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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 98-1177 ___________ In re: Doran Scott Wegner, also known * as Doran & Denise Wegner, * * Debtor. * * * * Kip M. Kaler, as Bankruptcy Trustee, * Appeal from the United States * District Court for the District Appellee, * of North Dakota. * v. * [UNPUBLISHED] * Elroy Letcher, * * Appellant. * ___________ Submitted: June 10, 1998 Filed: July 1, 1998 ___________ Before BOWMAN, Chief Judge, BEAM, Circuit Judge, and GAITAN,1 District Judge. ___________ PER CURIAM. 1 The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri, sitting by designation.  Elroy Letcher appeals the decision of the district court affirming the order of the Bankruptcy Court of the District of North Dakota in this adversary bankruptcy proceeding. The facts are set forth in detail in the memorandum and order of the bankruptcy court dated and filed on July 10, 1997. They need not be repeated here. We are convinced that the well reasoned opinion of the bankruptcy court as affirmed by the district court correctly discusses and decides the issues in dispute in this case. Accordingly, no error of law or fact being evident, we affirm. See 8th Cir. R. 47B. A true copy. ATTEST: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. -2- 

237 F.2d 493 UNITED STATES of America, Plaintiff-Appellee,v.Lyman B. JONES, Blanchel A. Murrelle, David J. Maxin, Miltong. Severinghaus, Earl C. Raphael, William F.Robichaud and Eugene R. Flitcraft,Defendants-Appellants. Nos. 11650-11652, 11658. United States Court of Appeals Seventh Circuit. Oct. 23, 1956.Rehearing Denied Nov. 15, 1956. Robert C. Eardley and Daniel F. Ward, Chicago, Ill., for Milton G. Severinghaus. John McMahon Murphy and Ralph J. Gutgsell, Chicago, Ill., for Lyman B. Jones, Blanchel A. Murrelle and David J. Maxin. Eugene T. Devitt, Chicago, Ill., for Earl C. Raphael, William F. Robichaud and Eugene R. Flitcraft. Robert Tieken, U.S. Atty., Edward J. Calihan, Jr., Asst. U.S. Atty., Chicago, Ill., John Peter Lulinski, Asst. U.S. Atty., Chicago, Ill., of counsel, for appellee. Before LINDLEY, SWAIM and SCHNACKENBERG, Circuit Judges. SCHNACKENBERG, Circuit Judge. 1 Defendants have appealed from a judgment of the district court entered upon a jury verdict finding them guilty on eleven counts of an indictment charging defendants (and other persons1 and certain corporations)2 with a scheme or artifice of using the mail to defraud, 18 U.S.C.A. § 1341, and one count thereof charging a conspiracy to violate § 1341, 18 U.S.C.A. § 371. 2 Defendants, now appealing, pleaded not guilty. At the close of the government's case and again at the close of all the evidence, each of these defendants made a motion for a judgment of acquittal, which motions were denied. Their motions for a new trial were also denied. They were sentenced to the custody of the Attorney General for specified periods of time. 3 In brief, the conspiracy count charges that the defendants (including those who are now appellants), continuously from on or about September 1, 1951 to the date of the indictment (April 27, 1954) conspired to violate § 1341, 18 U.S.C.A., and that it was the intention of the conspiracy and of the said defendants to use the United States mails in furtherance of a scheme and artifice to defraud. The count sets forth twenty-three overt acts occurring in the period commencing on or about November 17, 1951 and ending June 27, 1953. 4 As to the conspiracy count, it is the government's theory that appellants entered the conspiracy after it had been formed and before its final completion to assist in carrying out the conspiracy, and thereby were a part of such conspiracy even though they were not members thereof at the time of its inception. The court instructed the jury that that is the law. Said defendants do not in this court disagree with that statement of law. 5 Among the salient facts as established by the evidence, viewed in its aspects most favorable to the government, United States v. Marachowsky, 7 Cir., 201 F.2d 5, at page 18, are those which we now set forth. 6 Late in the year 1951, several of the defendants (not any of the persons here involved) conceived the idea that a device could be manufactured, which would, when installed upon a television set, automatically activate said television set for the first four minutes of every half hour. The plan was based on the assumption that someone who watched the program for four minutes might be induced to place a coin into a coin slot installed on said television set, and thus see the balance of the program. This device will hereinafter be referred to as the 'Previewer'. 7 The defendants thereupon conferred with the Zenith Electric Company, a manufacturer of a clock-operated switch, of such type as is normally used in turning hall lights on and off in apartment buildings. 8 Immediately upon the formulation of this idea, Thompson, one of the originators of the scheme, began to set up a sales operation and the three corporate defendants were organized. 9 Preview was the parent corporation, and was principally concerned with the sales and installations of the television sets with Previewer attached thereto. The second corporation was AITM, which purported to be a national organization of the leading television manufacturers of the United States. AITM was almost completely fraudulent for the following reasons: First, it had no nationally known television manufacturers belonging thereto. In fact, throughout the duration of its entire existence, the only television manufacturer which later became a member was the Transvision Television Company, which contracted to manufacture the television sets which were ultimately sold and installed by Preview. These sets were manufactured with a coin device attachment, and were wired to accept the installation of Previewers. All AITM correspondence was carried on in the office of Preview. Its Washington office was, for the first seven or eight months of its existence, a letter drop set up through the employment of a secretarial service to mail out literature prepared in Chicago, so that the envelopes bore a Washington postmark. All incoming mail to AITM in Washington was forwarded to Chicago for reply. AITM, according to its correspondence, posed as a watchdog of the entire television industry, which had caused the organization and licensing of Preview to conduct the electronic Previewer program. 10 The United States Sign Corporation was the third organization. It was designed to sell to motel owners and operators, for the sum of approximately $395, an electric sign which actually cost about $97.50, and which sign advertised the presence of the Preview television system in the motel. 11 The salesmen first contacted the motel operators and owners, who had previously been advised that their motels had been selected to have the Previewer installed free of charge to them, and secured a lease from such motel owners and operators, permitting the installation of the Previewers; and at the same time they sold the motel owners and operators the electric sign. These leases were turned over to the defendant Hantover. The cost of securing such leases was borne through the profit made on the sale of the signs. These leases which Hantover acquired without any apparent consideration were subsequently carried on the Preview books and in its financial statement as capitalization of $125,000. This financial statement included a fictitious $50,000 bank deposit. The only capital ever invested in Preview was $1,000. 12 Not included in the indictment is an organization known as Credit Clearing House which purported to be a responsible financial institution which checked the status of the prospective investor. Before any inquiry could be made by him as to the financial condition of Preview, he received a letter on AITM stationery referring to credit institutions said to have investigated Preview and to have found it to be in good financial conditions. 13 With these basic organizations set up, the investors were sold television sets with varying statements as to the status of the Previewer, which was never fully developed. On October 1, 1952 there was only one Previewer set working, and that one was in the exhibition room in the Chicago office. 14 While the investors paid $250 for a Previewer, the cost of this device was $25 for a master station and $10 for each substation; in other words, an investor who bought eight sets would pay $2,000 for the Previewer. The cost of the device was $25, plus $10 for each set, or $105. 15 The television sets were sold for approximately $550. These sets were purchased from Transvision at a cost of $149 initially, and later $190, per set. 16 As soon as the program got under way, defendant McReady posed for a picture which purportedly demonstrated the 'New Electronic Device' (the Previewer). He was described in the print accompanying the picture as the inventor of the device, 'his million dollar development'. He was selected because he was the most photogenic. The photograph was taken in the workshop of a television repair store in Chicago. The device upon which one of his hands rested was an admiral television set with the bottom of the chassis facing the camera, showing wires, resistors and other component parts. McReady was, in fact, an office employee, known as 'tear sheet McReady', so-called because of the printing and use of the picture and accompanying printed matter which was sent out in the mail and was designed to appear as a sheet torn from some mechanical-scientific type of magazine. 17 Numerous witnesses testified as to the inferior quality of the television sets sold by Preview, and nearly all witnesses testified that they had not received their Previewers. 18 The defendants contend that the evidence of their participation in the above-described venture did not constitute proof that they knowingly participated therein with knowledge of such unlawful agreement. Severinghaus contends that there is no direct evidence that he knowingly adopted any scheme to defraud. 19 Some of the defendants testified in their own behalf and some did not. 20 The defendants do not deny the existence of a scheme to defraud. They say, however, that they were not members in, nor a part of, this tremendous swindle, which involved sales of $1,775,000, of which approximately $750,000 was paid by investors, for a device which was never delivered, and which, from the proof in this case, was a mechanical clock device, still in a prototype stage, hailed as a million-dollar electronic invention. 21 The trial in the district court was lengthy. The transcript filed in this court consists of over 3000 pages. We have made an examination of the record before us and we find that it contains substantial proof to support the verdict of the jury. We are not at liberty to weigh the evidence nor consider questions of credibility or conflicts in testimony. 22 In Stoppelli v. United States, 9 Cir., 183 F.2d 391, at page 393, the court said: 23 '* * * It is not for us to say that the evidence was insufficient because we, or any of us, believe that inferences inconsistent with guilt may be drawn from it. To say that would make us triers of the fact. We may say that the evidence is insufficient to sustain the verdict only if we can conclude as a matter of law that reasonable minds, as triers of the fact, must be in agreement that reasonable hypotheses other than guilt could be drawn from the evidence. * * *' 24 We cannot so conclude as a matter of law. See, also, Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, at page 232. 25 Some of the appellants suggest that the district court erred when it ruled during the course of the trial that a prima facie case of conspiracy had been established and that the evidence received against certain members of the conspiracy might be received and considered as against all of them. We hold that there was no error in this respect. 26 For these reasons the judgment from which appeals have been taken is affirmed as to all appellants. 27 Judgment affirmed. 1 Bruce Hantover, Dell W. Kettering, Edward C. McReady, John Ponsaing, Herman Jess Rodnick, Cyrus Simmons and Nathan James Elliott, also known as J. Matt Thompson (hereinafter referred to as 'Thompson') 2 Preview Television Corporation, (formerly known as National Coin TV System, Inc., and Sometimes referred to herein as 'Preview'), United States Sign Corporation and American Institute of Television Manufacturers (sometimes herein referred to as 'AITM')

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-65,220-02 EX PARTE BILLY MAX COLLINS, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. F7907-B IN THE 8th DISTRICT COURT FROM FRANKLIN COUNTY Per curiam. O R D E R Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty (1) to driving while intoxicated and was sentenced to eight years' imprisonment. He did not appeal his conviction. Applicant contends that his plea was involuntary because he was giving an improper admonishment as to the range of punishment. Applicant alleges he was admonished for a second degree felony range of punishment when he was indicted for a third degree felony without any alleged enhancements. Applicant also contends that his counsel was ineffective for failing to investigate the facts of the case, failing to inform Applicant of the proper range of punishment, and failing to inform Applicant of his rights of appeal. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id. If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04. The trial court shall make findings of fact and conclusions of law in regard to Applicant's claim that his plea was involuntary and his attorney was ineffective. The trial court shall make findings as to what admonishments were given to Applicant, including which range of punishment, and why those admonishments were given. The trial court shall make findings of fact as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall make findings as to whether or not counsel informed Applicant of his appellate rights. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief. This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court. Filed: February 28, 2007 Do not publish 1. The judgment sent to this Court by Applicant indicates that he pleaded not guilty, but from the rest of the paperwork, it appears that Applicant pleaded guilty.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-04-00148-CV TXU Generation Company, L.P.; TXU Portfolio Management Company, L.P.; Oncor Electric Delivery Company; Coalition of Wholesale Electric Market Participants; Occidental Chemical Corporation; Occidental Permian, Ltd.; Occidental Power Marketing, L.P.; Occidental Power Services, Inc.; Oxy Vinyls, L.P.; Ingleside Cogeneration, L.P.; and Coral Power, L.L.C., Appellants v. Public Utility Commission of Texas, Appellee DIRECT APPEAL FROM THE PUBLIC UTILITY COMMISSION OF TEXAS D I S S E N T I N G O P I N I O N Because I believe that the Public Utility Commission's rule, 29 Tex. Reg. 1899 (2004) (to be codified at 16 Tex. Admin. Code § 25.503 (Pub. Util. Comm'n)) (Wholesale Market Oversight Rule (WMO Rule)), exceeds the Commission's statutory authority, I respectfully dissent. The defects in rule 25.503 begin with the absence of an intent requirement--participants in the deregulated wholesale electricity market are at peril of presumed liability based solely on the effects of their competitive conduct, even if inadvertent. 16 Tex. Admin. Code § 25.503(g). The core concepts found in rule 25.503 are derived from section 39.157 of PURA. See 29 Tex. Reg. 1905. Section 39.157 requires the Commission to "monitor market power" and maintain oversight over "market power abuses," defined as "practices by persons possessing market power that are unreasonably discriminatory or tend to unreasonably restrict, impair, or reduce the level of competition, including practices that tie unregulated products or services to regulated products or services or unreasonably discriminate in the provision of regulated services," and "include predatory pricing, withholding of production, precluding entry, and collusion." Tex. Util. Code Ann. § 39.157(a) (West Supp. 2004-05). These are familiar antitrust concepts. See, e.g., Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, 124 S. Ct. 872, 878-79 (2004); see also Tex. Util. Code Ann. § 39.157(a) (clarifying that subsection did not affect enforcement of state or federal antitrust laws). The code construction act thus compels us to look to antitrust law when construing section 39.157. Tex. Govt. Code Ann. § 311.011(b) (West 2005) ("[w]ords and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly."). (1) As the majority concedes, section 39.157 implies an intent requirement for proving "market power abuse" under that provision because it employs antitrust concepts that carry with them the implication of an intent element. Slip op. at 14 ("If the authority for this rule was derived only from section 39.157(a) governing 'market power abuse,' we would agree that an element of intent is implied."). In adopting a rule that implements the requirements of section 39.157 yet omits the intent requirement implicit in its terms, the Commission exceeds its statutory authority. See State v. Public Util. Comm'n, 131 S.W.3d 314, 321 (Tex. App.--Austin 2004, pet. denied) (court to consider whether rule: (1) contravenes specific statutory language; (2) runs counter to general objectives of statute; or (3) imposes additional burdens, conditions, or restrictions in excess of or inconsistent with relevant statutory provisions). By departing from the requirements of section 39.157, rule 25.503 distorts the legislature's careful balancing of the dual policy goals reflected in the statute, encouraging the innovation and risk-taking of competition while protecting the integrity of market mechanisms. See Law Offices of Curtis V. Trinko, 124 S. Ct. at 878-79. Indeed, both chapter 39 of PURA as a whole and the Texas Free Enterprise and Antitrust Act seek to balance such interests. Compare Tex. Util. Code Ann. § 39.001(a) (West Supp. 2004-05), with Tex. Bus. & Com. Code Ann. § 15.04 (West 2002); see also Tex. Gov't Code Ann. § 311.023(4) (West 2005) (courts may consider "common law or former statutory provisions, including laws on the same or similar subjects"). The term "market power abuse" in section 39.157, like similar standards employed in the antitrust context, carries with it an unmistakable legislative intent to proscribe a type of conduct only where intent can be proven. See Ernst & Ernst v. Hochfelder, 425 U.S. 185, 199 (1975); see also United States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966). Absent an intent requirement, "market power abuse" is rather unclear. (2) The market participants go as far as to urge that the term is unconstitutionally vague, and they are not far off the mark, though we need not reach that issue. The majority, in fact, concedes that "[t]he lack of a well defined concept of market power does produce some uncertainty in the enforcement of the rule," slip. op. at 32, but dismisses its significance. In the antitrust context, the Texas Supreme Court has cautioned that "a vague standard [of predatory pricing] has a chilling effect on business. Business must be able to determine prospectively what price it may legally charge." Caller-Times Pub. Co. v. Triad Comm., Inc., 826 S.W.2d 576, 581 (Tex. 1992). Accordingly, the court rejected a subjective intent standard because "a seller cannot predict where it may legally set a price" and "this standard creates a lack of predictability in the law which punishes those who would engage in vigorous competition." Id. Rule 25.503's "market power abuse" standard suffers similar defects: a market participant cannot predict what competitive conduct on its part could give rise to effects that the Commission deems "abuse" or "withholding." In addition, the enumerated list of prohibited activities is not even exclusive. See 16 Tex. Admin. Code § 25.503(g) (term "prohibited activity" includes, but is not limited to, enumerated "acts and practices"). Without the balancing factor of an intent requirement, these features of rule 25.503 chill competition in a manner inconsistent with the legislature's intent. (3) Further compounding the problem is the burden of proof: market participants are presumed to have violated rule 25.503 if the effect of their competitive activities, even inadvertently, is whatever may constitute "market power abuse." See id. Subsection (h) excludes from "prohibited activity" conduct by market participants that "served a legitimate business purpose consistent with prices set by competitive market forces; and that it did not know, and could not reasonably anticipate, that its actions would inflate prices, adversely affect . . . reliability [or] proper accounting." However, this affirmative "defense" applies only "if the market entity establishes" it. Id. § 25.503(h). The significance of the placement of the burden of proof cannot be underestimated, especially in an administrative proceeding subject only to substantial-evidence review. See Richardson v. City of Pasadena, 513 S.W.2d 1, 3 (Tex. 1974). (4) The legislature's philosophical foundation underlying chapter 39 was that "the production and sale of electricity is not a monopoly warranting regulation of rates, operations, and services and that the public interest in competitive electric markets requires that, except for transmission and distribution services and for the recovery of stranded costs, electric services and their prices should be determined by customer choices and the normal forces of competition." Tex. Util. Code Ann § 39.001(a). To this end, the legislature mandated that regulatory authorities "shall authorize or order competitive rather than regulatory methods to achieve the goals of the chapter to the greatest extent feasible and shall adopt rules and orders that are practical and limited so as to impose the least impact on competition." Id. § 39.001(d). In my view, the Commission, in rule 25.503, has strayed from these principles, as well as from the language and intent of section 39.157 in particular. See Railroad Comm'n v. Lone Star Gas Co., 844 S.W.2d 679, 685 (Tex.1992) (quoting Gerst v. Oak Cliff Savings & Loan Ass'n, 432 S.W.2d 702, 706 (Tex. 1968)) ("The determining factor. . . whether. . . a particular administrative agency has exceeded its rule-making powers is that the rule's provisions must be in harmony with the general objectives of the Act involved."). Having conceded that the section 39.157's "market power abuse" concept contains an implied intent element, the majority posits two alternative statutory bases to support a rule that implements section 39.157's conduct standards yet omits its implied intent element. First, the majority looks to PURA section 39.101, which requires the Commission to "ensure that retail consumer protections are established that entitle a consumer . . . to safe, reliable, and reasonably priced electricity." Tex. Util. Code Ann. § 39.101. Second, the majority relies on section 35.004(e), which requires the Commission to "ensure that ancillary services necessary to facilitate the transmission of electric energy are available at reasonable prices." Id. § 35.004(e). Based on their plain language, both provisions are limited in scope. Section 35.004(e) speaks only to ancillary services, which the parties represent is a small component of the wholesale electricity market. Section 39.101 does not speak to the wholesale market at all but only to the retail electricity market. Within these limited provisions, the majority nonetheless finds broad-ranging regulatory power. Slip op. at 15-17. Regarding section 39.101, the majority acknowledges that the provision is addressed solely to the retail market but extrapolates that because "both the retail and wholesale electric markets should be governed by market forces" and "issues relating to reliability or price in the wholesale market will necessarily be reflected in the retail market," the Commission's power to ensure retail customers "safe, reliable, and reasonably priced electricity" for retail consumers would necessarily permit it to act in the wholesale market. Slip op. at 15-16. Similarly, the majority suggests that because "[i]n the existing competitive wholesale market, scarcity of electric power will be reflected in higher prices throughout the market," its authority under section 35.004(e) to ensure that ancillary services are available at reasonable prices would permit it broad power to regulate conduct throughout the entire wholesale market. Slip op. at 16. As a matter of statutory construction, I disagree that section 39.101 and section 35.004(e) grant the Commission such broad-ranging regulatory power in the wholesale market. See Reliant Energy v. Public Util. Comm'n, 101 S.W.3d at 145 (overbroad Commission rule invalid). Moreover, even if section 39.101 and 35.004(e) would otherwise confer general power on the Commission to act in some manner with regard to wholesale transactions, such an authorization is not limitless--rather, the Commission must act in conformity with the broader statutory objectives and framework of the electricity deregulation statutes. Were it otherwise, the Commission's general duties to ensure "safe, reliable, and reasonably priced electricity" in the retail market, as contemplated in section 39.101, and that ancillary services are available at "reasonable prices," per section 35.004(e), could be invoked to justify virtually any manner of regulation (including that of prices) if, in the Commission's judgment, such actions would ensure "reliability" and "reasonable prices." The limitation that prevents such measures lies not within the terms of sections 39.101 or 35.004(e) but in the overall structure and general objectives of electricity deregulation legislation (5) and the legislature's explicit mandate that "[r]egulatory authorities . . . shall authorize or order competitive rather than regulatory methods to achieve the goals of the chapter to the greatest extent feasible and shall adopt rules and orders that are practical and limited so as to impose the least impact on competition." Tex. Util. Code Ann. §§ 39.001(a), (c); see State v. Public Util. Comm'n, 131 S.W.3d at 321 (rule invalid if it contravenes specific statutory language or runs counter to general objectives of statute); see also Railroad Comm'n v. Lone Star Gas Co., 844 S.W.2d 679, 685 (Tex. 1992) (determining factor whether particular administrative agency has exceeded its rule-making powers is "that the rule's provisions must be in harmony with the general objectives of the Act involved."). The majority overlooks the context of sections 39.101 and 35.004(e) within the statutory framework. Beyond the majority's reliance on sections 39.101 and 35.004(e), it continually returns to the notion that Commission members and staff are experts to whose decisions we should defer. It couples this deference with policy observations to the effect that "electricity is different." I concede that the Commission has expertise regarding the behavior of the Texas electricity market and that the legislature intended it to have some flexibility in effectuating its statutory duties. However, even if the legislature intends that an agency created to centralize expertise in a certain regulatory area "be given a large degree of latitude in the methods it uses to accomplish its regulatory function," Texas Mun. Power Agency v. Public Util. Comm'n, 150 S.W.3d 579, 586 (Tex. App.--Austin 2004, pet. filed), an agency may not, in the guise of implied powers, exercise what is effectively a new power on the theory that such exercise is expedient for the agency's purpose, Public Util. Comm'n v. GTE-Southwest, Inc., 901 S.W.2d 401, 407 (Tex. 1995), nor may it contravene specific statutory language, run counter to the general objectives of the statute, or impose additional burdens, conditions, or restrictions in excess of or inconsistent with the relevant statutory provisions. State v. Public Util. Comm'n, 131 S.W.3d at 321. I also recognize the unique nature of electricity as a commodity, which can create some conceptual challenges when applying antitrust or other economic concepts. However, nothing about the nature of electricity suggests that we should construe Commission statutory power more broadly than the terms of those enactments would otherwise provide. The legislature was aware of the unique nature of electricity when it deregulated the industry, enacted its competition mandates in chapter 39, and employed antitrust concepts in the standards it chose to govern the wholesale marketplace. Those standards should govern our analysis of the Commission's power here and, in my view, compel us to invalidate rule 25.93. Finally, by reaching such a conclusion, I do not, as the majority accuses, "ignore" legislative intent to protect consumer welfare in a deregulated electricity market, much less suggest that consumer protection is not a statutory goal. To the contrary, our duty is to faithfully follow the legislature's intent to advance consumer welfare, but we should not lose sight of the legislature's overarching policy judgment that consumer welfare is ordinarily best advanced by vigorously competitive retail and wholesale electricity markets rather than by regulation. See Tex. Util. Code Ann. § 39.001(a) & (d). And, where, as in section 39.157, the legislature has carefully and precisely balanced competing considerations in its pursuit of consumer welfare--preventing market abuses without causing what it views as too great a chilling effect on competition--we should be faithful to its judgment and ensure that the Commission's rules are in conformity. For these reasons, I respectfully dissent. __________________________________________ Bob Pemberton, Justice Before Chief Justice Law, Justices B. A. Smith and Pemberton Filed: May 19, 2005 1. I thus disagree with the majority's dismissal of state and federal antitrust authorities as merely "persuasive." Slip op. at 14 & n.6. 2. The WMO Rule does not define "market power abuse" other than to explain that the term includes "[w]itholding of production, whether economic withholding or physical withholding, by a market participant who has market power, constitutes an abuse of market power." See 16 Tex. Admin. Code Ann. § 25.503(g)(7). Given the nature of the wholesale electricity market, it is unclear whether or how market participants could ascertain whether they possess "market power" at a given moment amid the myriad, fluid circumstances on the grid, much less conform their conduct to avoid the prohibited effects. Nor is it clear whether or how market participants could ascertain how to avoid committing such other violations as creating "artificial congestion." See id. § 25.503(g)(1). 3. In response to my discussion of Caller-Times and federal antitrust cases, the majority inaccurately portrays my arguments and attempts to pigeonhole them as relating to constitutional vagueness issues rather than statutory construction. Slip op. at 29-30. As is apparent above, my arguments concern the proper construction of section 39.157, and respecting the legislature's balancing of interests reflected therein. Having determined that rule 25.93 exceeds the Commission's statutory power, I would not reach the constitutional issues. 4. In such an environment, it is perhaps not surprising that several of the market participants equate rule 25.503 with back-door price regulation. They contend that uncertainty regarding the nature of competitive conduct that is proscribed, the prospect of sanctions based not on intent but mere effect, and a "guilty until proven innocent" burden of proof has compelled them to cling to any guidance they could discern from the rule, such as the Commission's reference to marginal cost pricing in the preamble to the rule. See 29 Tex. Reg. 1899, 1916 (2004) (to be codified at 16 Tex. Admin. Code § 25.503 (Pub. Util. Comm'n)) ("Pricing in excess of marginal cost by a seller who is immune from the chastening hand of competition is an abuse of market power."). 5. The legislature enacted section 35.004(e) as part of the 1999 electricity deregulation bill. See Act of May 27, 1999, 76th Leg., R.S., ch. 405, §§ 17, 39, 1999 Tex. Gen. Laws 2543, 2552, 2558-2602.

