force not likely to cause death or great bodily harm against [the victim] if the following two facts were proved. Number one, the defendant must have reasonably believed that such conduct was necessary to defend himself against [the victim’s] imminent use of unlawful force against the defendant. Number two, the use of unlawful force by [the victim] must have appeared to the defendant ready to take place. 10  Case: 13-15679 Date Filed: 09/08/2016 Page: 11 of 16 The use of force not likely to cause death or great bodily harm is not justifiable if you find that the defendant was attempting to commit, committing or escaping after the commission of an aggravated battery. Id. at 1265. The Florida Court of Appeal deemed this instruction erroneous, finding it “reasonably calculated to confuse or mislead the jury.” Id. (quoting Barton Protective Servs., Inc. v. Faber, 745 So. 2d 968, 974 (Fla. Dist. Ct. App. 1999)); see also Wadman v. State, 750 So. 2d 655, 658 (Fla. Dist. Ct. App. 1999) (noting that a trial court “should not give instructions which are confusing, contradictory, or misleading”). Giles held that the self-defense instruction was “misleading and confusing such that the effect was to negate Giles’ only defense to the charge of aggravated battery.” Id. (citing Davis v. State, 804 So. 2d 400, 404 (Fla. Dist. Ct. App. 2001) (deeming it fundamental error to give an inaccurate and misleading instruction where the effect of that instruction is to negate a defendant’s only defense); Harris v. State, 570 So. 2d 397, 399 (Fla. Dist. Ct. App. 1990) (instructing that the trial court should give a complete and accurate instruction so as not to negate the defendant’s theory of self-defense)). Giles noted that although aggravated battery is indeed a forcible felony, the Florida statute’s plain language reflects that it applies “only under circumstances where the person claiming self-defense is engaged in another, independent ‘forcible felony’ at the time.” 831 So. 2d at 1265 (citing Perkins v. State, 576 So. 11  Case: 13-15679 Date Filed: 09/08/2016 Page: 12 of 16 2d 1310 (Fla. 1991) (holding that cocaine trafficking was not a forcible felony so as to preclude the defense of self-defense when the killing occurred during an attempt to traffic in cocaine)). That is, “[t]he instruction is normally given in situations where the accused is charged with at least two criminal acts, the act for which the accused is claiming self-defense and a separate forcible felony.” Id. at 1265 (citations omitted). Though Giles committed only one act, the instruction conveyed that the act that Giles sought to justify—the alleged aggravated battery—precluded a finding of justification. “Essentially, the jury was instructed that [Section] 776.041(1) would apply to preclude a self-defense claim, when it is claimed that the acts with which the defendant is charged are themselves committed in appropriate self- defense.” Id. at 1266. Therefore, even if the jury determined that Giles threw the brick in self-defense, his action was nonetheless unjustifiable because the act itself was a forcible felony. This reading of the statute is erroneous, the court said. Instead, “the proper test for determining the applicability of the instruction is not whether the self-defense act itself could qualify as a forcible felony, but whether, at the time of the self-defense, the accused was engaged in a separate forcible felonious act.” Id. at 1266 (citing Perkins, 576 So. 2d at 1311). Therefore, the trial court’s instruction was “circular and confusing to the jury such that it basically negated Giles’ defense.” Id. (citations omitted). 12  Case: 13-15679 Date Filed: 09/08/2016 Page: 13 of 16 III. Giles’ progeny and application to Strickland Conrad argued to the state court that he was denied effective assistance of counsel when his trial counsel failed to object to the forcible-felony instruction in light of Giles. He maintains that because Giles predated his trial, his counsel should have known that the forcible-felony instruction did not apply and thus should have objected. As stated above, counsel’s performance is deficient when it falls below an objective standard of reasonableness and is “outside the wide range of professionally competent assistance.” Johnson v. Sec’y, DOC, 643 F.3d 907, 928 (11th Cir. 2011) (quotation omitted). The “test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial.” Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc) (quotation marks omitted). Conrad must therefore establish that “no competent counsel would have taken the action that his counsel did take.” Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc). Here, the required “objective inquiry,” Castillo v. Fla. Sec’y of DOC, 722 F.3d 1281, 1285 n.2 (11th Cir. 2013), entails asking “whether any reasonable lawyer could have elected not to object for strategic or tactical reasons,” 13  Case: 13-15679 Date Filed: 09/08/2016 Page: 14 of 16 not whether “the actual defense counsel was . . . subjectively motivated by those reasons.” Id. According to Conrad, the two charges for which he stood trial—second- degree murder and second-degree attempted murder—were not separate, independent felonies. Instead, he portrays his shooting of Lefevre and Padilla as part of the same transaction, a unified attempt at self-defense. Conrad acknowledges that he was charged with two felonies for which he claimed self-defense, while the Giles defendant confronted only one charge. However, he characterizes this fact as “a distinction without a difference” because he claimed self-defense as to both charges, which were related to victims acting in concert in the same chain of events. Conrad submits that the forcible-felony instruction was confusing and misleading, as he was not charged with any felony other than those to which self-defense provided a complete defense. The State responds that Conrad’s counsel should not have been expected to know that that the forcible-felony instruction did not apply, as the Florida Supreme Court did not amend its standard jury instructions to reflect the Giles principle until 2006, three years after Conrad’s trial. See In re Std. Jury Instructions in Criminal Cases (No. 2005-4), 930 So. 2d 612, 614 (Fla. 2006) (mem.) (instructing courts to give the forcible-felony instruction “only if the defendant is charged with more than one forcible felony” pursuant to Giles). Instead, during Conrad’s 2003 trial, 14  Case: 13-15679 Date Filed: 09/08/2016 Page: 15 of 16 Florida’s jury instructions indicated that the forcible-felony instruction was proper where the defendant claiming self-defense was engaged in another independent forcible felony. The allegations against Conrad reflected exactly these circumstances, as Conrad was charged with two distinct felonies. The State’s reasoning is persuasive. The instruction was not erroneous according to Florida law at the time of the trial. We have observed that “[r]easonably effective representation cannot and does not include a requirement to make arguments based on predictions of how the law may develop.” Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994) (alteration in original) (citations omitted); see also Jackson v. Herring, 42 F.3d 1350, 1359 (11th Cir. 1995) (“To be effective within the bounds set by Strickland, an attorney need not anticipate changes in the law.”). What is more, though Giles represents the genesis of the court’s reasoning regarding the forcible-felony instruction, that case did not address the precise issue at hand here—that is, the application of the instruction when a defendant claims self-defense as to more than one victim. The Florida Court of Appeal confronted the issue only in Shepard v. Crosby, 916 So. 2d 861 (Fla. Dist. Ct. App. 2005)— 15  Case: 13-15679 Date Filed: 09/08/2016 Page: 16 of 16 which was decided two years after Conrad’s trial. Whatever Shepard’s effect, counsel was not deficient in failing to raise the case.1 Florida precedent indicates that trial counsel’s failure to object to standard jury instructions that had not been invalidated by the Florida Supreme Court do not render counsel’s performance deficient. Therefore, Conrad has not satisfied Strickland’s performance prong. The district court did not err by dismissing Conrad’s petition for habeas relief. CONCLUSION Because Conrad was charged with more than one forcible felony, the magistrate judge and the district court determined that the forcible-felony instruction was not improper. We agree. Because the provision of the forcible- felony instruction at Conrad’s trial comported with Florida law at the time of the trial, Conrad’s trial counsel did not violate constitutional standards. We therefore conclude that the district court’s finding was not an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. AFFIRMED. 1 Shepard provides scant background information and sheds little light on the issue before us. Florida courts have called Shepard’s precedential value into question. See, e.g., Martinez v. State, 933 So. 2d 1155, 1167 (Fla. Dist. Ct. App. 2006) (“As [this] extremely brief opinion[] reveal[s] very little, if anything, regarding the analysis performed or articulate[s] the facts upon which [it is] based, we conclude that [it] . . . [is] of no precedential value.” (citing Shepard, 916 So. 2d 861)). Accordingly, our analysis does not rely upon Shepard. 16 

FILED United States Court of Appeals Tenth Circuit July 1, 2010 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court FOR THE TENTH CIRCUIT DEBRA MARTINEZ, Plaintiff-Appellant, v. No. 09-2112 (D.C. No. 1:07-CV-00295-JEC-WDS) TARGET CORPORATION, (D. N.M.) Defendant-Appellee. ORDER AND JUDGMENT * Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges. Debra Martinez appeals from four orders entered by the district court, including a summary judgment in favor of Target Corporation on her claim of age discrimination. See, 29 U.S.C. §§ 621-634. We affirm. * After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.  I. Martinez began working for Target in 1990 at a store in Albuquerque, New Mexico, where she held several positions, the last being Reverse Receiving Specialist. She typically worked Monday through Friday from 7:30 or 8:00 a.m. until 4:00 or 4:30 p.m. She reported to a Backroom Team Leader, who in turn reported to an Executive Team Leader (ETL) in Logistics. The last ETL-Logistics for whom Martinez worked was Danette White. At all times relevant to this case, Robert Keith was the ETL-Human Resources and Brian Fairhurst was the Store Team Leader (STL), who supervised all of the store’s ETLs. On December 10, 2004, Martinez took a one-month leave of absence to adopt her sister’s three children. She returned to her position on January 10, 2005, but on April 8, 2005, took another leave to care for those children. She was originally scheduled to return in June 2005, but obtained an extension until August 2005. She asked Keith if she could receive accrued vacation pay during her second leave. Keith told her she would have to return to work for one day in order to do that, so she returned from leave, worked one night shift on the sales floor, and then resumed her leave. Keith granted all of Martinez’s leave requests, at least some of which were pursuant to the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. §§ 2601-2654. -2-  The parties agree Martinez was scheduled to work evenings on the sales floor beginning August 17, 2005, after she returned from her second leave. Otherwise there is little agreement on the facts. According to Martinez, just prior to August 17, she checked her posted work schedule and noticed she was scheduled to work evenings and weekends. She told Keith she could not work evenings because she had to care for her children. She claims she told Keith she could work mornings but had to be home when her children returned from school. Keith told her he would take her off the schedule. Target claims Martinez told the Human Resources Clerical Assistant, Delilah Medina, that she could only work evenings. Medina prepared and posted the work schedule taking into account Martinez’s preferred hours. After reviewing the schedule, Martinez told Keith she could only work between 10:00 a.m. and 2:00 or 3:00 p.m, when her children were in school. Keith responded there were no positions with such limited hours but he would talk to STL Fairhurst. Fairhurst thought Martinez might be able to work some cashiering shifts, but the limitation on her availability precluded her from returning to her position as Reverse Receiving Specialist. Martinez remained scheduled for the evening shifts. Target had a no-show/no-call policy–failure to show up for three consecutive shifts without calling constituted voluntary job abandonment. -3- Indisputably, Martinez did not show up for any of her scheduled night shifts. Accordingly, Keith initiated termination paperwork and Martinez was informed of her discharge in a letter she received on August 23, 2005. She was 48 years old at the time and thus within the ambit of the ADEA, which protects “individuals who are at least 40 years of age.” 29 U.S.C. § 631(a). Keith later consulted with Fairhurst and modified Martinez’s paperwork to show she was unable to return from leave, which rendered her eligible for rehire. After Martinez’s employment was terminated, Elizabeth Dunlap, who had filled Martinez’s position during her leaves of absence, continued in the role of Reverse Receiving Specialist. Dunlap is older than Martinez–she was born in 1954; Martinez was born in 1957. After Martinez was denied unemployment benefits, 1 she filed a charge of age discrimination with the Equal Employment Opportunity Commission (EEOC). She claimed the earliest date discrimination occurred was August 16, 2005, and the latest date was August 23, 2005. She described the particulars of her charge, in full, as follows: I was employed with the above employer for 15 years. I held the position of Receiving Specialist. On 8/16/05, I returned to work after being out on FMLA. Upon my return to check my schedule, I was placed on the night shift. I 1 At a hearing on her application for unemployment benefits, Martinez and Keith offered sharply conflicting stories. As the hearing judge commented during Keith’s testimony, matters were “about as clear as mud.” Aplt. App., Vol. II at 478:22-23. -4-  discussed this with my personnel manager, and he indicated that he would try to have it changed. This never happened. On 8/23/05, I received a letter from Human Resources that I was terminated. No valid reason was given for my termination. I believe I was discriminated against because of my age, in violation of the Age Discrimination in Employment Act. Aplt. App., Vol. I at 33. In an EEOC questionnaire, she stated: “I was fired while I was trying to get back to work from Medical Family Leave.” Id. at 85. In response, Target claimed Martinez returned to work in June 2005; she told Keith she could work only between 10:00 a.m. and 2:00 p.m.; she missed several shifts; and eventually she resigned because of the conflict between work and her new family. The EEOC issued Martinez a right-to-sue letter and she brought this action raising individual and class claims of age discrimination alleging unlawful termination and demotion. She filed in the United States District Court for the Western District of Oklahoma, attempting to join a collective action pending in that district, but was not permitted to do so. The Oklahoma court transferred her case to the United States District Court for the District of New Mexico. Target filed a motion to dismiss Martinez’s demotion and class claims, which the court granted. Martinez filed a motion to amend her complaint to include claims for violation of the FMLA, which was denied. Target then filed a -5- motion for summary judgment on Martinez’s remaining claim. In opposition, Martinez submitted two expert reports which she had not previously disclosed. Target moved to strike the expert reports, which the court granted. Finally, the court entered summary judgment in favor of Target. Martinez challenges each of these orders in this appeal. II. A. Dismissal of Martinez’s ADEA Demotion and Class Claims The district court granted Target’s motion to dismiss Martinez’s ADEA demotion and class claims, concluding it lacked jurisdiction over those claims because Martinez did not raise them before the EEOC. Martinez concedes she raised only an individual discharge claim in the charge she filed with the EEOC but contends administrative exhaustion is not a jurisdictional prerequisite to suit, relying on Jones v. Bock, 549 U.S. 199 (2007), and Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392 (1982). She also contends her EEOC charge should be “liberally construed” to include demotion and class claims. (Appellant’s Opening Br. at 22.) We review a district court’s dismissal for lack of jurisdiction de novo. Merida-Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005). The law in this Circuit is clear–“a plaintiff’s exhaustion of . . . administrative remedies is a jurisdictional prerequisite to suit under the ADEA.” Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005). In Zipes, the Supreme Court held a timely filing before the EEOC was not -6- jurisdictionally required to maintain suit in the district court. 455 U.S. at 393. In Jones v. Runyon, we noted several circuits have read Zipes to mean an EEOC filing is not a jurisdictional requirement to suit but rather “should be viewed merely in the nature of a condition precedent or an affirmative defense that can be waived if not asserted by the defendant.” 91 F.3d 1398, 1399 n.1 (10th Cir. 1996). We have not taken this approach. Even after Zipes, we have distinguished between the timely filing of a charge with the EEOC, which is not jurisdictional, and the failure to file such a charge at all, which is jurisdictional. See id. Here, Martinez did not file an untimely charge raising her demotion and class claims; rather, she failed to file such a charge at all. 2 Martinez also contends her EEOC charge should be “liberally construed” to include demotion and class claims. (Appellant’s Opening Br. at 22.) While we generally construe charges of discrimination liberally, “our inquiry is limited to the scope of the administrative investigation that can reasonably be expected to 2 Martinez argues a different result is warranted by Jones v. Bock. We disagree. In Bock, the Supreme Court held the exhaustion requirement of the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a), was not a pleading requirement but instead an affirmative defense. 549 U.S. at 216. In explaining its holding, the Court noted the PLRA does not list failure to exhaust in its enumeration of the authorized grounds for dismissal. Id. at 214. Moreover, claims covered by the PLRA are typically brought under 42 U.S.C. § 1983, which does not require exhaustion at all. Id. at 212. Martinez is not proceeding under the PLRA; Bock is inapposite. She does not point us to a single decision–of this or any other court–applying Bock in the context of a Title VII or ADEA case. In any event, Target raised her failure to make demotion and class claims to the EEOC as a defense. -7- follow from the discriminatory acts alleged in the administrative charge. In other words, the charge must contain facts concerning the discriminatory or retaliatory actions underlying each claim . . . .” Jones v. UPS, Inc., 502 F.3d 1176, 1186 (10th Cir. 2007). In her EEOC charge, Martinez said she “believe[d] she was discriminated against because of [her] age, in violation of the Age Discrimination in Employment Act.” Aplt. App., Vol. I at 33. She was complaining about losing her job and did not allege she was demoted; nor did she say she was bringing a claim on behalf of other employees. One cannot reasonably expect the EEOC would investigate such charges based on this filing (and, indeed, it did not). Martinez nonetheless argues the filing requirements were satisfied because both the EEOC and Target were aware of the nature and scope of the allegations in the Oklahoma collective action. She argues: “As long as the EEOC and the company are aware of the nature and scope of the allegations, the purposes behind the filing requirements are satisfied . . . .” Thiessen v. Gen. Electric Capital Corp., 267 F.3d 1095, 1110 (10th Cir. 2001) (quotations omitted). Thiessen is inapposite. In Thiessen, we considered whether eight individuals who did not file an administrative charge with the EEOC should have been allowed to opt-in to a suit filed by a similarly situated plaintiff–a situation known as “piggybacking”–even though they did not suffer adverse employment actions in the 300-day period prior to the filing of the similarly situated plaintiff’s EEOC charge. See id. We noted: “The policy behind the single filing rule is that -8- it would be wasteful, if not vain, for numerous employees, all with the same grievance, to have to process many identical complaints with the EEOC.” Id. (quotations omitted). Martinez does not claim she should be allowed to “piggyback” on a properly-filed charge; rather, she argues the charge she filed, liberally construed, was sufficient. As the district court correctly held, it was not. It is well established that “each discrete [discriminatory] action constitutes its own unlawful practice for which administrative remedies must be exhausted.” Annett v. Univ. of Kan., 371 F.3d 1233, 1238 (10th Cir. 2004) (quotations omitted). Martinez did not allege facts supporting a demotion or a class claim in her EEOC charge. It would be unfair (and contrary to the ADEA) to require Target to defend against charges that were not, but perhaps could have been, raised. “[W]e have previously recognized[] the purposes of exhaustion are: 1) to give notice of the alleged violation to the charged party; and 2) to give the EEOC an opportunity to conciliate the claim.” Jones, 502 F.3d at 1185 (quotations omitted). Those purposes were not satisfied here and we will not construe Martinez’s charge to include claims she failed to raise. Thus, the court properly granted Target’s motion to dismiss her demotion and class claims. B. Denial of Martinez’s Motion for Leave to Amend The district court denied Martinez’s motion for leave to amend her complaint to add claims under the FMLA because Martinez failed to file her motion prior to the pleading-amendment deadline, even though she had obtained a -9- two-month extension of that deadline. It concluded Martinez did not meet the standard for amendment set forth in Fed. R. Civ. P. 15(a)(2) 3 or Fed. R. Civ. P. 16(b)(4). 4 We review the denial of leave to amend for an abuse of discretion. Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1113 (10th Cir. 2007). Under Rule 15(a)(2), “denial of leave to amend is appropriate when the party filing the motion has no adequate explanation for the delay.” 5 Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006) (quotation omitted). The district court did not abuse its discretion in rejecting as insufficient Martinez’s explanation for failing to file a timely motion to amend her complaint. As it noted, as early as June 13, 2007, Martinez had indicated she intended to amend her complaint to include FMLA claims. She obtained an extension of the original pleadings-amendment deadline for this very purpose, but neither filed a motion to amend before the expiration of the deadline nor sought a second extension. She argued she did not file a timely motion because she believed her FMLA claims 3 Rule 15(a)(2) states: “[A] party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.” 4 Rule 16(b)(4) states: “A schedule may be modified only for good cause and with the judge’s consent.” 5 We need not address Target’s argument that Rule 16(b)(4)’s “good cause” standard applies in this case because Martinez cannot satisfy the more lenient standard of Rule 15(a)(2). -10- would be premature under Fed. R. Civ. P. 11 6 and Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007). The court rejected this argument, finding Martinez “simply neglected to [timely] file her claims.” Aplt. App., Vol. I at 705. Assuming, arguendo, her excuse was adequate the failure to timely notify the court and opposing counsel of her intentions remains unexplained. We perceive no abuse of discretion. C. Exclusion of Martinez’s Expert Reports In opposition to Target’s motion for summary judgment, Martinez submitted excerpts from two expert reports. The reports were prepared for the Oklahoma collective action Martinez tried, but failed, to join. Target moved to strike the reports on the grounds that (1) Martinez had not disclosed them in accordance with Fed. R. Civ. P. 26(a)(2)(B); and (2) the reports were inadmissible under Fed. R. Evid. 702. In response, Martinez filed a motion for leave to designate the experts along with full copies of their reports. 