417 U.S. 270 (1974) VERMONT v. NEW YORK ET AL. No. 50, Orig. Supreme Court of United States. Decided June 3, 1974. ON BILL OF COMPLAINT. PER CURIAM. On April 24, 1972, after oral argument, we granted Vermont's motion to file a bill complaint against New York and the International Paper Co. which alleged that as a result of discharge of wastes, largely from International's mills, that company and New York are responsible for a sludge bed in Lake Champlain and Ticonderoga Creek that has polluted the water, impeded navigation, and constituted a public nuisance. 406 U. S. 186. Issue was joined and the Honorable R. Ammi Cutter was appointed Special Master. 408 U. S. 917. Later the United States sought leave to intervene, stating it had numerous interests in these waters under federal statutes. We referred the motion to the Special Master, 409 U. S. 1103, who granted intervention. During the year 1973, 75 days of testimony were received, Vermont presenting *271 substantially all of its direct case. New York has put in about half of its direct case. Neither International nor the United States up to now has offered any evidence. The Report of the Special Master dated April 24, 1974, states that he suggested that the parties might adjust their differences less expensively than by litigation. He reports that the United States succeeded in bringing about serious negotiations which resulted in a settlement that the Special Master commends to the Court for approval. The proposed settlement is represented by a Proposed Consent Decree and a stipulation that the Decree may be entered by the Court without further argument or hearing. The settlement "contemplates that no findings shall be made" and it provides that "it shall not constitute an adjudication on any issue of fact or law, or evidence, or any admission by any party with respect to any such issue." The Special Master reports, "In my opinion, no settlement would be possible if this report were to contain any findings." He adds that in his opinion "it reaches a reasonable result, consistent with the public interest, and acceptable on the basis of the evidence thus far presented." By Art. I of the Decree a special South Lake Master[1] is to be appointed with all the usual powers of Special Masters named by us. He is to resolve matters of controversy between the parties after they have exhausted all administrative and other remedies (except judicial review). When he has decided the matter, he will file his recommendation with the Clerk of the Court. Unless any party "aggrieved" files exceptions with the Court within 30 days, it becomes a decision of the Court "unless *272 disapproved by the court." Proposed Decree, Schedule 1, § 1.6. But nothing in Schedule 1 limits any regulatory or law enforcement authority "with lawful jurisdiction independently to carry out or enforce applicable law and regulations." After nine years from our approval of the Decree, the South Lake Master on application for modification of it may submit his recommendations to the Court without prior exhaustion of administrative remedies before the federal and New York authorities or after such exhaustion, as he chooses. The South Lake Master may order International to permit inspection of Old Mill[2] or New Mill[3] on showing of good cause. Schedule 1, § 1.7. Schedule 2 of the Proposed Decree provides for grading and covering the bark pile near Old Mill and for lowering the water level in an adjacent pond to reduce the drainage of the bark pile into Ticonderoga or tributaries. Schedule 3 prescribes methods of control of malodorous air emissions from New Mill; and Schedule 1, § 1.5 (b), provides that notwithstanding the provisions of Schedule 3, if, after November 1, 1975, objectionable odors attributable to New Mill are detected in Vermont "during a significant period of time," the South Lake Master may recommend "other or further action or relief." Within 30 days after approval of the Proposed Decree, International shall submit an emergency report "for a conceptual plan" to modify the air emission controls specified in Schedule 3 and, if approved by New York, the new equipment and materials for the facilities shall be completed and in operation no later than November 1, 1975. Schedule 3, § 3.2 (c) (7). *273 Schedule 3, § 3.3, states the volume of Total Reduced Sulfur (TRS) from International's "recovery boiler" once the Proposed Decree is approved. Section 3.4 (a) states the standard for emissions of TRS from the lime kiln and § 3.4 (b), the amount of sodium hydroxide in the scrubbing solution in the lime kiln scrubber. Schedule 4 covers the water discharge from New Mill. It specifies in § 4.1 (a) that the amount of BOD[5][4] in the waste water will not exceed 4400 pounds per day as a monthly average. Section 4.1 (b) specifies the maximum total phosphorus in the process waste-water effluent. Section 4.2 provides that the effluent will be considered toxic, if over a 96-hour period, 20% of the test fish (yellow perch) fail to survive in a solution composed of 65% process waste-water effluent and 35% Lake Champlain water. Sections 4.3 and 4.4 provide clinical and other water tests for International to make at stated intervals. Appendix A "delivered pursuant to the command of the Supreme Court of the United States" is a release of International by Vermont of all damages past, present, and future caused (1) by the accumulation of sediment in Ticonderoga Creek and the Ticonderoga Bay area of the lake; (2) by the discharge of waters from Old Mill prior to the date of entry of the decree; (3) by air emissions from Old Mill prior to such date; and (4) by air emissions from New Mill prior to that date. Appendix B states the position of the United States that it is not in the public interest to remove the sludge deposits and that dredging them is not justified. Appendix C is a release of International by the United States from all liability for the accumulation of sediment *274 in Ticonderoga Creek and the Ticonderoga Bay area because of past waste discharges, save for costs arising out of remedial action taken as a consequence of "the needs of anchorage or navigation." The Special Master has done a very difficult task well and with distinction; we are indeed grateful for the professional services he has rendered. But we have concluded not to approve the Proposed Decree or appoint a South Lake Master. I In Wisconsin v. Illinois, 281 U. S. 696, the Court on the report of a Special Master enjoined the Sanitary District of Chicago from withdrawing through the Chicago drainage canal more than a stated number of cubic feet of water per second. That was on April 21, 1930. On May 22, 1933, on application of the States for a "commissioner or special officer" to execute the decree, the Court ordered Illinois to take certain steps respecting the diversion, but it denied the request to appoint the commissioner. 289 U. S. 710, 711. Wyoming v. Colorado, 259 U. S. 419, 260 U. S. 1, involved an allocation of the waters of the Laramie River. The parties were once more before the Court in 1936, 298 U. S. 573. This time the Court entered an injunction against continuing diversions contrary to the prior decrees, id., at 582-583. The Court refused to order measuring devices at places of diversion or to appoint a water master to keep the records, the Court saying, "While the problem of measuring and recording the diversions is a difficult one, we entertain the hope that the two States will by cooperative efforts accomplish a satisfactory solution of it." Id., at 586. In time the two States, policing themselves, resolved the controversy, 309 U. S. 572. We noted in Nebraska v. Wyoming, 325 U. S. 589, 616, *275 that continuing Court supervision over decrees of equitable apportionment of waters was undesirable. New Jersey v. New York, 283 U. S. 805, is not an exception. It involved a dispute between New Jersey, New York, New York City, and Pennsylvania over the waters of the Delaware River. The decree was an equitable apportionment of the water coupled with protective provisions, first, for a sewage disposal plant at Port Jervis, New York, that met prescribed cleansing standards; second, the banning of the discharge of untreated industrial wastes into the Delaware and Neversink Rivers; and third, the treatment of industrial wastes practically to free them "from suspended matter and [to render them] nonputrescent." Ibid. That decree, entered May 25, 1931, was modified June 7, 1954, 347 U. S. 995, when a Special Master's Report was approved. The prior equitable apportionment was altered, and new and somewhat different formulae to measure and control the diversions were provided. A River Master was to be selected by the Chief Hydraulic engineer of the U. S. Geological Survey to administer the decree. Id., at 1002. He was authorized to measure the actual diversions, ibid., compile data, collect and correlate stream-flow gauging, make periodic reports, and make designated changes in the volume of daily releases, id., at 1003. But it is rare case where we have appointed a Water Master. The one appointed in New Jersey v. New York was given only ministerial acts to perform, such as reading gauges and measuring the flow. In that case (1) the rights of the parties to the water had been determined by the Court and (2) the sewage and industrial waste problems had been adjudicated and resolved.[5] All that *276 remained was to supervise the application of the various formulae which the Court had decreed, based on findings of fact. Wisconsin v. Illinois, 281 U. S. 179, involved the use of Lake Michigan waters by a sanitary district in Illinois to operate sewage treatment plants. The Court had ordered Illinois to restrict its use of Lake Michigan waters and to build certain facilities to allow treatment without the use of a great deal of lake waters. Illinois was given certain timetables for completion of the new facilities. The Special Master recommended either the appointment of a commission to supervise the construction or the filing of progress reports by the sanitary commission with the Clerk of this Court. The Court chose the option of not appointing a commission, and instead ordered the district to file semi-annual compliance reports with the Court. Masters were appointed at several points in this litigation for specific short-term purposes, but no quasi-permanent master to oversee general compliance was appointed. After the district was ordered to construct the facilities, Illinois impeded progress by withholding necessary state funds. The parties asked for a master to police compliance with the decree. The Court appointed a Master to investigate but he was relieved after the receipt of his report. Illinois was ordered to supply the necessary funds and to report its compliance with the Clerk of the Court. 289 U. S. 395, 411-412. In the instant case no findings of fact have been made; nor has any ruling been resolved concerning either equitable apportionment of the water involved or the questions relative to whether New York and International are responsible for the creation of a public nuisance as alleged by Vermont.[6] *277 The proposed South Lake Master would police the execution of the settlement set forth in the Decree and pass on to this Court his proposed resolution of contested issues that the future might bring forth. Such a procedue would materially change the function of the Court in these interstate contests. Insofar as we would be supervising the execution of the Consent Decree, we would be acting more in an arbitral rather than a judicial manner. Our original jurisdiction heretofore has been deemed to extend to adjudications of controversies between States according to principles of law, some drawn from the international field, some expressing a "common law" formulated over the decades by this Court. The proposals submitted by the South Lake Master to this Court might be proposals having no relation to law. Like the present Decree they might be mere settlements by the parties acting under compulsions and motives that have no relation to performance of our Art. III functions. Article III speaks of the "judicial power" of this Court, which embraces application of principles of law or equity to facts, distilled by hearings or by stipulations. Nothing in the Proposed Decree nor in the mandate to be given the South Lake Master speaks in terms of "judicial power." II The parties have available other and perhaps more appropriate means of reaching the results desired under the Proposed Court Decree. An interstate compact under Art. I, § 10, cl. 3, is a possible solution of the conflict here. Vermont and New York (along with Connecticut, Maine, *278 Massachusetts, New Hampshire, and Rhode Island) are already parties to the New England Interstate Water Pollution Control Compact, 61 Stat. 682 (1947). A settlement of this interstate dispute by agreement of the parties is another alternative. Once a consensus is reached there is no reason, absent a conflict with an interstate compact, why such a settlement would not be binding. And such a settlement might be the basis for a motion to dismiss the complaint. Cf. Missouri v. Nebraska, post, p. 904. So ordered. NOTES [1] South Lake Champlain "means that portion of Lake Champlain extending from Whitehall, New York, to the Lake Champlain Bridge near Crown Point, New York." Proposed Decree, Art. II (I). [2] Old Mill is located in the village of Ticonderoga and was long operated as a pulp and paper mill. [3] New Mill is located four miles north of that village. [4] This is the five-day biochemical oxygen demand of the process waste-water effluent as measured by a specified method. [5] Pollution of interstate waters raises questions in the area of the law of public nuisance as we recently noted in Illinois v. City of Milwaukee, 406 U. S. 91, 106-107. [6] Vermont also alleges that the deposit of sludge has caused a shift of the channel (the border between the two States) in New York's favor. Disputes over interstate boundaries are properly cognizable here. Michigan v. Wisconsin, 270 U. S. 295; Massachusetts v. New York, 271 U. S. 65.

923 So.2d 507 (2006) GURIDI v. STATE. No. 3D05-2906. District Court of Appeal of Florida, Third District. January 25, 2006. Decision without published opinion. Affirmed.

104 F.3d 867 154 L.R.R.M. (BNA) 2212, 133 Lab.Cas. P 11,757 EVERGREEN HEALTHCARE, INC., d/b/a Willow Ridge LivingCenter, Petitioner/Cross-Respondent,v.NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner. Nos. 95-6039, 95-6193. United States Court of Appeals,Sixth Circuit. Argued Oct. 3, 1996.Decided Jan. 17, 1997. David W. Miller (argued and briefed), Todd M. Nierman, Baker & Daniels, Indianapolis, IN, for petitioner/cross-respondent. Aileen A. Armstrong, Deputy Associate General Counsel, Charles P. Donnelly, Jr. (briefed), William M. Bernstein, Steven F. Rappaport (argued), N.L.R.B., Appellate Court Branch, Washington, DC, for respondent cross-petitioner. Before: KENNEDY, JONES, and DAUGHTREY, Circuit Judges. KENNEDY, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. JONES, J. (pp. 879-880), delivered a separate opinion concurring in part and dissenting in part. KENNEDY, Circuit Judge. 1 Petitioner, Evergreen Healthcare, Inc., seeks review of a National Labor Relations Board supplemental decision and order finding Evergreen Healthcare committed unfair labor practices in violation of Sections 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(5) and (1). The National Labor Relations Board cross-petitions for enforcement of its order. For the reasons set forth below, we GRANT the petition for review and DENY the Board's cross-application for enforcement. I. 2 Evergreen Healthcare, Inc. operates Willow Ridge Living Center, a long-term care nursing facility in Fort Wayne, Indiana. Willow Ridge employs a non-supervisory staff totaling fifty-five employees. The non-supervisory staff consists of nurse aides, dietary aides, housekeeping aides, and activity aides; the non-supervisory staff are supervised by seventeen licensed and/or registered nurses.1 3 In the Spring of 1990, Lois Dibble, a supervisor employed at Willow Ridge, contacted the President of District 1199 of the Indiana/Iowa Union of Hospital & Health Care Employees, SEIU, AFL-CIO ("Union") and commenced an organizational effort among Willow Ridge employees in support of Union 1199. Dibble met with Alice Bush, the President of the Union, in April, 1990 to discuss the structure of Willow Ridge and the process of unionizing. The same month, Dibble and Aaron Shultz, also a supervisor, met with Bush and discussed Willow Ridge employees' wages, benefits, and job security. 4 Shortly after these two meetings with Bush, Dibble and Shultz were terminated. Dibble was terminated on April 25, 1990; Shultz was discharged on May 31, 1990.2 On June 11, 1990, the Union filed an unfair labor practice charge with the National Labor Relations Board charging that the discharges of Dibble and Shultz were unlawful.3 5 In early June, 1990, Bush assembled an organizing committee consisting of supervisory and non-supervisory employees to assist in the election of the Union by the forty-eight member bargaining unit. The supervisory members of the committee were Connie Ayres, Nancy Jehl, Brenda Hemrick, and Dawn Barton. Approximately seventeen non-supervisory employees were members of the committee. Each member of the committee was given a list of employees to whom they were to give information about the campaign. 6 Beginning in June, 1990, the Union held regular campaign meetings to garner support among the Willow Ridge employees; nine of the ten to eleven meetings were held at supervisors' homes. Eight of these meetings were held at the home of Shultz and Ayres despite Schultz's discharge in May, 1990. One meeting was held at Hemrick's home. During these organizational meetings, Bush instructed the committee on methods of getting employees interested in the Union 1199; she suggested the committee encourage employees to attend meetings, make telephone calls and visits to employees' homes, and engage in discussions during work breaks. These organizational meetings took place through election day on July 26, 1990. 7 Also in early June, 1990, the committee engaged in an effort to accumulate authorization cards for the Union. Several non-supervisory aides signed cards at the home of Ayres and Shultz while Ayres and Jehl were present. To garner authorization cards from employees who did not sign cards at Ayres' home, Shultz made housecalls to employees along with a Union official and other employees. Dibble, as well, made housecalls to aides. During one housecall to Nurse Aide Bertha Morgan by Dibble and Shultz, Morgan refused to sign an authorization card. Jehl telephoned Morgan asking "in a very rude voice ... are you going to sign that card or are you not." Morgan answered that she "did not know," to which Jehl responded, "[Jehl and other supervisors] [will] be over [your] house later on that evening." When Jehl and Hemrick arrived at Morgan's house that evening, Morgan signed the card. During this card "blitz," Ayres and Hemrick, in particular, were widely recognized by the employees as leading supporters of Union 1199. 8 On June 5, 1990, Bush, Shultz, Ayres, Hemrick, Jehl, Barton, and approximately twenty to twenty-five employees attended a meeting at Willow Ridge. At that meeting Hemrick announced to Willow Ridge Administrator Rick Oros that Union 1199 sought to be the collective bargaining agent for supervisory and non-supervisory staff at Willow Ridge. 9 From early June until the election, on July 26, 1990, the committee engaged in several other activities to garner support for the Union. For example, Bush furnished campaign buttons to Ayres, Jehl, Hemrick, and Barton to distribute to employees. Ayres, Jehl, Hemrick, and Barton wore their own campaign buttons to work on several occasions and Ayres distributed buttons to approximately seven non-supervisory employees. When Ayres offered buttons to employees, the employees understood that Ayres intended that they be worn. Nurse Aide Jacqueline Drake testified that she did not want to wear a campaign button but she accepted one to "get them off my back." Ayres handed a button to Nurse Aide Steve White and "told him to wear it and help boost the union." Jehl asked one nurse aide why she was not wearing a campaign button. 10 During the campaigning, several of the supervisors told non-supervisory staff that supporting the Union would result in various benefits to the nurse aides. For example, Ayres told employees that a vote for 1199 would result in "better wages, benefits, and more people to staff the facility," and "the way to get increased wages and improved benefits with more insurance benefits" was to vote for 1199. Ayres also announced that supporting 1199 "would [result in] better staffing" for employees. Supervisor Jehl told several employees that if they voted for the Union they would get better wages, better benefits, better working conditions and more staffing. Jehl solicited an authorization card from one non-supervisory employee while informing her that the Union could get the employees better wages and benefits. 11 Additionally, several supervisory nurses, including Ayres, Jehl, Hemrick, and Barton, distributed Union literature to non-supervisory employees at Willow Ridge. On one occasion, Ayres distributed literature to as many as twelve non-supervisory employees outside the entrance to the facility. While the literature was handed out, Union President Bush stood across the street and photographed the distribution. Ayres and Hemrick distributed literature on several other occasions inside Willow Ridge. 12 During the course of the campaign, the organizing committee sought the attendance of non-supervisory employees at campaign meetings. These meetings were attended by Ayres, Jehl, Dibble Shultz, Hemrick, and Barton. Hemrick, Ayres, and Jehl personally extended invitations to several nursing aides. On at least two occasions, members of the organizing committee offered nurse aides transportation to meetings if they wanted to attend. Approximately ten meetings were held prior to the election. The majority of these meetings were held at the home of Ayres and Shultz. During the meetings, Jehl and Ayres were particularly vocal in their support of Union 1199. 13 On the day of the election, the organizing committee made an effort to learn which employees had voted and how they voted. For instance, Jehl asked one dietary aide if he had voted yet. Similarly, Ayres asked a nurse aide if she had voted for the Union. When she asked, Ayres noted, "we [would] have a lot of benefits if [you] would vote for the union." The nurse aide, in response, testified that she "didn't want to get mixed up in [things] like this because the only reason I went along with them was they was my co-workers and I wanted to be able to work there." On election day, Jehl offered nurse aide Drake, also a Union supporter, transportation to work. Jehl had never made such an offer to Drake before. 14 On June 5, 1990, in the midst of the campaigning, the Union filed a petition with the National Labor Relations Board ("NLRB") seeking to represent supervisory and non-supervisory employees at Willow Ridge. Evergreen challenged the Union's inclusion of the nurse supervisors; accordingly, the Union amended its petition to omit the nurse supervisors. While the petition seeking to represent the non-supervisory employees was pending, the Union filed a petition seeking to represent the supervisory nurses. 15 On July 26, 1990, the NLRB conducted the election among the non-supervisory employees. The Union prevailed by a vote of thirty to fifteen. It was not until after the election that the NLRB Regional Director issued its decision finding that the Willow Ridge nurses were supervisors within the meaning of Section 2(11) of the National Labor Relations Act, as amended, 29 U.S.C. § 152(11)(1973). The Board sustained the dismissal of the election petition on January 14, 1991. 16 Evergreen objected to the election but, on November 6, 1992, the NLRB Hearing Officer overruled the objections and recommended certification of the election. Central to the Hearing Officer's ruling was her conclusion that none of the supervisors made threats of reprisal or promises of benefits to coerce employees into supporting the Union. The Officer also concluded that the supervisory nurses were not "agents" of the Union; they, rather, had merely expressed their personal opinions regarding the Union. 17 The Board denied Evergreen's exceptions to the Hearing Officer's Report on February 17, 1994, because Evergreen failed to take action to prevent the supervisors from engaging in campaigning and was thereby estopped from complaining about the supervisors' conduct. 18 When Evergreen refused to bargain with the Union, the NLRB ruled, on June 15, 1994, that Evergreen's refusal was unlawful. On June 27, 1994, Evergreen filed a Petition for Review of the NLRB's decision with this Court. The NLRB petitioned to dismiss the petition pending before this Court in order that it could reconsider its decision. This Court granted the NLRB's motion on October 17, 1994. 19 On July 31, 1995, the NLRB issued a supplemental decision and order affirming the previous ruling that Evergreen's refusal to bargain was unlawful. However, in this decision, the NLRB relied on other reasoning than that set forth in its first opinion. In its supplemental decision, the Board held that the campaign conduct did not necessitate setting aside the election relying solely on the reasons given in the Hearing Officer's report which it had previously adopted. 20 Evergreen appeals from the supplemental decision of the Board. Because Evergreen does business within this judicial circuit, this Court has jurisdiction over the proceeding in accordance with 29 U.S.C. § 160(e) and (f)(1973). II. 21 This Court upholds the Board's findings of fact if "they are supported by substantial evidence on the record viewed as a whole." NLRB v. Pentre Elec., Inc., 998 F.2d 363, 368 (6th Cir.1993); see also 29 U.S.C. § 160(e). Similarly, we review the Board's application of the law to the facts under a substantial evidence standard. 29 U.S.C. § 160(e); Pentre Elec. at 368 (citing Turnbull Cone Baking Co. v. NLRB, 778 F.2d 292, 295 (6th Cir.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2277, 90 L.Ed.2d 720 (1986)). In determining whether substantial evidence supports the Board's findings, this Court must consider the record as whole, including evidence which is contrary to the Board's conclusions. Id. 22 The Board's conclusions of law, however, are reviewed by this Court de novo. See Wilson v. NLRB, 920 F.2d 1282, 1285 (6th Cir.1990), cert. denied, 505 U.S. 1218, 112 S.Ct. 3025, 120 L.Ed.2d 896 (1992). "If the Board errs in determining the proper legal standard, we may refuse enforcement on the grounds that the order has no 'reasonable basis in law.' " Pentre Elec. at 368 (quoting Turnbull Cone Baking Co. at 295). III. A. 23 In its objections to the certification of the election, Evergreen argued that the Union utilized supervisory nurses as agents in order to encourage bargaining unit employees to vote for the Union, and therefore, committed an unfair labor practice. The Hearing Officer overruled the objection on the ground that the supervisors' comments about the Union were merely expressions of personal opinion and, therefore, were not made at the direction of the Union. Specifically, the Hearing Officer held: 24 The record falls short of establishing that any individual or group served as Petitioner's sole link with unit employees. Bush was on the scene and personally and actively directed the Union's election efforts, establishing that she was the sole spokesperson for the Union. There was no evidence that any of the nurses either formulated or expressed to the unit employees and [sic] campaign policy. Therefore no general agency status has been established as the objective indicates that the unit employees saw Bush, not the nurses, as having any authority in the Union. Despite the activities of the nurses and unit employees, which they engaged in with the full consent and knowledge of the Union, I do not find that the nurses nor any other member of the organizing committee acted as agents of the Union. 25 In its petition, Evergreen argues that substantial evidence does not support the Hearing Officer's conclusion that the supervisory nurses were not agents of the Union. 26 Union 1199 is responsible for the activities of nurses Lois Dibble, Aaron Shultz, Connie Ayres, Nancy Jehl, Brenda Hemrick, and Dawn Barton only if they were agents of the Union. "Generally, a union is not responsible for the acts of an employee, unless the employee is an agent of the union." Kitchen Fresh, Inc. v. NLRB, 716 F.2d 351, 355 (6th Cir.1983). An employee is considered an agent of the union if the union " 'instigated, authorized, solicited, ratified, condoned or adopted' the employee's actions or statements." Id. (quoting NLRB v. Miramar of California, 601 F.2d 422, 425 (9th Cir.1979)). Alternatively, an employee will be considered an agent of the union if "the union has clothed the employee with apparent authority to act on behalf of the union." Id. Under the latter approach of apparent authority, the petitioner must demonstrate that the "union cloaked the employee with sufficient authority to create a perception among the rank-and-file that the employee acts on behalf of the union and that the union did not disavow or repudiate the employee's statements or actions." Id. (citations omitted). 27 The question of whether an employee is an agent is a question of fact; therefore, our review of this question is governed by the well-established rule that the Board's findings of fact are conclusive if supported by substantial evidence. See NLRB v. Pentre Elec., Inc., 998 F.2d 363, 368 (6th Cir.1993). 28 The Board, on several occasions, has held conduct such as in the case at hand insufficient to confer agency status on supervisors. An important consideration for the Board is whether the alleged agent is the sole link to the Union. For example, in United Builders Supply Co., Inc., 287 NLRB 1364 (1988), the Board held that, although the purported agent was an active and vocal union supporter, engaged in the solicitation and collection of authorization cards on the union's behalf, and was asked by the union to set up and inform employees of union meetings, he was not an agent of the union because the union itself had a presence during the election campaign. Id. In reaching its conclusion, the Board noted that an employee's status as a leading union supporter alone is insufficient to establish an agency relationship. Id. 29 Similarly, in S. Lichtenberg & Co., Inc., 296 NLRB No. 167, 1989 WL 224408 (1989), the Board adopted the Hearing Officer's conclusion that employee in-plant organizers were not agents of the union, despite the wide variety of activities they performed on behalf of the union, because employees were not left on their own to conduct the campaign; rather, union organizers participated in the campaign regularly. Id. 30 In view of these principles, substantial evidence supports the Board's conclusion that the supervisory nurses were not agents of Union 1199. As in United Builders and Lichtenberg, the nurse organizers were not the sole link to the Union. The Union, through Alice Bush, had a regular presence during the campaign. The record reveals that Bush accompanied supervisors when they solicited cards and when supervisory nurses visited employees' homes. Furthermore, Bush was in attendance at the organizational meetings. She was also present while literature was handed out. Thus, Bush was in attendance during many of the campaign activities. Because of Bush's regular presence during the campaign activities, substantial evidence supports the Board's conclusion that the nurses were not agents of the Union. B. 31 Even though members of the organizing committee were not agents of the Union, the election may still be invalidated if the pro-union statements and activities of the nurse supervisors impaired the non-supervisory employees' freedom of choice in the election so as to justify setting the election aside. 32 The participation of a supervisor in the campaign preceding a union election may undermine the employees' freedom of choice so much so that the election must be set aside. However, an election is not automatically invalidated when there has been pro-union activity by a supervisor. See ITT Lighting Fixtures v. NLRB, 658 F.2d 934, 936-37 (2d Cir.1981); see also ITT Lighting Fixtures v. NLRB, 712 F.2d 40 (2d Cir.1983) (enforcement denied after remand to NLRB). An election will be invalidated when the petitioner demonstrates that "the supervisor's conduct reasonably tended to have such a coercive effect on the employees that it was likely to impair their freedoms of choice in the election." Id. at 937; see also NLRB v. Color Art, Inc., 932 F.2d 723, 724 (8th Cir.1991); NLRB v. Cal-Western Transport, 870 F.2d 1481, 1484 (9th Cir.1989); NLRB v. Island Film Processing Co., Inc., 784 F.2d 1446, 1451 (9th Cir.1986). The party challenging the election need not introduce proof of actual coercion. Island Film Processing at 1451; ITT Lighting Fixtures at 937. 33 To determine whether a supervisor's conduct reasonably tended to have such a coercive effect on the employees that it was likely to impair their freedoms of choice in the election, the Board and the circuit courts have considered the following two factors: (1) the degree of supervisory authority possessed by those who engaged in the pro-union activity; and (2) the extent, nature, and openness of the pro-union activity. ITT Lighting Fixtures at 937. 34 Regarding the first factor, the Board, in its August 29, 1990 decision and order, found that the licensed and registered nurses were supervisors within the meaning of the National Labor Relations Act, 29 U.S.C. § 152(11), because the nurses: (1) possessed the authority to issue verbal discipline and to effectively recommend more severe discipline which affects the employment tenure of aides; (2) enforced the employer's personnel policies; (3) recommended the reward of employees through their role in the evaluation process; (4) authorized overtime; and (5) assigned and monitored the daily work of the aides. The Board concluded that if the nurses were not found to be supervisory, the aides would be unsupervised seventy-five percent of the time. 35 The Hearing Officer noted the Regional Director's findings in her report; however, the Officer failed to consider the extent of the nurses' supervisory power when determining whether their conduct warranted invalidation of the election. In the Hearing Officer's view, the supervisory powers of the nurses was not a significant factor in the analysis because: (1) the nurses' status as supervisory was undecided during the campaigning; (2) Evergreen treated the nurses as unit employees by allowing them to campaign; and (3) the employees did not believe the nurses were supervisors because they campaigned side-by-side. 36 None of these reasons, however, render the supervisory status of the nurses inconsequential. First, whether or not the legal question of the supervisory status of the nurses had actually been decided by the Regional Director at the time of the campaigning is virtually irrelevant to whether the nurses actually possessed such authority and were viewed by the aides as supervisors. All of the facts upon which the Regional Director relied in arriving at his conclusion that they were supervisors, such as the nurses' authority to issue verbal discipline, their authority to approve overtime, and their monitoring of the daily work of the aides, were obvious to the aides at Willow Ridge during the time of the campaign. The Regional Director's decision merely confirmed the legal status upon those facts. 37 Second, while Evergreen did allow the nurses to campaign, it had little choice but to do so. Had Evergreen prohibited the nurses' pro-union activity and had the Board concluded that the nurses did not have supervisory status under section 2(11) of the National Labor Relations Act, Evergreen would have engaged in an unfair labor practice. See 29 U.S.C. §§ 157, 158 (1973). Indeed, the Board's withdrawal of its earlier opinion appears to have been in recognition of this fact. 38 Similarly, the fact that the nurses campaigned side-by-side with the aides is again a function of the fact that Evergreen faced little choice but to allow such campaigning. Whether the non-supervisory employees believed the nurses were their supervisors would not realistically be determined by the fact that they were campaigning together; they were campaigning together because the supervisory nurses had sought their own union representation. Contrary to the Hearing Officer's conclusion, we find that the fact that they were campaigning together, while the supervisory nurses had their own request for union representation, suggests that the aides would have perceived the nurses as having greater authority over them when their request to form a union was granted. We, thus, conclude that the Hearing Officer erred in failing to adequately consider the degree of supervisory power possessed by the nurses who engaged in the pro-union campaigning. 39 Before addressing the second factor, we must determine whether the conduct of Dibble and Shultz, the two discharged nurses, should be considered in our analysis of the extent and openness of the supervisors' pro-union conduct. The Fourth and Seventh Circuits have addressed the issue of whether the pro-union activity of a discharged supervisor should be considered in determining whether the election should be set aside. In NLRB v. Howard Johnson Motor Lodge, 705 F.2d 932 (7th Cir.1983), a supervisor, who engaged in coercive pro-union activities, was dismissed by the employer before the election. Id. at 935. After her dismissal, the supervisor told several employees that " 'she was going to get her job back with full back pay.' " Id. The Seventh Circuit held that, in light of this statement, the supervisor's conduct should be considered in determining whether the employees' free choice had likely been impaired because "employees could have reasonably believed that they would be subject to [the] supervisor['s] displeasure if the Union failed to win the election." Id. 40 In contrast, in NLRB v. Hydrotherm, 824 F.2d 332 (4th Cir.1987), the Fourth Circuit would not consider a discharged supervisor's pro-union activity even though an unfair labor practice charge on behalf of the supervisor was pending prior to the election.4 Id. at 335. In the Fourth Circuit's view, to determine "the likelihood of coercion where the employer has discharged a pro-union supervisor, the Board must consider whether the employees had a reasonable expectation of his reinstatement." Id. Applying this principle, the court disregarded the supervisor's activities because the court found that the company "presented no evidence ... to demonstrate that its employees knew of the pending unfair labor practice charge or had any expectation that [the supervisor] would be reinstated." Id. 41 The Hearing Officer in the case at hand concluded that the conduct of Dibble and Shultz should not be considered because, although the Union filed an unfair labor practice charge on behalf of Dibble and Shultz, "the record discloses that the Employer, bearing the burden of proof, presented no evidence indicating any of the unit employees knew of the pending charge or expected Dibble and/or Shultz to be reinstated." 42 Evergreen, in support of its argument to include Dibble and Shultz state: 43 In a small bargaining unit (only 48 employees) it is reasonable to infer the charge was common knowledge, as Dibble and Shultz were active in the campaign and attended numerous 1199 meetings after the charge was filed and prior to the election. The possibility Dibble and Shultz might return to their supervisory positions was potentially coercive to employees. 44 Appellant's Brief at 25-6 n. 11 (emphasis added) (citations omitted). The record is silent of any direct evidence demonstrating that non-supervisory employees were aware of the pending charge or that Dibble and/or Shultz made any comments to employees regarding their charge and the possibility that they might return to Willow Ridge. Nevertheless, we agree with Petitioner that, under the specific facts of this case, it is reasonable to infer that the employees were aware of the pending charge and that the employees could believe that Dibble and Shultz might return to work. 45 The record reveals that, after Shultz's termination on May 31, 1990, a meeting was held at his house at which approximately forty employees attended and during which authorization cards were distributed. This meeting lasted over an entire weekend and totaled four days. Shultz also, following his termination, visited approximately four to six aides at their homes to ask them to sign union authorization cards. All four to six aides signed authorization cards. Subsequent meetings were also held at Shultz's home. In total, Shultz attended eight to ten meetings after his termination, the majority of which were held at his home. 46 Similarly, subsequent to her termination, Lois Dibble attended every meeting that Shultz attended. She also accompanied Shultz in visiting aides at their homes to sign authorization cards. Under these circumstances, we find that Dibble and Shultz's conduct should be taken into consideration. Not only was the bargaining unit small, but also there was no explanation for Shultz and Dibble's pervasive presence at campaign activities and continued efforts on behalf of the union except that they expected to return to work. 47 The degree of supervisory authority possessed by the nurses here is significant and the Hearing Officer's reasons for rejecting the likelihood of the supervisors' conduct as reasonably tending to have a coercive effect on the employees are unwarranted. We turn then to the second factor, the extent, nature and openness of the pro-union activity of the supervisors. 48 It is patently clear that supervisors Ayres, Jehl, Hemrick, Dibble, Shultz, and Barton campaigned actively on behalf of the Union. They wore union buttons to work, attended union meetings, handed out union buttons, distributed authorization cards, and spoke about the Union at union meetings. The Hearing Officer specifically concluded that: (1) nurses Barton, Hemrick, Ayres, and Jehl signed authorization cards; (2) nurse Hemrick picked up a signed authorization card from an aide; (3) nurse Ayres distributed authorization cards; and (4) Jehl picked up an authorization card from an aide. 49 Moreover, there is additional evidence of conduct which might have reasonably tended to coerce the aides into failing to exercise their freedom of choice. For example, nurses exerted pressure on aides to sign authorization cards. During one call at the home of Nurse Aide Bertha Morgan by Dibble and Shultz, Morgan refused to sign an authorization card. Jehl telephoned Morgan asking "in a very rude voice ... are you going to sign that card or are you not." Morgan answered that she "did not know," to which Jehl responded, "[Jehl and other supervisors] would be over [your] house later on that evening." When Jehl and Hemrick arrived at Morgan's house that evening, Morgan signed the card. 50 In addition, the display of campaign buttons was frequently a topic of discussion between supervisors and aides. Nurse Aide Jacqueline Drake testified that she did not want to wear a campaign button but she accepted one to "get them off my back." Ayres handed a button to Nurse Aide Steve White and "told him to wear it and help boost the union." Jehl asked one nurse aide why she was not wearing a campaign button. 51 The pressure continued to the day of the election. On election day, Ayres asked a nurse aide if she had voted for the Union. When Ayres asked, she said, "we [would] have a lot of benefits if I would vote for the union." The nurse aide, in response, testified that she "didn't want to get mixed up in [things] like this because the only reason I went along with them was they was my co-workers and I wanted to be able to work there." This conduct of the supervisors is equal to or greater than that of the supervisors in NLRB v. Island Film Processing Co., 784 F.2d 1446 (9th Cir.1986), and Delchamps, Inc., 210 NLRB 179 (1974). Taking into consideration all of the evidence presented to the Board, we hold that the Board's conclusion that the campaign activities of the supervisory nurses would not reasonably have tended to have such a coercive effect on the employees that it was likely to impair their freedoms of choice in the election is not supported by the evidence. 52 We find additional support for our decision in cases decided by several other circuits. The United States Court of Appeals for the Fourth Circuit in NLRB v. River Walk Manor Inc., No. 86-3887, 1987 WL 38910 (4th Cir. Oct. 26, 1987)(unpublished disposition)5, discussed by both parties in their briefs, found that conduct similar but less severe than that in the case at hand warranted invalidation of a union election. In River Walk Manor, four supervisory nurses and twenty other employees of River Walk Manor, a nursing home, attended a meeting with a union seeking to represent the nursing home employees. Two of the supervisory nurses, Kiser and Purnell, encouraged the employees to organize an effort to support the union. Id. at * 1. The same two supervisors attended another meeting with union officials during which authorization cards were distributed and support for the union was again expressed. At River Walk Manor, supervisor Kiser voiced her support directly to the employees she supervised and solicited union authorization cards from five employees. When one employee expressed the desire to speak with her husband before signing an authorization card, Kiser told her that the card could fall into the wrong hands if she took it home and that the next day would be too late to sign the card. Id. 53 Following the filing of the election petition, the supervisors continued to attend union meetings and urged employees to "stick together and vote yes for the union, because we will get better wages, better job security, and better benefits." Id. at * 2. After the NLRB ruled that the four nurses were supervisors and excluded them from voting in the election, the nurses curtailed much of their union activity, but when Kiser was asked whether her opinions had changed about the union, she replied they had not and she was overheard making several pro-union statements to employees. Id. On election day, the union won by a vote of fifty-three to thirty. Id. 54 The Fourth Circuit, in denying enforcement of the election, held that "it is clear from the evidence that supervisory charge nurses were active in promoting the union, and that certain of these nurses, particularly Kiser, focused her pro-union activities upon those whom she supervised. This is [a] threat to an open and free election ..." Id. at * 3. In so holding, the court noted that a switch of only eleven votes would have altered the election results. Id. at * 4. 55 In the instant case, not only did the supervisory nurses engage in more pervasive and potentially coercive conduct than that in River Walk, but also a change of only eight votes would have turned the election. In addition, unlike in River Walk, more than one supervisor engaged in significant pro-union conduct up until the day of the election. Nurses Shultz, Dibble, Ayres, Jehl, Hemrick, and Barton engaged in the conduct deemed improper largely by only one nurse in River Walk. 56 The Hearing Officer principally relied on Wright Memorial Hosp. v. NLRB, 771 F.2d 400 (8th Cir.1985), in concluding that the supervisory nurses' conduct did not warrant setting aside the election. Contrary to the Hearing Officer's report, we find Wright Memorial supports the conclusion that the nurses' conduct at Willow Ridge reasonably tended to have such a coercive effect on the employees that it was likely to impair their freedoms of choice in the election. 57 In Wright Memorial, twelve to thirteen of fifteen hospital charge nurses signed authorization cards and wore union buttons in support of the union. Three of the charge nurses were active in the campaign beyond wearing of buttons and signing of authorization cards; their conduct included expressing support for the union and articulating the benefits the union might provide. Id. at 404-05. However, none of the nurses distributed cards or buttons accompanied with pressure or persuasion and none of the nurse required the employees to sign authorization cards or return the cards to them. In addition, none of the three played leadership roles in the election campaign. Id. at 405. Moreover, at the organizational meetings, the three nurses only responded to employee inquires. The Eighth Circuit concluded that, although "the evidence could support a finding that the supervisors' actions interfered with the employees' free choice to such an extent that the supervisors' actions materially affected the results of the election," the Board could reasonably infer from the facts that the employees' freedom of choice could not have reasonably been impaired. Id. at 406. 58 Significantly, unlike in Wright Memorial, the supervisory nurses at Willow Ridge did more than merely respond to employee inquiries at organizational meetings and it is undisputed that they asked employees to sign authorization cards and to wear pro-union buttons under significant pressure by the supervisory nurses. We cannot help but conclude that such conduct would chill persons they supervised from expressing opposition to the union in the workplace. 59 The final factors often deemed significant by other circuits in determining whether pro-union conduct of supervisors invalidates an election are the size of the bargaining unit and the ratio of pro-union supervisors to employees. See, e.g, Island Film Processing at 1453 (five supervisors expressed support to twenty-six employees; five votes would have turned the results in the election). We are dealing with a small bargaining unit in the case at hand. The bargaining unit consists of only forty-eight employees. Nurses Jehl, Ayres, Hemrick, and Barton each supervised four or five employees and among them a total of seventeen employees. The Union won the election by a vote of thirty to fifteen. Thus, if only eight of those seventeen employees had changed their votes, the Union would have lost the election. 60 An election will be invalidated if the petitioner demonstrates that "the supervisor's conduct reasonably tended to have such a coercive effect on the employees that it was likely to impair their freedoms of choice in the election." ITT Lighting Fixtures v. NLRB, 658 F.2d 934, 936-37 (2d Cir.1981) (emphasis added); see also NLRB v. Cal-Western Transport, 870 F.2d 1481, 1484 (9th Cir.1989); NLRB v. Island Film Processing Co., Inc., 784 F.2d 1446, 1451 (9th Cir.1986); NLRB v. Color Art, Inc., 932 F.2d 723, 724 (8th Cir.1991). The party challenging the election need not introduce proof of actual coercion. Island Film Processing at 1451; ITT Lighting Fixtures at 937. Based on a consideration of the factors enumerated in cases such as ITT Lighting Fixtures and Island Film Processing, there was insubstantial evidence for the Hearing Officer to conclude that the supervisors' pro-union activities would not have reasonably tended to have such a coercive effect on the employees that it was likely to impair their freedoms of choice in the election. 61 The Hearing Officer likely arrived at the conclusion she did because of her improper focus on actual coercion. The Hearing Officer worded the test as follows: whether the nurses' pro-union conduct "could coerce unit employees into supporting the union out of fear of future retaliation or hope of future rewards." Elsewhere, the Officer commented that "given the circumstances of this case, the decision issuing after the election indicating the nurses are supervisory and the campaigns of the Union and the Employer, it is improbable that absent any actual threats or promises by the nurses the unit employees could reasonably have been concerned about avoiding retaliation by or receiving rewards from the nurses." At the conclusion of her opinion, the Officer concluded that "the pro-union conduct of Ayres, Jehl, Hemrick and Barton could not reasonably have coerced the unit employees into supporting the union either in fear of retaliation or in hopes of reward." 62 The manner in which the Hearing Officer applied the test focused at times on whether the activities of the supervisors "could coerce" the non-supervisory staff but, at other times, on whether actual threats or promises were employed by nurse supervisors. The proper test to be applied is whether the activities "reasonably tended to have such a coercive effect on the employees that it was likely to impair their freedoms of choice in the election." Thus, the Hearing Officer appears to have erroneously leaned toward requiring proof of actual coercion. "If the Board errs in determining the proper legal standard, we may refuse enforcement on the grounds that the order has no 'reasonable basis in law.' " Pentre Elec. at 368 (quoting Turnbull Cone Baking Co. at 295). Because the Hearing Officer did not apply the facts in this case to the proper test as articulated in ITT Lighting Fixtures, for example, enforcement of the election would be improper. It is for this reason, as well, that enforcement of the election is denied. IV. 63 For the foregoing reasons, we DISMISS the Board's cross-petition for enforcement and DENY enforcement. 64 NATHANIEL R. JONES, Circuit Judge, concurring in part and dissenting in part. 65 I concur with the result in this case. I write separately because I disagree with the outcome the majority reaches regarding Nurses Dibble and Shultz. While this issue is not dispositive, I believe the issue is important enough to warrant a separate writing. 66 The majority finds that the conduct of Dibble and Shultz, two discharged nurses, should be considered in the analysis "of the extent and openness of the supervisors' pro-union conduct." Maj. Op. at 875. In NLRB v. Hydrotherm, Inc., 824 F.2d 332 (4th Cir.1987), the Fourth Circuit held that where a supervisor is discharged, "the Board must consider whether the employees had a reasonable expectation of his reinstatement." Id. at 335 (emphasis added) (citation omitted). The supervisor in that case had a pending unfair labor practice charge, but the company failed to present evidence that any of the employees knew of that charge or had any expectation to think the supervisor would be reinstated. Id.; see also NLRB v. Howard Johnson Motor Lodge, 705 F.2d 932, 935 (7th Cir.1983) (holding that where direct evidence was presented that supervisor told employees she would get her job back, employees had reasonable expectation that she would be reinstated). 67 In this case, the employees did not have reason to believe that Dibble and Shultz would be reinstated. The majority opinion states that "[t]he record is silent of any direct evidence demonstrating that non-supervisory employees were aware of the pending charge or that Dibble and/or Shultz made any comments to employees regarding their charge and the possibility that they might return to Willow Ridge." Maj. Op. at 876 (emphasis added). Nevertheless, the opinion holds that "it is reasonable to infer that the employees were aware of the pending charge and that the employees could believe that Dibble and Shultz might return to work." Id. (emphasis added). I believe this standard is extremely broad and haphazardly extends the "reasonable belief" standard enunciated by the Fourth and Seventh Circuits. 68 The opinion points out that Dibble and Shultz held several pro-union meetings, yet the company failed to produce the statement of a single employee that demonstrates Dibble or Shultz indicated that they would return to work. The majority opinion points to significant statements the employees made regarding other supervisors. Maj. Op. at 876-877. Therefore, it seems that if the employees thought Shultz or Dibble was going to return to work, the company could have obtained a statement by an employee indicating as much. The evidence before this court does not indicate that the employees "reasonably believed" that Dibble and Shultz would be reinstated. Consequently, their conduct should not have been considered in the majority's analysis. 69 The supervisors who remained employed, however, campaigned actively for the union. Therefore, I agree with the outcome reached by the majority. 1 On August 29, 1990, the National Labor Relations Board held that the licensed and registered nurses were supervisors of the nurse aides under Section 2(11) of the National Labor Relations Act, 29 U.S.C. § 152(11)(1973) 2 Although Shultz heard rumors of his discharge, he was not officially notified of his termination until June 5, 1990 3 The charge was dismissed by the Board on January 24, 1991 because the Board concluded that Dibble and Shultz were supervisors and, therefore, not protected by the National Labor Relations Act 4 The bargaining unit in Hydrotherm consisted of at least 115 members 5 We are mindful that River Walk Manor is an unpublished opinion. However, in this case, we depart from our usual practice of relying solely on published opinions in light of the parties' extensive reliance on River Walk Manor

112 Cal.App.3d 418 (1980) 169 Cal. Rptr. 333 THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE SINGLETON, Defendant and Appellant. Docket No. 11318. Court of Appeals of California, Fourth District, Division One. November 20, 1980. *420 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Handy Horiye, Deputy State Public Defender, and Christopher Blake, for Defendant and Appellant. George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Daniel J. Kremer, Assistant Attorney General, Harley D. Mayfield and Jay M. Bloom, Deputy Attorneys General, for Plaintiff and Respondent. OPINION LORD, J.[*] In October 1978, the Stanislaus County Grand Jury returned an indictment charging Singleton with these offenses: Count I, forcible rape (Pen. Code,[1] § 261, subd. 2); count II, forcible oral copulation (§ 288a, subd. (c)); count III, kidnaping (§ 207); count IV, sodomy (§ 286, subd. (c)), count V, forcible oral copulation (§ 288a, subd. (c)); count VI, mayhem (§ 203); and count VII, attempted murder *421 (§§ 664, 187). The indictment also alleged that Singleton used a deadly weapon in committing the offenses charged in counts III, VI, and VII, and inflicted great bodily injury in committing the offenses charged in counts III and VII. A plea of not guilty was entered to all counts. Because of the publicity attendant the case, a change of venue was granted to San Diego County. The trial resulted in a conviction in March 1979 on all counts. The jury found Singleton did not use a deadly weapon or inflict great bodily injury in the kidnaping but did use a deadly weapon in the commission of mayhem and attempted murder and also inflicted great bodily injury in the attempted murder. The attempted murder was found to be of the first degree. In April 1979, Singleton's motion for referral as a mentally disordered sex offender under Welfare and Institutions Code section 6300 et seq. was denied. Thereupon he was sentenced to a total of fourteen and one-third years in prison as follows: Count VII, attempted murder, ten years, including six years for the offense, one year for the use of a weapon and three years for the infliction of great bodily injury; count I, rape, one and one-third years, consecutively; counts II and V, oral copulation, consecutive terms of one year each; count IV, sodomy, a consecutive term of one year. Sentences imposed on count VI, mayhem, and count III, kidnaping, were stayed pending completion of the sentences on the other counts. Singleton was credited with 225 days calculated upon 193 actual days' credit. At trial the evidence disclosed that in September 1978, 15-year-old Mary V. was hitchhiking along a freeway in the San Francisco Bay Area, intending to go to Los Angeles by way of Interstate 5. Singleton, driving a van, picked her up. After a stop at Singleton's house in San Pablo, they went on toward Interstate 5. Mary fell asleep and on awakening discovered Singleton had passed by Interstate 5 and was going toward Nevada where, Mary learned, he also had a residence. Mary objected. They returned to the junction and proceeded south on Interstate 5. Singleton stopped along the highway and both got out to relieve themselves. As Mary was bending over to tie her shoe, Singleton struck her with his fist about the head and back several times. He threw her into the van, tied her hands behind her back and tore at her clothes. Singleton forced his penis into her mouth and then into her vagina. Thereafter Singleton drove the van into a canyon and parked. He again forced his penis into Mary's mouth and into her vagina. Then he *422 committed an act of sodomy. Afterwards Mary kept asking Singleton if he would set her free. Singleton made her drink some liquor. She passed out and awoke to find herself being dragged about 50 yards from the van. Singleton cut the ropes from her hands. He took a hatchet, chopped off Mary's left hand, then her right. He threw her over the side of the road, climbed down, shoved her into a drainage culvert and told her she was free. Mary made her way out of the culvert after Singleton left and after hours of wandering was discovered and given medical aid. She was hospitalized one month. Singleton was identified through a description given by Mary. His residence in San Pablo was searched. Mary's cigarettes were found there and also remnants of burnt clothing that appeared to be hers. Meanwhile, Singleton cleaned up the van with the help of a neighbor at his Nevada residence. He removed the carpet and washed it and the inside of the van. A few days thereafter he tried to kill himself by an overdose of sleeping pills. Singleton was eventually taken into custody by the Nevada police. Singleton's testimony was not offered at the trial but his statements to police officers were received. These statements were consistent with Mary's as to early events but went on to describe picking up two male hitchhikers, Larry and Pedro. Singleton said they stopped at a bar, bought some dope, smoked the dope and drank, stopped in a canyon and then paid for sex with Mary. Singleton said he thereafter passed out and awoke to find Larry driving the van toward San Francisco. Mary's clothes were in the van but she was gone. Larry told Singleton Mary had her hands in the till and was sent to Los Angeles. Singleton left the two hitchhikers in San Francisco. Singleton makes four contentions on appeal. One is that the prosecutor made improper comments in argument about Singleton's failure to testify. The prosecutor, in closing argument, said: "That's why I gave these two challenges. I said if there is a way out for you, Mr. Singleton, then by Heavens you come out and say it. Your attorneys have the challenge of explaining the two hitchhikers you have spoken of during Mr. Singleton's statement to the police. They did not mention it. They had the challenge to talk about Mr. Singleton's state of mind, which as Mr. Singleton stated on his interview with the police that he was drunk and had passed out while two hitchhikers did it. And so we were to join *423 issue on that. And that, ladies and gentlemen, has not been touched on. Instead, who has been placed on trial? Mary V." Singleton relies on Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229], holding that comments on a defendant's failure to testify are error. Griffin does not, however, prohibit every comment on the failure to present a defense. (1) A prosecutor may comment on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. (People v. Vargas (1973) 9 Cal.3d 470, 475 [108 Cal. Rptr. 15, 509 P.2d 959].) So, too, may a prosecutor point out in final argument that defense counsel have been silent in their argument on crucial factors in the evidence, and thus have, presumably, no explanation to offer for these factors. Singleton's statements to the police give rise to two possible defenses: That others committed the offenses charged and Singleton's capacity was diminished by intoxication. Reading the prosecutor's arguments as a whole, it is clear his challenges were directed to counsel to demonstrate why Singleton's statements should be deemed credible. In the prosecutor's language quoted above there is one phrase that could, with some strain, be interpreted as a suggestion Singleton should have presented his testimony. Assuming, however, that it was so interpreted by the jury, the evidence of guilt was overwhelming. The remark could not have had significant impact on the jurors. We find the prosecutor's comments were harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065]; People v. Vargas, supra.) (2) Singleton next contends the trial court abused its discretion in denying the motion to certify him for a determination whether he was a mentally disordered sex offender, pursuant to Welfare and Institutions Code section 6300 et seq. In support of the motion to certify Singleton submitted a psychiatrist's report which stated "... it is possible the defendant will meet the psychiatric criteria generally accepted in San Diego for classification as a mentally disordered sex offender." (Italics added.) But the court also had before it the report of another psychiatrist to the effect defendant "appeared well oriented in all spheres and showed no signs of any delusions, hallucinations, disturbances in memory ... or thought processes." Furthermore, Singleton, age 51 at the time of the denial of the motion, had no prior history of sex crimes and according to the probation report considered by the trial court, had *424 a fairly normal sex life with episodes of violence apparently triggered by excessive use of alcohol. Singleton cites People v. Barnett (1946) 27 Cal.2d 649 [166 P.2d 4], where an abuse of discretion was found in denying a motion to certify. In Barnett, however, the defendant was convicted of numerous sex offenses with multiple victims and three physicians reported their opinions to the trial court that the defendant was a sexual psychopath. Barnett is not comparable. There was no abuse of discretion here. (See, People v. Vallez (1978) 80 Cal. App.3d 46 [143 Cal. Rptr. 914].) (3) Singleton's third contention is the sentences imposed on counts II and V, oral copulation, are improper double punishment in contravention of section 654. On this point Singleton appears to argue the acts of oral copulation were used "as a means of committing" the ensuing rapes and sodomy and were not independent, separate crimes. He asserts the inference to be drawn from the evidence is that the oral copulations were not to achieve a separate sexual gratification but to achieve erection so that the rapes and sodomy could be committed. We cannot conclude this is the inference which must be drawn. "A defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act." (People v. Perez (1979) 23 Cal.3d 545, 553 [153 Cal. Rptr. 40, 591 P.2d 63]; People v. Clem (1980) 104 Cal. App.3d 337, 347 [163 Cal. Rptr. 553].) Sentencing on the counts charging oral copulation was not double punishment. (4) Singleton's final contention is that he was improperly sentenced under sections 664 and 187 for attempted murder, rather than for the more specific offense of assault with intent to commit murder under section 217 providing for a lesser penalty. He cites People v. Montano (1979) 96 Cal. App.3d 221 [158 Cal. Rptr. 47]; and People v. Gray (1979) 91 Cal. App.3d 545 [154 Cal. Rptr. 555], which do indeed support his contention. (See also the more recent similar decision in People v. Lopez (1980) 110 Cal. App.3d 1010 [168 Cal. Rptr. 378].) Section 664, the general attempt statute, applies only "where no provision is made by law for the punishment of such attempts." Montano, Gray and Lopez declare that where there is no evidence of any attempted murder other than an assault with intent to murder, a defendant is entitled to be punished under the more specific statute which expressly proscribes his conduct. The shocked legislative response to Montano and Gray was to repeal section 217 (Stats. 