7 The court granted 6 Rule 11(b)(3) states, in pertinent part: “By presenting the court a pleading . . . an attorney . . . certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the factual contentions have evidentiary support or, if specifically so identified, are reasonably based on belief or a lack of information.” 7 Generally, the experts opined Target’s emphasis on marketing to young customers, conveyed in part through repeated emphasis on the mottos “Target Brand,” “Fast, Fun, Friendly,” and “Speed is Life,” resulted in pressure to reduce the number of older employees and led to age discrimination. -11- Target’s motion to strike and denied Martinez’s motion to designate the experts under Fed. R. Civ. P. 37(c)(1), which states, in relevant part: If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. We review a district court’s decision to strike evidence under Rule 37(c)(1) for abuse of discretion. Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999). In deciding whether a party’s violation of the expert disclosure requirements of Rule 26(a) is justified or harmless, we consider: “(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party’s bad faith or willfulness.” 8 Id. The court has “broad discretion” to determine whether to allow the late designation of experts and “need not make explicit findings concerning the existence of a substantial justification or the harmlessness of a failure to disclose.” Id. The court did not abuse its discretion in striking Martinez’s expert reports. It noted Martinez did not submit the reports until nine months after the deadline 8 Martinez urges us to consider “the importance of the excluded testimony,” which is a factor considered by the Fifth Circuit. See, e.g., EEOC v. Gen. Dynamics Corp., 999 F.2d 113, 115 (5th Cir. 1993). We decline to do so. In any event, it is surprising she failed to seek an extension of the expert disclosure deadline if she viewed the expert testimony as critical to her case. -12- for expert disclosure had passed, seven weeks after discovery had closed, and only after Target had filed its motion for summary judgment. Martinez argued Target was on notice of the reports because they had been filed in the Oklahoma action. The court found no precedent for the proposition that the timely disclosure of expert reports in a different case could satisfy the deadline requirements established in the present case. 9 The court found the late disclosure prejudiced Target, as discovery would have to be reopened and summary judgment briefing completed anew if the court permitted the late reports. And the court pointed to Martinez’s wholesale failure to explain why she did not seek an extension of the expert-disclosure deadline if, as she argued, she had an extremely difficult time locating experts she considered critical to her case. On these facts, the court did not abuse its discretion in striking Martinez’s expert reports. Though she claims she had trouble locating an affordable expert, this does not excuse her failure to comply with the court’s deadline or request an extension of that deadline. Had she needed, for financial reasons, to rely on reports in the Oklahoma class action, she should have been candid with the court and opposing counsel and her candor should have been timely, thereby giving others an opportunity to be heard on the issue. Sometimes it is more convenient to seek forgiveness than ask permission, but such strategy is a risky one. 9 It could, however, be relevant on the question of prejudice to Target, but not, as we explain, in this case. -13-  D. Grant of Summary Judgment to Target Summary judgment was entered in favor of Target on Martinez’s discharge, a claimed violation of the ADEA. “We review a district court’s grant of summary judgment de novo, using the same standards applied by the district court.” Baca v. Sklar, 398 F.3d 1210, 1216 (10th Cir. 2005). Summary judgment should be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). It is unlawful under the ADEA “for an employer . . . to discharge any individual . . . because of such individual’s age.” 29 U.S.C. § 623(a)(1). “A plaintiff alleging discrimination may prove her case by direct or circumstantial evidence. Direct evidence is evidence from which the trier of fact may conclude, without inference, that the employment action was undertaken because of the employee’s protected status.” Sanders v. Southwestern Bell Tel., L.P., 544 F.3d 1101, 1105 (10th Cir. 2008) (citations omitted), cert. denied, 130 S. Ct. 69 (2009). Martinez argued two comments, one by White, the ETL-Logistics to whom she indirectly reported, and one by STL Fairhurst, were direct evidence of discrimination. Martinez testified at her deposition that White had once told her she was “old and falling apart.” Aplt. App., Vol. I at 246. Another employee told Martinez she had overhead Fairhurst say he was going to clean out the “old crew” -14- of the store manager who had preceded him, which Martinez interpreted to mean employees over the age of 40. Id. at 251. The court concluded these comments were not direct evidence of discrimination because neither White nor Fairhurst was involved in the termination decision. See Jones v. Unisys Corp., 54 F.3d 624, 632 (10th Cir. 1995). In addition, Fairhurst’s remark was only discriminatory if it referred to employees over 40 rather than all employees who had worked under the prior manager. “A statement that can plausibly be interpreted two different ways—one discriminatory and the other benign—does not directly reflect illegal animus, and, thus, does not constitute direct evidence.” Hall v. U.S. Dep’t of Labor, 476 F.3d 847, 855 (10th Cir. 2007) (quotation omitted). We agree with the district court. Martinez argues White could have had a role in the termination decision because she worked at the same store as Martinez up until Martinez was terminated. This is irrelevant. Regardless of when White left, Martinez introduced no evidence from which one could reasonably infer that White had anything to do with the decision to terminate her employment. At most, White was involved in the decision to put Dunlap in the role of Reverse Receiving Specialist until Martinez returned from leave, which does not evidence a role in the decision to terminate Martinez’s employment under Target’s no-show/no-call policy. 10 10 Martinez also claims White: (1) gave her lower (but still satisfactory) evaluations in 2003 and 2004; (2) often refused to let her take a break until she (continued...) -15-  As to Fairhurst, we agree with the district court that his alleged comment about cleaning out the “old crew” does not constitute direct evidence of discrimination. We also agree Fairhurst did not play a role in Keith’s decision to initiate Martinez’s termination paperwork. The record indicates only that he spoke with Keith about accommodating Martinez’s schedule requests and about changing the paperwork to show Martinez voluntarily resigned so she would be eligible for rehire. Fairhurst did not testify Martinez’s discharge required his approval; he specifically testified Keith could discharge an employee under the no-call/no-show policy without his approval. Fairly regarded, Martinez did not present sufficient evidence of direct discrimination to survive a motion for summary judgment. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). But that does not end the matter. Where a plaintiff does not have direct evidence of discrimination, she can establish her claim through circumstantial evidence. See Sanders, 544 F.3d at 1105. “In that instance, we analyze the plaintiff’s claims under the McDonnell 10 (...continued) had worked for five or six hours; and (3) periodically scheduled her for fewer hours. These allegations do not imply she had a role in the decision to discharge Martinez for failure to report for duty. -16- Douglas framework to determine whether the defendant is entitled to summary judgment.” Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Under the McDonnell Douglas framework, a plaintiff has the burden to establish a prima facie case of discrimination. If she meets that burden, the burden shifts “to the employer to articulate some legitimate, nondiscriminatory reason” for its action. 411 U.S. at 802. If the employer meets its burden, the plaintiff has the burden to show the employer’s reason is pretextual. Id. at 804. In order to make out a prima facie case of wrongful discharge under the ADEA, a plaintiff must show: (1) she is within the protected age group; (2) was doing satisfactory work; (3) was discharged; and (4) was replaced by someone younger. See Rivera v. City & County of Denver, 365 F.3d 912, 920 (10th Cir. 2004). The district court determined Martinez did not establish the fourth element of her claim because she did not show her replacement, Elizabeth Dunlap, was younger. Martinez claims Target produced no evidence of Dunlap’s age, but Fairhurst provided a declaration stating Dunlap was born in 1954 (three years before Martinez). Martinez testified she thought Dunlap was in her thirties but was “not sure.” Aplt. App., Vol. I at 250. It was Martinez’s burden to establish Dunlap was younger, not Target’s; she failed to do so. The court also considered Martinez’s prima facie case under an alternative analysis in which the fourth element is flexible. See Plotke v. White, 405 F.3d 1092, 1100 (10th Cir. 2005) (noting a plaintiff does not always need to establish -17- all the elements of a prima facie case because “[t]he critical prima facie inquiry . . . is whether the plaintiff has demonstrated that the adverse employment action occurred under circumstances which give rise to an inference of unlawful discrimination”) (quotations omitted)). We have said this more flexible test “may occasionally be helpful when addressing discrimination claims that either do not fall into any of the traditional categories (e.g., hiring or discharge) or present unusual circumstances.” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1227 n.5 (10th Cir. 2000). 11 Martinez’s wrongful-discharge claim is a traditional one that presents no unusual circumstances. She contends she was fired because Target wanted its workforce to become younger, yet she was replaced by someone older. Thus, there is a logical connection between the fourth element of the prima facie case and the inference that Target discharged her because of her age. The traditional four-element prima facie case, therefore, provides more “structure and guidance,” Kendrick, 220 F.3d 1227 n.5 (“[O]rdinarily, more structure and guidance can be found in the traditional four prongs of the . . . prima facie test.”). Accordingly, Martinez’s failure to show she was replaced by someone younger is fatal to her 11 As the Supreme Court noted in McDonnell Douglas, the precise formulation of the prima facie proof required of a plaintiff may vary with the facts of each case. See 411 U.S. at 802 n.13. -18- claim and she is not entitled to a burden-shifting presumption of age discrimination under McDonnell Douglas. 12 III. The judgment of the district court is AFFIRMED. Entered for the Court Terrence L. O’Brien Circuit Judge 12 Even if we concluded Martinez established a prima facie case and advanced to the second and third steps of the McDonnell Douglas burden-shifting analysis, we would affirm for substantially the same reasons as the district court, which undertook this analysis. -19- 

02-10-479-CV       COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH   NO. 02-10-00479-CV     Richard Terrance Ayers   APPELLANT   V.   Vicki Barrow, Hazelle Davis, Rick Thaler, and the TDCJ-CID   APPELLEES     ----------   FROM THE 89th District Court OF Wichita COUNTY ----------   MEMORANDUM OPINION[1] ----------             Appellant Richard Terrance Ayers attempts to appeal from the trial court’s order dated September 10, 2010, in which the trial court dismissed Ayers’s civil rights complaint with prejudice after reviewing the pleadings on file “upon its own motion.” Ayers filed a request for findings of fact and conclusions of law on October 22, 2010, which was untimely.  See Tex. R. Civ. P. 296.  However, even if his request had been timely, because in this case findings of fact and conclusions of law were not required by the rules of civil procedure and could not properly be considered by this court, his request would not have operated to extend the thirty-day deadline for filing his notice of appeal.  See Tex. R. App. P. 26.1(a)(4); IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997) (stating that a request for findings of fact and conclusions of law “does not extend the time for perfecting appeal of a judgment rendered as a matter of law, where findings and conclusions can have no purpose and should not be requested, made, or considered on appeal [such as] . . . dismissal based on the pleadings”).  Therefore, Ayers’s notice of appeal was due on October 11, 2010.  See Tex. R. App. P. 26.1. Ayers filed his notice of appeal on December 27, 2010.  On December 28, 2010, we notified Ayers that his appeal was subject to dismissal for want of jurisdiction unless, by January 7, 2011, he filed a response showing grounds for continuing the appeal.  Ayers filed a response, but it does not show grounds for continuing the appeal.  Accordingly, we dismiss this appeal for want of jurisdiction.  See Tex. R. App. P. 42.3(a), 43.2(f).       PER CURIAM   PANEL:  MCCOY, MEIER, and GABRIEL, JJ.   DELIVERED:  January 27, 2011           [1]See Tex. R. App. P. 47.4.

484 S.W.2d 449 (1972) Ledor COLEMAN, Appellant, v. PACIFIC EMPLOYERS INSURANCE COMPANY, Appellee. No. 655. Court of Civil Appeals of Texas, Tyler. August 3, 1972. Rehearing Denied August 31, 1972. *451 Stephenson & Thompson, Ward Stephenson, Orange, for appellant. Mehaffy, Weber, Keith & Gonsoulin, James W. Mehaffy, Jr., Beaumont, of counsel, for appellee. DUNAGAN, Chief Justice. This is a workman's compensation case in which trial was to a jury, which decided in response to special issues that the plaintiff-appellant had sustained both a specific and a general injury. The jury further found that the specific injury produced a loss of use of the plaintiff's arm and the general injury produced a period of total incapacity. The appellant, plaintiff below, appeals from a judgment based upon this verdict. Appellant in his brief states: "During the trial of the case while the plaintiff was on the witness stand, he was asked by his attorney about the depression, nightmares and despondency which he suffers. Objection was made to this by counsel for the insurance carrier, the objection being to the effect that since Dr. Caskey, a medical witness, had testified that he did not know where the despondency came from that the plaintiff himself could not give testimony bearing on this subject." Appellant by his sole point of error complains of the trial court's action in refusing to allow the appellant to give the testimony above set out. He brings this case before this court upon an abbreviated or partial statement of facts. The record consists only of the transcript, a partial statement of facts which includes only the testimony of appellant's witness, Dr. Caskey, and appellant's bill of exception. The bill of exception contains questions propounded to the appellant by his attorney and answers thereto concerning his depression, nightmares and despondency since the date of the injury upon which this lawsuit is founded. But nowhere therein does it show any objection was made to the offer of this testimony and consequently no ruling of the court concerning the admission of said testimony. *452 It was appellant's burden to support his claim of error with a bill of exception which clearly and accurately reflected the circumstances and rulings complained of. 4 Tex.Jur.2d 39, sec. 507 and Layne Glass Company v. Parker, 340 S.W.2d 363 (Tex. Civ.App., Ft. Worth, 1960, n.w.h.). The brief for appellant contained no reference as to where the objection and adverse ruling may be found. Nowhere does the record show that any objection was made to the testimony in question or any such objection was sustained by the trial court; therefore, in that posture appellant's single point of error has not been properly preserved for review and appears to have been waived. 3 Tex.Jur.2d 675, sec. 419; Turner v. Turner, 384 S.W.2d 195, 200 (Tex.Civ.App., Tyler, 1964, n.w.h.); Reid v. Nortex Construction Company, 366 S.W.2d 870, 873 (Tex.Civ.App., Dallas, 1963, writ ref., n.r.e.); Haskell Independent School Dist. v. Ferguson, 178 S.W.2d 130, 132 (Tex.Civ.App., Eastland, 1944, writ ref., w.o.m.); Rule 372(a), Texas Rules of Civil Procedure. Moreover, appellee contends (1) the trial court did not err in refusing to allow the appellant to give to the jury the evidence in question because his own medical witness testified that it was impossible to tell what the producing cause of such despondency was and (2) that any error of the trial court in refusing to admit this testimony of appellant was harmless and not reasonably calculated to cause a rendition of an improper judgment under Rule 434, T.R.C.P., because this case is presented only on a partial statement of facts; therefore, it is impossible for appellant to show that any error in evidentiary rulings was prejudicial and for the further reason that the court permitted appellant's own medical witness, Dr. Caskey, to testify as to appellant's depression and despondency and thus the rejected testimony of appellant would be repetitious. Appellee in its brief states: "At the outset, and pursuant to the provisions of Rule 419, Texas Rules of Civil Procedure, the appellee states that it does not accept any statement contained in Appellant's Brief as being true and correct, or supported by the records, and it moreover affirmatively states that the Statement of Facts herein is incomplete and partial, and there was other testimony at the trial of the cause which might or could have a bearing upon this case." In view of this statement, we are not, therefore, able to give effect to Rule 419, T.R.C.P. Appellant argues that regardless of what other testimony there might have been in the trial of this case, that under the law he was still entitled to give the rejected testimony to the jury and that error was committed by the refusal of the court to admit such testimony. Be that as it may, in the absence of a complete statement of facts, the question to be decided by us, however, is not whether the trial court committed error, but whether such error, if such there was, was harmful, and was calculated to cause and probably did cause the rendition of an improper judgment. Danziger v. Brandes, 457 S.W.2d 146 (Tex.Civ.App., Dallas, 1970, writ ref., n.r.e.); Barrios v. Davis, 415 S.W.2d 714 (Tex.Civ.App., Houston, 1967, n.w.h.) and cited cases; Klimist v. Bearden, 374 S.W. 2d 783 (Tex.Civ.App., Tyler, 1964, n.w.h.); Duin v. King, 317 S.W.2d 236 (Tex.Civ. App., San Antonio, 1958, n.w.h.). If the trial court did commit error, as is contended, it is appellant's additional burden to show that such error was harmful before the judgment of the trial court may be reversed. An appellate court is not authorized to reverse merely because the record discloses some error reasonably calculated to cause the miscarriage of justice, but the party appealing must also show that it probably did cause the rendition of an improper verdict or judgment. Rule 434, Texas Rules of Civil Procedure; Klimist v. Bearden, supra; Dennis v. Hulse, 362 S.W.2d 308 (Tex.Sup., 1962); Gordon v. Aetna Casualty & Surety Company, *453 351 S.W.2d 602 (Tex.Civ.App., Eastland, 1961, writ ref.). It was appellant's duty to bring forward a complete record of the evidence before the trial court. This he failed to do. Thrasher v. Hensarling, 406 S.W.2d 515 (Tex.Civ.App., Waco, 1966, n.w.h.); Baker v. Rutherford, 293 S.W.2d 69, 672 (Tex.Civ.App., Waco, 1956, writ ref., n.r. e.). An appeal on record which was insufficient to show that exclusion of evidence was reversible error must be treated as an appeal without statement of facts. Gordon v. Aetna Casualty & Surety Company, supra. Since the case is before us without a complete statement of facts, which we must treat as an appeal without a statement of facts, it is impossible for this court to determine that the error of the court, if any, was harmful, and was calculated to cause and probably did cause the rendition of an improper verdict or judgment; therefore, the judgment should not be reversed. Barrios v. Davis, supra. The judgment of the trial court is affirmed. ON MOTION FOR REHEARING Appellant has filed a Motion for Rehearing in which he suggests that if this court does not believe that a sufficient part of the Statement of Facts or Transcript is before us that we are required under the Texas Rules of Civil Procedure to direct the party or parties to produce that part of the record we think might be helpful in reaching a decision. He cites only Rule 428, T.R.C.P. Appellant seeks to have this court grant his Motion for Rehearing and requests for the first time that he be allowed at this late date to file the entire Statement of Facts and Transcript from the trial court. The record shows that the transcript in this cause was filed in the Ninth Court of Civil Appeals in Beaumont, Texas on January 3, 1972. A partial and an amended partial Statement of Facts were filed in said court on May 15, 1972. Brief of appellant was filed with the clerk of the Beaumont Court of Civil Appeals on January 12, 1972, and appellee filed its brief in said court on February 14, 1972. Appellee in its brief by its counterpoint two points out there was only a partial Statement of Facts and made the contention therein that without a complete Statement of Facts it was impossible for the appellant to discharge his burden of showing that any error, if there be such, was reasonably calculated to cause the rendition of an improper judgment. We take note that appellee in its brief also stated that "the record does not purport to be a complete transcript of the proceedings in the Trial Court. * * * Defendant-Appellee does not accept this as a complete Statement of Facts, and now says that the record does not show all the testimony bearing upon the issues in this appeal." The record also shows that this cause was submitted to and oral arguments heard by the Beaumont Court on April 6, 1972. Thereafter, this cause was transferred to this court because (as we were informed on oral argument) one Justice disqualified himself and the remaining two Justices could not agree on a decision. In that portion of Rule 428, T. R.C.P., which provides "[i]f anything material to either party is omitted from the transcript or statement of facts * * * the appellate court, * * * on its own initiative, may direct a supplemental record to be certified and transmitted by the clerk of the trial court supplying such omitted matter." Rule 428 was not, in our opinion, intended to place the burden upon the appellate court to secure the supplemental transmission of material omitted from the record solely in order to perfect the appellant's appeal or to demonstrate that errors complained of have been properly preserved for review. The burden still remains on appellant to bring forward sufficient record to have his appeal considered on its merits. It is appellant's duty to present a record showing error and the harmful effect thereof, if any. This duty rests neither with the appellee nor the appellate court. Wright v. Mack Motor Truck Corporation, 336 S.W.2d 831 (Tex. *454 Civ.App., Houston, 1960, n.w.h.) The purpose of the provision of Rule 428 above quoted, rather is applicable when and if the appellant brings forward a record full or sufficient enough for his appeal to be considered and disposed of on the merits, but the appellate court feels it needs additional portions of the record that have been omitted and which are material to a thorough and accurate disposition of the matter presented. It is not the purpose of said provision to relieve the appellant of his burden to bring up a sufficient record to have his appeal considered on its merits and to reflect any error and the harmful effect thereof, if any, or request that such record be ordered transmitted to the appellate court as provided for in said rule. However, it is too late at this stage of the proceedings to have the omitted matter prepared and transmitted to this court. Wright v. Mack Motor Truck Corporation, supra. We have carefully reviewed our original decision in this cause and, believing that we correctly disposed of this appeal, we respectfully overrule appellant's Motion for Rehearing.