1980, ch. 300, eff. Jan. 1, 1981). *425 We are in agreement with the principle announced in Montano, Gray and Lopez; that is, a specific statute prevails over the general statute. But we are of the opinion that the principle was not applicable to the facts in those cases; nor is it applicable to the facts in the instant case. In the cases cited, as here, there was evidence of attempted murder other than an assault with intent to commit murder; i.e., the assaultive conduct exhibiting an intent to commit murder resulted in the use of force and in actual injury. The use of force and actual injury are not elements of the crime of assault with intent to commit murder. (Cf. People v. Yeats (1977) 66 Cal. App.3d 874, 878 [136 Cal. Rptr. 243].) A violation of section 217 is committed and the crime is complete when, with the requisite intent, there is "an unlawful attempt, coupled with present ability, to commit a violent injury on the person of another." (§ 240.) When force is used and actual injury is inflicted, the criminal conduct is more opprobious and the consequences to the victim and to society much graver. It is logical to presume that in enacting section 217 and in providing for a lesser penalty than that which may be imposed for attempted murder, the Legislature intended section 217 to punish conduct constituting an assault but falling short of actual force and injury. This was, we infer, perceived by the court in People v. Meriweather (1968) 263 Cal. App.2d 559 [69 Cal. Rptr. 880]. In Meriweather the defendant was charged with both attempted murder under sections 664 and 187 and assault under section 217. The evidence disclosed the defendant, having declared an intent to kill, fired a gun at the victim, causing three bullet wounds. On appeal, he contended it was error to convict him of attempted murder; that he should have been charged solely with assault with intent to commit murder and the trial court should have been limited to that charge. He urged, as does Singleton, that section 664 was intended by the Legislature to punish attempts only where no provision is made by law for the punishment of a particular attempt and, therefore, the enactment of section 217 made section 664 inapplicable. The court rejected the defendant's contention, holding that section 217 defined a crime distinct from attempted murder and stating: "It was proper, under the facts of the case and under the pleadings, for the trial court to have found the defendant guilty of both the crimes of attempted murder and assault with intent to commit murder."[2] (People v. Meriweather, supra, at p. 563.) *426 Meriweather was correctly decided. It is true Singleton could have been charged with and convicted of a violation of section 217, but it does not follow the evidence against him showed the commission solely of an assault. Furthermore, Singleton offers for the first time in this appeal to let himself be punished under section 217. Although assault with intent to commit murder is one form of attempted murder (People v. Heffington (1973) 32 Cal. App.3d 1, 11 [107 Cal. Rptr. 859]), it is not a necessarily included offense (People v. Gray, supra, 91 Cal. App.3d 545, 557). The trial court lacked jurisdiction to convict or sentence him for an offense which was neither charged nor included in the alleged crime (People v. West (1970) 3 Cal.3d 595, 612 [91 Cal. Rptr. 385, 477 P.2d 409]). Singleton was properly charged with, convicted of and sentenced for attempted murder. Singleton claims he has not received all the days credit to which he is entitled (People v. Sage (1980) 26 Cal.3d 498 [165 Cal. Rptr. 280, 611 P.2d 874]). The Department of Corrections should recompute his entitlement. The judgment is affirmed. Cologne, Acting P.J., concurred. STANIFORTH, J. I concur in the judgment but would add these further predicates for Justice Lord's sound conclusion that Singleton was properly sentenced for the crime he committed and was convicted — attempted murder in the first degree (Pen. Code, §§ 664/187). Singleton's contention, stripped of all verbage, is that he is entitled as a matter of law to be sentenced to a lesser term for the uncharged, untried, heretofore unmentioned offense of assault with intent to commit murder. (Pen. Code, § 217.) This contention blithely ignores the 108-year history of unquestioned enforcement of each of the 2 statutes here under scrutiny as separate and distinct offenses. Singleton offers neither logic nor appeal to right reason to justify excision of the district attorney's authority and duty to charge, seek conviction and appropriate sentence for an attempted murder (Pen. Code, §§ 664/187) as the statute specifically provides, if he in good faith believes he has evidence to prove the elements of that crime. Singleton reasons (1) "[t]he conviction and sentence for the general offense of attempted first degree murder rather than the more specific *427 offense of an assault with the intent to [commit] murder under Penal Code section 217 was error" and (2) Penal Code section 664 is limited in applicability to those cases where no provision is made for the punishment of attempts. This reasoning is flawed for each of the premises assumed are faulty. Singleton was charged and found guilty of attempted murder in the first degree. He was not charged alternatively with, nor was the jury instructed or requested to be instructed on, the Penal Code section 217 offense of assault with intent to commit murder. Thus People v. Meriweather (1968) 263 Cal. App.2d 559, 563 [69 Cal. Rptr. 880]; People v. Montano (1979) 96 Cal. App.3d 221 [158 Cal. Rptr. 243]; People v. Gray (1979) 91 Cal. App.3d 545 [154 Cal. Rptr. 555]; and People v. Johnson (1978) 81 Cal. App.3d 380 [146 Cal. Rptr. 476], are not factually or legally in point. This case involves neither double conviction nor double punishment, therefore reference to Penal Code section 654 is irrelevant. The sole issue is whether the district attorney may charge an attempted murder, prove it factually beyond a reasonable doubt to a jury, then be met for the first time on appeal with the contention that defendant is entitled to be sentenced for an uncharged, untried, unproven offense. DISCUSSION I What in substance Singleton asks is to be resentenced upon an uncharged, untried offense where not a hint of this issue has been raised at the trial court level. No claim was made that a Penal Code section 217 charge, as a lesser included offense, was lodged in the allegations of the indictment. No instructions on a lesser included offense were requested. No request for sentence under Penal Code section 217 was made at any time. This issue is now raised for the first time on appeal. Singleton is precluded as a matter of law from now raising this issue. (People v. Rogers (1978) 21 Cal.3d 542, 547 [146 Cal. Rptr. 732, 579 P.2d 1048]; People v. Maynarich (1978) 83 Cal. App.3d 476, 480 [147 Cal. Rptr.823].) II If these omissions are overlooked, Singleton's contention remains still unsound. Attempted murder and assault with intent to commit murder are in law two separate distinct offenses. The first (attempted murder) *428 is of common law origin; the second has purely statutory beginnings but common law interpretations. Each offense has its own distinct and essential elements. This is true whether we use as a yardstick the statutory definitions or the judicial interpretation of code language. In the first place, the intent requirements for attempted murder in the first degree, attempted murder in the second degree and assault with intent to commit murder are significantly different. In People v. Martinez (1980) 105 Cal. App.3d 938, 942 [165 Cal. Rptr. 11], the court stated: "Several California cases and many criminal scholars have acknowledged a distinction between the intent required for the completed crime of murder and that required for a mere attempt." (Fn. omitted.) And the author of the Annotation, What Constitutes Attempted Murder, 54 A.L.R.3d 612, 621, points out this verity: "Often at least as significant as statutes specifically dealing with attempts generally, attempts to murder, and related crimes, are the statutes defining murder in its various degrees, since the degree of murder allegedly attempted has a strong bearing on the necessary allegations and proof relating to intent." (Italics added; fns. omitted.) In People v. Mize (1889) 80 Cal. 41, 43 [22 P. 80], the defendant was charged with Penal Code section 217, assault with intent to commit murder. The Supreme Court held: "`To constitute murder, the guilty person need not intend to take life; but to constitute an attempt to murder, he must so intend.' [Citation.] `The wrong-doer must specifically contemplate taking life; and though his act is such as, were it successful, would be murder, if in truth he does not mean to kill, he does not become guilty of an attempt to commit murder.' [Citation.]" (Italics added.) The Mize rule has been followed for over 91 years and is sound law today. (See People v. Weston (1917) 32 Cal. App. 571, 578 [163 P. 691]; People v. Miller (1935) 2 Cal.2d 527, 530 [42 P.2d 308]; People v. Dorsey (1969) 270 Cal. App.2d 423, 428 [75 Cal. Rptr. 658]; People v. Sartain (1968) 268 Cal. App.2d 486, 489 [73 Cal. Rptr. 799]; People v. Martinez (1980) 105 Cal. App.3d 938, 942 [165 Cal. Rptr. 11].) In People v. Sartain, supra, at page 489, it was held: "True it is that assault with a deadly weapon with intent to commit murder requires a *429 specific intent to kill (Pen. Code, § 217; People v. Mize, 80 Cal. 41, 44 ...; People v. Pineda, 41 Cal. App.2d 100, 104 ...; People v. Alexander, 41 Cal. App.2d 275, 281 ...), however, the `murder' which a defendant must intend need not show premeditation. (See People v. Bernard, 28 Cal.2d 207, 214 ...; People v. Hoxie, 252 Cal. App.2d 901....)" (Italics added.) And in People v. Heffington (1973) 32 Cal. App.3d 1, 11 [107 Cal. Rptr. 859], the court explained: "The crime of assault with intent to commit murder requires proof of a specific intent to murder, but without regard to any distinction between first and second degree murder. [Citations.] Both first and second degree murder require existence of the state of mind known as malice; aside from felony murder, a specific intent to kill is a necessary ingredient of first degree murder but not of second degree murder. [Citations.] Hence, it is incorrect to say that assault with intent to commit murder requires proof of specific intent to kill; more accurately, one should speak of specific intent to commit murder. [Citations.]" Thus law of attempts requires a specific intent of the nature and quality as required for commission of the attempted crime. (People v. Camodeca (1959) 52 Cal.2d 142, 145 [338 P.2d 903].) Where the charge is attempted murder in the first degree, the intent, the state of mind, requisite to such offense must be that as would authorize conviction for murder in the first degree had the deed been accomplished. And if greater weight of reason is needed, the annotator in California Jurisprudence 3d states: "[T]o establish a particular degree of a crime such as [attempted] first degree murder, or to make applicable a particular statutory provision for punishment," a specific intent is required. (17 Cal.Jur.3d, Criminal Law, § 60, p. 107.) In the case at bench the state of mind — the intent required by Penal Code section 189, paragraph 1, is an essential element of the proof of attempted murder in the first degree. Without such intent, an attempted murder in the first degree would not be committed, the greater punishment provided by section 664, subdivision 1, could not be imposed. At trial, distinctive instructions conformable to the different intent requirements are necessary. (People v. Mize (1889) 80 Cal. 41, 44-45 [22 P. 80].) These two crimes are legally distinct for these further arcane reasons. An attempt to commit a crime is committed albeit for some reason not discernible to the wrongdoer, the crime is not capable of commission. *430 (People v. Lee Kong (1892) 95 Cal. 666 [30 P. 800]; In re Magidson (1917) 32 Cal. App. 566 [163 P. 689]; People v. Grant (1951) 105 Cal. App.2d 347, 355 [233 P.2d 660]; People v. Fiegelman (1939) 33 Cal. App.2d 100 [91 P.2d 156].) In contrast, an assault to be effective must be coupled with the wrongdoer's present ability to commit the violent injury. (Pen. Code, § 240; 20 Cal.Jur.3d, Criminal Law, § 1724, p. 250.) The present ability to do the act threatened by an assault is not lacking because such act was in some manner prevented. (People v. Yslas (1865) 27 Cal. 630, 633, 634; People v. Bradley (1945) 71 Cal. App.2d 114, 120 [162 P.2d 38].) The legislative drafters as well as the later judicial interpretations demonstrated a full knowledge of the legal definition of an "assault." (People v. Yslas, supra, 27 Cal. 630, 633, 634.) No harmful or offensive touching was or is required to commit an assault. Thus, a less egregious offense may be encompassed within a section 217 Penal Code charge. The scholarly observations of further distinctions between an "assault" and an "attempt," are of little aid here (In re James M. (1973) 9 Cal.3d 517, 522 [108 Cal. Rptr. 89, 510 P.2d 33]), for the Legislature has since 1872 declared attempted first degree murder to be an offense punishable by imprisonment for a specified term while the crime of assault with intent to commit murder has been designated as an offense punishable by a specific lesser term. Subsequent amendments to these statutes have recognized this difference and maintained the relative relationship of greater to lesser penalty. A plethora of reported decisions have enforced these two statutes over a 108-year period and attest to the distinctiveness of the 2 offenses. In sum, although assault with intent to commit murder may be related superficially to attempted murder, yet the Legislature has created and judicial interpretations have maintained two distinct offenses, two distinct and most specific punishments. III A question remains whether assault with intent to commit murder is a necessarily included offense of the charged attempted murder requiring the trial court to treat sua sponte with Penal Code section 217. *431 Two types of necessarily included offenses have been recognized in this state. First, where an offense cannot be committed without committing another offense, the latter offense is an included offense. (People v. West (1970) 3 Cal.3d 595, 612 [91 Cal. Rptr. 385, 477 P.2d 409].) Second, a lesser offense is necessarily included if it is within the offense specifically charged in the information. (People v. Cannady (1972) 8 Cal.3d 379, 390 [105 Cal. Rptr. 129, 503 P.2d 585]; People v. St. Martin (1970) 1 Cal.3d 524, 536 [83 Cal. Rptr. 166, 463 P.2d 390]; Witkin, Cal. Criminal Procedure (1963) §§ 542, 543, pp. 553-555.) The foregoing analysis of the precise elements of two crimes compels this conclusion: Attempted murder in the first degree does not necessarily encompass all of the essential elements of assault with intent to commit murder. Attempted murder can be (and was here) committed without an "assault" element being present. It has long been the rule that an assault with intent to commit a crime necessarily embraces an "attempt" — in a generic sense, at least, if not in legal parlance — to commit that crime; but the converse is not equally true. An attempted murder under Penal Code sections 664/187 does not necessarily include an assault with intent to commit murder as defined by Penal Code section 217. (People v. Akens (1914) 25 Cal. App. 373, 374 [143 P. 795]; People v. Rupp (1953) 41 Cal.2d 371, 382 [260 P.2d 1]; People v. Johnson, supra, 81 Cal. App.3d 380, 388 [146 Cal. Rptr. 476]; People v. Meriweather, supra, 263 Cal. App.2d 559, 563 [69 Cal. Rptr. 880]; People v. Provencher (1973) 33 Cal. App.3d 546, 549 [108 Cal. Rptr. 792].) The pleadings here do not charge, nor did defendant perceive the indictment as charging a section 217 assault as a lesser included offense. By either test, the assault with intent to commit murder was not a necessarily included offense of the charged attempted murder in the first degree; therefore Singleton has established neither a legal nor a factual basis to claim error. He was not entitled to sua sponte instructions on a noncharged Penal Code section 217 assault nor is he entitled now to demand the lesser sentence as provided in section 217. He could with equal lack of reason or authority argue a trial court duty to sentence him for simple assault or battery — or disturbing the peace. IV Nor was the district attorney required to prosecute Singleton for the lesser offense of Penal Code section 217. He was entitled to charge *432 what in good faith he felt the evidence would prove. Whether to prosecute and what charge(s) to file are decisions that generally rest in the prosecutor's discretion. (Daly v. Superior Court (1977) 19 Cal.3d 132, 148 [137 Cal. Rptr. 14, 560 P.2d 1193].) To agree with Singleton's contention is to hold that a defendant has the power to determine what crime is to be charged against him. This is a power that "resides exclusively with the prosecution." (People v. West, supra, 107 Cal. App.3d 987, 993 [165 Cal. Rptr. 24]; see also People v. Adams (1974) 43 Cal. App.3d 697, 707 [117 Cal. Rptr. 905].) "Just as a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment and prosecution, neither is he entitled to choose the penalty scheme under which he will be sentenced." (United States v. Batchelder (1979) 442 U.S. 114, 125 [60 L.Ed.2d 755, 766, 99 S.Ct. 2198, 2204].) V Singleton's reliance upon People v. Montano, supra, 96 Cal. App.3d 221 [158 Cal. Rptr. 47], and its progeny is misplaced. The soundness of the Montano decision rests in part on the applicabilities of a rule of statutory construction, to wit: prosecution under a general statute is precluded by a special statute where the general statute covers the same matter as, and thus conflicts with, the special statute. (People v. Ruster (1976) 16 Cal.3d 690, 694 [129 Cal. Rptr. 153, 548 P.2d 353, 80 A.L.R.3d 1269].) This rule is irrelevant, has no application where disparate specific punishments are imposed for two distinct offenses. A special statute does not supplant a general statute unless all of the elements of the general statute are included in the special statute. (People v. Gilbert (1969) 1 Cal.3d 475, 480 [82 Cal. Rptr. 724, 462 P.2d 580]; People v. Ruster, supra, 16 Cal.3d 690, 694.) While Penal Code section 664 is in part a "general" section in that the one-half term is mandated for attempts generally, yet where the attempted crime is murder in the first degree, section 664, subdivision 1, is most specific. Where the maximum sentence for the crime attempted "is life imprisonment or death," such attempt is punishable not by the general "one-half" term but by the most specific term of "five, six or seven" years.[1] This then is no mere "general" sanction covering attempts generally but applies only to certain most specific crimes. Murder in the first degree is one of the very few crimes designated, singled out for this extreme penalty. *433 In what can be none other than clear and convincing evidence of profound disagreement with, disapproval of the misreading of the legislative mind by the Montano court, the Legislature has repealed not only Penal Code section 217 but also Penal Code sections dealing with related assaults (Pen. Code, §§ 216 and 221) relied upon by the Montano court in determining not to enforce the greater penalty of attempted murder. (See Stats. 1980, ch. 300, eff. Jan. 1, 1981.) This legislative act of repeal precludes, after January 1, 1981, judicial misreading of legislative intent at least as to the enforceability of the law against the crime of attempted murder. Unhappily in this process, the people of this state have lost several most precise weapons against assaultive crime. VI Finally, if there is need for further lawful reason to deny Singleton's claim to a reduced sentence, then the substantial evidence rule provides it. The evidence must be viewed in the light most favorable to the jury's verdict of attempted murder. The act of chopping off the girl's arms — while evidencing a whole series of most heinous crimes — could, arguably, not show the requisite intent to commit murder in the first degree. It is Singleton's act of abandoning the bleeding, armless child in a wilderness, shoved in a tunnel that proves beyond reasonable doubt the requisite intent for attempted murder in the first degree. Although not of an assaultive quality, that malignant act supplies the requisite state of mind to meet the legal requisites of attempted murder in the first degree and thus warrants the greater punishment. Singleton was correctly charged, fairly tried, and most mercifully dealt with on judgment day. I concur in affirming the judgment of conviction and sentence imposed. Appellant's petition for a hearing by the Supreme Court was denied January 14, 1981. NOTES [*] Assigned by the Chairperson of the Judicial Council. [1] All references to sections are to the Penal Code unless otherwise specified. [2] The court went on to find the defendant was properly punished for the crime carrying the greater penalty (attempted murder) with a stay of execution for the section 217 violation pursuant to the provisions of section 654. [1] Penal Code section 664, subdivision 1, was amended effective 1979 to increase these specific terms.

248 F.Supp.2d 945 (2002) Carolyn CONDIT, Plaintiff, v. NATIONAL ENQUIRER, INC., Defendant. No. CIV F 02-5198 OWW LJO. United States District Court, E.D. California. July 10, 2002. *947 Brian Anthony Rishwain, Johnson and Rishwain LLP, Los Angeles, CA, Rodney Smolla, University of Richmond, T C Williams School of Law, Richmond, VA, for Carolyn Condit, plaintiff. Bruce Alan Owdom, Dietrich Glasrud Mallek and Aune, Fresno, CA, Adam Lindquist Scoville, Pro Hac Vice, Thomas B Kelley, Pro Hac Vice, Steven D Zansberg, Pro Hac Vice, Faegre & Benson, Denver, CO, Michael B Kahane, Pro Hac Vice, American Media Inc, Law Department, Boca Raton, FL, for National Enquirer Inc, American Media, Inc., defendants. MEMORANDUM DECISION AND ODER RE: DEFENDANT'S MOTION TO DISMISS OR STRIKE, OR, ALTERNATIVELY, SUMMARY JUDGMENT AND ATTORNEY'S FEES WANGER, District Judge. I. INTRODUCTION Carolyn Condit ("Plaintiff) sues National Enquirer, Inc. ("Defendant"), and unnamed *948 Does for libel based on statements published in two issues of Defendant's weekly publication, The National Enquirer, dated August 7 and September 4, 2001. See Doc.l, Complaint, filed February 21, 2002. Diversity jurisdiction is invoked under 28 U.S.C. § 1332, based on the parties' citizenship in different states and the amount in controversy in excess of the $75,000 jurisdictional minimum. Defendant moves to dismiss or strike Plaintiffs Complaint under Fed.R. Civ.P. 12(b)(6), or alternatively, for summary judgment and attorney's fees under California Code of Civil Procedure section 425.16 prohibiting Strategic Lawsuits Against Public Participation. See Doc.19, filed April 1, 2002. Plaintiff opposes Defendant's motion. See Doc.28, filed June 17, 2002. Oral argument was heard July 1, 2002. II. BACKGROUND Plaintiff is a California citizen and the wife of former United States Congressman Gary A. Condit. See Complaint at ¶ 3. Plaintiffs Complaint alleges she is not a public figure, has never given, or granted a request for her to give, an interview to a journalist, and has not voluntarily injected herself into a matter of public concern in an attempt to influence the outcome of a controversy. See id. Defendant's articles, exhibits 1 and 2 to the Complaint, confirm that Plaintiff is a "private" person who has not participated in her husband's public life. Defendant is a corporation with its principal place of business in Boca Raton, Florida. See Complaint at ¶ 4. Defendant disseminates a weekly publication, The National Enquirer (the "Enquirer "). See id. Some time before July 26, 2001, the Enquirer reported on its website, , that "just days before" the disappearance of Mr. Condit's intern, Chandra Levy, Plaintiff phoned Mr. Condit's Washington, D.C., apartment from the Condits' home in Ceres, California, and verbally attacked Ms. Levy during a five-minute telephone conversation. See Complaint at ¶ 6. On July 26, 2001, the Washington Metro Police Department responded to the Enquirer's report and debunked the reported phone call with the following statement from Chief Terrance W. Gainer: "I don't think there's any truth to that whatsoever." See id. at ¶ 7. The following day, July 27, 2001, Washington Metro Police spokesperson Joe Gentile also dismissed the Enquirer`s report, stating: "I am saying there is no foundation to that report." See id. Several newspapers, including the USA Today, New York Post, and Washington Times, reported the information that was posted on the Enquirer's website, including that Plaintiff verbally attacked Ms. Levy over the telephone just days before her disappearance. See id. at ¶ 8. Plaintiff alleges that notwithstanding the statements by Washington Metro Police Department personnel, the Enquirer on August 7, 2001, published an article describing the purported angry phone call between Plaintiff and Ms. Levy. See id. at 119. Plaintiffs Complaint contains three claims for libel. See Complaint. The first claim alleges Defendant published the following "First Offending Statements" in the August 7, 2001, edition of the Enquirer: 1) the large, bold-faced, all-caps headline on the cover: "COPS: CONDIT'S WIFE ATTACKED CHANDRA"; 2) the sub-headlines on the cover: "The furious phone call," and "What wife is hiding"; 3) the story headline in all-caps on page 32: "COPS: CONDIT'S WIFE ATTACKED CHANDRA"; and 4) the first paragraph of the article on page 32: "Gary Condit's bitter wife flew into a rage and attacked Chandra Levy in a furious confrontation just days before the intern's disappearance, The ENQUIRER has learned exclusively." *949 See Complaint at ¶¶ 13-15, Exh. A. Plaintiff alleges the First Offending Statements are libelous on their face, per se, because they imply Plaintiff committed crimes of assault and battery. See Complaint at ¶ 16. Plaintiff alleges the First Offending Statements are reasonably susceptible of a defamatory meaning because they falsely insinuate or state: a) the police believe, and the true fact is, that Plaintiff physically attacked and/or was physically involved in the disappearance of Ms. Levy; b) Plaintiff is hiding information about Ms. Levy's disappearance; and c) Plaintiff had a telephone call with Ms. Levy "just days before" Ms. Levy's disappearance. See Complaint at ¶¶ 17-18. Plaintiff alleges she has never seen Ms. Levy in person or spoken to her on the telephone, and telephone records show no phone call made "days before" Ms. Levy's disappearance from Plaintiffs home in Ceres, California, to Mr. Condit's apartment in Washington, D.C. See Complaint at ¶ 18. Plaintiff alleges Defendant was aware the cover and story headlines were misleading but made no attempt to clarify their meaning prior to publication. See Complaint at ¶ 19. Since Defendant's inhouse counsel and vice president, Michael Kahane, has performed pre-publication review for another tabloid, the Globe, since 1995, Plaintiff asserts Defendant was subjectively aware the headlines in the First Offending Statements conveyed a defamatory or potentially defamatory meaning in light of Kaelin v. Globe Comms. Corp., 162 F.3d 1036 (9th Cir.1998), which held the following headline reasonably susceptible of a defamatory meaning: "COPS THINK KATO DID IT!" See Complaint at ¶ 19. The Complaint charges Defendant recklessly disregarded its awareness of the defamatory meaning of the First Offending Statements by failing to explore whether a defamatory meaning was communicated. See id. Plaintiff claims Defendant deliberately intended to convey the impression that Plaintiff physically attacked Ms. Levy or that her disappearance was a result of Plaintiffs jealous rage when Defendant had no reason to believe that impression was true. See id. Plaintiffs second claim alleges Defendant published the "Second Offending Statements" in the August 7, 2001, edition of the Enquirer in the story beginning on page 32: 1) "In a major breakthrough, investigators have uncovered what they say is the `blowup phone call' between Chandra and Carolyn Condit—during which the 24-year-old intern told an enraged Carolyn that Gary was dumping her to start a new life and family with Chandra"; 2) "The Justice Department source confirmed: `Investigators are now sure that Mrs. Condit talked with Chandra Levy in the days before her disappearance'"; and 3) In a bombshell disclosure, a source told the Enquirer: "Investigators got phone records that show a phone call from Condit's home in California to his apartment in Washington that was over five minutes long. ... From their extensive work including interviews with Condit, his wife, and Chandra's family members and friends, investigators now say that Chandra and Carolyn had a heated conversation. When the phone rang, Chandra was in the apartment and saw from the caller ID that it was from Condit's home in California. And she boldly answered it. Chandra and the wife had a heated phone screamfest...." Complaint at ¶¶ 25-26. Plaintiffs third claim alleges Defendant published the "Third Offending Statement" in the September 4, 2001, edition of the Enquirer: "Just days before the intern's *950 disappearance Carolyn flew into a rage at Chandra during a phone call." Complaint at 11 34. Plaintiff asserts Defendant recycled the information about the phone call from the August 7, 2001, issue of the Enquirer without further corroboration by additional sources. See id. at ¶ 36. Defendant or its purported source or sources fabricated the "furious phone call" and that any source on the matter was not credible because the story is unsupported by phone records and no such call occurred. See id. The Complaint charges that Defendant published the First, Second, and Third Offending Statements (collectively, the "Offending Statements") with negligence and constitutional and actual malice with knowledge that they were false or with a reckless disregard for their truth or falsity. See id. at ¶¶ 19, 28, 36. Defendant was aware, at least eleven days before publishing the August 7, 2001, issue and forty days before publishing the September 4, 2001, issue, that the Washington Metro Police Department denied the alleged phone call ever took place. See id. Without attempting to interview Plaintiff, Defendant recklessly ignored the known contradictory statements by Washington Metro Police and published the Offending Statements. See id. The Complaint asserts Defendant had a "pecuniary motive" to publish headlines and stories reasonably susceptible of a defamatory meaning. See id. Defendant "had a predetermined bias against Mrs. Condit" and broke the story as a "World Exclusive" in an attempt "to gain sole credit as the first to sully Mrs. Condit's reputation and to drag her into the morass." Id. The purported source is twice removed from any original source, but "Defendant purposely avoided the truth by failing to adequately fact-check to confirm the accuracy of the offending statements... where the implication of the offending statements are serious enough to warrant some type of substantiation." Id. "This was not `hot news' for which there was an urgent need to publish without actual verification...." Id. Plaintiff seeks $10,000,000.00 in general damages. See id. Plaintiff alleges she suffered emotional distress, including loss of reputation, humiliation, powerlessness, frustration, and anger, as well as discredit in the eyes of the public. See Complaint at ¶ 20. Plaintiff seeks punitive damages "in an amount appropriate to punish or set an example of the defendant." Id. at ¶¶ 21, 30, 38. Plaintiff demands an apology and a retraction to be published in the Enquirer. See id. at ¶¶ 22, 31, 39. Plaintiff admitted at oral argument she did not demand a correction from Defendant within twenty days following her knowledge of the publication as specified by California Civil Code section 48a. III. LEGAL STANDARDS A. Motion to Dismiss A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is disfavored: "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir.1997) (issue is not whether plaintiff will ultimately prevail, but whether claimant is entitled to offer evidence to support the claim). In deciding a motion to dismiss, the court accepts as true all material allegations in the complaint and construes them in the light most favorable to the plaintiff. See Oscar v. University Students Co-op. Ass'n., 965 F.2d 783, 785 (9th Cir.1992); NL Industries v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986). *951 The court need not accept as true allegations that contradict facts which may be judicially noticed. See Mullis v. United States Bankruptcy Ct, 828 F.2d 1385, 1388 (9th Cir. 1987). For example, matters of public record may be considered, including pleadings, orders, and other papers filed with the court or records of administrative bodies, see Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986), while conclusions of law, conclusory allegations, unreasonable inferences, or unwarranted deductions of fact need not be accepted. See Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981); see also Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994) ("[A] document is not `outside' the complaint if the complaint specifically refers to the document and if its authenticity is not questioned."). Allegations in the complaint may be disregarded if contradicted by facts established by exhibits attached to the complaint. See Durning v. First Boston Corp., 815 F.2d 1265,1267 (9th Cir.1987). B. Summary Judgment Summary judgment is warranted only "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." Fed.R. Civ.P. 56(c); see California v. Campbell, 138 F.3d 772, 780 (9th Cir.1998). The evidence must be viewed in a light most favorable to the nonmoving party. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc). The moving party bears the initial burden of demonstrating the absence of a genuine issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party fails to meet this burden, "the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-03 (9th Cir.2000). However, if the nonmoving party has the burden of proof at trial, the moving party must only show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548. Once the moving party has met its burden of proof, the nonmoving party must produce evidence from which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir.1995). The nonmoving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. See Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1107 (9th Cir.2000). Instead, the nonmoving party, through affidavits or other admissible evidence, "must set forth specific facts showing that there is a genuine issue for trial." Fed.R. Civ.P 56(e). [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548. Evidence submitted in support of, or in opposition to, a motion for summary judgment must be admissible under the standard articulated in 56(e). Properly authenticated *952 documents can be used in a motion for summary judgment if the appropriate foundation is provided by affidavit or declaration. See Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1550-51 (9th Cir.1990). Supporting and opposing affidavits must be made on personal knowledge, set forth such facts as would be admissible in evidence, and show that the affiant is competent to testify to the matters stated therein. See Fed.R. Civ.P. 56(e). "Questions of statutory construction and legislative history present legal questions which are properly resolved by summary judgment." T H Agric. & Nutrition Co. v. Aceto Chem. Co., 884 F.Supp. 357, 359 (E.D.Cal.1995) (citations omitted). IV. ANALYSIS Defendant moves under Rule 12(b)(6) to dismiss or strike Plaintiffs claims, or alternatively under Rule 56 for summary judgment, on the grounds: 1) California's anti-SLAPP suit statute applies because Plaintiffs case is a "meritless First Amendment case designed to chill free exercise" and fails to demonstrate a probability of success on her claims; 2) Plaintiff does not allege special damages and did not seek a correction as required by California Civil Code section 48a; and 3) the Offending Statements are not reasonably susceptible of a defamatory meaning. See Doc.19. A. California's Anti-SLAPP Suit Statute In 1992, the California Legislature enacted a provision commonly known as an "anti-SLAPP suit" statute. See Cal. Civ. Proc. § 425.16. Strategic Lawsuits Against Public Participation ("SLAPP suits")[1] are legally meritless suits filed in order "to obtain [a political or] economic advantage over the defendant, not to vindicate a legally cognizable right of the plaintiff." Briggs v. Eden Council for Hope & Opportunity, 19 Cal.4th 1106, 1126, 81 Cal. Rptr.2d 471, 969 P.2d 564 (1999). SLAPP suits may tend to chill the exercise of the constitutional right to free speech by instilling fear of enormous recoveries and legal fees into their targets. Section 425.16 was enacted "to encourage continued participation in matters of public significance," especially by small groups and lone individuals whose "participation should not be chilled through abuse of the judicial process." Cal. Civ. Proc. § 425.16(a).[2] Cal.Code Civ. Proc. § 425.16(b)(1) provides: A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. Cal. Civ. Proc. § 425.16(b)(1). In the Ninth Circuit and California, section 425.16 applies to state law *953 claims advanced in a federal diversity action. See United States ex tel. Newsham v. Lockheed Missiles & Space Co., Inc., 190 F.3d 963, 970-73 (9th Cir.1999) (concluding, after analysis under Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), that important substantive state interests are furthered by the anti-SLAPP statute; no identifiable federal interest would be undermined by applying the anti-SLAPP statute in diversity actions; and finding that prohibiting application of the anti-SLAPP statute in federal diversity actions would promote forumshopping). A special motion to strike under section 425.16 can be based on any defect in the Complaint, including legal deficiencies addressable on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), or a failure to support a stated claim with evidence, analogous to a motion for summary judgment under Fed.R. Civ.P. 56. See Rogers v. Home Shopping Network, Inc., 57 F.Supp.2d 973, 976 (C.D.Cal.1999).[3] Statements are subject to section 425.16(e)(3)-(4)'s anti-SLAPP provisions only if they can be characterized as statements made in a public forum or in furtherance of the exercise of the constitutional rights of petition or speech in connection with an issue of public interest. See Globetrotter Software v. Elan Computer Group, 63 F.Supp.2d 1127, 1130 (N.D.Cal.1999) (holding section 425.16 did not apply to statements of one company regarding the conduct of a competitor company); See Cal. Civ. Proc. § 425.16(e)(3)-(4). A newspaper should not be deemed a "public forum" for purposes of § 425.16. Therefore, National Enquirer can invoke the protections of § 425.16 only if its speech falls within the scope of subsection (e)(4).... California decisions seem clear that the fact that a statement appeared in a newspaper is insufficient to satisfy [the "public interest"] element. It is true that California courts have found the public issue or issue of public interest element to be satisfied by speech on many different subjects. See, e.g., Sipple, 83 Cal.Rptr.2d at 682-85 (whether nationally known campaign consultant regarding women's issues engaged in wife-beating is public issue); Dove Audio, 54 Cal.Rptr.2d at 834 ("whether money designated for charities was being received by those charities" is question of public interest); Beilenson, 44 Cal.App.4th 944, 52 Cal. Rptr.2d 357 (speech alleging unethical conduct of public official is of public interest); Matson, 46 Cal.Rptr.2d at 885-86 (speech regarding "qualifications of a declared candidate for public office is a public issue"). Rogers, 57 F.Supp.2d at 985 n. 7 ("However, none of these cases held that celebritywatching is inherently a public issue.") (citations partially omitted). [T]he question whether the statements concerned a matter of public interest cannot be determined on the basis of media coverage, notoriety or potential newsworthiness. It would be absurd to suppose that a newspaper can generate a public issue by the mere fact of printing *954 a story, even when it expects lively interest among its readers. If that were the case, a newspaper could bring itself, and others, within the statute by its own decision to cover a controversy even if the public has no interest in it. Zhao v. Wong, 48 Cal.App.4th 1114, 1131, 55 Cal.Rptr.2d 909 (1996) (superseded by subsection (a) of 425.16 which provides that 425.16 be construed broadly). California's anti-SLAPP statute applies to the Offending Statements only if they can be characterized as statements made in connection with an issue of public interest for reasons other than that they were made in a widely distributed publication. See, e.g., Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 839-840 (9th Cir. 2001) (plaintiff conceded that allegedly defamatory statements regarding safety of products intended for human consumption involved a matter of public concern); Braun v. Chronicle Publishing Co., 52 Cal. App.4th 1036, 61 Cal.Rptr.2d 58, (1997) (section 425.16 applies to newspaper reports describing an investigative audit carried out by the State Auditor). Defendant contends reports concerning investigations into possible commission of crimes and missing persons are matters of "public concern" and "general public interest." See Doc.19 at pp.4-5 (citing cases outside the context of section 425.16). Defendant further contends Plaintiff was properly the subject of public interest because she was the wife and family member of a United States Representative. See id. at p.5. Although section 425.16 is to be construed broadly, see Cal. Civ. Proc. § 425.16(a), it does not appear Defendant is being sued for making statements related to a "public issue" or "issue of public interest" within the meaning and intent of California's anti-SLAPP statute. Cal. Civ. Proc. § 425.16(e)(4). Even assuming arguendo that Plaintiff is a "public figure" for First Amendment purposes, not all speech concerning her necessarily bears on a "public issue" or an "issue of public interest" for purposes of § 425.16(e). See Rogers, 57 F.Supp.2d at 985 n. 7. Plaintiff is not a public official. The disappearance of Ms. Levy does not concern the performance of duties by Mr. Condit in his capacity as a public official. The criminal investigation of the disappearance of Ms. Levy is not necessarily a political or community issue in which public opinion and input is inherent and desirable, although it is arguable that there is a law enforcement purpose that underlies efforts to keep the case in the media and before the public to assist in efforts to locate a missing person. This lawsuit concerns disputed claims over defamation, not the type of meritless case brought to obtain a financial or political advantage over or to silence opposition from a defendant, which California's anti-SLAPP statute is designed to discourage. The Complaint appears to be an attempt to vindicate Plaintiffs legally cognizable right in reputation not to be falsely accused of attacking Ms. Levy shortly before her disappearance or of hiding material information about a missing person from the investigating criminal authorities. In the context of the Complaint, Defendant seeks to utilize the anti-SLAPP law to gain immunity from alleged defamation, not to be free of a wrongfully intimidating meritless lawsuit designed to stifle desirable political or public speech. At this juncture, accepting as true the well-pleaded allegations of the Complaint, Plaintiff could succeed on the merits. Defendant's motion to dismiss or strike, or alternatively, for summary judgment and attorney's fees on the ground California's anti-SLAPP suit statute applies is DENIED. B. Defendant's Status as a Newspaper under Civil Code Section 48a Defendant moves to dismiss the Complaint on the ground Plaintiff does not *955 allege special damages and did not seek a retraction as required by California Civil Code section 48a. Plaintiffs Complaint does not assert she served a notice and demand for correction within twenty days of knowledge of the offending publication and admitted at oral argument she did not. 1. The Purpose of Cal. Civ.Code Section 48a California Civil Code section 48a provides, in relevant part: In any action for damages for the publication of a libel in a newspaper, or of a slander by radio broadcast, plaintiff shall recover no more than special damages unless a correction be demanded and not be published or broadcast, as hereinafter provided. Plaintiff shall serve upon the publisher, at the place of publication or broadcaster at the place of broadcast, a written notice specifying the statements claimed to be libelous and demanding that the same be corrected. Said notice and demand must be served within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous. Cal. Civ. § 48a(1). "Special damages" are all damages which plaintiff alleges and proves that [s]he has suffered in respect to h[er] property, business, trade, profession or occupation, including such amounts of money as the plaintiff alleges and proves [s]he has expended as a result of the alleged libel, and no other. Cal. Civ. § 48a(4)(b). Section 48a extends protection in recognition of the necessity to disseminate news while it is new, even if untrue, but whose falsity there is neither time nor opportunity to ascertain. See Werner v. Southern Cal. Associated Newspapers, 35 Cal.2d 121, 128, 216 P.2d 825 (1950). A sheltered news publication must function under such time constraints in its mode of operation that prevent accuracy checks or make it impractical to avoid inadvertent publication errors. See Field Research Corp. v. Sup.Ct, 71 Cal.2d 110, 113-14, 77 Cal.Rptr. 243, 453 P.2d 747 (1969). 2. The 48a Inquiry Is One of Law Whether the Enquirer is a "newspaper," i.e., reports on "breaking" news, providing current coverage of subjects such as politics, sports, or crime and makes reference to time, within the meaning of Cal. Civ. § 48a is an issue of law. See Burnett v. Nat`l Enquirer, Inc., 144 Cal.App.3d 991, 1000 n. 4, 193 Cal.Rptr. 206 (1983) (citing Montandon v. Triangle Publications, Inc., 45 Cal.App.3d 938, 953, 120 Cal.Rptr. 186 (1975)). "[T]he protection afforded by the statute is limited to those who engage in the immediate dissemination of news on the ground that the Legislature could reasonably conclude that such enterprises cannot always check their sources for accuracy and their stories for inadvertent publication errors." Burnett, 144 Cal.App.3d at 1004, 193 Cal.Rptr. 206 (citation and alterations omitted); see also In re Cable News Network, 106 F.Supp.2d 1000,1001 n. 2 (N.D.Cal.2000) ("application of § 48a depends not upon the publication's label as a "newspaper" or a "magazine" but rather upon its role (or lack thereof) in disseminating breaking news") (citing Burnett). 3. What is a § 48a "Newspaper"? Whether a publication "ought to be characterized as a newspaper or not within the contemplation of section 48a [is] a question which must be answered... in terms which justify an expanded barrier against damages for libel in those instances, and those only, where the constraints of time as a function of the requirements associated with production of the publication dictate the result." Burnett, *956 144 Cal.App.3d at 1004, 193 Cal. Rptr. 206. While "mindful of the semantic difficulties inherent in the use ... of such words as `immediate' (`timely') and `news'," Burnett focused the section 48a inquiry on the timeliness aspect of news dissemination as it functions within the publication's mode of operation rather than other "newsworthiness" aspects of a publication's content such as readership interest and visibility in the media. Burnett, 144 Cal.App.3d at 1004 n. 6, 193 Cal.Rptr. 206. In Burnett, Carol Burnett sued Defendant for libel based on a four-sentence report printed in the March 2, 1976, issue of the Enquirer. See Burnett, 144 Cal. App.3d at 996-97, 193 Cal.Rptr. 206. The California Court of Appeal affirmed the trial court's determination, based on extensive evidence presented at a hearing, that the Enquirer was not a newspaper within the meaning of section 48a. See Burnett, 144 Cal.App.3d at 1000-01, 1005, 193 Cal. Rptr. 206. The evidence showed the Enquirer was denominated a "newspaper" by some entities for various purposes and a "magazine" by others. See Burnett, 144 Cal.App.3d at 999-1000, 193 Cal.Rptr. 206. On the key aspect of timeliness, the evidence showed the Enquirer 1) did not subscribe to the Associated Press or United Press International news services, but did subscribe to Reuters News Service; 2) did not attribute content to wire services; 3) provided little or no current coverage of subjects such as politics, sports or crime; 4) did not generally make reference to time; 5) did not generate stories day to day as a daily newspaper does; and 6) had a lead time[4] for its stories of one to three weeks. See Burnett, 144 Cal.App.3d at 999-1000, 193 Cal.Rptr. 206. Burnett held the trial court correctly determined from the evidence that the Enquirer's publication process and business mode did not justify the preferred status bestowed upon newspapers limited in time and opportunity to ascertain the complete accuracy of all items printed while serving the public interest in the optimal dissemination of news. See Burnett, 144 Cal.App.3d at 1001-02, 193 Cal.Rptr. 206. Defendant contends the existing Enquirer "is markedly different from the [Enquirer] as it existed over twenty-five years ago ...." Doc.19 at p.7:19-21. The editor of the Enquirer, David Perel, states the weekly publication now provides current coverage of politics, sports and crime and does, in general, make reference to time. See id. at p.7:21-25. He claims, without foundation, the Enquirer broke several significant stories related to presidential candidate Gary Hart's relationship with Donna Rice (1987). Mr. Perel also refers to coverage of the O.J. Simpson murder trial (1994-95), the murder of entertainer Bill Cosby's son, Ennis (1997), an out-of-wedlock child fathered by the Rev. Jesse Jackson (2001), and money paid by the brother of Sen. Hillary Rodham Clinton's brother, Hugh Rodham, to secure a presidential pardon for Almon Glen Braswell, a businessman convicted of mail fraud and perjury, and the release from prison of Carlos Vignali, a cocaine trafficker. See Doc.22 at ¶¶ 5-10. Plaintiff rejoins "Defendant has made no meaningful attempt to compare the content of The National Enquirer as it existed in 1976 and the content of today." Doc.28 at p.10:6-7. Plaintiff contends the 2001 Enquirer has few features similar to a true newspaper and does not publish "news while it is new." See id. at p.8:12-15. Plaintiff contends many of the Enquirer's *957 stories concern events which transpired in preceding years, do not contain dates or any indications the content was quickly brought to press, and are regular features such as "All the Buzz," "All the Gossip," and "Planet Tabloid," which consist of editorialized comments and opinions. See id. at pp.8-9. The Enquirer solicits stories from readers for money with phrases such as "Got news for Us? We've Got $500 for You." Id. at p.9. The content of the Enquirer is relevant only insofar as it shows whether the Enquirer of today serves the public interest by currently disseminating news so as to warrant protection under section 48a. Plaintiffs suggestion that Burnett`s findings are claim or issue preclusive on the 48a status of the Enquirer does not follow if the news gathering and publishing activities of Defendant have materially changed. See United States v. Westlands Water Dist, 134 F.Supp.2d 1111, 1133-34 (E.D.Cal.2001) (citing Robi v. Five Platters, 838 F.2d 318, 321-22 (9th Cir.1988)). See also Resolution Trust Corp. v. Keating, 186 F.3d 1110, 1113-18 (9th Cir.1999), and the four factor test of Steen v. John Hancock Life Ins. Co., 106 F.3d 904, 912 (9th Cir.1997). Comparison of the Enquirer of 1976 and the Enquirer of 2001, under the six Burnett factors, reveals: 1) Subscription to Wire Services. The 1976 Enquirer did not subscribe to the Associated Press or United Press International news services, but did subscribe to Reuters News Service. No new evidence is presented regarding 2001 subscriptions to wire services. 2) Attribution of Content to Wire Services. The 1976 Enquirer did not attribute content to wire services. The present record includes seven issues of the Enquirer published in 2001.[5] There is no attribution of content to wire services. See, Doc.30, Exhs. 3-6; Doc.35, Exhs. D-F. There is no evidence of change in the use of wire services. 3) Current Coverage of Politics, Sports and Crime. The 1976 Enquirer provided little or no current coverage of subjects such as politics, sports or crime. The record includes the two 1976 issues of the Enquirer which formed the basis for the determination in Burnett that the publication was not a section 48a newspaper. See Doc.30, Exhs. 1-2. Each 1976 issue contains between five and ten stories that can reasonably be classified as political coverage. See, e.g., Doc.30, Exh. 1 at pp. 7, 14, 34, 44, 55, 60, 64. Most of these stories do not identify specific dates, nor is it possible to identify exactly how "current" the coverage is. The seven 2001 issues reveal approximately three stories per issue that can reasonably be classified as coverage of politics, sports or crime. Most stories contain only general references to dates and times, but at least some of the criminal stories contain coverage which could be called "current," at least within the past two weeks. See, e.g., Doc.35, Exh. D at pp.32-33 (August 14, 2001, issue of the Enquirer featuring a story on Ms. Levy's disappearance including a timeline through July 27, 2001). Most of the stories in issues from 1976 and 2001 cannot reasonably be classified as "current coverage of politics, sports or crime." References to Time. The 1976 Enquirer stories did not generally make reference to time. Nor do the 2001 *958 Enquirer issues generally make reference to time. See, e.g., Doc.30, Exhs. 3-6; Doc.35, Exhs. D-F. When dates are mentioned, they are frequently more than one week in the past. See, e.g., Doc.35, Exh. D (August 14, 2001, edition, referring to an event as having occurred on July 23). 5) Day-to-Day Generation of Stories. The 1976 Enquirer did not generate stories day to day as a daily newspaper does. The only evidence presented as to the 2001 Enquirer's generation of stories is Defendant's response to Plaintiffs Interrogatory No. 7 (Second), which asks, "Exactly what date did National Enquirer, Inc. first obtain the information that Carolyn Condit had a `furious phone call' with Chandra Levy?" Defendant responded: "On or about July 21, 2001, but in any event between the dates of July 17 and July 23, 2001, the latter date being the submission deadline date for the August 7, 2001 edition." See Doc.30, Exh. 7. At minimum, according to Defendant, the story which gave rise to the First and Second Offending Statements, one of the "breaking news stories" referred to by Defendant as an example of the Enquirer's new focus on "current coverage of crime," was generated in three days. The Enquirer is still a weekly publication. Defendant has not submitted evidence that comes close to preponderating that it publishes under time pressure. 6) Lead Time. The 1976 Enquirer had a lead time for its stories of one to three weeks. In a footnote in its Reply Brief, Defendant infers from an answer to Plaintiffs Interrogatory No. 7 (Second) that the "lead time" for the current Enquirer is three days. See Doc.34 at p.4 n. 6 (citing Doc.30, Exh. 7). The seven 2001 Enquirer issues contain stories that focus on "interesting facts" about stories from past years; stories condensed from books; regular features such as "All the Buzz," "All the Gossip," and "Planet Tabloid"; stories based on photographs; solicitations for stories and comments; puzzles and quizzes; and stories based on interviewed sources. See Doc.30, Exhs. 3-6; Doc.35, Exhs. D-F. The evidence adduced does not establish the news dissemination function of the Enquirer of 2001 is so "markedly different" from the Enquirer of 1976 as to justify a departure from Burnett to find the Enquirer is now a section 48a "newspaper." The evidence does not establish the 2001 Enquirer is materially different from the Enquirer of 1976 in the areas of wire service subscriptions and attributions, story references to time, and day-to-day generation of stories. While the evidence shows the 2001 Enquirer includes more crime stories than the 1976 Enquirer, the overall coverage of politics, sports and crime is comparable, if not less, from 1976. There is some indication that the coverage of politics, sports and crime in the Enquirer of 2001 is more "current" than in the Enquirer of 1976. The lead time of the Enquirer of 2001 for the disputed stories is said to be three days,[6] contrasted with the 1976 story lead time of one to three weeks. Even assuming shortened lead time and slightly more current coverage in the 2001 Enquirer for some stories, the Enquirer's' overall content establishes it is a publication whose primary focus is not "the very *959 free and rapid dissemination of news [section 48a] seeks to encourage." Field Research Corp. v. Sup.Ct, 71 Cal.2d 110, 115, 77 Cal.Rptr. 243, 453 P.2d 747 (1969) (emphasis added). The record does not evidence the Enquirer is "under pressure to disseminate `news while it is news.'" Alioto v. Cowles Comm., Inc., 519 F.2d 777, 779 (9th Cir.1975). Nor does it publish news under circumstances where it cannot confirm the accuracy and reliability of its information and sources. Rather the Enquirer appears to "have the advantage of greater leisure in which to ascertain the truth of allegations before publishing them." Id. The fact that the Enquirer now maintains a website as an alternative forum for publishing its content does not transform it into a "newspaper" under pressure to publish news before having time to more thoroughly investigate the accuracy of its stories. See Doc.19 at p.10:8-12. The website provides information in a continuously available electronic context that permits "on-line" update and revision capability. As Defendant acknowledged at argument, once a story is posted to the website, it is no longer "hot" or a first exclusive and website posting undercuts the exclusivity and temporal priority of the print edition. Existence of the website does not necessarily increase the pressure for more rapid dissemination without information and source investigation or accuracy confirmation. The protections afforded by section 48a are limited to publications which engage in the immediate dissemination of news based on the legislative policy that "current news" enterprises "are most often subject to unwarranted claims for excessive damages in defamation suits, that they cannot always check their sources for accuracy and their stories for inadvertent publication errors, and that such enterprises are peculiarly well situated to publish effective retractions." Field Research, 71 Cal.2d at 114, 77 Cal.Rptr. 243, 453 P.2d 747. When the Enquirer rushes a story into its publication without checking for accuracy, it does so as a publication which has been judicially characterized as a "sensationalist tabloid," see Eastwood v. Nat'l Enquirer, 123 F.3d 1249, 1256 (9th Cir.1997); that does not generally reference time; does not "disseminate" news gathered from and attributed to wire services; post-dates its issues by at least a week; and relies primarily on "newsworthiness" aspects of its stories such as readership interest and visibility in the media rather than timeliness in determining what to publish, see Burnett, 144 Cal.App.3d at 1004 & n. 6, 193 Cal.Rptr. 206. The evidence shows a distinct lack of emphasis on the timeliness of news reported by the Enquirer, which militates against a finding that the Enquirer is the type of time-driven publication ("newspaper") the legislature enacted section 48a to afford special protection in weighing the balance between timeliness and accuracy in news dissemination. In a footnote, and more extensively at oral argument, Defendant contends that its publication, which "regularly publishes breaking news," should be afforded the section 48a protections without regard to the proportion of the publication devoted to such recent events. See Doc.34 at p.8 n. 11. Section 48a contemplates a publicationbased, rather than an article-based, determination of what qualifies as a "newspaper." See, e.g., McCoy v. Hearst Corp., 220 Cal.Rptr. 848, 870 n. 18 (1985) (rejecting in dicta an approach to section 48a that would strip newspapers of 48a's protection for "long term investigatory articles" in which time for source-checking is more plentiful on the ground "the statute does not make this distinction"), rev'd on other grounds, 42 Cal.3d 835, 231 Cal.Rptr. 518, 727 P.2d 711 (1986). In determining whether a publication fulfills the "role ... *960 of disseminating breaking news" worthy of protection under the statute, see In re Cable News Network, 106 F.Supp.2d at 1001 n. 2, the proportion of the publication dedicated to the timely dissemination of news is relevant. Defendant claims it has occasionally published significant breaking news stories. See Doc.22 at ¶¶ 5-10, Exh. B."`There is a significant difference, however, between one who occasionally discovers and makes public an item that is newsworthy and one who, as a daily occupation or business, collects, collates, evaluates, reduces to communicable form, and communicates the news. It is these latter activities that the Legislature sought to protect by section 48a." ` Denney v. Lawrence, 22 Cal.App.4th 927, 938, 27 Cal.Rptr.2d 556 (1994) (quoting Field Research Corp. v. Sup.Ct, 71 Cal.2d 110, 115-16, 77 Cal. Rptr. 243, 453 P.2d 747 (1969)). While the Enquirer, unlike the individuals who sought section 48a protection in Denney and Field Research, is engaged in a publication enterprise effectively able to print retractions in subsequent issues, section 48a coverage extends only to those whose daily occupation it is to communicate the news rapidly. That the Enquirer may be "peculiarly well situated to publish effective retractions," see Field Research, 71 Cal.2d at 114, 77 Cal.Rptr. 243, 453 P.2d 747, is a necessary prerequisite to protection under section 48a, but it is not conclusive. Otherwise section 48a would extend protection to all periodicals regardless of their role as rapid disseminators of news, a result unsupported by either the language of section 48a, its legislative history, or the caselaw. That it publishes only a very small proportion of its stories on as short as three-days' notice does precludes the Enquirer's transformation into the type of news publication the legislature identifies as furthering the public interest in rapid news dissemination. Defendant well understands what it takes to be a "newspaper" under the statute. It has purposefully chosen not to fulfill the role of a current news disseminator and instead to reach a different audience with different expectations, from those who read daily "newspapers" that predominantly disseminate current ("hot") news. The record is devoid of evidence that the business mode or publication process of the Enquirer is focused on daily, fastbreaking news. Even if the Enquirer of 2001 regularly publishes some timely news coverage of politics, crime, and sports, Defendant's evidence does not warrant departure from Burnett. Although " `[t]he lines continue to blend' between news and gossip, tabloids and the mainstream print media," see Ann O'Neill and Martin Miller, Enquiring Minds Bow to National Enquirer Scoops ..., Los ANGELES TIMES, Feb. 23, 2001, at A20, Defendant has not met the burden to show the character of the Enquirer has so changed that its publication mission is to disseminate current news which prevents it from checking for accuracy and publication error. 4. Evaluation of Content Defendant correctly asserts the evaluation of the Enquirer as a newspaper must be content-neutral. See Doc.19 at pp.10-11; Doc.34 at pp.7-8. The Burnett factors determine newspaper status under section 48a, "in terms which justify an expanded barrier against damages for libel in those instances, and those instances only, where the constraints of time as a function of the requirements associated with the production of the publication dictate the result." Burnett, 144 Cal.App.3d at 1004, 193 Cal. Rptr. 206; see also id. at 1004 n. 6, 193 Cal.Rptr. 206 ("In so saying we are mindful of the semantic and substantive difficulties inherent in the use, in the present context, of such words as `immediate' (`timely') and `news,' it being the case that the former might be seen as a function of occurrence, or of discovery, or something else and the latter may be regarded as the *961 product of the media, or as dependent for its definition upon the perception of its recipient or delineated in some other fashion.") (citations omitted). Burnett recognized and took pains to ensure that the criteria for newspaper status did not depend on content-based notions of "newsworthiness." See, e.g., Solano v. Playgirl, Inc., 292 F.3d 1078, 1089 n. 8 (9th Cir. 2002) ("`Courts are, and should be, reluctant to define newsworthiness."') (quoting Lerman v. Flynt Distrib. Co., Inc., 745 F.2d 123, 138-39 (2nd Cir.1984)). The characterization of the Enquirer's contents as "sensationalist tabloid journalism" if different from "mainstream news" is not determinative. See Desnick v. Amer. Broad. Cos., 44 F.3d 1345, 1355 (7th Cir. 1995) (tabloid journalism entitled to all safeguards surrounding liability for defamation). 