62 B.R. 609 (1986) In re William Phillip EDWARDS, Debtor. ICM MORTGAGE CORPORATION, Movant, v. William Phillip EDWARDS, Thomas L. Lackey, Trustee, Respondent. Bankruptcy No. 86-A-1069, Motion No. 86-M-0560A. United States Bankruptcy Court, D. Maryland, at Rockville. July 2, 1986. Steven Henne, Silver Spring, Md., for movant, ICM Mortg. Corp. Winifred Cannon, for debtor. Thomas Lackey, Chapter 13 trustee. MEMORANDUM OF DECISION PAUL MANNES, Bankruptcy Judge. This matter is before the court on the motion of the ICM Mortgage Corporation filed against William Phillip Edwards, debtor, seeking relief from the stay of § 362(a) to permit it to proceed to ratification of the foreclosure sale held May 6, 1986, at 10:40 a.m. The sale was consummated prior to debtor's filing of his Chapter 13 case on May 6, 1986, at 11:42 a.m.[1] Debtor urges the court to reconsider its holdings in the cases of In re Wallace, 31 B.R. 64 (BC Md.1983), and In re Shirley, 30 B.R. 195 (BC Md.1983). See also, In re Nimai Kumar *610 Ghosh, 38 B.R. 600, 603 (BC E.D.N.Y. 1984). For reasons which have been set forth in the Wallace and Shirley cases, the court finds that with the completion of the auction sale, the mortgagor was divested of all rights of redemption remaining in him at the time of the sale. The sale foreclosed the mortgage.[2] With the extinguishment of the rights of the debtor by foreclosure, his filing of a Chapter 13 proceeding did not cause the reinstatement of the foreclosed mortgage.[3] In opposition to the motion, debtor relies upon the case of In re Hurlock, 23 F.2d 500 (D.Md.1928). That reliance is misplaced, for Hurlock does not support the position espoused by debtor. The bankruptcy law in effect in 1928 provided a scheme wherein the jurisdiction of the state court and the bankruptcy court in matters of foreclosure was concurrent. Therefore, on principles of comity, the bankruptcy court would not interfere with the jurisdiction of the state court when judicial foreclosure had been commenced in state court before filing of the petition in bankruptcy. See also Straton v. New, 283 U.S. 318, 51 S.Ct. 465, 75 L.Ed. 1060 (1930). However, the Bankruptcy Reform Act of 1978 and the Bankruptcy Amendments and Federal Judgeship Act of 1984 granted the bankruptcy courts (now, as a derivative of the grant to district courts) exclusive jurisdiction over property of the debtor. See former 28 U.S.C. § 1471(e); 28 U.S.C. § 1334(d). This broad grant of jurisdiction was accompanied by a broadened stay of actions against the debtor and its property. See 11 U.S.C. § 362(a). Nevertheless, the operation of a deed of trust and its validity are a matter of state law. Haas v. Rendleman, 62 F.2d 701 (4th Cir.), cert. denied 289 U.S. 750, 53 S.Ct. 695, 77 L.Ed. 1495 (1933). Sound policy decisions underlie adherence to Maryland law regarding the irreversibility of a foreclosure once the auctioneer's hammer has fallen, subject to objections as to irregularity in the conduct of the sale as well as any question as to the validity of the mortgage. If the rule were otherwise and the debtor in the present case were to prevail, every foreclosing creditor would face the likelihood of a bankruptcy filing even after the creditor had noticed, advertised, completed the sale, filed the report of sale, and published an order nisi. Only after completing all of the requirements of Maryland Rules of Procedure W74 and BR6 (1986), obtaining the final order of ratification, and resolving all appeals therefrom would the creditor be free from bankruptcy intervention. Any would-be purchaser at a sale could look forward to many months where it would have all the risks of ownership, none of the benefits, and a possibility of never taking possession. Because of such delay and the fact that resale could be at the risk of a defaulting purchaser (see Bilbrey v. Strahorn, 153 Md. 491, 138 A. 343 (Md.1927), Md.Rules of Procedure BR6(c) (1986)), serious damage could be caused to the property in the interval, to the detriment of the buyer at the public sale. The court concludes that if the debtor's position were upheld, no cautious individual would purchase at foreclosure because of the risk of an inordinate delay caused by the interdiction bankruptcy. This in turn would cause a chilling of foreclosure sales and the impairment of the ability to realize upon mortgage security. *611 An order will be entered in accordance with the foregoing, terminating the stay to permit the conclusion of foreclosure proceedings identified as Civil Action No. 14160, docketed in the Circuit Court for Montgomery County, Maryland. NOTES [1] Debtor had the ability to avoid this conflict by filing the petition at the time that the bankruptcy court clerk's office opened and by giving notice prior to the start of the sale to the parties in attendance. It is a mystery to the court why debtor did not do so insofar as the papers necessary to file the Chapter 13 petition had been completed on May 5, 1986. [2] For these purposes, Maryland treats mortgages and deeds of trust identically. Burroughs v. Garner, 43 Md.App. 302, 405 A.2d 301, 303 (Md. Ct.Spec.App.1979); Md. Law Encl., Mortgages § 4; Md. Real Prop. Code Ann., 7-104 (1981 Repl.Vol.). [3] In examining the file, the court notes that the purchase money deed of trust was given by the debtor and Nadine G. Edwards. As shown on debtor's schedules, he is married to Nadine Edwards. When one of two tenants by the entirety files a bankruptcy petition, a creditor against such property is unable to realize on its security for past due debts. For that reason, in a long line of cases in the Fourth Circuit, the stay has been modified to permit the creditor to proceed against the entireties property. See Sovran Bank, N.A. v. Anderson, 743 F.2d 223-25 (4th Cir.1984), and Phillips v. Krakower, 46 F.2d 764, 765-66 (4th Cir.1931).

414 Pa. Superior Ct. 310 (1992) 606 A.2d 1215 Larry D'AMELIO, Individually and on Behalf of All Other Persons Similarly Situated, Appellants, v. BLUE CROSS OF LEHIGH VALLEY and St. Luke's Hospital, Individually and on Behalf of All Other Hospitals Similarly Situated. Superior Court of Pennsylvania. Argued February 5, 1992. Filed April 27, 1992. *312 Margaret H. Poswistilo, Easton, for appellants. Oldrich Foucek, III, Allentown, for appellee Blue Cross. Annette P. Landes, Easton, for participating party Good Shepherd Rehabilitation Hosp. William J. O'Kane, Easton, for amicus curiae Easton Hosp. Wallace H. Bateman, Jr., Perkasie, for participating Grandview Hosp. Before OLSZEWSKI, JOHNSON and HOFFMAN, JJ. HOFFMAN, Judge. This is an appeal from the order of August 6, 1990 denying appellant's motion to amend his complaint. Appellant, Larry D'Amelio, individually, and on behalf of all other persons similarly situated, presents the following claims: 1. Did the lower court err in refusing to allow the class-representative plaintiff to amend the complaint by the naming of eighteen individual defendants who had been originally included in the law-suit as members of a proposed class of defendants not certified by the lower court, and, further, by the adding of individual counts in the complaint against each of the eighteen individual defendants? 2. Does the commencement of a class action against unnamed defendants suspend the statute of limitations until the certification issue is decided? *313 3. Is certification of a class of defendants a moot issue in this case? 4. Has the lower court decertified a large portion of the plaintiff class by its order of August 6, 1990? Appellant's Brief at 5. On or about September 11, 1981, Larry D'Amelio filed his original complaint in this action, naming Blue Cross of Lehigh Valley as the defendant. The suit was denominated a "class action" and was brought on D'Amelio's individual behalf as well as on the behalf of all other persons alleged to be similarly situated. D'Amelio originally sought to represent a class of persons who, while eligible for Blue Cross coverage, were admitted to hospitals having contracts with Blue Cross to provide hospital services to persons so covered. The complaint alleged that the proposed members of the class incurred medical expenses which were not paid because Blue Cross determined that the services provided were not medically necessary. The complaint also alleged that due to Blue Cross' denial of coverage, the proposed members of the class were now personally required to pay their hospital expenses. Monetary and equitable relief was sought under claims of trespass and assumpsit. D'Amelio claimed that Blue Cross breached its subscription agreement by retrospective denial of coverage. In the alternative, he argued that if the retrospective review and denial provisions were part of and authorized by the agreement, they were unconscionable and void as against public policy. In an amended complaint filed on October 14, 1981, D'Amelio named St. Luke's Hospital as a representative of a purported class of defendant-hospitals. In 1982, D'Amelio moved for class certification of the plaintiff class and defendant class. On May 6, 1983, the lower court denied and dismissed the motion. Appellant then filed a petition for reconsideration as to the denial of certification of the plaintiff *314 class which was denied.[1] On May 26, 1983, D'Amelio filed a notice of appeal to this court. On October 11, 1985, this Court reversed the lower court and remanded the case for further findings as to the certification of the plaintiff class.[2] 347 Pa.Super. 441, 500 A.2d 1137. The lower court subsequently entered an order granting the motion for certification of a plaintiff class. The court refused to reconsider the issue of certification of a defendant class. When the trial court certified the plaintiff class, in its order of July 18, 1989, it did so in the context of the unappealed order of May 6, 1983, limiting the defendants strictly to Blue Cross and St. Luke's. Thereafter, on September 13, 1989 D'Amelio filed a motion to amend the complaint to name nineteen hospitals as individual defendants. The lower court denied D'Amelio's motion to amend the complaint on August 6, 1990. This timely appeal followed. First, appellant claims that the lower court erred in refusing to allow him to amend the complaint by the naming of eighteen individual defendants who had originally been included in the law-suit as members of a proposed class of defendants not certified. We disagree. A party seeking judicial resolution of a controversy in this Commonwealth must establish that he has standing to maintain the action. "The core concept, of course, is that a person who is not adversely affected in any way by the matter he seeks to challenge is not `aggrieved' thereby and has no standing to obtain a judicial resolution of his challenge." William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 192, 346 A.2d 269, 280 (1975). The requirement that a party must be "aggrieved" is also applicable to class actions. Nye v. Erie Insurance Exchange, 504 Pa. 3, 6, 470 A.2d 98, 100 (1985). *315 In the instant case, D'Amelio was aggrieved by the actions of Blue Cross of Lehigh Valley when it overruled St. Luke's initial determination that his treatment was medically necessary. Therefore, it can be said that D'Amelio has standing to represent all persons who were aggrieved by similar rulings by Blue Cross with respect to any St. Luke's. However, we cannot say that such standing extends to any other hospital with which Blue Cross has a contract. None of the other hospitals sought to be joined engaged in conduct which contributed to the injury he suffered from the controversy between St. Luke's and Blue Cross of Lehigh Valley. In the alternative, D'Amelio claims that the formation of subclasses would alleviate the problem of lack of standing because other aggrieved individuals have standing to be class, or subclass, representatives for an action against hospitals other than St. Luke's. This argument is unpersuasive. Pennsylvania Rules of Civil Procedure, Rule 1710, provides in relevant part: (c) When appropriate, in certifying, refusing to certify or revoking a certification of a class action the court may order that: (2) a class be divided into subclasses and each subclass treated as a class for purposes of certifying, refusing to certify or revoking a certification and that the provisions of these rules be applied accordingly.[3] Pa.R.Civ.P. Rule 1710(c)(2). The rule does not contemplate the formation of subclasses to cure problems of standing. Rather, the Pennsylvania Rules of Civil Procedure contemplate maintaining class action suits, or subclass action suits, only when such suits are a fair and efficient method of adjudication. See Pa.R.Civ.P. § 1702, § 1708. Accordingly, *316 the formation of subclasses is not an appropriate cure for appellant's standing deficiencies. We conclude that the plaintiff has standing to represent all persons who have or will suffer injury as a result of billings from St. Luke's which have or will be denied coverage by Blue Cross. However, D'Amelio has no standing to sue the other hospitals sought to be joined because he has not been adversely affected in any way by conduct of such hospitals. Appellant next claims that the commencement of a class action against unnamed defendants suspends the statute of limitations until certification is decided. Because we find that appellant lacks standing as to the additional hospitals (other than St. Lukes) we need not reach this issue. Appellant next claims that certification of a class of defendants is not a moot issue. D'Amelio suggests that this court may, at this time, examine the lower court's decision to deny the defendant class certification. This claim is meritless. The court below in its order and opinion of July 18, 1989 unequivocally stated that defendant class certification was denied. The denial of class certification is a final appealable order, McConnell v. Commonwealth, Department of Revenue, 503 Pa. 322, 325 n. 2, 469 A.2d 574, 576, n. 2 (1983), and on July 18, 1989, the thirty (30) day appeal period began to run against appellant. Appellant did not appeal the denial of defendant class certification within thirty (30) days and, therefore, appellant has waived this issue. Lastly, appellant contends that the lower court has decertified a large portion of the plaintiff class by its order of August 6, 1990. We disagree. The order in question stated that D'Amelio lacked standing as to the hospitals that he sought to join. The court noted that he continued to have standing to represent all persons who have or will suffer injury as a result of billings from St. Luke's which have or will will be denied coverage *317 by Blue Cross of Lehigh Valley. The plaintiff class is not decertified by the order. Accordingly, we affirm the order of August 6, 1990 in which the court denied appellant's motion to amend his complaint to add eighteen hospitals as defendants. Order affirmed. NOTES [1] Appellant did not seek reconsideration of the denial of certification of the defendant class. [2] When this court remanded for certification of the plaintiff class, the only named defendants were Blue Cross and St. Luke's Hospital. [3] Explanatory Note to Rule 1710 provides in relevant part that: Subdivision (c) follows the Federal Rule in permitting the court to limit the class action to particular issues or forms of relief, and to divide the proposed class into subclasses.

361 F.3d 1313 Helenio PRIETO, in his capacity as personal representative of the estate of Florentino Prieto, Plaintiff-Appellant,v.Manuel MALGOR, individually, Luke Marokioli, individually, Miami-Dade County, a political subdivision of the State of Florida, Defendants-Appellees. No. 02-16921. United States Court of Appeals, Eleventh Circuit. March 4, 2004. COPYRIGHT MATERIAL OMITTED Michael Garcia Petit, Michael Garcia Petit, P.A., Miami, FL, for Plaintiff-Appellant. Susan Torres, Eric Kirby Gressman, Dade Cty. Atty., Miami, FL, for Defendants-Appellees. Appeal from the United States District Court for the Southern District of Florida. Before DUBINA, BARKETT and COX, Circuit Judges. PER CURIAM: 1 Helenio Prieto filed this appeal following an adverse jury verdict in a suit against two police officers and the County of Miami-Dade for excessive force and battery. Prieto claims that the district court improperly allowed expert testimony on the appropriate use of force despite the failure of Defendants to provide the expert witness report required under Federal Rule of Civil Procedure 26(a)(2). Prieto also claims that the district court improperly entered a direct verdict in favor of the officers in their individual capacity on his state battery claim. Because we find that Plaintiff's counsel effectively waived objection to the failure to provide the required expert witness report, and find no error otherwise, we affirm. I. Background 2 Florentino Prieto1 filed suit over his treatment by officers Manuel Malgor and Luke Marckioli after his 1997 arrest for driving with a suspended license. Prieto claimed that the officers threatened to plant drug evidence in his car, repeatedly threatened to harm him, and physically abused him upon arrival at the station. In the station processing room, Prieto was ordered to take off his belt, at which point an altercation ensued. Under Prieto's version of events, the officers pinned him to the wall and punched him in the face without provocation. The punch left his vision permanently impaired and caused significant psychiatric problems. Under the officers' version of events, Prieto swung his belt violently toward Marckioli's head, causing him to duck in order to avoid being struck. Marckioli then attempted to restrain Prieto in a bear hug, but Prieto punched him in the stomach. Malgor responded by twice punching Prieto in the face, just above his eye. 3 Prieto filed a complaint in state court alleging (1) excessive force under 42 U.S.C. § 1983 against the two officers; (2) battery under Florida law against the two officers in their individual capacity, which required a showing of bad faith or malice; and (3) battery under Florida law against Miami-Dade County. Defendants removed the action to federal district court, which granted summary judgment to the officers on the federal claim on the basis of qualified immunity.2 On appeal, we reversed with respect to Malgor, holding that the acts alleged by Prieto constituted excessive force and, thus, that the disputed versions of the facts had to be resolved at trial. 4 At the jury trial on remand, Plaintiff presented recorded testimony from Prieto about the arrest and alleged battery, evidence from Prieto's family and original lawyer about his condition after the incident, and an extended cross-examination of the two officers involved. At the close of Plaintiff's case, the court directed a verdict in favor of the individual officers on the state battery claim, finding as a matter of law that they had acted within the scope of their employment and that there was insufficient evidence to find they had acted maliciously. The court, however, allowed the battery claim against the County to go forward,3 as well as the excessive force claim against Malgor. 5 The defense presented testimony by medical and psychological experts and other Miami-Dade officers who had been involved shortly before or after the incident. The defense then called Ivan Rodriguez, who regularly trained Miami-Dade officers on the use of force, and proffered him as an expert on police procedures and the use of force. Plaintiff immediately objected, arguing that Defendants had failed to provide the expert witness report required by Local Rule 16.1(K) and Federal Rule 26(a)(2)(B).4 Defendants conceded they had failed to provide the report but countered that, as an employee, Rodriguez was exempt from the requirements imposed upon specially hired experts. The judge examined the witness list submitted before trial, which indicated that Rodriguez would testify as to the use of force,5 and permitted the testimony. Rodriguez testified that Prieto's use of his belt would be considered a "deadly force attack" and that the officers were justified in their use of force specifically in response to the use of the belt. 6 After two days of deliberation, the jury issued a verdict specifically finding that Prieto had posed an immediate threat to the officers when he removed his belt, that Malgor did not use excessive force against Prieto, and that neither Malgor nor Marckioli had committed battery within the meaning of Florida law. This appeal followed. II. Discussion A. Rule 26 Expert Witness Reports 7 Prieto first attacks the district court refusal to exclude Rodriguez' expert testimony, a decision we review for abuse of discretion. Griffith v. Gen. Motors Corp., 303 F.3d 1276, 1282 (11th Cir.2002). Rule 26 imposes specific disclosure requirements upon any witness "who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony." Fed. R. Civ. Proc. 26(a)(2)(B). Notice of the expert witness' name is not enough. Each witness must provide a written report containing "a complete statement of all opinions to be expressed and the basis and reasons therefor," as well as information about the data considered, the witness' qualifications, the compensation earned, and any other recent cases in which he or she offered testimony. Id. Any party that "without substantial justification" fails to disclose this information is not permitted to use the witness as evidence at trial "unless such failure is harmless." Fed. R. Civ. Proc. 37(c)(1). The district court may impose other appropriate sanctions in addition to or in lieu of the evidentiary exclusion. Id. 8 In this case, both parties agree that Rodriguez did not make the expert witness disclosures required by Rule 26(a)(2)(B), even though Defendants explicitly proffered him as "an expert in use of force and police procedures." Defendants argue that Rodriguez is exempt from the rule on the dual grounds that he is a "hybrid" witness called upon to testify to both factual and expert matters and that he is an employee and therefore exempt from the rule. They alternatively contend that, ultimately, Plaintiff waived any objection to the testimony. 9 We begin by noting that if Rodriguez' normal duties as an employee involve giving expert testimony, he was obliged to provide the detailed expert witness report required by Rule 26.6 We also agree with the Southern District of New York that allowing a blanket exception for all employee expert testimony would "create a category of expert trial witness for whom no written disclosure is required" and should not be permitted. Day v. Consolidated Rail Corp., 1996 WL 257654 (S.D.N.Y.1996) at *2. The Day court stressed the Rule's "evident purpose of prompting full pre-trial disclosure of expert information" and noted that recent Rule amendments consistently broadened the scope of disclosure. Id. The court recognized that the Rule excluded at least some employees but construed that exception as limited to "experts who are testifying as fact witnesses, although they may also express some expert opinions." Id.7 The court found no justification for excusing any experts "called solely or principally to offer expert testimony," whether or not they were employees. Id. at *3. See also KW Plastics v. U.S. Can Co., 199 F.R.D. 687, 689 (M.D.Ala.2000) (quoting Day extensively); Minn. Mining & Manuf. Co., 177 F.R.D. 459, 460 (D.Minn. 1998) (same). 