5. Frequency of Publication Defendant cites several cases to support its contention that section 48a does not automatically exclude from its protection, publications that are produced weekly, or monthly, instead of daily. See Doc. 19 at p.9:25-28. In re Cable News Network held, with "reservations," that Time magazine, a weekly publication, was protected under section 48a, but only because the plaintiff alleged the article at issue in Time was prepared as part of a "single package" with a television broadcast. See In re Cable News Network, 106 F.Supp.2d at 1002 ("It would be inconsistent to impose the special damages limitation of section 48a to claims based directly on the CNN broadcasts but not to claims dependent upon the same broadcasts."). The legislature intended section 48a "to protect purveyors of breaking news." When the statute was amended to cover television broadcasts, the legislature "likely had not even contemplated magazine-style broadcasts such as those at issue." The court applied section 48a to the CNN broadcasts only "because the plain statutory language makes section 48a applicable to all television broadcasts." In re Cable News Network, 106 F.Supp.2d at 1002. Since the Time magazine article was prepared as part of the same package under plaintiffs own theory, "the Court conclude[d] that under the specific circumstances of this case it has no choice but to apply section 48a to the article as well." Id. The unique circumstances of In re Cable News Network are not present here. In Gomes v. Fried, 136 Cal.App.3d 924, 186 Cal.Rptr. 605 (1982), a ^re-Burnett decision, section 48a was applied to a weekly newspaper without any analysis whether the weekly publication was a "newspaper" for purposes of the statute. The statute was similarly applied to a weekly business newspaper in Brooks v. Physicians Clinical Lab. Inc., 2000 WL 336546, 2000 U.S. Dist. Lexis 13603 (E.D.Cal.2000), without analysis or acknowledgment of the issue. See also Maidman v. Jewish Publications, Inc., 54 Cal.2d 643, 654, 7 Cal.Rptr. 617, 355 P.2d 265 (1960) {yore-Burnett decision apparently applying section 48a to a weekly newspaper, without discussion about whether it was a "newspaper" within the meaning of section 48a). Briscoe v. Reader's Digest Ass'n, Inc., 4 Cal.3d 529, 93 Cal.Rptr. 866, 483 P.2d 34 (1971), applied section 48a to a monthly publication. Burnett extensively analyzed and found Briscoe lacked "any discussion of the reasons upon which the holding is based." Burnett, 144 Cal. App.3d at 1003, 193 Cal.Rptr. 206; see also Briscoe, 4 Cal.3d at 543 & n. 20, 93 Cal. Rptr. 866, 483 P.2d 34; see also Fellows v. Nat'l Enquirer, Inc., 42 Cal.3d 234, 242-43, 228 Cal.Rptr. 215, 721 P.2d 97 (1986) (citing Briscoe for the proposition that section 48a's defamation restrictions apply to an invasion of privacy claim). None of these cited cases contradicts Burnett's fundamental holding that section *962 48a protection is limited to "those who engage in the immediate dissemination of news ... and cannot always check their sources for accuracy and their stories for inadvertent publication errors." Burnett, 144 Cal.App.3d at 1004, 193 Cal.Rptr. 206 (citation omitted). In each of the California Supreme Court and Appellate cases relied on by Defendant (Maidman, Briscoe, Fellows, Gomes, Brooks), the court simply assumed section 48a applied, without discussion or analysis of the issue. "Such unstated assumptions on non-litigated issues are not precedential holdings binding future decisions." Sorenson v. Mink, 239 F.3d 1140, 1149 (9th Cir.2001) (citing Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285, 1288 (9th Cir.1985)); see also Estate of Magnin v. Commissioner, 184 F.3d 1074, 1077 (9th Cir.1999) ("When a case assumes a point without discussion, the case does not bind future panels."). Even if the holdings in those cases were binding precedent on the issue of what constitutes a newspaper, they would be of no help here because they contain no analysis or useful discussion to guide the application of 48a. Defendant argues "limiting the application to daily newspapers would render unprotected the 476 non-daily newspapers published in California;" Doc.19 at p.10:3-4, and weekly publications, including the Enquirer, are covered under the statute. The periodicity of a publication (daily, weekly, bi-weekly, monthly) is relevant to the extent that publications with longer periods between issues may find it more difficult to survive in the capacity of a disseminator of "news while it is new." Understanding what is meant by the term "news," in the sense relevant to the 48a "newspaper" inquiry, is aided by reference to the commonly accepted definition of the term: "A report of recent occurrences; information of something that has lately taken place, or of something before unknown; fresh tidings; recent intelligence." See . Daily newspapers have an inherent advantage over weekly publications in the rapid dissemination of news so-defined. The 24hour period of dailies allows them to function as a comprehensive source for breaking news. A weekly publication cannot disseminate news until one week after its last issue is published. Any breaking news that occurs during the week will appear first in daily periodicals or on websites. Weekly publications that strive to disseminate "news while it is new" in competition with daily newspapers do so understanding the natural advantage dailies have. To compensate for its longer publication periods, a weekly publication which aims to "engage in the immediate dissemination of news," see Burnett, 144 Cal.App.3d at 1004, 193 Cal.Rptr. 206, may continue to develop stories which broke during the week in more depth and with new information gathered up until a very short time before publication. Such a publication, consisting of a comprehensive collection of the week's news stories, each containing a mixture of information gathered throughout the week, may qualify for protection under section 48a despite its weekly cycle. The evidence submitted does not reveal the Enquirer is such a publication. Defendant does not dispute the predominant content of its publication can in no way be deemed current or time-driven coverage of crime, politics, foreign affairs, or sports. There are no attributions to wire services. Many of its stories feature events or facts which transpired or were uncovered months or years in the past. References to time are generally absent, and when present, are often general expressions such as "recently" or "currently." The fact that Defendant offers only a handful of purportedly significant, breaking news *963 stories published in the Enquirer over the past decade is revealing. Each party had full opportunity to develop the evidentiary record for this motion. As Plaintiff observes, merely being the first to report a few stories over a decade does not convert the Enquirer into a disseminator of "breaking news." See Doc.28 at p.ll:9-10. Defendant's evidence does not prove it strives to fulfill the role of a disseminator of "new news." Its focus remains on filling its publication with a certain category of content—gossip, celebrities, entertainment, scandal, and the unusual—rather than the immediate distribution of the week's news, comprehensively collected and covered, continuously researched until the time of publication. Such a publication is not within section 48a protection. The Enquirer's weekly publication cycle is relevant to its reporting focus which is different from daily newspapers. Periodicity of publication alone is not determinative. Rather, the absence of temporal factors in the Enquirer's mode of publication, shows it is not focused on and reporting current news under time constraints, and is not a section 48a "newspaper." 6. Stare Decisis In the absence of clear California law, a federal court "must predict as best [it] can what the California Supreme Court would do in these circumstances." Pacheco v. United States, 220 F.3d 1126, 1131 (9th Cir.2000). Only if there is no precedent, does a federal court need to predict state law. "The duty of the federal court is to ascertain and apply the existing California law, not to predict that California may change its law." Mangold v. Cal. Pub. Utils. Comm'n, 67 F.3d 1470, 1479 (9th Cir.1995). After Burnett, the California Supreme Court has not substantively addressed the issue of what qualifies as a "newspaper" under section 48a. Burnett is a California Court of Appeal decision. California appellate court decisions are persuasive precedent, but a federal court is not bound by them if it believes that the California Supreme Court would decide otherwise. See Chemstar, Inc. v. Liberty Mut. Ins. Co., 41 F.3d 429, 432 (9th Cir. 1994). Burnett is well-reasoned, comprehensive in its analysis of prior California Supreme Court cases, and has not been overruled by subsequent California Supreme Court cases, none of which address the jurisprudence of what constitutes a "newspaper" under section 48a. Burnett remains the last authoritative expression of California state law directly and specifically addressing the issue. As such, it is persuasive precedent and binding authority on this court, as both parties agree. See Werner v. Hearst Publishing Co., 297 F.2d 145, 148 (9th Cir.1961) ("the latest expression of the law of the State by an appellate State Court (albeit a court of intermediate appellate jurisdiction), ... is binding upon us"); Doc.34 at p.l:6-9 ("It is also not disputed that this Court is bound by the decisions of California's appellate courts that have interpreted and construed Cal. Civ.Code § 48a, including Burnett ..., and that the law has not changed since Burnett was decided."). Moreover, Defendant has not argued that Burnett is not the law or should be changed. Rather, Defendant argues that the Enquirer, as a "news" publication, has changed. For all these reasons, the 2001 Enquirer is not a section 48a newspaper. Plaintiff was not required to comply with section 48a requirements in initially prosecuting her libel claims against Defendant.[7] Defendant's *964 motion to dismiss, or alternatively, for summary judgment, on the ground Plaintiff failed to comply with California Civil Code section 48a is DENIED. C. Defamatory Meaning Defendant moves to dismiss Plaintiffs claims on the ground the Offending Statements are not reasonably susceptible of a defamatory meaning. See Doc.19. California Civil Code section 45 provides: Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation. Cal. Civ. § 45. A defamatory publication not libelous on its face is not actionable unless the plaintiff alleges that she has suffered special damages as a result thereof. See Cal. Civ. § 45a; see also Cal. Civ. § 44 ("Defamation is effected by ... libel"). Libel on its face, or libel per se, is distinguished from libel not defamatory on its face, or libel per quod, in California Civil Code section 45a. Libel on its face is defined as "[a] libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact." Cal. Civ. § 45a. "The initial determination as to whether a publication is libelous on its face, or libelous per se, is one of law." Selleck v. Globe Int'l, Inc., 166 Cal.App.3d 1123,1132, 212 Cal.Rptr. 838 (1985). "It is error for a court to rule that a publication cannot be defamatory on its face when by any reasonable interpretation the language is susceptible of a defamatory meaning." Selleck, 166 Cal.App.3d at 1131, 212 Cal. Rptr. 838. A defamatory meaning must be found, if at all, in a reading of the publication as a whole. See Kaelin v. Globe Comms. Corp., 162 F.3d 1036, 1040 (9th Cir.1998). "California courts in libel cases have emphasized that the publication is to be measured, not so much by its effect when subjected to the critical analysis of a mind trained in the law, but by the natural and probable effect upon the mind of the average reader." Kaelin, 162 F.3d at 1040 (citations and alterations omitted). "So long as the publication is reasonably susceptible of a defamatory meaning, a factual question for the jury exists." Id. (citations and alterations omitted). 1. First Offending Statements Defendant contends the First Offending Statements, considered in the context of the article as a whole, are not reasonably susceptible of a defamatory meaning. See Doc.19 at p.13:8-11. Plaintiff rejoins the First Offending Statements are reasonably susceptible to three different defamatory meanings: 1) Plaintiff physically attacked Ms. Levy; 2) Plaintiff was hiding information or had something to do with Ms. Levy's disappearance; and 3) Plaintiff "flew into a rage" and had a "furious" phone conversation with Ms. Levy just days before her disappearance. See Doc.28 at p.16:9-20; Complaint at ¶ 17. The First Offending Statements were published in the midst of a media frenzy and an ongoing investigation into the disappearance of Ms. Levy. Defendant contends there was "no public understanding of what happened to Chandra Levy" when the First Offending Statements were published. See Doc.19 at p.14:8-9. However, there was a public understanding Ms. *965 Levy was missing. The First Offending Statements, particularly the all-caps cover headline, "COPS: CONDIT'S WIFE ATTACKED CHANDRA," may reasonably be interpreted as imputing the commission of a crime (e.g., murder, battery, and/or assault) to Plaintiff. The sub-headline, "What wife is hiding," is reasonably susceptible of the interpretation that Plaintiff is obstructing justice or hiding information about her own involvement or first-hand knowledge about Ms. Levy's disappearance. Statements which falsely impute the commission of a crime are libelous on their face. See Snider v. Nat'l Audubon Soc'y, Inc., 1992 WL 182186, at *4, 1992 U.S. Dist. Lexis 10017, *12 (E.D.Cal.1992) (denying motion to dismiss where "the clear implication from the article is that plaintiff is being investigated by the I.R.S."); Barnes-Hind, Inc. v. Sup.Ct, 181 Cal. App.3d 377, 385, 226 Cal.Rptr. 354 (1986) ("Perhaps the clearest example of libel per se is an accusation of crime."); Plumb v. Stahl, 54 Cal. App. 645, 646, 202 P. 468 (1921) ("it has always been held that it is libel per se to charge a person with the commission of a crime involving moral turpitude"). The First Offending Statements are reasonably susceptible of a defamatory meaning which exposes Plaintiff to hatred, contempt, and ridicule by virtue of the susceptibility of the published words' being understood to report Plaintiff attacked Chandra Levy; engaged Chandra Levy in a furious phone call "screamfest"; had information about Chandra Levy she was hiding; is an angry, jealous, betrayed spouse who had a motive to see that Chandra Levy disappeared; and had information about the disappearance Plaintiff wrongfully refused to provide to the police. Whether such statements were so understood by an ordinary reader is a jury question. Defendant contends the verb "attacks" in the cover page headline "carries a broad range of possible meanings," some of which are not defamatory. See Doc.19 at p. 13:11-23. Even assuming, arguendo, there are non-defamatory readings of the word "attacks" in the context of the headline, all that the law requires is that the headline is reasonably susceptible to one defamatory meaning. See Kaelin, 162 F.3d at 1040; Williams v. Daily Review, Inc., 236 Cal.App.2d 405, 410, 46 Cal.Rptr. 135 (1965) ("language may be libelous on its face even though it is susceptible of an innocent interpretation"), overruled on other grounds by Brown v. Kelly Broadcasting Co., 48 Cal.3d 711, 735-36, 257 Cal.Rptr. 708, 771 P.2d 406 (1989). Defendant contends the subheading, "the furious phone call," "makes clear that the alleged `attack' occurred in the course of `the' telephone conversation, and could not, therefore, be a physical attack." Doc.19 at p,14:l-2. While a reader might infer from the presence of the sub-headline, "the furious phone call," that the attack was verbal rather than physical, others could reasonably not draw such an inference. The cover headlines taken together are reasonably susceptible to a defamatory meaning. In Kaelin, the following headline, published by Globe Communications Corporation ("Globe") in the National Examiner one week after O.J. Simpson was acquitted of the murders of Nicole Brown Simpson and Ronald Goldman, was held to be reasonably susceptible of a defamatory meaning: "COPS THINK KATO DID IT! /... he fears they want him for perjury, say pals." See Kaelin, 162 F.3d at 1042. The cover article began on page 17 of the publication and stated that Kaelin was suspected of perjury for not revealing everything he knew. See Kaelin, 162 F.3d at 1038. Globe argued that even if the front page headline could be found to be false and defamatory, the totality of the publication was not. Globe's position was that because *966 the text of the accompanying story is not defamatory, the headline by itself could not be the basis for a libel action under California law. See Kaelin, 162 P.3d at 1040. Kaelin held that "a court must examine the totality of the circumstances of the publication." Kaelin, 162 F.3d at 1041. "This is a rule of reason. Defamation actions cannot be based on snippets taken out of context. By the same token, not every word of an allegedly defamatory publication has to be false and defamatory to sustain a libel action." Kaelin, 162 F.3d at 1040. Defendant argues that false statements that are "innocuous" are not actionable because they are not at odds with the moral expectations of the community. See Selleck, 166 Cal.App.3d at 1132, 212 Cal. Rptr. 838. Kaelin held that since the publication appeared one week after the acquittal of O.J. Simpson, a reasonable person could have concluded the word "it" in the headline referred to the murders of Nicole Brown Simpson and Ronald Goldman. See Kaelin, 162 F.3d at 1040. The follow-on phrase, "he fears they want him for perjury, say pals," did not negate such an interpretation, the headline was reasonably susceptible of a defamatory meaning. See id. Whether or not the entirety of the publication, including the cover story published on page 17, remedied any false and defamatory meaning gleaned from the front-page headlines was a matter of fact for the jury to determine. See Kaelin, 162 F.3d at 1041. Defendant contends the text of the article, 32 pages removed from the cover, negates any defamatory meaning which could be inferred from the headlines. See Doc.19 at p.15. The article's headline in allcaps is "COPS: CONDIT'S WIFE ATTACKED CHANDRA," followed underneath and to the right in a box by the subheadline, "Explosive phone call before intern vanished." A caption above the main headline and underneath a photograph of Plaintiff reads: "Bitter Carolyn Condit flew into a rage at Chandra during a noholds-barred phone call." The first paragraph reads, "Gary Condit's bitter wife flew into a rage and attacked Chandra Levy in a furious confrontation just days before the intern's disappearance, the Enquirer has learned exclusively." The next paragraph states: "In a major breakthrough, investigators have uncovered what they say is `the blowup phone call' between Chandra and Carolyn Condit— during which the 24-year-old intern told an enraged Carolyn that Gary was dumping her to start a new life and family with Chandra." The final partial paragraph on page 32, continuing onto page 33, states: "The source close to the case added: `No one is suggesting Carolyn is guilty of anything—but investigators believe she could be the key to learning the events that may have precipitated Chandra's disappearance." `Complaint, Exh. 1. All these statements were published at the time the disappearance was disclosed and did not refer to stale events in a way that would communicate they did not mean to suggest Plaintiff had any role in Ms. Levy's disappearance. Defendant contends the references to the phone call clarify the "attack" was verbal rather than physical, and the statement that Plaintiff was not being accused of anything negates the implication Plaintiff committed a crime. See Doc.19 at p. 15. The situation was similar in Kaelin, where Globe argued the story cleared up any false and defamatory meaning that could be found from the cover: Whether it does or not is a question of fact for the jury. The Kaelin story was located 17 pages away from the cover. In this respect, the National Examiner's front page headline is unlike a conventional headline that immediately precedes a newspaper story, and nowhere *967 does the cover headline reference the internal page where readers could locate the article. A reasonable juror could conclude that the Kaelin article was too far removed from the cover headline to have the salutary effect that the Globe claims. Kaelin, 162 F.3d at 1041. Here, the cover headlines here are separated from the article by 32 pages, almost twice as far removed as the article at issue in Kaelin, without any reference to the internal page where the cover story can be found. The headlines on page 32 and the first paragraph of the article are all reasonably susceptible to the interpretation that Plaintiff physically attacked Ms. Levy. One sentence that discusses the "attack" makes no reference to a phone call. Whether or not the remainder of the article clears up any false and defamatory meaning, as to the nature and number of any attack(s), that may be inferred from the article as a whole is a question of fact for the jury. The phrase, "No one is suggesting Carolyn is guilty of anything," does not cure the article's language, which is ambiguous and invites the reader to inquire, "guilty of what?", "suggested by whom?", and "if not now, when?". None of the references in the article addresses the reasonable interpretation, susceptible of a defamatory meaning, that Plaintiff was hiding information about Ms. Levy's disappearance. Defendant's motion to dismiss the Complaint's first claim on the ground the First Offending Statements are not reasonably susceptible to a defamatory meaning is DENIED. 2. Second and Third Offending Statements Defendant moves to dismiss Plaintiffs second and third claims on the ground the Second and Third Offending Statements are not reasonably susceptible of a defamatory meaning. See Doc.19 at p.16:14-15. Defendant contends a person "in Mrs. Condit's position is no less wellthought-of for expressing anger at her husband's paramour, nor for fighting to maintain the integrity of the family unit.... [N]o one who read the story and believed those allegations to be truthful would lower his or her estimation or opinion of Mrs. Condit." Doc.19 at p.16:17-21. Defendant contends the account of the phone call was "innocuous" because it did not involve conduct at odds with the moral expectations of the community. See Doc.34 at p.10:21-23. This partial analysis is misleading and incomplete as it fails to search the published words for alternative defamatory interpretations as is required under the law. Unlike Selleck, Eastwood and Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991), on which Plaintiff relies, the articles, subject of the second and third claims, do not state or insinuate Defendant interviewed Plaintiff. See Doc.28 at pp.17-19. "False attribution of statements to a person may constitute libel, if the falsity exposes that person to an injury comprehended by the statute." Masson, 501 U.S. at 510, 111 S.Ct. 2419 (citing, inter alia, Selleck, 166 Cal.App.3d at 1132, 212 Cal. Rptr. 838 ("Falsely ascribing statements to a person which would have the same damaging effect as a defamatory statement about him is libel.")). In Masson the fact the statements attributed to the plaintiff were placed within quotation marks was found misleading. See Masson, 501 U.S. at 511-12, 517, 111 S.Ct. 2419 ("quotations may be a devastating instrument for conveying false meaning"). Here, no actual words purportedly spoken by Plaintiff were placed in quotation marks in the offending articles. Cf. Bindrim v. Mitchell, 92 Cal.App.3d 61, 155 Cal.Rptr. 29 *968 (1979) (publication attributing profane words to plaintiff (through a thinly veiled fictional character) held to be defamatory). The articles do not "quote" or paraphrase the words purportedly spoken by Plaintiff to Ms. Levy during the "furious phone call." The article in the issue dated August 7, 2001, paraphrases some of what Ms. Levy purportedly said to Plaintiff, but none of what Plaintiff purportedly said in response. Plaintiff does not allege the Second and Third Offending Statements are defamatory because of any statements the Enquirer reported Plaintiff uttered during the "furious phone call." Rather, Plaintiff alleges the statement that any such call occurred and that it was made in a furious, enraged, bitter manner is false and defamatory. Plaintiffs cases refer to language which tended to injure individuals in their occupations. See, e.g., Cepeda v. Cowles Magazines & Broad., Inc., 328 F.2d 869, 870 (9th Cir.1964) (published statements, including that Cepeda was "temperamental, uncooperative and underproductive[,] ... would tend to injure Cepeda in his occupation [as] a notable baseball player"); Walker v. Kiousis, 93 Cal.App.4th 1432, 114 Cal.Rptr.2d 69 (2001) (report that plaintiff police officer used profanity and made threats during a traffic stop of a courteous citizen tends to injure plaintiff in his occupation); Kapellas v. Kofman, 1 Cal.3d 20, 81 Cal.Rptr. 360, 459 P.2d 912 (1969) (editorial opposing plaintiffs candidacy for city council stating her children were delinquents and implying she was unfit to be a mother or a city councilwoman tends to injure her in her desired occupation); Maidman, 54 Cal.2d 643, 649, 7 Cal.Rptr. 617, 355 P.2d 265 (editorial injured plaintiff in his position of prominence as chairman of a Southern California Jewish organization). Plaintiffs contention that the Second and Third Offending Statements are reasonably susceptible of a defamatory meaning because they imply marital discord fails. In Time, Inc. v. Firestone, 424 U.S. 448, 458, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976), a report that allegedly falsely stated the plaintiff committed adultery and cruelty toward her husband was found reasonably susceptible of a defamatory meaning. No report of such conduct on the part of Plaintiff is contained in the Second and Third Offending Statements. Neither do the Offending Statements report or suggest Plaintiff engaged in the kind of immoral or improper marital conduct. See Gariepy v. Pearson, 207 F.2d 15 (D.C.Cir. 1953) (broadcasts that money was paid to husband by another man for "alienation of affection" might reasonably be understood as implying that plaintiff was an unchaste wife); Thackrey v. Patterson, 157 F.2d 614, 615 (D.C.Cir.1946) (defamatory meaning possible in report stating plaintiff wife bought her husband with money, found him disappointing as an editor and inadequate as a husband, and desired a different man). Immoral conduct in the marriage is not attributed to Plaintiff. "The code definition of libel is very broad and has been held to include almost any language which, upon its face, has a natural tendency to injure a person's reputation, either generally, or with respect to his occupation." MacLeod v. Tribune Publishing Co., 52 Cal.2d 536, 546, 343 P.2d 36 (1959). This includes a meaning which could expose Plaintiff to injury to reputation by attributing to Plaintiff the appearance of negative personal traits or attitudes the person does not possess. See Masson, 501 U.S. at 517, 111 S.Ct. 2419. The article in the August 17, 2001, issue reports that when Plaintiff called her husband's apartment, Ms. Levy answered the phone and proceeded to tell Plaintiff that her husband "Gary was dumping her to start a new life and family with Chandra." Complaint, Exh. 1. That Plaintiff purportdedly *969 became upset, enraged, and engaged in "a heated phone screamfest" with Ms. Levy, if false, attributes to Plaintiff a bitter and angry disposition, intemperance, and loss of control, which are traits that could subject Plaintiff to contempt, opprobrium, ridicule, and humiliation if she was unable to deal with the matter in a rational and reasonable manner. It is only necessary that some could view Plaintiff with contempt, ridicule, obloquy or avoidance, although others might react differently to the articles' portrayal of Plaintiff. Defendant argues that any reasonable person could expect an angry, emotional outburst from a wife who, upon calling her husband's apartment on the opposite side of the country, reaches a young female intern who answers the phone, who allegedly proceeds to disclose that the caller's husband is in love with the intern and "was dumping her to start a new life and family with Chandra." However, the reported "fact" that a phone call occurred during which Plaintiff manifested rage and exchanged "heated" words at high volume with Ms. Levy, could falsely convey to the reader that Plaintiff is an intemperate hothead who engaged in a screamfest on a long distance phone call with a person she did not know, when prudence dictated terminating that call and not "losing her temper." Such conduct could cause others to have contempt for, to ridicule, shun or avoid Plaintiff, making the statements reasonably susceptible to a defamatory meaning. The Second and Third Offending Statements may also be reasonably susceptible of a defamatory meaning to the extent they tend to support or lend context to the First Offending Statements' implication that Plaintiff physically attacked Ms. Levy, had something to do with Ms. Levy's disappearance, or that Plaintiff was hiding information relevant to Ms. Levy's disappearance. The Second and Third Offending Statements communicate or imply that Plaintiff was very upset with Ms. Levy "just days before" Ms. Levy's disappearance. The August 7, 2001, article later states: "After the explosive call, a fuming Carolyn whisked off to Washington, D.C., on April 28" where she remained in her husband's apartment until May 3. See Complaint, Exh. 1. In the context of the First Offending Statements and the rest of the article, the Second Offending Statements link Ms. Levy's disappearance in time to the heated phone call, implying Plaintiff had something to do with Ms. Levy's disappearance or that after an angry and heated exchange Plaintiff had something to hide or was withholding information. See Solano, 292 F.3d at 1083 (" `A defendant is liable for what is insinuated as well as for what is stated explicitly.' ") (quoting O'Connor v. McGraw-Hill, 159 Cal.App.3d 478, 206 Cal.Rptr. 33 (1984)). The Second and Third Offending Statements are reasonably susceptible of a defamatory meaning. Defendant's motion to dismiss the Complaint's second and third claims for libel on the ground they allege offending statements not reasonably susceptible of a defamatory meaning is DENIED. D. Plaintiffs Objections to the Declaration of David Perel and Exhibits Attached Thereto Plaintiff objects to various aspects of the Declaration of David Perel. See Doc.31. Plaintiff contends there is no foundation, personal knowledge, or proper grounds for opinion for Mr. Perel's statements regarding the Enquirer`s change of focus in the late 1980s and his claim the Enquirer has broken several significant national news stories since the late 1980s. See id. at p.2; Doc.22 at ¶¶ 14, 11. Mr. Perel states he joined the Enquirer in 1985, was appointed *970 Executive Editor in September 1996, and was appointed Editor in July 2001. See Doc.22 at ¶¶ 2-3. He does not state what his duties were (and are) in his various capacities at the Enquirer, or even what his capacity was between 1985 and 1996 (except to state that in 1994 and 1995 he was the editor in charge of the Enquirer`s coverage of the O.J. Simpson trial for the murder of Nicole Brown Simpson and Ronald Goldman). It cannot be determined whether Mr. Perel's statements in paragraphs 4, 7, and 11 are based on fact or opinion, or what foundation he has for making those assertions. See Fed.R. Evid. 701, 702. Plaintiffs objections to paragraphs 4, 7, and 11 of Mr. Perel's declaration are sustained. Since Mr. Perel's capacity as editor at the Enquirer working on the O.J. Simpson case, and since 1996 is specified, and he asserts he has personal knowledge of these events, the objections to paragraphs 1-3, 5-6, 8-10, and 12-13 are overruled. Plaintiffs hearsay objections to the New York Times article, Mr. Perel's partisan characterization of it, and other attached articles, have been fully considered. See Doc.31 at p.3. Such anecdotal evidence offered to assist the determination of the legal issue whether the Enquirer is a newspaper, has been considered. The evidence is not misleading or confusing. It is an opinion, offered among a number of circumstances relevant to making the legal determination on the 48a "newspaper" issue. The objection is overruled. V. CONCLUSION Defendant's motion to dismiss or strike, or alternatively, summary judgment and attorney's fees on the ground California's anti-SLAPP suit statute applies is DENIED. Defendant's motion to dismiss, or alternatively, for summary judgment, on the ground Plaintiff failed to comply with California Civil Code section 48a is DENIED. Defendant's motion to dismiss the Complaint's first claim for libel on the ground it alleges offending statements not reasonably susceptible to a defamatory meaning is DENIED. Defendant's motion to dismiss the Complaint's second and third claims for libel on the ground they allege offending statements not reasonably susceptible of a defamatory meaning is DENIED. Within five (5) days following the date of service of this decision, Plaintiff shall lodge a proposed order in conformity with this decision. SO ORDERED. NOTES [1] The acronym, "SLAPP," was coined by Penelope Canan and George W. Pring, professors at the University of Denver. See Canan & Pring, Strategic Lawsuits Against Public Participation, 35 Soc. Probs. 506 (1988). [2] "The paradigm SLAPP suit is an action filed by a land developer against environmental activists or objecting neighbors of the proposed development. However ... SLAPPs are by no means limited to environmental issues nor are the defendants necessarily local organizations with limited resources. The statute is appropriately applied to litigation involving conduct by a defendant which was directed to obtaining a financial advantage." Ludwig v. Sup.Ct., 37 Cal.App.4th 8, 14-15, 43 Cal.Rptr.2d 350 (1995) (citations omitted). [3] Rogers explains: § 425.16 applies in federal court. However, it cannot be used in a manner that conflicts with the Federal Rules. This results in the following outcome: If a defendant makes a special motion to strike based on alleged deficiencies in the plaintiff's complaint, the motion must be treated in the same manner as a motion under Rule 12(b)(6) except that the attorney's fee provision of § 425.16(c) applies. If a defendant makes a special motion to strike based on the plaintiff's alleged failure of proof, the motion must be treated in the same manner as a motion under Rule 56 except that again the attorney's fees provision of § 425.16(c) applies. Rogers, 57 F.Supp.2d at 983. [4] Burnett defines "lead time" as "the shortest period of time between completion of an article and the time it is published." See Burnett, 144 Cal.App.3d at 1000 n. 3, 193 Cal.Rptr. 206. [5] The seven issues of the Enquirer from 2001 in the record bear the following publication dates: 1) February 27, 2001; 2) May 8, 2001; 3) May 29, 2001; 4) August 7, 2001; 5) August 14, 2001; 6) August 21, 2001; 7) August 4) References to Time. The 1976 Enquirer stories did not generally make reference to time. Nor do the 2001 28, 2001. See Doc. 30, Exhs. 3-6; Doc. 35, Exhs. D-F. The two issues from 1976 in the record bear publication dates of February 17, 1976, and March 2, 1976. See Doc.30, Exhs. 1-2. [6] This inference is based upon an interrogatory answer in which it was stated the information about the "furious phone call" was obtained between July 17 and July 23 and the fact that the August 7, 2001, issue was pub- & Guaranty Co., 31 Haw. 699 (1930). It is clear from the face of the application that Dr. Rogers did not disclose any information regarding his 1990 surgery, or his 1994 sleep study. Such information should have been lished July 26, 2001. See Doc.30, Exh. 7. These facts are equally susceptible to the inference that the lead time, reported as a range (one to three weeks) in Burnett, was at least three to nine days for the 2001 Enquirer. not consult counsel until after the 20 day period ran. [7] Plaintiff's argument that plaintiff could not be expected to comply with § 48a because she relied that "Burnett was the law," is a nonstarter, in view of her counsel's admission compliance was not effected because she did