10 We agree with the reasoning of the Day court as applied to this case. Rodriguez had no connection to the specific events underlying this case apart from his preparation for this trial. He merely reviewed police reports and depositions provided by counsel and offered expert opinions on the level of force exhibited by Prieto and the appropriateness of the officers' response. He categorized these events by referring to the "use of force matrix," a visual chart used to train officers on the level of force appropriate to a particular act of resistance. He testified that Prieto's use of a belt would be "considered aggravated physical, which is the highest level of resistance an individual can give." R. at 148-53. He then concluded that the officers could "go to a deadly force response, according to this matrix." Id. In other words, he functioned exactly as an expert witness normally does, providing a technical evaluation of evidence he had reviewed in preparation for trial. Because he had no direct, personal knowledge of any of these facts, his role was simply not analogous to that of a treating physician, the example offered by the Advisory Committee of an employee exempt from the written report requirement. Fed. R. Civ. Proc. 26 advisory committee's note. 11 Having determined that the County was obliged to provide the expert witness report, we turn to the County's argument that nonetheless Prieto cannot prevail because the issue was waived during trial. After Plaintiff's counsel objected to Rodriguez's testimony, this exchange followed:8 12 THE COURT: I will let it in, but I will note your objection. 13 MR. PETIT: That without the expert compliance? 14 THE COURT: Well, I'm not saying he hasn't complied. 15 MR. PETIT: I'm alleging that he hasn't pursuant to 16.1K and Mr. Gressman is asserting he hasn't filed an affidavit. 16 MR. GRESSMAN: I can provide that now. 17 MR. PETIT: In that case and CV compliance, then we have no problem. 18 THE COURT: Okay. 19 MR. PETIT: Could we ask for a two-minute break to look at that CV? 20 MR. GRESSMAN: Sure. I have no problem. 21 THE COURT: How long will it take for you to get it to him? 22 MR. PETIT: Your Honor, I have it. 23 THE COURT: Okay. 24 R. at 148-46 to 148-47. 25 In the colloquy, Plaintiff's lawyer, Mr. Petit, can reasonably be understood to have withdrawn the objection he had raised. After defense counsel said he could immediately provide the requisite report,9 Petit replied: "In that case and CV compliance,10 then we have no problem." Plaintiff neither renewed his objection nor offered any new objection to the expert nature of Rodriguez's testimony. 26 Based on Mr. Petit's assertion that "we have no problem" with Rodriguez testifying if Defendants provided the summary and the CV, and the fact that Defendants provided those documents, the court could have reasonably concluded that Petit had withdrawn his objection. Under these facts, it cannot be said that the district court abused its discretion in allowing Rodriguez to testify. B. Directed verdict 27 Prieto also challenges the district court entry of a directed verdict in favor of the individual officers on the state battery claim. Under Florida law, an officer may not be held personally liable for any injury resulting from an act committed in the scope of his or her employment unless the officer acted with bad faith or with malicious purpose. Fla.Code § 768.28(9)(a). After resting his case at trial, Plaintiff conceded that the officers had been acting within the scope of their employment but argued that the jury could still find that they had acted with bad faith or malicious purpose. R. at 147-180 to 147-181. However, the court found as a matter of law that the officers had not acted with malice and directed a verdict in favor of the officers on the state claim. R. at 148-13. 28 Prieto relies primarily on McGhee v. Volusia County, 679 So.2d 729 (Fla.1996), in which an arresting officer allegedly grabbed a handcuffed suspect by the throat and repeatedly kicked him. The Florida Supreme Court held that the officer had been acting within the scope of his employment but that, in order to determine whether the county was liable, "the question must be put to the fact-finder whether Deputy Hernlen acted in bad faith, with malicious purpose, or in a manner exhibiting wanton or wilful disregard of human rights, safety, or property." Id. at 733. Prieto argues that this passage should have compelled the district court to submit the question of bad faith to the jury. 29 We do not agree with this reading of McGhee. Immediately after the quoted passage, the court explicitly disavowed the proposition that the question of bad faith must always be submitted to the fact-finder: "We emphasize, however, that this holding is based on the questions presented by the facts at hand. There may be cases in which summary dismissal would be proper based on different facts." Id. at 733 n. 7. Unlike the situation in McGhee, where the arrestee was handcuffed, the officers in the present case allege that Prieto posed an immediate threat and was swinging at them with his belt. Thus, McGhee did not foreclose the district court from directing a verdict in favor of the officers. 30 More importantly, even if the district court should have let the question go to the jury, any error was plainly harmless. In order to determine whether the County was liable for Prieto's injuries, the jury needed to determine whether Officers Malgor and Marckioli committed battery in the course of their employment. Fla. Code § 768.28(9)(a). The court instructed the jury that battery meant "the officers used force which exceeded that which was reasonably necessary under the circumstances to carry out his or their duties." R. at 137-10. The jury found that neither officer had "batter[ed] Mr. Prieto within the meaning of Florida law." R. at. 138-2. Because the jury found that neither officer had battered Prieto, they could not have found that either officer had battered Prieto with bad faith or malice. Plaintiff suffered no prejudice from the inability of the jury to make the additional determination. 31 AFFIRMED. Notes: 1 Florentino Prieto died in 2001. His brother Helenio now represents Florentino's estate 2 The district court also granted summary judgment on a § 1983 failure-to-train claim that Prieto later added against the County 3 In the absence of bad faith or malicious purpose, Florida law provides an exclusive remedy against the relevant governmental entity for any injury caused by an officer acting in the course of his employment. Fla.Code § 768.28(9)(a). Thus, the jury still needed to determine whether Malgor and Marckioli committed battery in the course of their employment in order to determine whether the County was liable for Prieto's injuries 4 Local Rule 16.1(K) provides: Where expert opinion evidence is to be offered at trial, summaries of the expert's anticipated testimony or written expert reports (including lists of the expert's qualifications to be offered at trial, publications and writings, style of case and name of court and judge in cases in which the expert has previously testified and the subject of that expert testimony, the substance of the facts and all opinions to which the expert is expected to testify, and a summary of the grounds for each opinion) shall be exchanged by the parties no later than 90 days prior to the pretrial conference.... S.D. Fla. Local Rule 16.1K. "This rule is based in part on the disclosure requirements of Federal Rule 26(a)(2), ... and in part on superseded Federal Rule 26(b)(4) concerning expert interrogatories." Id. cmt. Under the rule, "the expert witness information to be disclosed may be either a summary prepared by counsel or a report prepared by the expert (both of which are required to provide the information specified)." Id. Federal Rule of Civil Procedure 26 provides in relevant part: Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. Fed R. Civ. Proc. 26(a)(2)(B). 5 The amended witness list included the following entry: "Lt. Ivan Rodriguez, Miami-Dade Police Dept., Court Liaison Office, ... (expert) — who may testify as to the necessity, reasonableness and policies concerning the use of force and the arrest in this case." (R. at 12-2.) 6 Although Defendants contend that Rodriguez' duties "do not involve regularly testifying," Appellee Br. at 19, they also admit that Rodriguez normally "render[s] opinions on the propriety of police officers' action."Id. at 18. Rodriguez himself stated that he has "testified and been qualified in federal and state courts as an expert in use of force and police procedures." R. at 148-43. We also note that Defendants listed Rodriguez as affiliated with the Miami-Dade Police Department "Court Liaison Office." R. at 12. 7 As discussed below, after reviewing the record in this case, we do not find Rodriguez to have been a hybrid witness 8 Mr. Petit represents Prieto, while Mr. Gressman represents the officers and the County 9 Although Mr. Petit mentioned an "affidavit" immediately preceding Mr. Gressman's statement that "I can provide that now," the record strongly suggests that Mr. Gressman provided Mr. Petit with the required expert witness summary. First, Mr. Gressman had stated moments earlier that he had "a summary from him [Rodriguez] and this is what he was going to say." Second, Mr. Petit used the word "affidavit" in the context of describing why Rodriguez had failed to comply with Local Rule 16.1K, which requires a summary of the anticipated testimony. In any case, Mr. Petit examined the documents and withdrew his objection 10 "CV" was obviously a reference to Rodriguez's curriculum vitae COX, Circuit Judge, specially concurring: 32 I concur in the result, and I join that part of the court's opinion which concludes that Prieto waived any objection based on the Defendants' failure to disclose expert witness information about Rodriguez. I do not join that part of the opinion that discusses Fed.R.Civ.P. 26(a)(2)(B) and Fed.R.Civ.P. 37(c)(1) for two reasons. First, no objection was made in the district court based upon these rules; the only objection ever asserted in the district court was explicitly grounded upon the Southern District's Local Rule 16.1K, which is different from the federal rules.1 Second, having decided that any objection was waived, the discussion of Rule 26 and Rule 37 is pure dicta. 33 On the directed verdict issue, I think there was error in directing a verdict, but I agree that it was harmless. Notes: 1 When Prieto's attorney, Mr. Petit, voiced his objection, he referred only to the local rule: MR. PETIT: Judge, I have an objection pursuant to Rule 16.1K, and of course you are familiar with it, Judge. Mr. Rodriguez was previously listed as an expert by the county when we were dealing with no weapons policy. If you recall, Judge, that was part of the municipal 1993 action claim. He did prepare an affidavit as to that no weapons policy, but never filed any type of expert witness summary as required by 16.1K. Mr. Gressman is now calling him as a use of force expert, a totally distinct kind of situation. And in light of that, in light of the fact that he hasn't provided an expert witness summary as required by the rule, we would object to that testimony. THE COURT: Are you talking about local rules? MR. PETIT: Yes, Judge. (R.8 at 43-44.) In the subsequent discussion of the objection, Petit again referred to the same local rule, see id. at 45, and never referred to any other rule.

134 Pa. Commonwealth Ct. 617 (1990) 579 A.2d 1017 Renee GROOVER, Petitioner, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent. Commonwealth Court of Pennsylvania. Submitted July 20, 1990. Decided September 7, 1990. *618 Gerald Sullivan, Northwestern Legal Services, for petitioner. *619 Clifford F. Blaze, Deputy Chief Counsel, for respondent. John E. Lyncheski, with him, Jeffrey P. Bauman, Cohen & Grigsby, Pittsburgh, for intervenor, United Cerebral Palsy of Crawford, Venango and Clarion Counties, Inc. Before PALLADINO and BYER, JJ., and BARBIERI, Senior Judge. PALLADINO, Judge. Renee Groover (claimant) appeals an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision to deny her claim for benefits for willful misconduct pursuant to Section 402(e) of the Unemployment Compensation Law (Law).[1] We reverse. Claimant is employed by United Cerebral Palsy of Crawford, Venango and Clarion Counties, Inc. (employer). Claimant was suspended from her employment for 45 days for withholding information from her employer. Claimant filed a claim with the Office of Employment Security (OES) for unemployment benefits for the period of the suspension. OES denied the claim. Claimant appealed. After conducting a hearing, the referee made the following pertinent findings of fact: 2. On December 14, 1988, [claimant's] fellow employee made an obscene telephone call to the employer's office from the claimant's apartment. 3. Claimant was present when the call was made and was aware it was an obscene telephone call. 4. The employer accused an innocent person of making that obscene telephone call and unjustly discharged him in December of 1988. 5. Although the claimant was aware that an innocent employee had been unjustly discharged as a result of the obscene telephone call made from her apartment, she did not come forward to provide the employer with the information which could have cleared that innocent person. *620 6. On November 9, 1989, another employee who was present at the claimant's apartment when the obscene telephone call was made identified the actual person who made the call to the employer. 7. The claimant was contacted and subsequently admitted that she had withheld information from the employer which could have prevented the unjust discharge of an innocent co-worker. 8. The claimant was suspended from November 14, 1989 to December 30, 1989 for withholding that information from the employer. Thereafter, the referee concluded that the withholding of the information constituted a disregard of the standards of behavior the employer had a right to expect of claimant. Accordingly, the referee denied benefits based on willful misconduct. Claimant appealed to the Board which accepted the referee's findings and affirmed the denial of benefits for willful misconduct. On appeal to this court,[2] claimant raises two issues: (1) whether claimant committed willful misconduct; and (2) whether the Board incorrectly applied section 402(e) instead of section 3 of the Law.[3] As to the first issue, "willful misconduct" has been defined as "a wanton and willful disregard of an employer's interests, a deliberate violation of an employer's rules, a disregard of the standards of behavior which an employer can rightfully expect of an employee, or negligence manifesting culpability, wrongful intent, evil design or intentional and substantial disregard of an employer's interests or an employee's duties and obligations." Giglio v. Unemployment Compensation Board of Review, 126 Pa.Commonwealth *621 Ct. 471, 474-475, 560 A.2d 271, 272 (1989). A disregard of rightfully expected standards of behavior has been described as including a knowing falsehood or misrepresentation to an employer by an employee concerning an employee's work. Simonds v. Unemployment Compensation Board of Review, 112 Pa.Commonwealth Ct. 465, 535 A.2d 742 (1988). Whether claimant's conduct constitutes willful misconduct is a question of law and as such is subject to our review. Giglio. Claimant asserts that she was suspended for an act of omission and not for an act of misrepresentation. Claimant further states that she neither made nor encouraged the making of the obscene telephone call. Consequently, she argues that her conduct did not constitute willful misconduct. The Board asserts that common sense and reason indicate that an employee has a duty to inform her employer that it wrongfully fired an innocent co-worker for an act which she knows from firsthand knowledge that the accused co-worker did not commit. The Board argues that by withholding information claimant breached this duty and that this breach constitutes willful misconduct. Claimant's failure to report her co-worker's questionable acts to her employer was reprehensible and caused regrettable consequences. However, where it is alleged that an employee's actions breached a duty, this court's role is not to decide what the employee should have done, but rather what she was obligated by a duty to her employer to do. We have found no law, nor has any been supplied by counsel, to support the contention that an employee's knowledge of a co-worker's questionable acts creates a duty to report those acts to her employer. To impose such a duty, would require an employee with knowledge of a co-worker's questionable acts to either report the co-worker and alienate those whose acts did not constitute misconduct or to remain silent and risk suspension or discharge at the hands of an employer in whose judgment the acts did constitute misconduct. We conclude that the imposition of *622 such a duty is neither required by existing law nor consistent with sound judgment. Consequently, we hold that there is no such duty. Although we conclude that claimant has not breached a duty owed to employer, we must still decide if her conduct constituted a disregard of the standards of behavior which an employer can rightfully expect from an employee. This court has concluded that an employee's dishonesty constitutes a disregard of expected standards of behavior only where the employee's actions are affirmatively deceptive. See Zelonis v. Unemployment Compensation Board of Review, 39 Pa.Commonwealth Ct. 516, 395 A.2d 712 (1979) (employee lied to a supervisor as to the nature and source of a telephone call he received while on duty); Scott v. Unemployment Compensation Board of Review, 82 Pa.Commonwealth Ct. 113, 474 A.2d 426 (1984) (employee misrepresented in employment application that he possessed a college degree); Green v. Unemployment Compensation Board of Review, 87 Pa.Commonwealth Ct. 176, 486 A.2d 1052 (1985) (employee made false statements to obtain public assistance benefits and admitted to defrauding her employer); and Simonds (employee failed to promptly correct a mistake in her work product and misstated when she discovered the mistake to her supervisor). In the present case, it is not disputed that claimant neither participated in, nor encouraged, the obscene telephone call. There is also no suggestion in the record nor by the parties that claimant ever lied to conceal her co-worker's misconduct. Clearly, claimant has not affirmatively acted to deceive employer. We conclude that her failure to disclose information regarding a co-worker's misconduct does not constitute a disregard of expected standards of behavior, as a result, no willful misconduct has been established.[4] Accordingly, we reverse. *623 ORDER AND NOW, September 7, 1990, the order of the Unemployment Compensation Board of Review in the above-captioned matter is reversed. BYER, Judge, concurring. I join the majority opinion. Because the facts of this case are disturbing, I write separately to explain my reasons for joining the majority in reversing the Unemployment Compensation Board of Review. Ms. Groover's conduct offends my personal sense of ethics; however, that is not the issue. Instead, the narrow issue is whether Ms. Groover's conduct in not coming forward to inform her employer of the real culprit after the employer accused the wrong person constitutes "a disregard of the standards of behavior which an employer can rightfully expect of an employee. . . ." Giglio v. Unemployment Compensation Board of Review, 126 Pa.Commonwealth Ct. 471, 474, 560 A.2d 271, 272 (1989). This is a question of law. Ms. Groover was not employed in a management or supervisory position. Instead, she was a residential program worker, earning $5.21 per hour. As such, she owed no special duty to her employer, but only the ordinary duties of an employee. As tempting as it might be under these facts, I am not prepared to hold that an ordinary employee has a duty to "squeal" on a fellow employee, even where the employer has accused the wrong person of serious misconduct, at least in the absence of an express work rule which imposes such a duty. In our society, we generally do not impose duties to speak on our citizens. For example, a citizen has no legal duty to report a crime. Likewise, a citizen has no legal duty to come forward and "finger" a criminal even where the police have arrested an innocent person. I do not think an employer has the right to expect more of an ordinary employee. To hold otherwise, I fear, would create a workplace environment where employees constantly *624 must be either looking over their shoulders at their fellow workers, or running to management at the least hint of improper conduct by a fellow worker. I would find such a situation as intolerable as I find Ms. Groover's conduct offensive. My position might be different if the employee's disclosing information about a fellow worker would prevent serious injury to the employer. For example, an employee might have a duty to inform the employer if the employee knows a fellow worker is about to commit an act of sabotage or has contaminated a product. By contrast, this case involves only an employee's failure to speak concerning a juvenile prank, committed off employer's premises, which would not result in serious harm to employer. Faced with the choice of granting Ms. Groover unemployment compensation benefits notwithstanding my distaste for her remaining silent after her employer accused an innocent employee or imposing "Big Brother" in the workplace as a matter of law, I opt for the former.[1] NOTES [1] Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). [2] Our scope of review is limited to a determination of whether findings of fact are supported by substantial evidence, an error of law was committed or constitutional rights have been violated. Phoebus v. Unemployment Compensation Board of Review, 132 Pa.Commonwealth Ct. 518, 573 A.2d 649 (1990). [3] 43 P.S. § 752. The second issue in essence is whether claimant's conduct was work related in which case section 402(e) is applicable or non-work related in which case section 3 is applicable. [4] Because we conclude that claimant's conduct did not constitute willful misconduct, we need not consider the second issue of whether her conduct was work related. [1] This does not imply that employer acted improperly by firing Ms. Groover. I believe that employer was well within its rights to terminate her employment. Again, the narrow issue is whether she engaged in such conduct which, as a matter of law, disqualifies her from obtaining unemployment compensation benefits.