In the United States Court of Appeals For the Seventh Circuit No. 11-3288 Z ACHARY M EDLOCK, Plaintiff-Appellant, v. T RUSTEES OF INDIANA U NIVERSITY, et al., Defendants-Appellees. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 11 C 977—Tanya Walton Pratt, Judge. A RGUED F EBRUARY 21, 2012—D ECIDED JUNE 29, 2012 Before E ASTERBROOK, Chief Judge, B AUER , Circuit Judge, and SHADID, District Judge.Œ B AUER, Circuit Judge. This case stems from the search of a student’s dorm room at Indiana University in Œ The Honorable James E. Shadid, District Judge of the United States District Court for the Central District of Illinois, sitting by designation. 2 No. 11-3288 Bloomington, Indiana. The plaintiff-appellant, Zachary Medlock, sought a preliminary injunction in district court to prevent enforcement of his one-year suspen- sion from the University. Specifically, he asserts that the search of his room by state school officials (and later the campus police) violated the Fourth Amendment, and he claims that the University’s suspension pro- ceedings abridged his right to procedural due process under the Fourteenth Amendment. The district court disagreed and denied his request for a preliminary in- junction. Medlock now appeals, and we dismiss the request for a preliminary injunction as moot. I. BACKGROUND The facts relevant to our decision are few, so we will be brief. Medlock was a student at Indiana University, Bloomington, during the spring of 2011. He lived in a single room in a dormitory known as the Willkie Resi- dence Center. On March 9, 2011, as part of a routine “health and safety inspection,” two University resident assistants searched Medlock’s dormitory room for safety hazards. Medlock was not present at the time of the search. When the resident assistants entered the room, they discovered marijuana in plain sight, and they notified the University police. A University police officer later entered Medlock’s room and seized the drugs. The possession of illegal drugs in a dormitory violates the University’s housing policies; when officials reported the drug seizure to the Dean of Students, the Dean summarily suspended No. 11-3288 3 Medlock for one year, effective March 11, 2011. Medlock first went through the University’s appeal process. He petitioned both a University panel and the University’s provost to request a reversal of the suspension deci- sion, but he was unsuccessful. Medlock then filed the request for a preliminary injunction in federal court that is at issue in this appeal. II. DISCUSSION In denying Medlock’s request for a preliminary in- junction to prevent enforcement of his suspension, the district court considered each of his constitutional argu- ments in turn. It held that his Fourth Amendment claims did not have a reasonable likelihood of success such that they would justify a preliminary injunction; it also examined his procedural due process claims and came to the same conclusion. But we need not consider these issues; we lack subject-matter jurisdic- tion in this appeal and therefore must dismiss it. Article III of the Constitution limits federal courts’ scope of judicial review to live cases and controversies. See, e.g., A.M. v. Butler, 360 F.3d 787, 790 (7th Cir. 2004) (citing Spencer v. Kemna, 523 U.S. 1, 7 (1998)). And in keeping with that limitation, this Court “must, on its own, dismiss a case as moot when it cannot give the peti- tioner any effective relief.” Id. So although the parties did not raise the issue, we must as an initial matter decide whether this request for injunctive relief is moot. If it is—if we can no longer grant any effectual re- lief—then it is well-established that we lack subject- 4 No. 11-3288 matter jurisdiction and must dismiss. See, e.g., Pakovich v. Verizon LTD Plan, 653 F.3d 488, 492 (7th Cir. 2011). The only issue before us on this appeal is the denial of a preliminary injunction which sought to prevent the enforcement of an academic suspension. That suspen- sion was to last for one academic year, and it went into effect on March 11, 2011. At oral argument in this matter on February 21, 2012, we confirmed that even were we to take immediate action to enjoin Medlock’s suspension, he would not have been able to re-enroll and begin classes midway through the spring 2012 se- mester. The term of the suspension has now expired. Thus, even if we were to decide that Medlock’s consti- tutional rights had been violated, a preliminary injunc- tion would do him no good. There is simply nothing left to enjoin. And there are no other issues before us on this appeal—e.g., no request for damages or declaratory relief. Because we are unable to grant any effectual relief, the request for a preliminary injunction is dis- missed as moot. III. CONCLUSION For the aforementioned reasons, we dismiss the appeal. 6-29-12 

204 Wis.2d 354 (1996) 555 N.W.2d 381 Robert N. ROSS, a minor by his Guardian Ad Litem, Keith Rodli and Robert J. Ross, Plaintiffs-Appellants, v. Tommy MARTINI a minor, Defendant, FARMERS HOME GROUP INSURANCE COMPANY, Defendant-Respondent.[†] No. 96-0138. Court of Appeals of Wisconsin. Submitted on briefs August 20, 1996. Decided September 4, 1996. *356 For the plaintiffs-appellants the cause was submitted on the briefs of Catherine R. Quiggle of Rodli, Beskar, Boles & Krueger, S.C. of River Falls. For the defendant-respondent the cause was submitted on the brief of Patrick E. Mahoney of Mahoney, Dougherty and Mahoney, P.A. of Minneapolis, Minnesota. Before Cane, P.J., LaRocque and Myse, JJ. MYSE, J. This is an appeal form a summary judgment in favor of Farmers Home Group Insurance Company holding that as a matter of law Tommy Martini was not a resident of his father's household and, subsequently, is not covered by his father's homeowner's insurance policy. Because we hold that his father's on-going legal custody and intent to regain physical placement are sufficient to make Tommy Martini a resident of his father's household, we reverse and remand the judgment. The facts in this case are undisputed. Tommy Martini's father, Thomas Martini, Sr., and mother, Sandra Hansen, were divorced in 1979. Originally, Hansen was awarded legal custody of Tommy. Within a year, however, Tommy went to live with his father in Minnesota and the court, with Hansen's agreement, transferred legal custody of Tommy to his father. *357 Tommy lived with his father until August 1992 when, after being disciplined, Tommy fled to his mother's house in Wisconsin. Martini sought to return Tommy to Minnesota. Alleging that he was a victim of abuse. Tommy sought and obtained a Wisconsin injunction prohibiting his father from having contact with him for one year. Tommy claims he intends to live with his mother permanently. Martini, however, claims he intends to regain physical placement at the end of the injunction. While living with his mother, Tommy Martini accidentally shot another, minor, Robert Ross. This incident forms the basis of Ross' negligence action against Tommy and his father's insurer. The father's insurance policy provides coverage to the insured and members of his household. The trial court granted summary judgment based on the conclusion that Tommy was not a member of his father's household. [1] Ross contends on appeal that the trial court erred in determining as a matter of law that Tommy Martini was not a resident of his father's household at the time of the shooting. We agree. Because the facts are undisputed and the issue involves the construction of an insurance policy, we review this claim as a question of law under a de novo standard of review. Fidelity & Deposit Co. v. Verzal, 121 Wis. 2d 517, 529, 361 N.W.2d 290, 295 (Ct. App. 1984). [2, 3] The pertinent language from Martini's insurance policy defines "insured" as "residents of your household who are: a. your relatives; or b. other persons under the age of 21 and in the care of any person named above." The parties agree that Minnesota law governs the interpretation of this policy. Wisconsin and Minnesota are generally in agreement regarding the test to be *358 used in determining residency. Fireman's Ins. Co. v. Viktora, 318 N.W.2d 704 (Minn. 1982); A.G. v. Travelers Ins. Co., 112 Wis.2d 18, 331 N.W.2d 643 (Ct. App. 1983). The oft quoted test in determining residency depends on whether the person and the named insurer are: (1) Living under the same roof; (2) in a close, intimate and informal relationship; and (3) where the intended duration is likely to be substantial, where it is consistent with the informality of the relationship, and from which it is reasonable to conclude that the parties would consider the relationship "... in contracting about such matters as insurance or in their conduct in reliance thereon." Fireman's, 318 N.W.2d at 706 (citations omitted). The determination of residency is fact specific to each case and requires a thorough examination of all relevant facts. Schoer v. West Bend Mut. Ins. Co., 473 N.W.2d 73, 76 (Ct. App. Minn. 1991). [4] In this case, Tommy Martini had lived with his father for over twelve years. After claiming abuse by his father, Tommy obtained an injunction preventing contact by his father for one year. Although Tommy intended to live with his mother thereafter, his father, who continued to have legal custody, intended for Tommy to return to Minnesota to live with him. Ultimately, whether Tommy would return to live with his father in Minnesota is a question for the courts. As long as his father maintained sole legal custody, Tommy could be required to live with his father after the temporary injunction expired. For purposes of determining residency, Tommy's intention, as with *359 other non-minor children, is a factor to consider in determining residency but is not controlling. Pamperin v. Milwaukee Mutual Ins. Co., 55 Wis.2d 27, 34-35, 197 N.W.2d 783, 787-88 (1972). Because Tommy could not choose his residence, his intention as to where the would live is given little weight. Generally, residency and custody are inexorably linked. Turning to the application of the three-prong analysis, the mere listing of the three factors "does not result in a mandatory threefold test." Londre v. Continental Western Ins. Co., 117 Wis.2d 54, 57-58, 343 N.W.2d 128, 131 (Ct. App. 1983). No single factor controls or determines whether a person is a resident of a household. Id. [5] Members of a household are not required to live under the same roof to be considered part of the same household. Doern v. Crawford, 30 Wis.2d 206, 213, 140 N.W.2d 193, 196 (1966); Schoer, 473 N.W.2d at 76. It is also recognized that a person may be a resident of more than one household. Londre, 117 Wis.2d at 58, 343 N.W.2d at 131. Therefore, simply because Tommy did not live under the same roof as his father at the time the claim arose is no bar to his being a resident of his father's household. The trial court placed great emphasis on the one-year injunction in granting summary judgment. The injunction was temporary and ran for only a year. This time period is not sufficient to rule as a matter, of law that Tommy was not a resident of his father's household in light of the rule that residents do not have to live in the same house. See Doern, 30 Wis.2d at 213, 140 N.W.2d at 196; see also Schoer, 473 N.W.2d at 75-76. The record discloses that Tommy and his father had lived together for over twelve years and that this *360 relationship was important to each of them. It is apparent that this relationship was in a state of transition at the time of the shooting, but Tommy's father intended to maintain a substantial relationship with his son. In fact, Tommy visited with his father even before the one-year injunction had expired and has subsequently spent additional time at his father's residence. [6] After considering all the factors in the record, this court concludes that Tommy Martini was, as a matter of law, a resident of both his mother's and father's households. At the time of the incident, Martini still had legal custody of Tommy and was intending that Tommy return to live with him. This court concludes that legal custody, coupled with a parent's intent to continue a long established living situation with the minor, to be sufficient to establish residency in a household in this case, even though the child may be temporarily absent from the household. Because this court concludes that Tommy was a resident in his father's household, the judgment Lient is reversed and remanded. By the Court.—Judgment reversed and cause remanded. NOTES [†] Petition to review denied.

Filed 04/11/18 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE WILLARD BIRTS, JR. Petitioner, v. THE SUPERIOR COURT OF SAN A152923 MATEO COUNTY, (San Mateo County Respondent; Super. Ct. No. 17-SF-008610-A) THE PEOPLE, Real Party in Interest. Petitioner Willard Birts, Jr. (petitioner), was charged with several counts of felony domestic violence, along with special allegations for use of a deadly weapon, serious felony enhancements, prior strikes and prison priors. Shortly after the trial judge ruled on several pretrial motions, real party in interest the People of the State of California (the District Attorney) moved to dismiss the case for insufficient evidence, and the motion was granted. The following day, the District Attorney refiled the case under a new case number. The refiled case was assigned to the same trial judge as before, and the District Attorney immediately moved to disqualify him under Code of Civil Procedure section 170.6 (section 170.6). The motion was granted by respondent superior court. Petitioner now seeks writ relief, arguing the District Attorney’s peremptory challenge in the refiled case was an abuse of the judicial process in violation of his due process rights. We agree that the peremptory challenge should have been denied, but for a different reason. Because the record before us discloses a clear effort by the District 1 Attorney to avoid the effect of the trial judge’s orders in the dismissed case, we conclude the second action was a mere continuation of the first, and thus, the peremptory challenge was untimely. Accordingly, we shall grant the petition and direct issuance of a peremptory writ of mandate directing respondent superior court to vacate its order granting the section 170.6 motion and to issue a new order denying the motion. FACTUAL AND PROCEDURAL BACKGROUND Petitioner was arraigned on a felony information with two counts of inflicting corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a); counts one and three), one count of aggravated assault (Pen. Code, § 245, subd. (a)(4); count two), one count of making criminal threats (Pen. Code, § 422, subd. (a); count four), and one count of stalking (Pen. Code, § 646.9, subd. (a); count five). The information alleged personal use of a deadly weapon (Pen. Code, § 12022, subd. (b)(1)) with respect to count three, two prior serious felony convictions (Pen. Code, § 667, subd. (a)(1)), prior strikes (Pen. Code, § 1170.12, subd. (c)(2)), and eight prior prison terms (Pen. Code, § 667.5, subd. (b)). The case was originally assigned to the Honorable Gerald J. Buchwald for trial. On July 6–7, 2017, Judge Buchwald heard 10 motions in limine filed by the prosecution. He granted four of the motions, deferred ruling on five of the motions, and granted in part and denied in part motion in limine no. 9, by which the District Attorney sought to exclude two statements made by Officer John Russell to a deputy district attorney in a prefiling email. Specifically, Judge Buchwald granted the motion to exclude Officer Russell’s statement questioning whether the elements of Penal Code section 646.9 had been met. However, the court denied the District Attorney’s motion to exclude that portion of Officer Russell’s statement that the confidential victim was “ ‘a nice and genuine person, but I think she is a little unreliable and inconsistent.’ ” On July 10, 2017, Judge Buchwald ruled on three of the previously deferred prosecution motions in limine. He denied without prejudice motion in limine no. 4b (motion to admit petitioner’s statements to Officer Russell) and no. 5 (motion to admit petitioner’s prior convictions for impeachment), and granted in part, denied in part 2 motion in limine no. 7 (motion to admit the testimony of the prosecution’s expert witness). Later that day, the District Attorney moved to dismiss the case. The prosecutor stated, “The People would move to dismiss for insufficient evidence and with the intention of refiling, which I understand Officer Russell is able to do today. So the defendant will be arraigned tomorrow in the in-custody calendar.” When petitioner’s counsel asked that the specific reasons for dismissal be put on the record, Judge Buchwald responded, “I’m not sure that they’re required to do that. I think they have the right—we have not empaneled a jury yet. There was a waiver of just one day, which would be tomorrow. And I think they have the right to dismiss and refile it tomorrow if that’s what they want to do, and their reasons are their work product.” Over petitioner’s objection, Judge Buchwald granted the motion. Petitioner was arraigned the following day, July 11, 2017, on a new complaint bearing a different case number. At the arraignment, the prosecutor told the Honorable Clifford V. Cretan that “[t]he dismissal was based on in limine rulings that were made excluding certain evidence. There’s no issue with the state of the evidence and refiling.” On August 2, 2017, the District Attorney filed a felony information alleging virtually the same felony charges, enhancements, strike offenses and prior offenses, convictions and prison terms as the previous information.1 On August 17, 2017, petitioner filed a nonstatutory motion to dismiss the complaint under the doctrine of judicial estoppel. Petitioner argued the District Attorney’s dismissal and immediate refiling of charges violated petitioner’s due process rights and constituted manipulation of the system because the District Attorney was actually motivated by Judge Buchwald’s evidentiary rulings. In opposition, the District Attorney argued the case was properly dismissed prior to jeopardy attaching and within 1 There were no major substantive changes in the offenses alleged between the first information filed on January 31, 2017, and the second information filed on August 2, 2017. There were some minor changes in dates for the alleged prior strikes and prior prison terms. 3 the statute of limitations for felonies, and the refiling was not barred by the two-dismissal rule of Penal Code section 1387. In reply, petitioner argued that the District Attorney committed prosecutorial misconduct by misleading the court as to the grounds for moving to dismiss. The District Attorney filed a response to petitioner’s reply, arguing the claim of prosecutorial misconduct was unsubstantiated because the District Attorney was permitted to elect to dismiss and refile a felony case “after receiving unfavorable pre- trial rulings which the prosecutor believed to be fatal to the case.” On September 22, 2017, the Honorable Donald J. Ayoob denied petitioner’s nonstatutory motion to dismiss. Three days later, on September 25, 2017, the presiding judge, the Honorable Susan I. Etezadi, assigned the case from the master calendar back to Judge Buchwald for jury trial. The District Attorney immediately exercised a section 170.6 peremptory challenge to Judge Buchwald. Petitioner opposed the challenge, arguing that because the District Attorney had not previously challenged Judge Buchwald and had dismissed and refiled the case after his in limine rulings, allowing the peremptory challenge would “basically come[] down to forum shopping[.]” Judge Etezadi asked the District Attorney if the refiled case was “the same case that was dismissed after Judge Buchwald made certain rulings and . . . was dismissed for insufficient evidence and then refiled by the People . . . ?” The District Attorney responded, “It is the same charges, yes.” Noting that the parties had not provided the court with any points or authorities “on this very interesting legal issue,” Judge Etezadi granted the section 170.6 motion. Judge Etezadi also granted petitioner’s motion to continue trial to seek relief in the form of a writ, and set a new trial date of December 4, 2017. On November 20, 2017, petitioner filed a timely petition for writ of mandate challenging the order granting the District Attorney’s section 170.6 motion. We temporarily stayed the trial and requested informal briefing from the parties. We also served notice that, if appropriate, we might issue a peremptory writ in the first instance pursuant to Code of Civil Procedure section 1088 and Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180 (Palma). 4  DISCUSSION “Section 170.6 permits a party to disqualify a judge for prejudice based upon a sworn affidavit without having to establish the fact of prejudice.” (Bravo v. Superior Court (2007) 149 Cal.App.4th 1489, 1493 (Bravo).) Section 170.6 “guarantees a litigant ‘ “an extraordinary right to disqualify a judge.” ’ [Citation.] When a challenge is timely and properly made, the challenged judge immediately loses jurisdiction and must recuse himself.” (Ziesmer v. Superior Court (2003) 107 Cal.App.4th 360, 363–364 (Ziesmer).) “A party is limited to a single peremptory challenge ‘in any one action or special proceeding.’ [Citation.]” (Id. at p. 364.) “If directed to the trial of a cause with a master calendar, the motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial.” (Code Civ. Proc., § 170.6, subd. (a)(2).) “[S]ection 170.6 is designed to prevent abuse by parties that merely seek to delay a trial or obtain a more favorable judicial forum. [Citations.] An important element of that design is the limitation, in any one action, of each party to a single motion . . . .” (The Home Ins. Co. v. Superior Court (2005) 34 Cal.4th 1025, 1032.) “A peremptory challenge may not be made when the subsequent proceeding is a continuation of an earlier action. . . . The rule is designed to prevent forum shopping.” (Bravo, supra, 149 Cal.App.4th at pp. 1493–1494.) The District Attorney argues that under Paredes v. Superior Court (1999) 77 Cal.App.4th 24 (Paredes) and Ziesmer, supra, 107 Cal.App.4th 360, after criminal charges are dismissed and refiled, a new criminal action is commenced for section 170.6 purposes. In Paredes, the court held that after a criminal case was dismissed under Penal Code section 1382 (right to speedy trial) and immediately refiled, the defendant’s peremptory challenge was timely because the dismissal terminated the action, and the refiling of the case was not a continuation of the dismissed case. (Paredes, supra, 77 Cal.App.4th at pp. 34–35.) In Ziesmer, the court relied on Paredes and held that the dismissal of a grand jury indictment pursuant to Penal Code section 995, subdivision (a)(1)(A), was a “termination” of the action for section 170.6 purposes, and the defendant’s peremptory challenge in the refiled action was timely. (Ziesmer, supra, 5 107 Cal.App.4th at p. 367.) Petitioner argues these cases are distinguishable because they did not involve a dismissal under Penal Code section 1385, which can only be brought by the court or upon the application of the prosecution, not the defendant. We find that Paredes and Ziesmer do not control in situations where, as here, the second case is virtually identical to the dismissed case and the sole rationale articulated for the dismissal and refiling is to evade the impact of rulings made in the first case. In the instant matter, the District Attorney has not denied—and indeed has stated rather openly—that the refiled case involves the same charges as before, and that the decision to dismiss the first case was motivated solely by Judge Buchwald’s pretrial rulings. In its opposition to the petition for writ of mandate, the District Attorney provided no alternative explanation as to why the state of the evidence was insufficient on one day, but sufficient the next. Rather, the District Attorney acknowledged that the first case was dismissed “because evidentiary rulings hampered the prosecutor’s case,” a concession the District Attorney did not make to Judge Buchwald when moving to dismiss. Thus, the dismissal and refiling simply erased the effect of Judge Buchwald’s evidentiary rulings. Under section 170.6 and the cases interpreting it, we cannot allow such gamesmanship. We find NutraGenetics, LLC v. Superior Court (2009) 179 Cal.App.4th 243 (NutraGenetics) and Pickett v. Superior Court (2012) 203 Cal.App.4th 887 (Pickett), although not cited by the parties, to be instructive. In NutraGenetics, the court examined a long line of cases applying the “continuation rule” as it relates to peremptory challenges under section 170.6. The court concluded, “All the cases applying the continuation rule to preclude a peremptory challenge in the second proceeding involve the same parties at a later stage of their litigation with each other, or they arise out of conduct in or orders made during the earlier proceeding.” (NutraGenetics, supra, 179 Cal.App.4th at p. 257, italics omitted.) In Pickett, the court applied NutraGenetics to conclude that an action under the Labor Code Private Attorneys General Act of 2004 (PAGA) was not a continuation of an earlier filed PAGA action. Although both PAGA actions were brought against the same defendant for failing to provide adequate seating for its cashier employees, the cases were brought by different plaintiffs and sought different relief. 6 (Pickett, supra, 203 Cal.App.4th at pp. 894–895.) Furthermore, the court observed that “[t]he record reveals no effort to enforce, modify, or avoid any order generated in [the prior filed] case or otherwise to obtain a recovery based on some aspect of [the prior plaintiff’s] action.” (Id. at p. 895.) Here, the dismissed and refiled cases are virtually the same, and the record discloses the District Attorney’s clear and singular intent to evade the effect of Judge Buchwald’s evidentiary rulings by dismissing the prior action. Thus, the dismissal and immediate refiling constituted efforts to “avoid [an] order generated in” the prior case. (Pickett, supra, 203 Cal.App.4th at p. 895.) Because the District Attorney did not challenge Judge Buchwald when he was first assigned as the trial judge in the dismissed case, under the continuation rule articulated in NutraGenetics and Pickett, the District Attorney’s peremptory challenge in the refiled action should have been denied as untimely.2 In so holding, we take no position on petitioner’s contention that the District Attorney abused the judicial process and engaged in prosecutorial misconduct in violation of his due process rights. Our conclusion is based on the continuation rule as expressed in NutraGenetics and Pickett and the clear evidence of the District Attorney’s singular intent to avoid an unfavorable ruling in the prior proceeding. 2 We recognize that NutraGenetics’s phrase “arise out of . . . orders made during the earlier proceeding” and Pickett’s similar phrase “avoid any order generated in” the earlier proceeding can be read more narrowly to describe later proceedings for violation or enforcement of an order made in a prior proceeding. (See NutraGenetics, supra, 179 Cal.App.4th at p. 253, italics omitted; Pickett, supra, 203 Cal.App.4th at pp. 894–895, citing McClenny v. Superior Court (1964) 60 Cal.2d 677, 678–679 [indirect contempt proceedings occasioned by a husband’s violation of visitation and receivership orders in divorce proceedings was continuation of divorce proceedings].) However, where, as here, the record discloses a clear and singular intent to avoid the impact of an adverse order in the prior proceeding, we have no trouble finding that the continuation rule should apply. 7  DISPOSITION The accelerated Palma procedure (Palma, supra, 36 Cal.3d 171) is appropriate here. Given the clear and indisputable evidence of judge shopping, “petitioner’s entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue . . . .” (Ng. v. Superior Court (1992) 4 Cal.4th 29, 35.) Let a peremptory writ of mandate issue, directing respondent superior court to vacate its order of September 25, 2017, granting the District Attorney’s peremptory challenge under section 170.6, and to issue a new order denying the motion. This court’s November 30, 2017, order staying the pending trial shall be dissolved on issuance of our remittitur. 8  _________________________ Jenkins, J. We concur: _________________________ McGuiness, Acting P.J.* _________________________ Pollak, J. A152923/Birts v. Super. Ct. of San Mateo County * Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 9 A152923/Birts v. Superior Court of San Mateo County Trial Court: Superior Court of San Mateo County Trial Judge: Susan I. Etezadi, J. Counsel: Law Office of L. Scott Sherman and L. Scott Sherman for Petitioner. No appearance for respondent. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, René A. Chacón, Supervising Deputy Attorney General, for Real Party in Interest. 10 