93 F.3d 445 24 Media L. Rep. 2307 Sandra PARKER, Individually, and as next friend of Dana M.Parker, and Dana M. Parker, Appellees,v.Rodney BOYER, Dan Dell, and Simon Risk, Appellants.Sandra PARKER, Individually, and as next friend of Dana M.Parker, and Dana M. Parker, Appellants,v.MULTI-MEDIA KSDK, INC., Appellee. Nos. 95-3988, 95-4075. United States Court of Appeals,Eighth Circuit. Submitted June 10, 1996.Decided Aug. 16, 1996.Rehearing and Suggestion for RehearingEn Banc DeniedSept. 4, 1996. Patricia A. Hageman, City Counselor's Office, argued, St. Louis, MO (Tyron A. Taborn and Edward J. Hanlon, on the brief), for appellants. Frank Susman, argued, St. Louis, MO (Gregory K. Allsberry and Wendy S. Brafman, on the brief), for appellee. Mary Ann L. Wymore, argued, St. Louis, MO (Gerald R. Ortbals and John E. Petite, on the brief) for appellee Multi-Media KSDK, Inc. Before RICHARD S. ARNOLD, Chief Judge, MORRIS SHEPPARD ARNOLD, Circuit Judge, and ROSENBAUM,* District Judge. MORRIS SHEPPARD ARNOLD, Circuit Judge. 1 Sandra and Dana Parker made claims under 42 U.S.C. § 1983 and under state law against police officers who conducted a search of their home. They made similar claims against a television station whose reporting crew entered the house after the police did. The district court granted summary judgment for the Parkers against three police officers on their fourth-amendment claims and granted summary judgment in favor of the television station. In light of the disposition of the federal claims the district court declined jurisdiction over the supplemental state-law claims. See Parker v. Clarke, 905 F.Supp. 638 (E.D.Mo.1995). The three police officers and the television station appealed to this court. We reverse, on grounds of qualified immunity, the district court's finding of liability against the officers. We affirm the district court's judgment in favor of the television station because the reporting crew was not acting under color of state law when it entered the Parkers' house. I. 2 We will summarize the district court's findings of fact, with which the parties seem to have no dispute. A reporter from KSDK, a television station in St. Louis, contacted the St. Louis police and told them that he was interested in developing a television news story about the police department's efforts to eradicate illegal weapons. Sometime later, the police told the reporter that a weapons investigation was in progress that he might be interested in covering. The investigation centered on the activities of one Travis Martin, a man who resided in a house in which Sandra and Dana Parker also lived. Sgt. Simon Risk later informed Officer Rodney Boyer that KSDK personnel would accompany him on his shift that night, and KSDK personnel rode to the scene in a police car with Officer Boyer and Officer Dan Dell. After detaining Mr. Martin outside, Sgt. Risk and six other officers, including Boyer and Dell, executed the search warrant at the Parkers' residence. They entered through an unlocked front door, and the KSDK personnel followed the police into the house. Although the police discovered two weapons and several substances believed to be cocaine, no charges were filed against Mr. Martin or anyone else as a result of the search. KSDK broadcast the tapes that it made at the Parkers' residence on several news programs. 3 As the district court noted, the police did not give the KSDK personnel any instructions or directions before the search, nor did the police impose any limitations on their conduct. Neither the police nor KSDK personnel sought or obtained the Parkers' permission to videotape the search or broadcast the resulting videotape. The district court also noted that the chief of police testified that his department's policy was to require the media to obtain permission to videotape private citizens whose houses were being searched. If such permission had not been obtained, he testified, the supervising officer on the scene was not supposed to allow the media to enter a private residence, because, the chief believed, such an entry would constitute a trespass. II. 4 We deal first with the Parkers' claims against the police officers. 5 Government officials are entitled to qualified immunity from suit for civil damages if their conduct does not violate clearly established federal rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Jones v. Coonce, 7 F.3d 1359, 1362 (8th Cir.1993). The issue here is whether reasonable police officers would have known that permitting a television crew to enter a house during the execution of a search warrant would violate a clearly established fourth-amendment right. Though we have no case on point, and the Supreme Court has not provided specific guidance on the question, most courts have rejected the argument that the United States Constitution forbids the media to encroach on a person's property while the police search it. Avenson v. Zegart, 577 F.Supp. 958 (D.Minn.1984); Moncrief v. Hanton, 10 Med. L. Rptr. 1620 (N.D.Ohio Jan.6, 1984); Higbee v. Times-Advocate, 5 Med. L. Rptr. 2372 (S.D.Cal. Jan. 9, 1980); Prahl v. Brosamle, 98 Wis.2d 130, 295 N.W.2d 768 (Wis.Ct.App.1980). On the other hand, a recent case held that clearly established constitutional law forbids the police to permit the media to enter a home during a search. Ayeni v. CBS, Inc., 848 F.Supp. 362 (E.D.N.Y.1994), aff'd, Ayeni v. Mottola, 35 F.3d 680 (2d Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1689, 131 L.Ed.2d 554 (1995); see also Buonocore v. Harris, 65 F.3d 347 (4th Cir.1995) (clearly established constitutional law prohibited police from bringing a telephone company employee into a home to conduct an independent general search for items not identified in any warrant). 6 In assessing claims of qualified immunity, we are of course required to examine the state of the relevant law at the time the officials committed the acts of which the plaintiffs complain. Harlow, 457 U.S. at 818-19, 102 S.Ct. at 2738; Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985). Because both Ayeni and Buonocore were decided after the police in this case executed their search, those cases cannot weigh in the balance against a finding of qualified immunity. Even if we believed that those two cases were entitled to consideration, they would appear to us to indicate at most only the beginnings of a trend in the law. Nor do we think it self-evident that the police offend general fourth-amendment principles when they allow members of the news media to enter someone's house during the execution of a search warrant. Accordingly, we cannot say that the kind of conduct in which police engaged in this case was a violation of a clearly established constitutional principle of which the police, at the time they executed their search warrant, should have been aware. The district court therefore erred in concluding that the police officers did not enjoy qualified immunity. III. 7 We turn now to the Parkers' claims against KSDK. 8 "The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.' " West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941)); Gentry v. City of Lee's Summit, 10 F.3d 1340, 1342 (8th Cir.1993). The requirement of state action in suits for alleged deprivation of civil rights "preserves an area of individual freedom by limiting the reach of federal law and federal judicial power." Lugar v. Edmondson Oil Co., 457 U.S. 922, 936, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982). The injury complained of must have been caused by the exercise of some right or privilege created by the state, by a rule of conduct imposed by the state, or by a person for whom the state is responsible. Id. at 937, 102 S.Ct. at 2753-54. The Parkers appear to argue only that KSDK exercised a right or privilege created by the state when they entered the house. 9 It is undisputed that KSDK acted independently of the police in deciding to enter the house and videotape the events there and that neither KSDK nor the police assisted the other in the performance of their separate and respective tasks. The KSDK personnel did not execute the search warrant and they entered the house after the police did. The television station was there for reasons of its own and was engaged in a mission entirely distinct from the one that brought the police to the house. Seizing an opportunity to trespass is not the same as invoking a right or privilege. We agree with the district court that "[a]t most, KSDK's acts were committed parallel to and contemporaneous with the police officers' exercise of privileges under state law in the execution of a lawfully obtained search warrant," 905 F.Supp. at 642, and that KSDK was not exercising a right or privilege created by the state when it decided to enter the Parkers' home to record the events taking place there. KSDK's entry into the Parkers' house and videotaping the events that occurred there was therefore not an act committed under color of state law. See Lugar, 457 U.S. at 936, 102 S.Ct. at 2753. IV. 10 For the foregoing reasons, we affirm the judgment of the district court in part, reverse it in part. 11 ROSENBAUM, District Judge, concurring specially. 12 I join the Court's opinion, but write separately to address the constitutional question underlying the issue of qualified immunity. In my view, our jurisprudence demands a first determination of whether the claimed constitutional right, in fact, exists. We have missed this required first step in the qualified immunity analysis. 13 This court has consistently ruled that, "[i]n order to determine whether a defendant is entitled to qualified immunity, we engage in a two-part analysis." Manzano v. South Dakota Dep't of Social Servs., 60 F.3d 505, 509 (8th Cir.1995) (citing Boyd v. Knox, 47 F.3d 966, 968 (8th Cir.1995)); see also Siegert v. Gilley, 500 U.S. 226, 231-32, 111 S.Ct. 1789, 1792-93, 114 L.Ed.2d 277 (1991). "First, we must determine whether the plaintiff has alleged the violation of a constitutional right." Manzano, 60 F.3d at 509. In my view, we have neglected this determination. It is not until we have made this required decision that we analyze whether such right was clearly established at the time of its alleged violation. Manzano, 60 F.3d at 509. 14 I would find, consistent with Ayeni v. Mottola, 35 F.3d 680, 686 (2d Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1689, 131 L.Ed.2d 554 (1995), that police officials executing a search warrant violate a resident's Fourth Amendment rights, when they admit representatives of the public media into a private citizen's home, without first securing the resident's express consent. 15 Having recognized this right, I would join the court and determine these officers did not violate a constitutional right which was clearly established at the time they allowed the television news crew to enter the Parkers' home. 16 RICHARD S. ARNOLD, Chief Judge, concurring in part and dissenting in part. 17 I join all but part III of the Court's opinion. With respect to the issue decided in that portion of the opinion, having to do with whether KSDK's employees were state actors for purposes of 42 U.S.C. § 1983, I respectfully dissent. In my view, the news crew acted in concert with the police in entering the Parkers' home. They were " 'willful participants[s] in joint activity with the State or its agents....' " Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970), quoting United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1156-57, 16 L.Ed.2d 267 (1966). The news crew came to the location with the police and could not have entered if the police had not done so first. They did not simply happen along the street at the time that a search was being conducted. * The HONORABLE JAMES M. ROSENBAUM, United States District Judge for the District of Minnesota, sitting by designation

FILED JANUARY 4, 2018 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 34703-6-111 Respondent, ) ) V. ) ) JOSE LUIS MATA, ) UNPUBLISHED OPINION ) Appellant. ) FEARING, C.J. -Jose Luis Mata asks for a new trial on charges that he possessed methamphetamine with the intent to deliver. He claims his trial counsel performed ineffectively when failing to request a lesser included offense jury instruction for the inferior crime of possession ofmethamphetamine only. We affirm his conviction because the trial evidence did not support a jury instruction for mere possession. We remand, nonetheless, for a hearing on the imposition of legal financial obligations. FACTS The story behind the prosecution of Jose Mata begins with law enforcement's apprehension of Christian Gonzalez. Christian Gonzalez later informed on Mata. No. 34703-6-III State v. Mata On April 14, 2016, Pasco Police Detective Jeremy Jones patrolled the streets of Pasco when he spotted Christian Gonzalez, then unknown to Jones, commit a bicycle infraction. Detective Jones signaled the bicyclist to stop and attempted to speak with Gonzalez, but, as Jones exited his patrol car, Gonzalez escaped on his bike. A chase ensued as Jones radioed police dispatch for assistance. Upon catching Gonzalez, Jones shoved him from the bike. Gonzalez escaped again, and the chase continued on foot. After a block and a half, Jones apprehended Gonzalez. In the meantime, other officers arrived at the location where Detective Jeremy Jones arrested Christian Gonzalez. Pasco Detective Chad Pettijohn detained Gonzalez and searched his person incident to arrest. Detective Pettijohn found a bag of methamphetamine in Gonzalez's pants back pocket and $200 on his person. Detective Jones asked Detective Nathan Carlisle to retrace and search Gonzalez's path. Detective Carlisle found methamphetamine in a large bag on the ground near where Jones shoved Gonzalez from the bicycle. The large bag contained smaller bags. Later another officer found a bag of methamphetamine inside a sock in Gonzalez's waistband. Eventually law enforcement weighed the amount of methamphetamine found in the respective bags. The bag found in the pants pocked weighed 16.78 grams. The bag found in the waistband contained 29 .69 grams of methamphetamine. The large bag on the ground held 350.53 grams of the controlled substance. Detective Jeremy Jones took Christian Gonzalez to the Franklin County jail. 2 No. 34703-6-III State v. Mata Because of the amount of methamphetamine captured, Jones also invited United States Drug Enforcement (DEA) Agent Andrew Corral to join him in interviewing Gonzalez about his possession of controlled substances. Andrew Corral and Jeremy Jones questioned Christian Gonzalez on April 14. Gonzalez boasted about a large amount of methamphetamine stored inside a garage. He specified that officers would find the drugs inside the garage wall's sheetrock and that officers could pull a rope attached to the wall in order to remove the drugs. Gonzalez utilized Google Maps on a detective's phone to identify the address of the garage, which identification introduces us to defendant Jose Mata. The address constituted the home of Jose Mata's parents. Mata lived inside the garage, which had been converted into a bedroom and living room. Gonzalez insisted that the officers would find drugs only in the garage and not inside the home. Gonzalez stated that no one in the Mata family knew of the presence of the methamphetamine. On the night of April 14, 2016, Pasco Police Department officers, including Detectives Jeremy Jones and Nathan Carlisle, along with DEA Agent Andrew Corral procured a search warrant for the Mata garage. Law enforcement went immediately to the Mata home. Jose Mata's mother and stepfather opened the front door and allowed the officers access inside the home. Meanwhile additional officers secured the perimeter of the home. Dogs in the backyard barked at the officers' presence, at which time Jose Mata exited the garage's large windowless window to discern the reason for the yelping dogs. 3 No. 34703-6-111 State v. Mata Officers detained Mata, who asked the officers to explain their presence. Detective Jones shrewdly responded with a question: "[w]hat does it say on the back of their vests?" Report of Proceedings (RP) (July 27, 2016) at 17. Mata read "DEA" and thoughtfully replied: "oh shit." RP (July 27, 2016) at 17. Law enforcement officers next searched inside the wall of the Mata garage. Officers found two "food saver" bags of methamphetamine taped together. Both bags contained smaller bags of methamphetamine similar to the small bags officers found on Christian Gonzalez when arresting him. Officers found another "food saver" bag of similar packaging near a couch and a mannequin inside the garage. The packaging coincided with the packaging that law enforcement found on the person of Christian Gonzalez and on the ground where Gonzalez fled. In total, officers seized six pounds of methamphetamine, with a street value of at least $20,000, from the garage. Officers also snatched, from the top drawer of a dresser in the middle of the garage, a digital scale with white residue thereon and, from another dresser against the wall, a heavily used methamphetamine pipe. Officers discovered no money in the garage or on Jose Mata's person. The police forwarded the bags to the crime laboratory for fingerprint analysis. Officers found no controlled substances on the person of Mata. During his arrest on April 14 and thereafter, Jose Mata declined to speak to officers. Christian Gonzalez, however, expanded his narrative during a law enforcement interview on the morning of April 15 at the Franklin County jail. Gonzalez stated the 4 No. 34703-6-III State v. Mata methamphetamine was manufactured in Mexico. He identified a copious drug trafficker in Tijuana, named Fabio. Fabio transferred the drugs to Huero, who drove the controlled substances from Mexico to Pasco. Throughout the April 15 law enforcement interview, Christian Gonzalez repeatedly requested the detectives for help in reducing his charges. Detectives promised to speak with prosecutors about his cooperation. Gonzalez repeated that Jose Mata did not distribute methamphetamine, but only stored the drugs. DEA Agent Andrew Corral's notes of the interview read: "Detectives Jones, TFO Task Force Officer Corral, myself, continued to speak to Gonzalez about the locations of narcotics, and Gonzalez stated that the family-Gonzalez stated that the family that lived at the residence where the narcotics were located had no knowledge of him hiding the narcotics there. Gonzalez also stated that had his friend that lives at the location did not have knowledge of the narcotics and that the friend had always been there-had always been there for him, for Gonzalez." RP (July 27, 2016) at 67. A later paragraph of Corral's notes recorded Gonzalez's comments: "Gonzalez again stated that the people that live at the residence do not have any knowledge that narcotics were there." RP (July 27, 2016) at 67. A third paragraph noted that officers asked Gonzalez again about Mata's role: "Gonzalez was again asked about Mata's involvement with narcotics trafficking, and Gonzalez said that he didn't know Joey [Mata] to deal drugs at all and that they just smoke together." 5 No. 34703-6-III State v. Mata RP (July 27, 2016) at 68. A fourth paragraph of Corral's report noted more questioning: "Gonzalez was again asked about Mata's involvement in narcotics trafficking, and again Gonzalez stated that he didn't know of Joey's involvement." RP (July 27, 2016) at 69. Detectives refused to believe Gonzalez's denial of Mata's participation in sales. The officers emphasized the importance of full disclosure for Gonzalez to "get consideration" for the federal narcotics charges he faced. Christian Gonzalez eventually changed his story and claimed that Jose Mata showed Gonzalez the hole in the wall, helped him place the methamphetamine bags inside the wall, and assisted in reinforcing the wall to further conceal the drugs. Gonzalez added that he handed Mata $20 to purchase the scale seized during the officers' execution of the warrant and he also gave Mata an ounce of methamphetamine for Mata's help. Gonzalez told officers that Mata helped sell methamphetamine at a Pasco motel. Law enforcement never corroborated Christian Gonzalez's claim, uttered after continuous pressure, that Jose Mata aided in hiding or selling the methamphetamine. The laboratory did not find Mata's fingerprints on the methamphetamine bags. Officers never found the ounce of methamphetamine that Mata supposedly received from Gonzalez. PROCEDURE The State of Washington charged Jose Luis Mata with unlawful possession of a controlled substance with intent to deliver. The prosecution proceeded to a jury trial. 6 No. 34 703-6-111 State v. Mata At trial, Detective Nathan Carlisle testified for the State of Washington. Detective Carlisle had worked in the Pasco Police Department's street crimes unit for five years. During his testimony, Carlisle described his involvement in executing the search warrant at Jose Mata's home. The State asked Carlisle about the scale found in the garage: "In your experience what are these scales used for?" RP (July 27, 2016) at 42. Detective Carlisle responded: "These digital scales are commonly used for narcotics and measuring up and dividing up for amounts for sale or use." RP (July 27, 2016) at 42 (emphasis added). DEA Agent Andrew Corral averred that the amount of methamphetamine found in the garage identified the presence of a person high in the drug trafficking strata. In the cross-examination of DEA Agent Andrew Corral, Jose Mata's counsel asked him to read portions of his written report, which detailed the events that transpired during the night of April 14 and the April 14 and 15 interviews of Christian Gonzalez. Agent Corral read the entries in his notes where Gonzalez repeatedly averred that Mata knew not of the methamphetamine stored in his garage. A forensic drug chemist testified and identified the seized drugs as methamphetamine. The State sought to admit, as exhibits, two pictures of Jose Mata's personal belongings. In objecting to the photographs' admission, Mata's counsel explained: MR. STOVERN: It is not necessary for them to show items 3 and 4 to prove dominion and control. They have already testified that Joey Mata lives there. They've already got a prescription bottle with his name on it. It's not our intention to--to say that he does not live there .... 7 No. 34703-6-111 State v. Mata MR. DOWNER: As Mr. Chow stated, I disagree, your Honor. It's just one of the many things that led officers to believe that, one, Mr. Mata was staying there, and there's many items of his, his personal effects throughout there. MR. STOVERN: We'll stipulate that he lived in the garage on the record right now. MR. CHOW: We have the burden. I don't think the defense gets to tell us how to do our job. RP (July 27, 2016) at 14-15. The trial court sustained the objection to admission of the photographs while commenting that he accepted Jose Mata's stipulation that he lived in the garage. Neither Christian Gonzalez nor Jose Mata testified at trial. Mata called no witnesses. During closing arguments, defense counsel underscored that Christian Gonzalez, not Jose Mata, faced federal charges for trafficking in methamphetamine. Counsel emphasized that Gonzalez repeatedly told law enforcement that Mata knew not of the methamphetamine stashed in the garage wall. Counsel emphasized that Gonzalez accused Jose Mata of planning to deliver the methamphetamine only after four denials and only after Gonzalez concluded he must implicate Mata in order to lessen his federal charges or sentence. Counsel highlighted the facts that law enforcement found no drugs or money on Mata and no fingerprints of Mata on the methamphetamine bags. Counsel highlighted that Gonzalez failed to testify in person such that the jury heard his story only by second hand or third hand. 8 No. 34703-6-III State v. Mata The trial court instructed the jury on the elements of unlawful possession of a controlled substance with intent to deliver. The instructions included a definition of "possession" as "having a substance in one's custody or control. It may be either actual or constructive." Clerk's Papers (CP) at 60. Finally, the court instructed the jury on intent to deliver: Deliver or delivery means the actual or constructive or attempted transfer of a controlled substance from one person to another. CP at 63. Defense counsel did not request an instruction for possession only. The jury found Jose Mata guilty of the charge of unlawful possession with intent to deliver. Mata faced a standard range sentence of five to ten years. The trial court sentenced him to seven and one-half years. During the sentencing hearing, the trial court asked defense counsel if he had spoken to Jose Mata about his ability to pay fines, restitution, and fees. Counsel responded: MR. STOVERN: I know currently he has a lot of [legal financial obligations] LFO's from previous matters. THE COURT: That doesn't have anything to do with whether he can work or not. MR. STOVERN: He is applying for [Social Security Insurance] SSI, but that's gonna be delayed. THE COURT: I will assess the appropriate fines and he can address those later with the LFO clerks. RP (Aug. 16, 2016) at 4. The court signed boilerplate language findings in the judgment and sentence that read: "the defendant is an adult and is not disabled and therefore has the 9 No. 34703-6-III State v. Mata ability or likely future ability to pay the legal financial obligations" including the defendant's financial resources and the likelihood that the defendant's status will change. CP at 78. LAW AND ANALYSIS Ineffective Assistance of Counsel And Lesser Crime Jury Instruction Although Jose Mata did not testify, under Mata's version of the events, he never intended to deliver the drugs found inside his garage bedroom wall. Mata protests that only Christian Gonzalez planned to distribute the methamphetamine and that Gonzalez merely stored the substance at Mata's house. He emphasizes that Gonzalez implicated him only after threats and promises from law enforcement. Mata contends that, at most, he is guilty of possession of controlled substances. Since simple possession of a controlled substance is a lesser included offense of possession with the intent to deliver, Mata argues he was entitled to such an instruction permitting the jury to convict him of the inferior crime. He faults his attorney for failing to propose the lesser included offense instruction. He asks us to reverse his conviction and remand for a new trial based on ineffective assistance of counsel. The Sixth Amendment to the United States Constitution guarantees an accused the right to legal counsel in criminal trials. Washington's Constitution also grants an accused in a criminal prosecution the right to appear by counsel. WASH. CONST. art. I,§ 22. 10 No. 34703-6-III State v. Mata The right to counsel under the state and federal constitutions is coextensive. State v. Long, 104 Wri.2d 285,288, 705 P.2d 245 (1985). The constitution secures the accused more than an attorney who sits next to him during trial. To meaningfully protect an accused's right to counsel, the constitution demands effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The law recognizes the right to effective assistance not for its own sake, but for its effect on the ability of the accused to receive a fair trial. State v. Wehbe, 122 Wn. App. 683, 694, 94 P.3d 994 (2004). State and federal decisions follow the teachings and legal test announced in the United States Supreme Court's seminal decision of Strickland v. Washington, 466 U.S. 668. A claim of ineffective assistance of counsel requires a showing that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. at 687. If one prong of the test fails, we need not address the remaining prong. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). For an accused to show ineffective assistance of counsel for failing to request a jury instruction, the accused must establish entitlement to the instruction. State v. Johnston, 143 Wn. App. 1, 21, 177 P.3d 1127 (2007). Therefore, we first review whether the trial court should have, assuming Jose Mata requested one, delivered a lesser included jury instruction for the inferior crime of possession of a controlled substance. Because 11 No. 34703-6-III State v. Mata we hold that the evidence did not support a conviction for possession without an intent to deliver, we do not further address whether defense counsel's failure to seek the instruction constituted ineffective assistance of counsel. RCW 10.61.006 codifies the right to a lesser included offense jury instruction. The statute reads: In all other cases the defendant may be found guilty of an offense the commission of which is necessarily included within that with which he or she is charged in the indictment or information. Washington's leading decision on lesser included offenses jury instruction is State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978). In Workman, the state high court instituted a two-tine test to determine whether a party is entitled to an instruction on a lesser included offense. Under the first prong of the test, labeled the legal prong, the court asks whether the lesser included offense consists solely of elements necessary to conviction of the greater, charged offense. State v. Condon, 182 Wn.2d 307, 316, 343 P.3d 357 (2015). If one may commit the greater offense without committing the lesser offense, the latter is not an included crime. State v. Roybal, 82 Wn.2d 577, 583, 512 P.2d 718 ( 1973 ). Under the second or factual prong, the court asks whether the evidence presented in the case supports an inference that only the lesser offense was committed, to the exclusion of the greater, charged offense. State v. Condon, 182 Wn.2d at 316. The requesting party is entitled to the lesser included offense instruction when the answer to both questions is yes. State v. Condon, 182 Wn.2d at 3 16. 12 No. 34703-6-III State v. Mata The State impliedly concedes that Jose Mata fulfills the legal prong of the Workman test. Simple possession of a controlled substance is a lesser included offense of the crime of possession with the intent to deliver. State v. Hassan, 151 Wn. App. 209, 216,211 P.3d 441 (2009); State v. Harris, 14 Wn. App. 414,418,542 P.2d 122 (1975). Jose Mata must still satisfy the factual prong of the Workman test. An accused fulfills the factual prong when the evidence permits a jury to rationally find the accused guilty of the lesser offense and acquit him of the greater. State v. Fernandez-Medina, 141 Wn.2d 448,455, 6 P.3d 1150 (2000). In making this determination, the court must consider all evidence presented at trial by either party. State v. Fernandez-Medina, 141 Wn.2d at 455-56. The court must also view the evidence in the light most favorable to the party requesting the lesser included offense instruction. State v. Condon, 182 Wn.2d at 321. We base our decision on the following principles applied to the second or factual prong of the Workman test. The evidence presented in the case must support an inference that the accused committed only the lesser offense to the exclusion of the greater, charged offense. State v. Condon, 182 Wn.2d at 316 (2015). The evidence must affirmatively establish the defendant's theory of the case. State v. Fernandez-Medina, 141 Wn.2d at 456. The accused does not prevail by merely contending the jury may disbelieve the State's evidence. State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990). In examining whether Jose Mata was entitled to a lesser included offense jury 13 No. 34703-6-III State v. Mata instruction, we outline the differing stories. Since Jose Mata remained silent and exercised his right not to testify, the facts come from the statements rendered by Christian Gonzalez to law enforcement and the physical facts as observed by law enforcement officers. The physical facts showed a large amount of methamphetamine inside the wall of a garage that functioned as the living quarters of Jose Mata. The amount prompted the involvement of federal agents. A bag of methamphetamine lay near a couch in the middle of the garage and a scale used to measure drugs rested in a dresser drawer. Mata crawled through the garage's open window when he heard barking dogs and used an obscenity when he observed the presence of DEA agents. Under Christian Gonzalez's first story about Jose Mata's participation in the crime, Gonzalez insisted that his friend, Mata, knew not of the presence of the methamphetamine in the garage and did not assist in the methamphetamine operation. Gonzalez provided no explanation as to how someone stashed the methamphetamine inside the wall and left a bag of methamphetamine near the couch without the knowledge of the occupant of the garage. Later Gonzalez told a variant story, under which Mata did not deal drugs but the two friends smoked together. Gonzalez did not identify the substance that the two smoked. During his third version of Jose Mata's participation, Christian Gonzalez stated that Jose Mata knew of the presence of the methamphetamine, identified the location of hole in the garage wall used for stashing drugs, and assisted in storing the 14 No. 34703-6-III State v. Mata methamphetamine in the wall. When relating this later version of the story, Gonzalez added that Mata assisted in selling methamphetamine at a Pasco hotel and purchased the scale. During cross-examination of law enforcement officers and during closing argument, defense counsel underscored that officers found no drugs or money on Jose Mata and officers never found the ounce of methamphetamine that Mata supposedly received from Gonzalez as payment for Mata's assistance. From Christian Gonzalez's first story we glean that Jose Mata knew not of the presence of methamphetamine in the garage. Under this theory, Mata would enjoy the defense of unwitting possession to both a charge of possession with intent to distribute and a charge of possession without intent. State v. Staley, 123 Wn.2d 794, 799, 872 P.2d 502 ( 1994 ); City of Kennewick v. Day, 142 Wn.2d 1, 11, 11 P .3d 304 (2000). Thus, under story one, the evidence did not support a conviction for possession alone or a jury instruction to gamer the conviction. According to the second story, Mata "smoked" with Gonzalez, but still knew not of the presence of methamphetamine in the garage. Mata could possess without the intent to deliver a substance that he smoked. Nevertheless, the jury heard no testimony about the substance smoked. A detective testified that law enforcement found a used methamphetamine pipe, but the State did not link Gonzalez's testimony of smoking to the pipe. In a prosecution for unlawful possession, the State must establish beyond a reasonable doubt the nature of the substance. State v. Staley, 123 Wn.2d at 798; State v. 15 No. 34703-6-111 State v. Mata Pierce, 134 Wn. App. 763, 774, 142 P.3d 610 (2006). The jury might guess that the smoked substance was methamphetamine, but a jury may not convict on speculation. United States v. Michel, 446 F.3d 1122, 1127 (10th Cir. 2006). In the third version of Christian Gonzalez's story, Gonzalez indicated that he gave Jose Mata an ounce of methamphetamine, but this transfer of an ounce for personal use was integral to Mata's assistance in secreting and selling the unlawful drug. We must view the totality of the evidence when determining the suitability of a jury instruction. We are not free to believe a portion of the story and discount an undivided portion of the same story. Thus, the only evidence of Gonzalez possessing a controlled substance is within the context of storing, hiding, and marketing the substance. For this reason, the affirmative evidence only supported a finding of possession with an intent to deliver. Jose Mata does not argue evidence supported a jury instruction for possession without an intent to distribute based on his alleged smoking with Christian Gonzalez or his allegedly receiving an ounce of methamphetamine from Gonzalez in payment for services. To the contrary, he claims the absence of evidence to confirm his possession of the ounce. Mata instead, when arguing the facts supported a lesser included offense instruction, highlights the evidence that he controlled the garage and officers found methamphetamine in the garage. He contends this actual or constructive possession of the methamphetamine could convict him solely of possession. We disagree. Mata's argument ignores the legal implications of his dominion over the methamphetamine 16 No. 34703-6-III State v. Mata found in the garage. RCW 69.50.401 proscribes: ( 1) Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance. RCW 69.50.101 declares: (g) "Deliver" or "delivery" means the actual or constructive transfer from one person to another of a substance, whether or not there is an agency relationship. Under the crime of possession with intent to deliver, the State need not show a sale or even a delivery of a controlled substance, only an intent to deliver at some time in the past or future. State v. Atsbeha, 142 Wn.2d 904, 921, 16 P.3d 626 (2001); State v. Vike, 125 Wn.2d 407, 411-12, 885 P.2d 824 (1994). Possession of a controlled substance, without more, fails to establish an inference of intent to deliver. State v. Hagler, 74 Wn. App. 232, 235, 872 P.2d 85 (1994). Nevertheless, Mata stipulated that he possessed dominion and control over the garage. Since Jose Mata controlled the garage, the possession of the methamphetamine necessarily passed to and from Mata and Christian Gonzalez or someone else involved in the sale of drugs. A transfer entails relinquishing control to another. State v. Martinez, 123 Wn. App. 841, 847, 99 P.3d 418 (2004). Thus, at some point, Mata participated in a delivery. He presented no testimony that he intended for personal use all six pounds of methamphetamine, a powerful stimulant, embedded in his garage. 17 No. 34703-6-III State v. Mata Generally, the State must present one factor, in addition to possession and suggestive of sale, to establish an inference of intent to deliver. State v. Todd, 101 Wn. App. 945,953, 6 P.3d 86 (2000), overruled by State v. Rangel-Reyes, 119 Wn. App. 494, 81 P.3d 157 (2003). In the case on appeal, the State presented evidence of an excessive wad of methamphetamine, a scale to weigh individual portions of the unlawful drug, and unique packaging. In State v. Simpson, 22 Wn. App. 572, 575, 590 P.2d 1276 (1979), this court considered the quantity of drugs and nature of packaging to support an inference of possession with intent to deliver. Foreign cases recognize the presence of a scale as evidence of intent to distribute the controlled substance. State v. Purvis, 51, 215 (La. App. 2 Cir. 4/15/17) 217 So. 3d 620, 624; Beard v. State, 318 Ga. App. 128, 130, 733 S.E.2d 426 (2012); State v. Leyva, 229 Or. App. 479, 485, 211 P.3d 968 (2009); People v. Deluna, 334 Ill. App. 3d 1, 777 N.E.2d 581, 602, 267 Ill. Dec. 778 (2002); State v. Ross, 49 S.W.3d 833, 846 (Tenn. 2001); Herbert v. State, 136 Md. App. 458, 766 A.2d 190, 192 (2001 ). Law enforcement officers found six pounds of methamphetamine in the garage compartment, while Washington law considers even one ounce a large amount of a controlled substance. State v. Lopez, 79 Wn. App. 755, 769, 904 P.2d 1179 (1995). Jose Mata's permission to allow storage of Christian Gonzalez's stock in trade of methamphetamine alone establishes possession with the intent to deliver, not simply possess10n. In United States v. Valencia, 907 F.2d 671,674 (7th Cir. 1990), defendant 18 No. 34703~6-III State v. Mata Ivan Martinez built a twenty-four by twenty-four inch storage compartment for his associate Jose Valencia, who marketed cocaine. Although the court noted that officers found cash on Martinez's person, the court also affirmed the conviction on the basis of construction of the storage compartment. Legal Financial Obligations Jose Mata challenges the imposition of $5,700 in discretionary legal financial obligations. He did not object to the imposition before the trial court. This court is not required to grant review, but may exercise its discretion to do so. State v. Blazina, 182 Wn.2d 827, 834-35, 344 P.3d 680 (2015). In Blazina, our Supreme Court stated that each appellate court must make its own decision to accept discretionary review. State v. Blazina, 182 Wn.2d at 835. The court continued that national and local cries for reform of broken financial obligations systems encourage review of the merits of the financial obligations. State v. Blazina, 182 Wn.2d at 835. The State of Washington does not object to this court's review of Jose Mata's second assignment of error. A majority of this court accepts review. $5,000 of Jose Mata's $5,700 in discretionary legal financial obligations result from two different discretionary fines. The trial court imposed a methamphetamine cleanup fine of $3,000. The court also imposed a $2,000 fine pursuant to RCW 9A.20.021(l)(b), which allows for imposition of fines for punishment of class B felonies. This fine does not constitute "costs" for the purposes of the mandate in RCW 19 No. 34703-6-III State v. Mata 10.01.160(3), that directs the trial court to conduct an inquiry into the defendant's ability to pay. State v. Clark, 191 Wn. App. 369, 376, 362 P.3d 309 (2015). Therefore, we affirm $5,000 of the fines. Jose Mata cites to a Supreme Court order from 2017, in State v. Clark, 187 Wn.2d 1009, 388 P.3d 487 (2017), wherein the court remanded the case to the trial court for an · individualized inquiry into the ability to pay. Nevertheless, the remand concerned a different Clark case from 2016 so it is not relevant to the inquiry here. State v. Clark, 195 Wn. App. 868, 381 P .3d 198 (2016), review granted in part by 187 Wn.2d 1009, 3 88, P.3d 487 (2017). The trial court imposed costs of $600 fee for a court appointed attorney and $100 as a crime lab fee. These costs fall under the mandate of RCW 10.01.160, by which the court must assess the offender's ability to pay. The trial court conducted no inquiry into Jose Mata's ability to pay. In these circumstances, we would normally remand to the trial court to conduct an individualized inquiry into the offender's financial capability to pay costs. Because the trial court judge has retired and the amount of the costs at issue is only $700, we order the vacation of $700 in costs without any further hearing. CONCLUSIONS We affirm Jose Mata's conviction for possession of methamphetamine with the intent to deliver the controlled substance. We direct a remand of the case to the trial 20 No. 34703-6-III State v. Mata court to vacate $700 in legal financial obligations. Otherwise, we affirm the costs imposed by the trial court. We deny the State costs on appeal. . A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. Fear,ing, C.J. WE CONCUR: Siddoway, J. Pennell, J. 21 

367 F.2d 334 125 U.S.App.D.C. 108 TRAVEL CONSULTANTS, INC., Appellant,v.TRAVEL MANAGEMENT CORPORATION, Appellee. No. 19878. United States Court of Appeals District of Columbia Circuit. Argued May 11, 1966.Decided Sept. 28, 1966. Mr. Worth Rowley, Washington, D.C., for appellant. Mr. Lenox G. Cooper, Washington, D.C., also entered an appearance for appellant. Mr. Lucien Hilmer, Washington, D.C., with whom Mr. J. H. Krug, Washington, D.C., was on the brief, for appellee. Before BASTIAN, Senior Circuit Judge, and BURGER and LEVENTHAL, Circuit Judges. LEVENTHAL, Circuit Judge: 1 Appellant Travel Consultants, Inc., (Consultants) is a District of Columbia travel agency. Appellee Travel Management Corp. (Management) is a Delaware corporation authorized to do business in the District of Columbia. On August 7, 1962, three agreements were entered into which Consultants says, and we will assume, constitute an integrated series of agreements for the purpose of co-ordinating the two businesses. 2 In the Stock Purchase Agreement, Consultants agreed to purchase 50,000 shares of Management for $100,000. In the Sales Agreement, Consultants designated Management as its wholesale agent for the placement of travel services sold by Consultants, in Washington or elsewhere, with provision for Management to share in the profits of Consultants. Under the 'Employment Agreement' Mr. N. Sidney Nyhus, the founder and principal employee of Consultants, was hired by Management on a full-time basis in an executive capacity. 3 The Sales Agreement contained this arbitration clause: 4 10. Any controversy or claim arising out of, or in connection with this Agreement or the breach thereof shall be determined by arbitration pursuant to the rules then obtaining of the American Arbitration Association and the laws of the District of Columbia. Such arbitration shall be held in the District if Columbia. 5 The other agreements contained no arbitration clause. 6 On August 3, 1965, Management brought this action in the District Court for specific performance of the Stock Purchase Agreement, alleging that Consultants had defaulted in its installment payments, and that Management had no adequate remedy at law. On the same day Management instituted arbitration proceedings against Consultants under the Sales Agreement, alleging various breaches of the agreement and seeking an accounting, damages and specific performance. 7 In the court action, the answer of Consultants denied that Management was entitled to specific performance of the Stock Purchase Agreement. Consultants also interposed a 'Second Defense and Counterclaim,' which alleged that the three agreements of August 7, 1962 were interdependent,1 that each was 'entered into in consideration of and reliance upon the other two Agreements;' that after termination of the Employment Agreement by mutual consent of Management and Nyhus, Management had been unable to perform its obligations under the Sales Agreement, and that this default terminated the obligations of Consultants under the Stock Purchase Agreement; and that because of the interdependency of the Agreements, the issues in the lawsuit and the arbitration proceeding were the same, so that arbitration should be stayed pending the court action. As counterclaimant Consultants prayed as follows: 8 a. That the Court order an accounting between the parties to this action so that their respective obligations to one another under the Stock Purchase Agreement and the Sales Agreement and the termination of said Agreements may be fully determined and adjudicated; 9 b. That the defendant be awarded his damages for the plaintiff's nonperformance of its obligations to defendant under the Sales Agreement, as aforesaid; 10 c. That the plaintiff be restrained and enjoined from taking any further action seeking to enforce the Stock Purchase Agreement and the Sales Agreement; and 11 d. That the defendant be granted such other and further relief as to the Court seems meet and justice may require. 12 Management's reply to the counterclaim interposed the defense that any claim of Consultants based on the Sales Agreement was referable to arbitration. Management moved under 3 of the Arbitration Act, 9 U.S.C. 3, to stay proceedings on Consultants' second defense and counterclaim 'insofar as it raises issues, claims and controversies under the Sales Agreement,' Consultants filed a counter-motion to stay the arbitration pendente lite. The District Court granted Management's motion and denied Consultants' motion. 13 Management contends that this court has no jurisdiction to hear the appeal filed by Consultants. Admittedly, the District Court's order is not an appealable final decision within the meaning of 28 U.S.C. 1291. The question is whether jurisdiction over the appeal lies under 28 U.S.C. 1292(a)(1), which permits appeals from 'interlocutory orders * * * granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions * * *.' In a series of decisions culminating in Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233 (1955), the Supreme Court has held that some stays by trial courts of court proceedings pending arbitration amount to 'injunctions' for the purpose of 1292(a)(1). Where the stay sought is of an action that would have been an action at law before the fusion of law and equity, the grant or denial of such stay is appealable;2 where the order stays an action that would have been brought in equity before the merger, the order is not appealable.3 The theory is that the stay, if sought of a law action, is analogous to a chancellor enjoining proceedings in the law court, a separate forum, whereas a stay of an equitable action represents merely an ordering of judicial business in a single proceeding in equity. This residue of the historic law-equity distinction has been sharply criticized.4 But Baltimore Contractors makes clear that the Supreme Court appreciated that 'the incongruity of taking jurisdiction from a stay in a law type and denying jurisdiction in an equity type proceedings springs from the persistence of outmoded procedural differentiations.' The Court was aware that 'simplification would follow from an assumption or denial of jurisdiction in both.' Yet the Court concluded the distinction was rooted in the precedents and should be followed. 348 U.S. at 184-185, 75 S.Ct. 249, 254. 14 And so to determine jurisdiction we must ascertain whether the order appealed from was one relating to an action at law or in equity. Management's action for specific performance of the Stock Purchase Agreement is equitable. But the order stays proceedings on Consultants' second defense and counterclaim. In that pleading Consultants did essentially two things: First, it interposed a defense to Management's equitable action, on the theory that its obligations under the Stock Purchase Agreement were terminated when Management failed to perform its obligations under the Sales Agreement. Second, it set out a counterclaim based upon Management's alleged breach of the Sales Agreement. Consultants' defense, though based upon its claims under the Sales Agreement, is clearly, as a responsive pleading, part and parcel of the equity suit brought by Management. Insofar as the District Court's order stays the proceeding on this defense pending arbitration, the order is a stay in and of an equitable proceeding that is not appealable under the Baltimore Contractors rule. 15 The counterclaim, however, seems to us to be essentially an action at law, for breach of the Sales Agreement. Consultants sought damages and demanded a jury trial. This action was not divested of its character as an action at law because Consultants also asked for an accounting of the parties' respective obligations under the two Agreements, as well as 'such other and further relief as to the Court seems meet and justice may require.' Appealability of an order restraining a legal action is, we think, governed by the same principles whether the legal claim is asserted by counterclaim or in an initial action. We conclude that the order staying the counterclaim pending arbitration is appealable under 1292(a)(1). 16 We are aware of the anomaly in taking jurisdiction of the appeal from one part of the order but not of the appeal of the other part. This ensues from the premise of Baltimore Contractors. There may be cases where the legal action set forth in a pleading is so subordinate as to require that it be overlooked for purposes of denying an interlocutory appeal. See Alexander v. Pacific Maritime Ass'n, supra note 3. Here, however, Consultants presents a distinct action for damages under the Sales Agreement. We believe it our duty to persist with the anomalous rule unless and until it is changed by Congress or the Supreme Court. The anomaly may be mitigated by recourse to the provisions added by Congress in 1958, 28 U.S.C. 1292(b), whereby the courts may permit appeal of the entire order and not merely the portion appealable as of right. 17 On the merits we are in agreement with the District Court. The issues raised by the counterclaim are committed to arbitration by the arbitration clause of the Sales Agreement. That clause, set out above, is extremely broad, covering 'any controversy or claim arising out of, or inconnection with this Agreement or the breach thereof.' We see no reason for reading into the simultaneously executed Stock Agreement, which contains no arbitration clause, any qualification upon the parties' obligation to arbitrate disputes under the Sales Agreement. Whether the agreements are independent or interdependent is immaterial for purposes of determining whether Consultants was bound to arbitrate its claims under the Sales Agreement. Consultants cannot escape the effect of the arbitration clause by arguing that the Sales Agreement questions are affected by issues under the Employment Agreement, or that the arbitration of the Sales Agreement questions will affect the resolution of issues in the litigation under the Stock Purchase Agreement. Neither the arbitration clause itself, nor the stay of the counterclaim, prevents Consultants from pursuing its theory that the three agreements of August 7, 1962, are interdependent. However, its argument that Management defaulted on the Sales Agreement when it terminated the Employment Agreement must be presented in the arbitration proceeding under the Sales Agreement. Consultants may present to the court its theory that Management's breach of the Sales Agreement excused the failure of Consultants to perform under the Stock Purchase Agreement. In granting Management's motion for stay, the District Judge stated that the allegations of Consultants with respect to interdependence 'are at variance with the written contracts.' It is not certain whether or not he intended to foredoom Consultants' defense completely. Since this relates to the defense to the action for specific performance, and not to the counterclaim, the issue is not before us now, and Consultants' rights in that respect are not touched by our decision. 18 Consultants complains of the burden of pursuing two actions concurrently in two different forums, and asks for a ruling that either all or none of the actions be referred to arbitration. That burden falls on Consultants because it signed two different agreements with the same party, one requiring arbitration, and the other containing no arbitration provision. Consultants shouldered that burden voluntarily, and we see no basis for judicial interposition. 19 Insofar as the order appealed from stays Consultants' conterclaim pending arbitration under the Sales Agreement and denies Consultants' motion to enjoin arbitration, it is affirmed. Insofar as the order stays proceedings on Consultants' defense to Management's action for specific performance on the Stock Purchase Agreement, this court lacks jurisdiction and expresses no opinion; the appeal from that part of the order is dismissed. 20 It is so ordered. 1 Consultants alleged that: The Sales Agreement was commercially impossible of performance by the plaintiff (Management) but for the coordinated administration of it through the personal service of Mr. Nyhus, as provided by the Employment Agreement, because of Mr. Nyhus' specific familiarity and expertness in the business operations of the defendant (Consultants). The Stock Purchase Agreement looked to the defendant's (Consultants) profits under Mr. Nyhus' executive direction, as both a source of funds for the defendant's (Consultants) purchase of stock and the measure of its obligation to make certain purchases. 2 E.g., Ettelson v. Metropolitan Life Ins. Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176 (1942); Enelow v. New York Life Ins. Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440 (1935); Council of Western Elec. Technical Employees v. Western Elec. Co., 283 F.2d 892 (2d Cir. 1956) 3 E.g., Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 75 S.Ct. 249 (1955); City of Morgantown v. Royal Ins. Co., 337 U.S. 254, 69 S.Ct. 1067, 93 L.Ed. 1347 (1949); Alexander v. Pacific Maritime Ass'n, 332 F.2d 266 (9th Cir.), cert. denied, 379 U.S. 882, 85 S.Ct. 150, 13 L.Ed. 88 (1964); Kirschner v. West Co., 300 F.2d 133 (3d Cir. 1962) 4 See 7A MOORE, FEDERAL PRACTICE 1292, at JC-424-27 (2d ed. 1966)

124 Pa. Commonwealth Ct. 344 (1989) 556 A.2d 479 Johnstown Redevelopment Authority, Petitioner v. Commonwealth of Pennsylvania, Pennsylvania Human Relations Commission, Respondent. No. 2690 C.D. 1987. Commonwealth Court of Pennsylvania. Argued May 23, 1988. March 22, 1989. Argued May 23, 1988, before Judges CRAIG and McGINLEY, and Senior Judge NARICK, sitting as a panel of three. *345 William W. Barbin, Solicitor, for petitioner. Theresa Homisak, Counsel, with her, Francine Ostrovsky, Assistant Chief Counsel, and Elisabeth S. Shuster, Chief Counsel, for respondent. OPINION BY JUDGE McGINLEY, March 22, 1989: Johnstown Redevelopment Authority (Authority) appeals an order of the Pennsylvania Human Relations Commission (Commission) which ordered the Authority to cease discrimination on the basis of race and to pay Eula Morris (Morris) a lump sum of $22,265.98 plus interest. On April 25, 1983, Morris, a 53 year old black female, filed a complaint against the Authority alleging that the Authority violated Section 5(a) of the Pennsylvania Human Relations Act (Act),[1] by refusing to hire her because of her race. The complaint was investigated by the Commission and a probable cause finding was made. Thereafter, attempts to amicably resolve the matter were unsuccessful. On February 18, 1987, the hearing examiner conducted a public hearing and subsequently recommended a decision in favor of Morris concluding that Morris had presented a prima facie case of disparate treatment discrimination which the Authority failed to properly rebut. The Commission adopted the findings, conclusions, opinion and recommendation of the hearing examiner and entered a final order directing the Authority to cease and desist from discriminating on the basis of race and to pay $22,265.98 plus interest to Morris as back pay. The Authority now appeals to our Court. *346 The Commission made the following pertinent Findings of Fact: 3. For the 3 year period between 1977 to 1980, the Complainant worked as a Secretary for a local church with such duties as answering phones, maintaining financial records, recording meetings, typing stencils and running a mimeograph machine. (N.T. 11) 4. From December 23, 1980 to July 27, 1981, the Complainant worked as a Secretary for a flood relief project called the Rifle Program where she primarily processed claims for reimbursement for flood damages. (N.T. 12) 5. In July 1981, the Complainant applied and was hired for a Clerk/Typist position with the Respondent. (N.T. 12, 14; C.E. 1) 6. The Complainant's general duties remained the same as the duties she performed when employed with the Rifle Program. (N.T. 13) 7. Although the Complainant's primary job responsibility remained processing flood damage claims, at some point during the Complainant's employment, she was required to assist the Respondent's switchboard operator. (N.T. 13) 8. Between December 1981, and August 1982, the Complainant and other secretaries took turns operating the switchboard when the switchboard operator was either off or at lunch. (N.T. 15, 28) 9. While employed by the Respondent, the Complainant received no complaints regarding her work, instead she was complimented. (N.T. 16) 10. On August 3, 1982, the Complainant was laid off. (N.T. 17) *347 11. On February 21, 23, and 25, 1983, the Johnstown Tribune-Democrat published a notice announcing that the Respondent would be distributing applications for the position of Switchboard Operator/Typist. (C.E. 6) 12. The newspaper announcement listed the qualifications for Switchboard operator Typist as: high school graduate or equivalent, one year experience as office clerical/recorder, switchboard exper- [sic] and typing of at least 40 words per minutes. [sic] (C.E. 6) 13. Shorthand ability was not a qualification requirement for [sic] the position. (N.T. 44, 49) 14. The Respondent's governing body was composed for five board members. (C.E. 5) 15. At a regularly scheduled meeting of the board, board member Gentile asked if prior employees had been contacted regarding the Switchboard Operator/Typist opening. (N.T. 42) 16. Despite board member Gentile's concern, the Respondent simply accepted applications from anyone, thereby providing former employees with no special advantage. (N.T. 42) 17. On March 1, 1983, the Complainant submitted an application for the Switchboard Operator/Typist position. (C.E. 4) 18. The Respondent received 43 applications for the position of Switchboard Operator/Typist: Thirty-seven applicants were White, six were Black. (N.T. 98) 19. The Respondent's Executive Director, Ronald Repak; the Administration Manager, Nancy Herald; and the Comptroller, William Meske, collectively *348 reviewed the 43 applications and recommended that four applicants be interviewed. (N.T. 46, 47, 64) 20. The Complainant was not selected to be interviewed. (N.T. 53) 21. Repak, Herald, and Meske based their selections totally on the information contained in the application forms received by the Respondent. (N.T. 66) 22. Applicants were eliminated from consideration if their application was either incomplete or contained insufficient information upon which to evaluate the applicants. (N.T. 67) 23. The Complainant's application was not incomplete and did contain sufficient information upon which to evaluate it. (N.T. 68) 24. Morris met the required qualifications for the position of Switchboard Operator/Typist. (N.T. 57) 25. Both Herald and Meske knew the Complainant prior to March 1983 because they were also Respondent employees and had worked with the Complainant prior to her layoff in August 1982. (N.T. 29, 30, 69, 73) 26. During the Public Hearing, Herald was specifically given an opportunity to compare the Complainant's application with the four individuals selected for interviews and to articulate a reason why the Complainant's application was rejected. (N.T. 79) 27. Herald stated that she could not remember why the Complainant was not selected. (N.T. 79, 80) *349 28. Deborah Kerr, the person recommended by the Respondent's Executive Director, Administrative Manager, and Comptroller and hired by the board for the Switchboard Operator/Typist position was White. (N.T. 57, 82) 29. Neither Kerr nor the three others selected to be interviewed had prior work experience with the Respondent. (N.T. 55, 56, 57) 30. The position of Switchboard Operator/Typist commenced on April 5, 1983 at a beginning salary of $7,020.00 per year. (C.E. 7) 31. After the Complainant was not hired, she unsuccessfully attempted to find other employment. (N.T. 19) 32. The Complainant testified that after December 1985, she was no longer able to work. (N.T. 19). (Findings of Fact of the Commission, October 28, 1987 at 2-5.)[2] The Authority argues that several of the Commission's findings of fact are unsupported by substantial evidence;[3] that the Commission failed to make findings as to all material issues of fact raised by the evidence;[4]*350 that the Commission erred in its construction of a prima facie case of disparate treatment discrimination; that the Commission erred in its application of the rebuttable presumption arising from presentation of a prima facie case; and, finally, that the Authority is cloaked with governmental immunity and therefore liability may not be imposed.[5] Our scope of review herein is limited to a determination of whether there was a violation of constitutional rights, an error of law, or whether the findings of fact necessary to support the adjudication are supported by substantial evidence. Harrisburg School District v. Pennsylvania Human Relations Commission, 77 Pa. Commonwealth Ct. 594, 466 A.2d 760 (1983). The task of weighing the evidence, both direct and circumstantial, to credit and discredit testimony, to draw inferences and make ultimate findings of fact as to whether a violation of the Act occurred is for the Commission. Pennsylvania State Police v. Pennsylvania Human Relations Commission, 116 Pa. Commonwealth Ct. 89, 542 A.2d 595 (1988). Of course, the Commission is a recognized expert in discrimination matters whose judgment will not be lightly substituted. See Orweco Frocks v. Pennsylvania Human Relations Commission, 113 Pa. Commonwealth Ct. 333, 537 A.2d 897 (1988). In employment discrimination cases, a complainant is first required to establish a prima facie case of discrimination. The Pennsylvania Supreme Court in General Electric Corp. v. Pennsylvania Human Relations Commission, 469 Pa. 292, 365 A.2d 649 (1976) adopted the *351 United States Supreme Court's analysis in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973) (a race based refusal to hire case) for establishing a prima facie case. This analysis requires the following: (1) the complainant belongs to a racial minority; (2) he applied for a job for which the employer was seeking applicants; (3) despite his qualifications, he was not hired; and (4) after the rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications. McDonnell-Douglas at 802; General Electric Corp., 469 Pa. at 304-306, 365 A.2d at 655-656. This prima facie test is adaptable to accommodate differences in the nature of the discrimination alleged. Allegheny Housing Rehabilitation Corp. v. Pennsylvania Human Relations Commission, 516 Pa. 124, 532 A.2d 315 (1987). "The form it takes, however, must be appropriate to its function, which is to `eliminate[] the most common nondiscriminatory reasons' for the employer's action." Allegheny Housing, 516 Pa. at 129, 532 A.2d at 318 quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). In the case sub judice, the Commission set forth the following criteria which Morris was required to show in order to establish a prima facie case: (1) that Morris was a member of a racial minority; (2) that Morris applied for and was qualified for a job for which the Authority was seeking applicants; (3) that Morris was rejected; and (4) that the rejection was under circumstances which give rise to an inference of discrimination. (See Conclusion of Law No. 5 of the Commission, October 28, 1987, at 6.) The Authority contends that Morris' prima facie case is flawed because the Commission did not require Morris to produce evidence that she was the most qualified applicant for the position. However, in General Electric Corp., the Pennsylvania Supreme Court held that the *352 "best able and most competent" clause of Section 5(a) of the Act is an expression of the business necessity doctrine, the purpose of which is to protect employers from having to select employees who do not meet their qualification standards. General Electric Corp., 469 Pa. at 306-307, 365 A.2d at 656-57. Therefore, the burden of proving that a complainant is not the best able and most competent is on the employer. Id. Our Supreme Court recently stated in Allegheny Housing that the burden of establishing a prima facie case is not an onerous one. The Court explained: This is because the nature of the burden that `shifts' to the defendant when a prima facie case is established is simply to produce evidence of a `legitimate, non-discriminatory reason' for the discharge. . . . If such evidence is presented, the question for the Commission is whether, on all the evidence produced, the plaintiff has persuaded it by a preponderance of the evidence that the employer intentionally discriminated against her. Whether the plaintiff must eliminate a certain non-discriminatory reason as part of making a prima facie case, or discredit the evidence of that same reason produced by the employer after plaintiff's prima facie case has been made, the result is the same; the plaintiff must persuade the factfinder by a preponderance of the evidence. (Citations omitted.) Allegheny Housing, 516 Pa. at 129-130, 532 A.2d at 318. In Allegheny Housing, the Supreme Court further explained the evidentiary guidelines to be followed in employment discrimination cases: Nothing about the Human Relations Act removes its operation from the bedrock concept of our *353 jurisprudence that one who alleges wrongdoing must supply the proof. The stated analysis is no more than an aid to evaluating the proof. If the plaintiff produces sufficient evidence that, if believed and otherwise unexplained, indicates that more likely than not discrimination has occurred, the defendant must be heard in response. Absent a response, the `presumption' of discrimination arising from the plaintiff's prima facie case stands determinative of the factual issue of the case. In other words, if the employer rests without producing evidence, the plaintiff must prevail if he or she has produced sufficient evidence to make out a prima facie case. If, however, the defendant offers a non-discriminatory explanation for the dismissal, the presumption drops from the case. As in any other civil litigation, the issue is joined, and the entire body of evidence produced by each side stands before the tribunal to be evaluated according to the preponderance standard: Has the plaintiff proven discrimination by a preponderance of the evidence? Stated otherwise, once the defendant offers evidence from which the trier of fact could rationally conclude that the decision was not discriminatorily motivated, the trier of fact must then `decide which party's explanation of the employer's motivation it believes'. . . . The plaintiff is, of course, free to present evidence and argument that the explanation offered by the employer is not worthy of belief or is otherwise inadequate in order to persuade the tribunal that her evidence does preponderate to prove discrimination. She is not, however, entitled to be aided *354 by a presumption of discrimination against which the employer's proof must `measure up.' (Citation omitted.) Allegheny Housing, 516 Pa. at 131, 532 A.2d at 319. Thus, Morris must initially produce sufficient evidence that, if believed, indicates that more likely than not discrimination has occurred. Allegheny Housing. In the matter herein, Findings of Fact Nos. 1-25 and 28-30, as set forth herein, are undisputed. The Commission found that these facts establish a prima facie case of discrimination, thereby putting the Authority in a position to offer a legitimate, nondiscriminatory reason for its action. The Authority argues the Commission erred in its initial determination that Morris established a prima facie case. We agree. The Commission stated: Therefore, having established what the Complaint must first show, we readily see that the Complainant has met her initial burden. There is no question that she belongs to a racial minority, and there is no doubt that she applied for an open position. The Respondent also concedes that the Complainant met the qualifications of the job. Equally clear is the fact that the Complainant was rejected. The fourth element of the prima facie showing has been met since the Complainant presented evidence that she had been a prior employee of the Respondent who had in fact done the exact job almost on a daily basis for approximately 9 months. None of the four applicants chosen for an interview had ever worked for the Respondent before. Added to this simple fact are the additional circumstances. That two of the reviewing committee members had known the Complainant while she was a prior employee and the Complainant *355 had received no complaints and was complimented on her work performance. Commission Opinion at 20 (emphasis added). Morris argues that because two committee members knew she previously worked with the Authority as a switchboard operator and because she fulfilled all the minimum qualifications, she was the best able and most qualified for this job. However, the record indicates that Morris was not formerly employed by the Authority as a switchboard operator/typist. Morris testified she was a clerk/typist whose primary job responsibilities involved the processing of reimbursement claims. (N.T. at 11-13.) Furthermore, although two of the members of the selection committee knew Morris was previously employed by the Authority, Morris testified the members did not previously supervise her and, also that the members did not have the opportunity to evaluate her work performance. (N.T. at 26-27.) Moreover, the clear and uncontroverted testimony of Herald was that only the information on the 1983 job applications was considered by the committee in selecting applicants to be interviewed, and much of the information Morris testified to before the Commission was not contained in her 1983 application. Authority personnel files were not reviewed; former employees were given no preference; nor were they treated differently in any way. (N.T. at 62-63.) Morris argues, and the Commission found, that unspecified persons complimented her work during her former employment with the Authority. However, this has no bearing on the issue of whether the committee discriminated against Morris because this information was not presented to or considered by the committee in selecting applicants to be interviewed. Morris' testimony regarding specific incidents of her work experience have no bearing on the issue of whether the selection committee discriminated against *356 Morris because Morris merely described her duties as "typing, filing, worked switchboard, kept financial records, took applications." (See Morris' application at C-1a of the Reproduced Record (RR); Action Industries v. Pennsylvania Human Relations Commission, 102 Pa. Commonwealth Ct. 382, 518 A.2d 610 (1986).) Morris has not established any duty on the part of the Authority to review personnel records, review prior employment applications, or provide hiring preferences to former employees. (See N.T. at 44.) Practically, we recognize that with the large number of applications received, there is no impropriety attached to a review procedure that is restricted to the submitted applications and the information contained therein. The Commission concluded that a reasonable inference of discrimination arose based solely upon a determination that Morris possessed a qualification which the other successful applicants did not, to wit, former employment with the Authority. In Farrell Area School District v. Deiger, 88 Pa. Commonwealth Ct. 431, 439, 490 A.2d 474, 479 (1985) our Court held that: [I]n order for a white male to establish a prima facie case of employment discrimination, he `must prove by a preponderance of the evidence that [he] applied for an available position for which [he] was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.' Burdine, 450 U.S. at 253, [101 S.Ct. at 1094]. The primary reason for having Complainant establish a prima facie case is to eliminate the most obvious nondiscriminatory reasons why he was not hired. Id. at 253-54. In Farrell, Deiger, a white male, successfully convinced the Commission that the circumstances surrounding *357 a company's failure to hire him gave rise to an inference of unlawful discrimination. On appeal our Court disagreed. After review of the record the Court concluded that it was not established that Dieger and Ms. Woodbridge, the successful applicant, were treated differently by the company during the employee selection process. The Court determined that Deiger failed to meet his initial burden to establish a prima facie case. It explained: Although Complainant had a college degree in elementary education and several more credits in early childhood education than did Ms. Woodbridge, the latter's college degree in art education did not render her unqualified. Indeed, DPW approved her as qualified to fill the position. Furthermore, a review of the transcripts of the two applicants shows that Ms. Woodbridge had the better academic record. The most that we can say, on this record and the facts that were found by the Commission, is that the applicants were differently qualified for the position which they sought. `It has always been the rule that an employer may be selective about the persons he employs as long as he does not unlawfully discriminate among the applicants.' Philadelphia Electric Co. v. Pennsylvania Human Relations Commission, 68 Pa. Commonwealth Ct. 212, 227, 448 A.2d 701, 708 (1982) (emphasis in original). Farrell, 88 Pa. Commonwealth Ct. at 440, 490 A.2d at 479 (emphasis in original). Accordingly, in the case sub judice, the fact that Morris was once employed by the Authority does not establish a reasonable inference of discrimination by the Authority and Morris has failed to *358 meet her initial burden to establish a prima facie case. Allegheny Housing. We reverse the decision of the commission. ORDER AND NOW, this 22nd day of March, 1989, the order of the Pennsylvania Human Relations Commission dated October 28, 1987, at Docket No. E-25389D is hereby reversed. Judge MacPHAIL did not participate in the decision in this case. DISSENTING OPINION BY JUDGE CRAIG: This court should not approve a principle which would permit an employer to ignore available information concerning a formerly employed minority applicant's qualifications so as to thwart that applicant from being able to establish a prima facie case of discrimination with respect to refusal to rehire. Under Allegheny Housing Rehabilitation Corp. v. Pennsylvania Human Relations Commission, 516 Pa. 124, 532 A.2d 315 (1987), and General Electric Corp. v. Pennsylvania Human Relations Commission, 469 Pa. 292, 365 A.2d 649 (1976), the elements of a prima facie case consist of proof that the complainant (1) belongs to a racial minority, (2) applied for a job opening, (3) was rejected despite being qualified and thereby (4) was subjected to discrimination as against other applicants. With such a prima facie case established, the complainant prevails if the employer does not meet its burden of supplying a satisfactory explanation for the rejection. The key question in this case is whether the complainant proved that she was rejected despite being qualified for a receptionist position. As the Pennsylvania Human Relations Commission found, the complainant, as a former employee laid off through no fault of her own, *359 had demonstrated her qualifications for the Switchboard Operator Typist position because, while formerly employed as a typist, she had actually performed the switchboard operator functions in a satisfactory manner. The employer authority, through its personnel, necessarily possessed knowledge of the complainant's previous qualifying experience. This court should not permit the authority's hiring committee to restrict the scope of its own vision by holding that: [T]here is no impropriety attached to a review procedure that is restricted to the submitted applications and the information contained therein. We should not confer our imprimatur on any hiring procedure which can be "restricted" by the hiring body to considerations of its own choosing. Moreover, the complainant's application, as this court quotes it, included the statement that she had indeed "worked switchboard" in the past. Although briefly stated, that information did more than put the hiring body on notice to investigate further; it informed the hiring body that the identified applicant, who was personally known as a former employee to two members of that body (Finding of Fact No. 25), had previous experience which was quite appropriate, because it was in precisely the kind of work involved. Because the commission's findings are supported by substantial evidence, because the complainant's prima facie case was complete, and because the employer offered no explanation for the rejection other than an acknowledgment that the hiring body subjected itself to vision-narrowing blinders, the commission's decision should be affirmed. NOTES [1] Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §955(a). [2] Within the Commission's opinion, and throughout this opinion, "N.T." refers to Notes of Testimony, February 18, 1987; "C.E." refers to Complainant's (Morris') Exhibits; "F.F." refers to the Commission's Findings of Fact, October 28, 1987. [3] These findings are: those regarding the testimony of Nancy Herald (Herald), the Secretary of the Authority's Board and the Administrative Manager, concerning the selection procedures and the relative qualifications of the applicants; Morris' testimony concerning her job search activities after the challenged employment action; and Morris' testimony concerning when she became unable to work. [4] Specifically, the Authority argues that the Commission failed to make findings regarding the credibility of the witnesses, the relative qualifications of Morris and those selected to be interviewed for the position instead of Morris, and the effects of the Authority's affirmative action plan on the hiring procedures followed in this case. [5] The Authority has waived this governmental immunity argument for failure to raise this argument before the Commission. See Pa. R.A.P. 1551.

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 13-2473 ___________ BILLIE JO RICHARDS, Appellant v. CENTRE COUNTY TRANSPORTATION AUTHORITY ____________________________________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 4-08-cv-01947) District Judge: Honorable Matthew W. Brann ____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) September 23, 2013 Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges (Opinion filed: September 24, 2013) ___________ OPINION ___________ PER CURIAM Billie Jo Richards, proceeding in forma pauperis, appeals pro se the denial of a motion pursuant to Federal Rule of Civil Procedure 60(b) to vacate the judgment against her. For the reasons that follow, we will affirm. 1  In 2008, Richards filed a suit alleging retaliatory discharge by her former employer, Centre Area Transportation Authority (CATA). Summary judgment was granted in favor of CATA on January 25, 2010. Richards appealed, and we affirmed. Richards v. Centre Area Transp., No. 10-1586, 414 F. App’x 501 (3d Cir. 2011). Over two years later, Richards filed a motion for relief from the judgment on the basis of newly discovered evidence, fraud, and “to prevent a manifest miscarriage of justice.” The District Court denied the motion in large part because it was untimely. See Fed. R. Civ. P. 60(c)(1) (one year limitation on new evidence and fraud claims under Fed. R. Civ. P. 60(b)(1)-(3)). The District Court also held that the proposed new evidence, even if timely, would not be a sufficient ground justifying relief.1 Richards moved for reconsideration, the District Court denied the motion, and this timely appeal followed. Summary judgment was granted on the basis that Richards had not shown that CATA’s stated reasons for firing her were pretextual. The new evidence that Richards wished to offer concerned a male CATA employee who was disciplined, discharged, but then ultimately reinstated. Richards claimed the male employee’s misconduct was similar to that which resulted in her termination. Richards argues that summary judgment would not have been granted in CATA’s favor if she had been able show a male colleague was treated more favorably. “We review grants or denials of relief under Rule 60(b) . . . under an abuse of discretion standard.” Budget Blinds, Inc. v. White, 536 F.3d 244, 251 (3d Cir. 2008). 1 Though the District Court did not cite a particular part of Rule 60 in this discussion, we understand it to be denying Rule 60(b)(6) relief. 2 We agree with the District Court that Richards’s claims of fraud and new evidence are untimely, and we affirm the denial of Rule 60(b) relief on that basis. Motions on the basis of newly discovered evidence and fraud must be made within a year of the entry of judgment. See Fed. R. Civ. P. 60(c)(1). Here, judgment was entered on January 25, 2010 and Richards’s motion was filed on March 12, 2013. As to the remainder of the District Court’s analysis,2 the District Court did not abuse its discretion in determining that Richards had not shown anything close to the “extraordinary circumstances” required to vacate a judgment under Rule 60(b)(6). Budget Blinds, 536 F.3d at 251 (citation omitted). We note that Richards appears to be making arguments that are best suited for relief under Rule 60(b)(2), but relief under that section must be sought within one year from the entry of judgment. Fed. R. Civ. P. 60(c)(1). As noted above, the District Court correctly concluded that Richards filed her motion too late for consideration under Rule (60(b)(2). Further, Rule 60(b)(6) cannot be used “as a means by which the time limitations of 60(b)(1)-(3) may be circumvented.” Stradley v. Cortez, 518 F.2d 488, 493 (3d Cir. 1975); see also Arrieta v. Battaglia, 461 F.3d 861, 865 (7th Cir. 2006) (“if the asserted ground for relief falls within one of the enumerated grounds for relief subject to the one-year time limit of Rule 60(b), relief under the residual provision of rule 60(b)(6) is not available.”). 2 We note that a motion pursuant to Fed. R. Civ. P. 60(b)(6) can also be untimely, as Fed. R. Civ. P. 60(c)(1) requires that such a motion be filed “within a reasonable time.” See Moolenaar v. Gov’t of V.I., 822 F.2d 1342, 1348 (3d Cir. 1987) (two years was not “a reasonable time.”). However, the District Court did not discuss this timeliness issue. 3  Even if consideration of Richards’s “new evidence” were possible now, she would not prevail. First, Richards never explains when or how she received the “new evidence” she wishes to use, and, as CATA points out, Richards does not even say explicitly that this evidence was not provided in discovery during the case. Second, despite Richards’s contention that the new evidence was in a sealed personnel file, no explanation is offered for why this evidence would not have been discoverable when she was originally litigating this case with the aid of counsel. Third, as the District Court thoroughly explained, the proposed evidence would not have changed the outcome of the original litigation. The alleged comparator was not “similarly situated” because of the different “nature of the misconduct engaged in” that formed the articulated reason for termination. See Burks v. Wis. Dep’t of Transp., 464 F.3d 744, 751 (7th Cir. 2006) (holding comparator must be comparable in misconduct). Specifically, as the District emphasized, the proposed comparator’s misconduct was only a subset of Richards’s. The District Court noted that there were both fewer incidents of misconduct in the other employee’s case and, unlike Richards’s alleged misconduct, an absence of incidents that suggested potential violence. Richards argues that the District Court should have vacated the judgment against her because CATA perpetrated a fraud on the court. Whatever the extent of such a power independent of Rule 60(b), Richards has come nowhere near the showing requisite for such relief. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (citing Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944)). The “fraud” she alleges is that CATA’s reasons for firing her were, in fact, pretextual. See Fuentes v. Perskie, 32 F.3d 4 759, 764 (3d Cir. 1994). While a finding that articulated reasons for termination are pretextual certainly looks somewhat like a finding of fraud on the court, they are not the same thing. See Herring v. U.S., 424 F.3d 384, 386-87 (3d Cir. 2005) (discussing the elements of and “demanding standard of proof” for a claim of fraud upon the court). Here, as appellee argues, Richards has neglected even to allege that the comparison evidence was even withheld, much less wrongfully so. Finally, CATA asks us to impose damages and costs for the filing of a frivolous appeal under Federal Rule of Appellate Procedure 38. An appeal is deemed frivolous if it is “wholly without merit.” Quiroga v. Hasbro, Inc., 943 F.2d 346, 347 (3d Cir. 1991). This determination is objective, focusing “on the merits of the appeal regardless of good or bad faith.” Hilmon Co. v. Hyatt Int’l, 899 F.2d 250, 253 (3d Cir. 1990) (quotation omitted). Here, the clarity of the timeliness issue puts this case within the category of frivolous appeals. However, even where an appeal is frivolous, we have discretion to award damages. Fed. R. App. P. 38 (“If a court of appeals determines that an appeal is frivolous, it may . . . award just damages”) (emphasis added); see also Huck on behalf of Sea Air Shuttle Corp. v. Dawson, 106 F.3d 45, 52 (3d Cir. 1997) (finding an appeal “frivolous” within the meaning of Fed. R. App. P. 38 without entering any award of damages). We would be hesitant to award such damages where, as appellee admits, the financial resources of the appellant are such as to make an award of damages a dead letter. See Nagle v. Alspach, 8 F.3d 141, 145 (3d Cir. 1993) (stating that discouraging the frivolous filer is a motivation for awarding damages for filing a frivolous appeal). Further, while we might reach a different result if Richards had filed this appeal with the 5 aid of counsel, “an unrepresented litigant should not be punished with damages for [her] failure to appreciate subtleties in legal arguments.” Beam v. Bauer, 383 F.3d 106, 109 (3d Cir. 2004) (citing Hughes v. Rowe, 449 U.S. 5, 15 (1980)). For the reasons given, we affirm the judgment of the District Court. Appellee’s motion pursuant to Federal Rule of Appellate Procedure 38 is denied. 6 

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO . 97-786 PATRICK F. D'AMICO , APPELLANT , V. ANTHONY J. PRINCIPI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before HOLDAWAY, IVERS, and GREENE, Judges. ORDER In an opinion dated March 23, 1999, the Court affirmed the February 27, 1997, decision of the Board of Veterans' Appeals (BVA) that concluded that the appellant had failed to submit new and material evidence to reopen a previously disallowed claim for VA benefits. D'Amico v. West, 12 Vet.App. 264 (1999). The appellant subsequently perfected an appeal to the United States Court of Appeals for the Federal Circuit (Federal Circuit). On April 7, 2000, the Federal Circuit remanded this appeal in order for the Court to address certain questions regarding the application of the "new and material" standard of 38 U.S.C. § 5108 and the duty to assist. D'Amico v. West, 209 F.3d 1322 (Fed. Cir. 2000). On April 16, 2001, the Court vacated the BVA decision and remanded the matter in light of the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106- 475, 114 Stat. 2096 (Nov. 9, 2000). D'Amico v. Principi, 14 Vet.App. 321 (2001). The appellant, through counsel, subsequently filed an application for attorney fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. §2412(d)(1)(B). In this case, the appellant's claim was remanded solely in light of the VCAA's enactment. Because the remand thus was not predicated upon administrative error, the appellant is not a prevailing party under the merits theory. See Vaughn v. Principi, 15 Vet.App. 277, 279 (2001) (per curiam order), appeal docketed, No. 02-7019 (Fed. Cir. Nov. 29, 2001); Sumner v. Principi, 15 Vet.App. 256, 264-65 (2001) (en banc), appeal docketed, No. 02-7082 (Fed. Cir. Dec. 27, 2001). Moreover, the catalyst and inevitable-victory tests are not viable means to attain prevailing-party status. See Vaughn, supra; Thayer v. Principi, 15 Vet.App. 204, 211 (2001), appeal docketed, No. 02-7012 (Fed. Cir. Nov. 29, 2001). Accordingly, the appellant cannot be considered a prevailing party for EAJA purposes. Upon consideration of the foregoing, it is ORDERED the appellant's EAJA application is DENIED. DATED: July 9, 2002 PER CURIAM. 

972 A.2d 860 (2009) 409 Md. 46 VANMETER v. BURSON. Pet. Docket No. 162. Court of Appeals of Maryland. Denied June 17, 2009. Petition for writ of certiorari denied.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-99-00191-CR James Milligan, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT NO. 99-0319, HONORABLE BOB PERKINS, JUDGE PRESIDING Appellant James Milligan appeals his conviction for the offense of failure to register as a sex offender. See Tex. Code Crim. Proc. Ann. art. 62.10 (West Supp. 2000). We will affirm. BACKGROUND On July 21, 1995, appellant was convicted of indecency with a child, a "reportable conviction" creating a duty to register with local law enforcement as a sex offender under the sex offender registration program. See id. arts. 62.01(5)(A), .02 (West Supp. 2000). While on parole, appellant registered his residence with the Austin Police Department ("APD") as an address on Tahoe Drive. On December 12, 1998, appellant received notice of eviction. Evidence at trial revealed that appellant left the Tahoe Drive address on or before December 31, 1998. Appellant informed his parole officer of the eviction but failed to notify APD. On January 8, 1999, appellant's parole officer informed Texas Department of Public Safety special crimes investigator Carlton Scott that appellant had moved and subsequently failed to re-register with APD. Scott went to the Tahoe Drive address, confirmed that appellant had been evicted, and learned from neighbors that appellant had been gone for approximately two weeks. Scott also checked with APD to verify that appellant had not registered a new address. On January 13, 1999, appellant was arrested for failing to re-register. Appellant admitted he had not updated his registration and told Scott that his current residence was on Blue Crest. Appellant was indicted on February 4, 1999 for the offense of failure to register as a sex offender. The indictment, in relevant part, reads as follows: James Milligan, on or about the 12th day of January A.D. 1999, and before the presentment of this indictment, in the County of Travis, and State of Texas, did then and there intentionally and knowingly fail to register as a sex offender with the Austin Police Department to wit: defendant was convicted of Indecency with a Child on July 21, 1995, in Cause no. 219-80375-95 in the 219th District Court of Collin County, Texas, and Defendant changed his residence within the municipality of Austin, Texas, but failed to provide written notice to the Austin Police Department of that change within seven days of said change of address . . . . Appellant waived his right to a jury and was convicted and sentenced to ten months in the state jail. DISCUSSION Appellant brings three points of error asserting two basic arguments. Appellant argues that (1) there is legally insufficient evidence to support his conviction based on the indictment and, (2) because an element of the offense occurred before the offense became a felony, appellant's conviction under the statute in effect at the time of his arrest was error. Felony Conviction In his second and third points of error, appellant argues that the trial court lacked both jurisdiction and sufficient evidence to convict him of a felony under the law in effect on the date of his alleged failure to re-register. Appellant argues that because failure to register is a crime of omission, "the facts creating the duty [to] register, i.e. a reportable conviction, constitute an essential element of the offense." Appellant then reasons that he is subject to the prior law and can be prosecuted only for a misdemeanor because his underlying, reportable conviction occurred on July 21, 1995--before the effective date of the amendment raising the offense of failure to register to a felony. We disagree with appellant's assertion that the facts creating his duty constitute an essential element of the offense of failure to register. Article 62.02 of the sex offender registration program places a duty to register on a "person who has a reportable conviction or adjudication." Tex. Code. Crim. Proc. Ann. art. 62.02. Article 62.01 specifies that a conviction for a violation of Texas Penal Code section 21.11 (indecency with a child) is a reportable conviction. See id. art. 62.01(5)(A). The registration program applies to reportable convictions occurring on or after September 1, 1970. See id. art. 62.11 (West Supp. 2000). An individual commits an offense under the sex offender registration program if the person is required to register and fails to comply with any requirement of the program. See id. art. 62.10. One such requirement mandates that when a person with a duty to register moves, that person must re-register with the local law enforcement authority not later than the seventh day after changing addresses. See id. art. 62.04 (West Supp. 2000). The Legislature amended the sex offender registration program, effective September 1, 1997, elevating the offense of failure to register from a misdemeanor to a state jail felony. (1) Notes accompanying the amendments indicate that changes to article 62.10 (failure to comply with registration requirements) apply only to an offense committed on or after September 1, 1997 and state that an offense was committed before September 1, 1997 "if any element of the offense occurred before that date." Id. art. 62.10 historical and statutory notes. The Texas Penal Code defines "element of offense" as: "(A) the forbidden conduct; (B) the required culpability; (C) any required result; and (D) the negation of any exception to the offense." Tex. Penal Code Ann. § 1.07(22) (West 1994). Appellant characterizes the forbidden conduct here as conduct by omission, meaning a "failure to act." See id. § 1.07(34) (West 1994). A failure to act is not an offense unless a defendant has a statutory duty to act. See Billingslea v. State, 780 S.W.2d 271, 276 (Tex. Crim. App. 1989); Sabine Consol., Inc. v. State, 816 S.W.2d 784, 787 (Tex. App.--Austin 1991, pet. ref'd). As previously noted, article 62.02 placed appellant under a statutory duty to register because he had a reportable conviction. See Tex. Code Crim. Proc. Ann. art. 62.02. Thus, in order to prove that appellant had a duty to act, the State was required to prove that appellant had a reportable conviction. The record contains proof of appellant's reportable conviction on July 21, 1995. Appellant cites no authority for the proposition that the State was required to prove "the facts creating the duty." In this respect, the present case is similar to State v. Mason, 980 S.W.2d 635 (Tex. Crim. App. 1998). In Mason, the defendant-appellee argued that he could not be prosecuted for unlawful possession of a firearm by a felon because the date of his prior felony conviction was an element of the offense that occurred before the statute's effective date. (2) See Mason, 980 S.W.2d at 641. The court of criminal appeals rejected Mason's argument and ruled that he was subject to prosecution under the existing version of the statute, reasoning that the concept of "element of an offense" does not include every issue to which the State has the burden of proof. See id. The court went on to state that only Mason's status as a felon, not the date upon which the prior felony conviction occurred, could be viewed as an element of the crime. See id. at 640. Likewise, here the State was required to prove appellant's status as a sex offender, not that the sex offense or the conviction occurred after the registration statute's effective date. Appellant's attempt to distinguish Mason does not dissuade us that the reasoning in that case should apply to his complaint. The indictment charged (A) appellant's status as a person with a reportable conviction, (B) the forbidden conduct of failing to register, and (C) his intentional and knowing culpability. (3) While appellant's status as a person with a reportable conviction was an element of the offense the State was required to prove, the facts underlying the sex offense are not elements of the offense of failure to register. Appellant's status as a convicted sex offender, his change of residence, and his failure to register his new address within seven days thereafter all occurred after the statute's effective date. Because no element of the offense occurred before the effective date of the amendment raising the offense of failure to register to a felony, appellant is subject to the amended version of the law. Appellant's reliance on Perez v. State, 938 S.W.2d 761 (Tex. App.--Austin 1997, pet. ref'd), does not alter our conclusion. In Perez, this Court stated in dicta that the 1995 amendments applied only to reportable convictions occurring on or after September 1, 1995. See id. at 764. But Perez was not decided on that basis. Instead, the case was dismissed for want of jurisdiction, and Perez's argument was rejected because his conviction occurred after the effective date of the 1995 amendments. In addition, the amendments in Perez affected the nature of Perez's duty. The amendments here in no way affected appellant's duty. Finally, Perez predates the court of criminal appeals' decision in Mason. For all of the foregoing reasons, we find Perez inapposite. We overrule appellant's second and third points of error. Sufficiency of Evidence In his first point of error, appellant argues that there is legally insufficient evidence to support his conviction for violation of article 62.04 as it is alleged in the indictment. In determining the legal sufficiency of the evidence to support a criminal conviction, we view all of the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Staley v. State, 887 S.W.2d 885, 888 (Tex. Crim. App. 1994). Articles 62.04 and 62.10 make it an offense for a convicted sex offender to move and fail to register his new address within seven days. See Tex. Code Crim. Proc. Ann. arts. 62.04(a), .10(a). Appellant contends that because January 12, 1999 is the only date alleged in the indictment, this date must refer to the date appellant changed his address. Based on this reading, appellant argues that the State was required to prove that appellant failed to register within seven days after January 12, 1999. Because undisputed evidence establishes that appellant was placed in custody on January 13, 1999, appellant argues that the State adduced no evidence that appellant intentionally and knowingly failed to register after January 12, 1999. We disagree with appellant's reading of the indictment. We construe an indictment by reading the document as a whole and taking into account practical considerations. See Whetstone v. State, 786 S.W.2d 361, 364 (Tex. Crim. App. 1990). The indictment states that "James Milligan, on or about the 12th day of January, A.D. 1999 . . . did then and there intentionally and knowingly fail to register . . . ." A plain reading of the indictment reflects that as of January 12, 1999, appellant had completed commission of the offense of failure to register, which necessarily includes both a change of address and a failure to report the new address within seven days. The evidence adduced at trial established that appellant was evicted from his Tahoe Drive address on or before December 31, 1998. Officer Scott testified that on January 11, 1999, neighbors at the Tahoe Drive address informed him that appellant had been gone for two weeks. Based on the evidence, a rational trier of fact could have found beyond a reasonable doubt that appellant failed to report his change of address as of January 12, 1999 and that he had changed his address more than seven days before that date. Viewing all the evidence in the light most favorable to the verdict, we hold that the evidence is legally sufficient to support the trial court's finding of guilt. We overrule appellant's first point of error. CONCLUSION Having overruled all of appellant's points of error, we affirm the trial court's judgment. Marilyn Aboussie, Chief Justice Before Chief Justice Aboussie, Justices Smith and Yeakel Affirmed Filed: April 20, 2000 Do Not Publish 1. § - § 2. ' - 3. § ent was rejected because his conviction occurred after the effective date of the 1995 amendments. In addition, the amendments in Perez affected the nature of Perez's duty. The amendments here in no way affected appellant's duty. Finally, Perez predates the court of criminal appeals' decision in Mason. For all of the foregoing reasons, we find Perez inapposite. We overrule appellant's second and third points of error. Sufficiency of Evidence In his first point of error, appellant argues that there is legally insufficient evidence to support his conviction for violation of article 62.04 as it is alleged in the indictment. In determining the legal sufficiency of the evidence to support a criminal conviction, we view all of the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Staley v. State, 887 S.W.2d 885, 888 (Tex. Crim. App. 1994). Articles 62.04 and 62.10 make it an offense for a convicted sex offender to move and fail to register his new address within seven days. See Tex. Code Crim. Proc. Ann. arts. 62.04(a), .10(a). Appellant contends that because January 12, 1999 is the only date alleged in the indictment, this date must refer to the date appellant changed his address. Based on this reading, appellant argues that the State was required to prove that appellant failed to register within seven days after January 12, 1999. Because undisputed evidence establishes that appellant was placed in custody on January 13, 1999, appellant argues that the State adduced no evidence that appellant intentionally and knowingly failed to register after January 12, 1999. We disagree with appellant's reading of the indictment. We construe an indictment by reading the document as a whole and taking into account practical considerations. See Whetstone v. State, 786 S.W.2d 361, 364 (Tex. Crim. App. 1990). The indictment states that "James Milligan, on or about the 12th day of January, A.D. 1999 . . . did then and there intentionally and knowingly fail to register . . . ." A plain reading of the indictment reflects that as of January 12, 1999, appellant had completed commission of the offense of failure to register, which necessarily includes both a change of address and a failure to report the new address within seven days. The evidence adduced at trial established that appellant was evicted from his Tahoe Drive address on or before December 31, 1998. Officer Scott testified that on January 11, 1999, neighbors at the Tahoe Drive address informed him that appellant had been gone for two weeks. Based on the evidence, a rational trier of fact could h