719 F.Supp. 1435 (1989) Joseph HUTCHISON, Individually And As Representative Of A Class Of Citizen Complainants Who Are Similarly Situated, Plaintiff, v. James WELLS, et al., Defendants. No. IP 86-891-C. United States District Court, S.D. Indiana, Indianapolis Division. September 14, 1989. *1436 *1437 Michael K. Sutherlin, Indianapolis, Ind., for plaintiff. Dale Simmons, City Legal Div., Indianapolis, Ind., for defendants. ENTRY BARKER, District Judge. The present controversy involves a petition for attorney's fees under 42 U.S.C. § 1988, following a judgment for the plaintiff pursuant to a Rule 68 offer of judgment. The defendants object to the petition on a number of grounds. Specifically, they contest: 1) the inclusion of hours spent on a count that was dismissed; 2) the inclusion of hours spent subsequent to the initial offer of judgment; 3) the lack of contemporaneous billing records; 4) the total number of hours billed; 5) the billing rate; and 6) the appended claims of attorneys peripherally related to the case. These issues will be dealt with seriatim. Background On June 11, 1985, the plaintiff, Mr. Hutchison, was arrested for speeding and taken to the Marion County lock-up. While confined there he was allegedly beaten by two deputy sheriffs. Upon release the plaintiff filed a citizen complaint, but the Marion County Sheriff's Department (the "Department") did not pursue it vigorously, ostensibly because Mr. Hutchison refused to take a polygraph test to corroborate his complaint.[1] The plaintiff subsequently filed a civil action in four counts, seeking damages and injunctive and declaratory relief against the Sheriff of Marion County and several of his subordinate officers. Count I alleged that the Department's policy requiring citizen-complainants to submit to a polygraph test impermissibly burdened first amendment rights by deterring people from petitioning for redress. The plaintiff also accused the Department of maintaining an intentionally lax system for reviewing citizen-complaints which insulated offending officers from charges and fostered a pattern of police brutality. The count sought certification of a class of persons who had been asked to submit to polygraph tests to verify their complaints, and injunctive and declaratory relief against the Department's practices and policies. Count II charged that the defendants' use of excessive force violated the plaintiff's fifth and fourteenth amendment rights; Count III sought recovery under a common law assault and battery theory, and Count IV alleged violation of various international treaties governing the rights of detained persons. On February 18, 1988, the defendants tendered an Offer of Judgment, pursuant to Rule 68, for $7,000 on Counts II, III, and IV. This offer was refused, but an identical offer was made and accepted in December 1988, and judgment was entered upon it on December 29, 1988. As part of the settlement the parties stipulated that Count I was to be dismissed with prejudice. The issue of attorney's fees was expressly reserved for future determination by this court. Plaintiff's attorney has asked for $60,068.75 (including $2,568.75 for an associate's work, and $2,039.20 in costs) based on 287.5 hours billed at a rate of $200.00 per hour. The plaintiff was represented *1438 primarily by Mr. Sutherlin, but was initially represented by Ms. Hiner. The bulk of this opinion concerns Mr. Sutherlin's claims; those of Ms. Hiner are treated at the end. Discussion A. Count I The well-established "American Rule" is that a prevailing party is not ordinarily entitled to recover attorney's fees from the losing party. See Pennsylvania v. Delaware Valley Citizens Council, 478 U.S. 546, 561, 106 S.Ct. 3088, 3097, 92 L.Ed.2d 439 (1986) (citing Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975)). Congress responded to the Alyeska decision by creating a statutory entitlement to "reasonable" attorney's fees for "prevailing" parties in civil rights litigation. See Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983). As amended, 42 U.S.C. § 1988 provides in relevant part: In any action or proceeding to enforce a provision of section 1981, 1982, 1983, 1985, and 1986 of this title, ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs. While the statutory language is discretionary, the Supreme Court has held that fee awards should be denied only where special circumstances render an award unjust. Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968) (cited in S.Rep. No. 94-1011, p.4 (1976), U.S.Code Cong. & Admin.News 1976, 5908, p. 5912).[2] In the present case the court finds no special circumstances, nor do the defendants advance any, that would render an award of attorney's fees unjust. The statutory threshold for entitlement to section 1988 fees is that the plaintiff must be a "prevailing party." This requirement is met if he succeeds "on any significant issue in litigation which achieves some of the benefit [he] sought in bringing the suit." Texas State Teachers v. Garland Indep. School District, ___ U.S. ___, ___, 109 S.Ct. 1486, 1491, 103 L.Ed.2d 866 (1989) (citing Hensley v. Eckerhart, 461 U.S. at 433, 103 S.Ct. at 1939). It is also clear that a plaintiff need not proceed to a "full litigation of the issues" to be a "prevailing party." Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575, 65 L.Ed.2d 653 (1980). Vindication through a consent decree (Hanrahan v. Hampton, 446 U.S. 754, 757, 100 S.Ct. 1987, 1989, 64 L.Ed.2d 670 (1980) (per curiam)) or a Rule 68 offer of judgment (Delta Air Lines v. August, 450 U.S. 346, 352, 101 S.Ct. 1146, 1150, 67 L.Ed.2d 287 (1981)) also entitles a successful plaintiff to attorney's fees. This does not mean, however, that a plaintiff who prevails on one issue — even if it is the "central issue" — is necessarily entitled to attorney's fees for time spent on other, unsuccessful issues. Where a case presents "distinctly different claims for relief that are based on different facts and legal theories," the losing party cannot be compelled to foot the bill for hours spent on the unsuccessful claim, because that work did not contribute to the benefits achieved by the suit. Hensley v. Eckerhart, 461 U.S. at 435, 103 S.Ct. at 1940 (citing Davis v. County of Los Angeles, 8 E.P.D. ¶ 9444 (C.D.Cal.1974), p. 5049, 1974 WL 180). Typically courts must determine whether a particular claim is sufficiently "related" to the successful claim to be compensable under section 1988. In the present case the plaintiff admits that the claim in Count I was based on a "distinctly different claim and theory" than the other counts. (Plaintiff's Memorandum in Support of Attorney Fees, p. 13) (hereinafter referred to as "Plaintiff's Memorandum"). Thus the issue before this court is whether the plaintiff can be deemed to have "prevailed" on Count I; if not, no fee may be awarded for hours spent on it. Texas State Teachers v. Garland, ___ U.S. at ___, 109 S.Ct. at 1492 (citing Hensley, 461 *1439 U.S. at 435, 103 S.Ct. at 1940); Spanish Action Comm. of Chicago v. City of Chicago, 811 F.2d 1129, 1133 (7th Cir.1987). The defendants argue that the plaintiff did not prevail on Count I because the count was dismissed with prejudice; consequently they ask that the hours spent on the count be subtracted from the hours claimed in the petition. Conversely, the plaintiff asserts that he did "prevail" on Count I, alleging that his lawsuit catalyzed significant changes in the Department's processing of citizen-complaints. The plaintiff was assisted in pursuing the Count I claims by Mr. Waples of the Indiana Civil Liberties Union and one of his interns. Their claim for fees (Plaintiff's Memorandum, Exhibit E) must stand or fall with the determination of whether the plaintiff prevailed on this count. Absent formal judicial relief, a plaintiff must satisfy a two-part test established in Harrington v. DeVito, 656 F.2d 264, 266-67 (7th Cir.1981) to qualify as a prevailing party. First, the lawsuit must be causally linked to the relief obtained. Second, the suit cannot have been frivolous or groundless. See Rohrer v. Slatile Roofing and Sheet Metal Co., Inc., 655 F.Supp. 736, 739 (N.D.Ind.1987). This court does not find Count I to have been groundless, despite the defendant's unelaborated contention to the contrary.[3] The question of causality, however, presents a more difficult problem. Courts have frequently wrestled with the difficulties of determining whether a lawsuit "caused" particular changes in defendants' actions. The analysis is complicated by the fact that the relief embodying the changes need not be "formal" (Hanrahan v. Hampton, 446 U.S. at 757, 100 S.Ct. at 1989, quoting S.Rep. No. 1011, 94th Cong., 2d Sess. 5, 1976 U.S.Code Cong. & Admin.News 5908, 5912), or even tangible. Lenard v. Argento, 808 F.2d 1242, 1248 (7th Cir.1987).[4] Discovering the causal factor of informal and intangible events seems more of a metaphysical than a legal inquiry, and its complexity is reflected in the amorphous approaches courts have adopted. In Nadeau v. Helgemoe, 581 F.2d 275, 280 (1st Cir.1978) the court looked to whether the lawsuit played a "provocative role" in effecting the desired changes. Other courts have stressed that the plaintiff's lawsuit need not be the "sole" or "primary" factor as long as it "contributed in a significant way" to the benefits achieved. Cf. Disabled in Action v. Mayor & City Council of Baltimore, 685 F.2d 881, 885 (4th Cir.1982); Morrison v. Ayoob, 627 F.2d 669, 671 (3d Cir.1980) (where more than one cause brings about a result, the lawsuit need only be a "material" factor). Finally, some courts advocate giving the word "causation" the most expansive definition possible. N.A.A.C.P. v. Wilmington Medical Center, Inc., 689 F.2d 1161, 1169 (3d Cir.1982), cert. denied, 460 U.S. 1052, 103 S.Ct. 1499, 75 L.Ed.2d 930 (1983); French v. Bowen, 708 F.Supp. *1440 644, 647 (M.D.Pa.1989). All of these formulas presuppose that a significant change in the defendants' practices or policies has in fact been effected. This in turn is primarily a factual inquiry. See Disabled in Action, 685 F.2d at 885. The record contains little to demonstrate that significant benefits were achieved, or if they were, that the plaintiff's lawsuit caused them. A class was never certified for the class action, and the count was ultimately dismissed with prejudice. Nevertheless, the plaintiff maintains that he prevailed on Count I, alleging that polygraph tests are no longer prerequisites to processing citizen-complaints, and that the "new" citizen-complaint system — "essentially adopted in toto" from a draft form submitted to the Department by the plaintiff[5] — more effectively polices the conduct of sheriff's officers. The court has compared the citizen-complaint form the plaintiff completed after his injury with the form now in use at the Department, and finds them remarkably similar. For all intents and purposes they are identical. With respect to any changes in Departmental policy not reflected on the form (such as a move away from mandatory polygraphing), there is only the plaintiff's unsupported assertion that significant benefits were achieved.[6] Moreover, any such benefits are at best ephemeral because the sheriff retains plenary power to alter Department policy as he sees fit. While the court recognizes that the relief obtained need not be formal, it is worth noting that in most cases where the plaintiff was entitled to attorney's fees for prevailing without obtaining a judgment on the merits, the achieved benefits were articulated in a detailed consent decree. See Harrington v. DeVito, 656 F.2d 264, 269 (7th Cir.1981); Dawson v. Pastrick, 600 F.2d 70, 78 (7th Cir.1979); Rutherford v. Pitchess, 713 F.2d 1416, 1422 (9th Cir.1983); N.A.A.C.P. v. Wilmington, 689 F.2d 1161; Disabled in Action, 685 F.2d at 833; Nadeau v. Helgemoe, 581 F.2d at 278; Aspira of New York, Inc. v. Board of Ed. of City of New York, 65 F.R.D. 541, 543-44 (S.D.N. Y.1975).[7] There is no such detailed or enforceable agreement in the case at bar. And even if significant changes in the Department's policies were evident, the causal connection with the plaintiff's lawsuit would be exceedingly tenuous. More importantly, the Supreme Court seems to be moving away from the position that an award of attorney fees can be predicated on any mutual disposition of a claim. Just last term in Texas State Teachers, the court ruled that the "touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute." ___ U.S. ___, ___, 109 S.Ct. 1486, 1493, 103 L.Ed.2d 866 (1989) (emphasis added). No such material alteration can be gleaned from a count dismissed with prejudice. In the present case, no class was certified, no first amendment rights were vindicated, the citizen-complaint form was not materially altered, and the count was dismissed with prejudice. These facts indicate that the plaintiff's lawsuit did not catalyze a new legal relationship between the parties. Consequently, the plaintiff cannot be held to have prevailed on Count I as a matter of law, and the hours spent on that count should be subtracted from the fee petition.[8]See Jackson v. Illinois Prisoner *1441 Review Board, 856 F.2d 890, 894 (7th Cir.1988). Not surprisingly, the parties dispute the amount of hours that were spent on Count I. The defendants maintain, accurately, that the difficulty of isolating time spent solely on Count I was exacerbated by the plaintiff's failure to itemize the attorney fees per count.[9] This court appreciates the difficulty of separating billing hours per count, but the fee applicant must bear the burden of documenting hours to establish entitlement to an award. Hensley v. Eckerhart, 461 U.S. at 437, 103 S.Ct. at 1941. In these circumstances the plaintiff cannot complain if more hours are attributed to Count I — and thus discounted — than he thinks fit. The plaintiff annotated his time records with a Roman numeral I to designate the hours spent primarily on Count I. These hours total to 33.5 hours. Careful scrutiny reveals, however, that even more hours are justly attributable to Count I. Furthermore, when entries are unclear as to whether the time was spent on a compensable claim, that time should be excluded.[10] Where it is possible for the court to fairly apportion aggregated hours, it will exercise its equitable discretion and do so.[11]See Bovey v. City of Lafayette, Ind., 638 F.Supp. 640, 646-47 (N.D.Ind.1986). The following hours will be deducted in their entirety under the authority of Hensley v. Eckerhart: Date Hours 4/07/86 2.0 4/28/86 2.0 7/09/86 1.0 8/04/86 .4 10/10/86 1.0 10/14/86 4.0 12/01/86 2.5 12/11/86 .4 1/13/87 .4 1/16/87 .5 1/22/87 1.3 2/02/87 8.0 5/05/87[12] 2.0 6/29/87 4.0 9/15/87 .5 5/20/88 .3 ____ 30.3 hours The following entries will be equitably apportioned: Date Services Rendered Hours Claimed Hours Deducted 5/06/87 Deposition of Rice and 8.0 4.0 Willsey 8/03/87 Reviewed depositions of 6.5 1.6 Jackson, Pinkston, Willsey and Rice ____ ___ 14.5 5.6[13] *1442 The plaintiff identified 33.5 hours spent primarily on Count I. The court has above identified an additional 35.9 hours so spent. Thus 69.4 hours were spent on the non-compensable Count I claim, and must be deducted from the fee petition. The claims of Mr. Waples must similarly be disallowed, because the record reflects that his (and his intern's) efforts were directed solely towards the citizen-complaint system claims of Count I. (See Plaintiff's Memorandum, Exhibit E.) Because the plaintiff did not prevail on Count I, Mr. Waples is not entitled to an award of attorney's fees. B. Rule 68 The defendant's second objection is that Rule 68 precludes awarding attorney fees for any time spent after the unaccepted initial offer of judgment on February 18, 1988. Federal Rule of Civil Procedure 68 provides that if an offer of judgment is not accepted and "the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer." The Supreme Court expressly held in Marek v. Chesny, 473 U.S. 1, 9, 105 S.Ct. 3012, 3016, 87 L.Ed.2d 1 (1985) that the term "costs" includes attorney's fees properly awardable in an action. In the context of civil rights attorney's fee petitions, a prevailing plaintiff is not entitled to section 1988 attorney's fees for any time spent after the offered judgment which was not exceeded by the ultimate recovery.[14]Grosvenor v. Brienen, 801 F.2d 944, 946 (7th Cir.1986). See also Boorstein v. City of New York, 107 F.R.D. 31 (S.D.N. Y.1985). In the case at bar the initial (rejected) offer of judgment was for $7,000, and the second (accepted) offer was also for $7,000. The recovery ultimately obtained is patently not "more favorable" than the original offer. Therefore the defendant's argue that this case fits squarely within Rule 68's proscription of extra attorney's fees. Because the plaintiff derived no benefits from his attorney's post-(first) offer services, the defendants should not be liable for the superfluous costs Rule 68 was designed to obviate. The plaintiff, citing a previous order of this court,[15] counters that the defendants' interpretation would deter settlements, and thus conflicts with the primary purpose of Rule 68. The application of Rule 68 to the present circumstances is problematic. The rule apparently contemplates situations where offers of judgment are spurned and the case subsequently goes to trial, not cases where a successive offer is accepted. The defendants contest this view, citing the Advisory Committee notes accompanying Rule 68, which states: In the case of successive offers not accepted, the offeree is saved the costs incurred after the making of the offer which was equal to or greater than the judgment ultimately obtained. (emphasis added). Although the defendants believe this passage proves the present circumstances to be within the Rule's ambit, the words "not accepted" belie their claim. Only where the Rule's primary purpose of encouraging settlements has not been realized does its Damoclean sword fall. Moreover, the Advisory Committee on Civil Rules of the Judicial Conference of the United States, commenting on proposed revisions of Rule 68, noted that Rule 68 was designed to *1443 avoid protracted litigation by taxing a claimant with costs if he should recover no more after trial than would have been received if the claimant had accepted the defending party's offer.... 102 F.R.D. 433 (emphasis added). Thus Rule 68 forces the plaintiff to evaluate a definite settlement award against the likelihood of greater success "upon trial on the merits." Marek v. Chesny, 473 U.S. at 5, 105 S.Ct. at 3014. It does not force the plaintiff to choose between settling now or settling later. Both the plain language and the purpose of Rule 68 support the plaintiff's contention that it will not operate to disqualify the hours spent between the two offers of judgment. The statute provides that a party may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. F.R.Civ.P. 68 (emphasis added). The plain meaning of the language is that a Rule 68 offer implicitly includes an award for the costs (attorney's fees) incurred up to the time the offer is made. Thus the defendants' second offer of judgment on December 28, 1988 — specifically made pursuant to Rule 68 — encompassed the costs accrued then; that is, all attorneys fees up to December 28, 1988, and not just those incurred as of February 18, 1988 (the date of the first offer). It is important to note that the defendants could have specified in the second offer the amount of plaintiff's attorneys fees they were willing to assume. The Supreme Court has suggested that explicitly worded "lump-sum" settlements are permissible under Rule 68. Marek v. Chesny, 473 U.S. at 6, 105 S.Ct. at 3015. See also Radecki v. Amoco Oil Co., 858 F.2d 397 (8th Cir.1988). Instead, the offer expressly excluded attorneys fees from the payment, reserving the issue to be determined by this court. By so reserving the issue, the defendants acquiesced in the plain language of the statute, which includes all properly awarded attorney fees up to the date of the accepted offer. Cf. Staples v. Wickesberg, 122 F.R.D. 541, 546 (E.D.Wisc.1988); Rateree v. Rockett, 668 F.Supp. 1155 (N.D.Ill.1987). Legislative history also buttresses the plaintiff's position. The primary purpose of Rule 68 is to encourage settlements, and it should be construed with this objective in mind. Marek v. Chesny, 473 U.S. at 6, 105 S.Ct. at 3015. The defendants' interpretation manifestly contravenes this purpose. If Rule 68 applied to the present case, it would provide a disincentive for attorneys to accept settlements once an initial settlement was rejected. It would also discourage careful consideration of such offers. The defendants' reading would require plaintiffs to precipitately accept a settlement offer for fear that he may be foreclosed from accepting a subsequent offer because his interim efforts would not be compensable. This would permit defendants to drive a wedge between the interests of the plaintiff and his lawyer. Congress recognized that the availability of attorneys' fees was necessary to attract competent counsel to civil rights claims. H.R. Rep. 1558, 94th Cong., 2d Sess. pp. 1-3 (1976), U.S.Code Cong. & Admin.News 1976, 5908; Grosvenor v. Brienen, 801 F.2d 944, 947 (7th Cir.1986); Gekas v. Attorney Registration & Disciplinary Commission, 793 F.2d 846, 853 (7th Cir.1986). It is also well recognized that attorneys may not be willing to take on civil rights claim without the promise of an award under section 1988. Lenard v. Argento, 808 F.2d 1242, 1247 (7th Cir.1987). Thus forcing a civil rights attorney to choose between compensation and his client's interests in settling thwarts the congressional purpose underlying section 1988. This court declines to adopt such an approach.[16] *1444 The court also observes that the only other court confronted with this issue has also held that Rule 68 does not apply to situations where an offer of judgment was followed by a settlement rather than a trial. E.E.O.C. v. Hamilton Standard Div., 637 F.Supp. 1155 (D.Conn.1986). In that case, the E.E.O.C. had brought a sex discrimination suit against a woman's employer. The defendant filed an offer of judgment for $4,800 which was refused. One month later, the parties negotiated a settlement for $4,800, an up-graded employment record (not a promotion), and a dismissal of the action. The defendants then invoked Rule 68 to disallow post-offer attorney's fees. The court ruled against the defendant, holding that Rule 68 was operative only where the rejected settlement was followed by a trial; the court found "no authority for the proposition that [Rule 68] appl[ied] to cases that end in settlement and a stipulated dismissal...." Id. at 1158. Moreover, the extension of Rule 68 that has been urged by the defendant could in some circumstances frustrate the rule's purpose of "encourag[ing] settlements and avoid[ing] protracted litigation." (citing Delta Air Lines, Inc. v. August, 450 U.S. 346, 359, n. 24, 101 S.Ct. 1146, 1153, n. 24 [67 L.Ed.2d 287] (1981)), quoting 12 C. Wright & A. Miller, Federal Practice and Procedure § 3001, p. 56 (1973). Id. at 1158. For the reasons stated above, this court holds that Rule 68 does not operate to disqualify the attorney's fees accrued after the first offer of February 18, 1988. The offer of December 28, 1988, included "costs then accrued." Therefore no hours will be subtracted from plaintiff's fee petition pursuant to Rule 68. C. Contemporary Records The defendants' third contention is that the fee petition should be reduced because it is not adequately documented with contemporaneous records. Specifically, they contest the inclusion of "approximately 50" allegedly undocumented hours. (Defendants' Response, p. 21)[17] The Supreme Court has noted that "[w]here the documentation of hours is inadequate, the district court may reduce the award accordingly." Hensley, 461 U.S. at 433, 103 S.Ct. at 1939 (emphasis added). This court is urged to follow the Second Circuit in holding that documentation is a "prerequisite" to recovering attorney fees. See New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1147 (2d Cir. 1983). The undocumented hours would then necessarily fail. But the Hensley court left the reduction of fees for inadequate documentation to the discretion of the district courts; this court may reduce the award, but it is not required to. The Seventh Circuit, moreover, has not adopted what this judge considers to be a Draconian extension of Hensley by the Second Circuit. The plaintiff candidly admits that not all of the billing claimed is accompanied by contemporaneous records: "Some time records were simply notations on legal sheets of paper which included notes made during telephone conversations or while working on Answers to Interrogatories or whatever. Those times may not have been transferred to the log sheet which were kept for all cases." Plaintiff's Reply, p. 14. Such lax record-keeping is hardly to be *1445 commended. An attorney with the considerable experience in civil rights litigation that plaintiff's attorney has is surely on notice that Hensley v. Eckerhart requires compensable hours to be documented. Nevertheless, reducing the fee award for lack of documentations is problematic in this case. The defendants failed to indicate the hours they claim are undocumented; they merely assert that 50 such hours exist (an assertion the plaintiff vigorously contests). Moreover, some of the alleged undocumented hours may overlap with the hours that were struck in Part A of this opinion, or hours that will be struck infra. The court cannot blindly accept the defendants' generalized representations. Defendants do identify a $280 charge for research performed for the plaintiff by a Mr. Warne. This entry (See Appendix C[*]) is indeed too vague, and it may have related to Count I. In any event, it should have been better documented[18] and accordingly will be subtracted from the submitted costs. Otherwise, this court will exercise its equitable discretion and refuse to strike the unidentified, allegedly undocumented hours. D. Reasonableness of Fees The first step in determining a reasonable attorney's fee is to ascertain the "lodestar" figure; this is done by multiplying the "number of hours reasonably expended on the litigation times a reasonable hourly rate." Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 1544, 79 L.Ed.2d 891 (1984); Hensley v. Eckerhart, 461 U.S. at 433, 103 S.Ct. at 1939. Once the lodestar is determined it may be adjusted upward or downward in accordance with the 12 factors (often called "multipliers") set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).[19] The most important criteria, however, is that the fee awarded be reasonable "in light of the level of success" achieved by the plaintiff. Hensley v. Eckerhart, 461 U.S. at 439, 103 S.Ct. at 1942. Thus the "results obtained" are the focal point of a fee determination. Id. at 437, 103 S.Ct. at 1941. If the success is "exceptional," enhancement of the fee is justified; if the success is limited, the award should be reduced. Hensley v. Eckerhart, 461 U.S. at 437, 440, 103 S.Ct. at 1941, 1943. The first inquiry in determining the lodestar is ascertaining the reasonableness of the amount of hours claimed. The defendants argue that the plaintiff's attorney spent "excessive amounts of time ... across the board in every category of activity," especially in time spent conferring with other attorneys and time spent on the telephone. Defendant's Response, p. 17. The truth of this proclamation is not self-evident. It is true that the plaintiff's attorney spent a good deal of time conferring with his client and others on the phone. None of the time claimed, however, is patently spurious, and attorneys do have an ethical duty to keep clients informed about their cases. Furthermore, many hours spent on the telephone have already been stricken because they related to Count I. The court declines to further reduce plaintiff's petition for time spent on the phone. The plaintiff's petition must be further reduced, however, because it manifests improper "billing judgment." In Hensley v. Eckerhart, the Supreme Court noted that "[h]ours not properly billed to one's client also are not properly billed to one's adversary." 461 U.S. at 434, 103 S.Ct. at 1940. Such hours would include time spent organizing files or reviewing billing records. Cf. Shorter v. Valley Bank & Trust Co., 678 F.Supp. 714, 725 *1446 (N.D.Ill.1988) ("most lawyers do not bill their fee-paying clients for hours spent preparing bills"); Bovey v. City of Lafayette, Ind., 638 F.Supp. 640, 646 (N.D.Ind.1986). Under this rationale the following hours must fall: Date Services Rendered Hours 3/09/87 Reviewed billing 2.5 records 12/05/88 Telephone call to .3 client's sister 1/13/89 Reviewed time 3.0 records and expenses ___ 5.8 Therefore, 5.8 hours must be deducted from the plaintiff's petition. Defendants also maintain that the plaintiff's billing rate was excessive. The plaintiff's attorney has requested $200 per hour, and has submitted affidavits from two lawyers stating that it is a reasonable rate. Incorporated into this rate are the risk of not prevailing, the difficulty of the case, and the other Johnson factors. In effect, while disclaiming that he is seeking to enhance the award with "multipliers," the plaintiff has simply tried to fuse them into the lodestar figure via the hourly rate. But the Supreme Court has stated that the risk of losing is not an independent basis for augmenting a reasonable fee. Pennsylvania v. Delaware Valley Citizen's Council, 483 U.S. 711, 107 S.Ct. 3078, 3086, 97 L.Ed.2d 585 (1987).[20] Furthermore, the difficulty of a case is adequately reflected in the number of hours worked. Id. 107 S.Ct. at 3087; Blum v. Stenson, 465 U.S. at 898, 104 S.Ct. at 1549. Permitting these factors to amplify the hourly rate when they are already subsumed in the number of hours worked would constitute double multiplication. These cases suggest that the plaintiff's billing rate should be reduced if it incorporates improper criteria. Establishing a reasonable hourly billing rate is within the discretion of the district court which is familiar with the "prevailing market rates in the relevant community." Blum v. Stenson, 465 U.S. at 895, 104 S.Ct. at 1547. See also Lucero v. City of Trinidad, 815 F.2d 1384, 1385 (10th Cir.1987). Under Bonner v. Coughlin, 657 F.2d 931, 937 (7th Cir.1981) it is permissible for the court to employ a differential billing rate, whereby out-of-court services are compensated at a lower rate than in-court services. In the present case, differential billing seems more appropriate than a flat fee because virtually all of the services were rendered out of court. The court takes judicial notice of Mr. Sutherlin's expertise in civil rights litigation, and finds that $150 per hour for in-court services[21] and $125 per hour for out-of-court services is reasonable in this community for the legal work performed. Entries for the following dates constitute in-court services compensable at $150 per hour: Date Services Rendered Hours 2/10/87 Pretrial conference 1.5 before Magistrate 9/10/87 Pretrial conference 1.0 12/09/87 Settlement conference 1.5 9/15/88 Pretrial conference 1.3 ___ 5.3 The balance of billed hours will be compensated at $125 per hour. At this point it may be useful to talley the properly billable hours and determine the lodestar figure. Plaintiff claimed 287.5 hours. Of these, 69.4 were stricken as pertaining to Count I; 5.8 hours were also deducted for improper billing judgment. Thus a total of 75.2 hours must be subtracted from the plaintiff's claim: 287.5 - 75.2 ______ 212.3 To this figure must be added time spent on the petition for fees itself. See Lightfoot v. Walker, 826 F.2d 516 (7th Cir.1987); Durett v. Cohen, 790 F.2d 360 (3d Cir.1986). These hours — admirably documented by *1447 the plaintiff—amount to 11.5 hours.[22] (The 4.9 hours attributed to his associate will be analyzed infra.) 212.3 + 11.5 _____ 223.8 Of these 223.8 hours, only 5.3 are compensable at $150 per hour. 5.3 hours 218.5 hours × $150.00 per hour × $125.00 per hour _________________ ________________ $795.00 $27,312.50 The lodestar figure for the work of Mr. Sutherlin is $28,107.50. The defendants' only objection to the hours billed by Mr. Sutherlin's associate, Mr. Korin, is that they should be excluded because they came after the initial offer of judgment. This argument has already been disposed with supra. Mr. Korin lists a total of 34.25 hours, 8 of which pertained exclusively to the non-compensable Count I.[23] A further 4 hours must be deducted for using improper billing judgment: Date Services Rendered Hours 1/11/89 Organized file; 1.5 worked on time records 1/16/89 Put together costs 2.5 ___ 4.0 This leaves 22.25 billable hours, to which 4.9 hours for work spent on the fee petition must be added.[24] The claimed billing rate of $75 per hour is reasonable, nor do the defendants contest it. Thus the lodestar figure for Mr. Korin's work is: 27.15 hours × $75.00 per hour __________________ $2,036.25 Added to Mr. Sutherlin's lodestar, the total lodestar for plaintiff's fee petition is $30,143.75. It remains to be determined if this figure is reasonable in light of the "results obtained." Hensley v. Eckerhart, 461 U.S. at 437, 103 S.Ct. at 1941. The defendants argued that $60,000 was an unreasonable fee because the judgment was only for $7,000. The disparity is no longer so great, the fee having already been substantially reduced by this order. Moreover, a fee larger than the judgment is not necessarily a hallmark of unreasonableness. See City of Riverside v. Rivera, 477 U.S. 561, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986) (attorney's fees award 10 times greater than the judgment). Congress determined that the vindication of civil rights was of paramount importance to our society; to that end section 1988 was enacted to attract competent counsel for civil rights litigants. See H.R. Rep. No. 94-1558, p. 1 (1976), U.S.Code Cong. & Admin.News, 1976, 5908. An attorney is entitled to reasonable compensation even when it exceeds the monetary value placed on the violated civil rights. Essentially, the defendants' argument is that the fee should be reduced because of the "limited success" of the plaintiff. The court does not consider the success to be so limited. The plaintiff prevailed on three counts stemming from his apparent abuse at the hands of the defendants. This result cannot be considered a "limited" success. The plaintiff's advocacy was skillful and effective, and was rendered over the course of three years. The favorable results obtained adequately justify the fee awarded. The defendants also maintain that the contingency fee arrangement the plaintiff had with his attorney should be persuasive evidence as to the reasonable value of his service. This argument also lacks merit. The Rivera court specifically held that contingency fee contracts do not put a cap on attorney's fee awards. 477 U.S. 561, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986). And the Seventh Circuit has stated that "the existence of a contingent fee contract cannot be conclusive evidence of what a reasonable fee is, because the plaintiff's lawyer might not have been willing to take *1448 the case ... except for the hope of some additional award under section 1988." Lenard v. Argento, 808 F.2d 1242, 1247 (7th Cir.1987). See also Grosvenor v. Brienen, 801 F.2d 944, 948 (7th Cir.1987). In Blanchard v. Bergeson, ___ U.S. ___, 109 S.Ct. 939, 944, 103 L.Ed.2d 67 (1989), the Supreme Court stressed that while a contingency fee contract may be probative of a fee's reasonableness, it "is but a single factor and not determinative." The Court was particularly concerned that undue emphasis on such contracts in determining reasonable attorney's fees would thwart the effective access to judicial process that section 1988 was designed to promote. Id. 109 S.Ct. at 945. In the present case the defendants offer no persuasive reason why the existence of a contingency fee contract should mandate a reduction of the lodestar figure. E. Estoppel Finally, the defendants charge that the plaintiff should be estopped from claiming much more than $23,850. Discussions between the parties disclosed that the major impediment in settling the case was the issue of attorney's fees. At a hearing before the magistrate on September 19, 1988, plaintiff's counsel told the defendants that his prior estimate of $23,850 (based on charges accrued up to March 11, 1988) had "not changed much." The defendants assert that they relied upon this figure in deciding to settle the case. The plaintiff counters that the defendants' reliance was not justified, because a review of their own files would have put the defendants on notice that many billable hours had been expended since March 11, 1988. A detailed analysis of estoppel law is unnecessary, however, because the reductions in the fee award detailed above substantially assuage the defendants' plaint. Even if this court were to hold plaintiff's counsel to his unguarded representation that his fee had "not changed much," the award would not be altered. The defendants must have realized that the prior estimate was just that — an estimate — which would be supplemented by recent charges, especially as several important depositions had occurred since March 11, 1988. Allowing for this fact, and the defendants' knowledge that the plaintiff's estimate was not a "precise representation,"[25] it would be difficult to find justifiable reliance. In any event, the present fee award of approximately $30,000 does not exceed the initial estimate enough to warrant the estoppel argument. F. Claims of Related Attorneys The appended fee claims of Mr. Waples have already been disposed of above, but the claim by Ms. Hiner, who initially represented the plaintiff, must now be addressed. Ms. Hiner has submitted an affidavit itemizing "approximately" 50.5 hours of compensable time, and requests $75 per hour for out-of-court and $125 per hour for in-court services. Popular iconography often depicts lawyers as sharks who can scent from vast distances money oozing from the pockets of wounded defendants. Sharks are often accompanied by remoras — smaller fish which attach themselves with their suction-cup heads to the shark's hide. Remoras do not take part in a "kill," but they do eat the small scraps of flesh torn loose by their colleague predators. The present claim resembles that of a remora; the defendant is wounded and vulnerable to smaller bites. Nevertheless, this particular claim has some merit, and it deserves scrutiny. First, the defendants challenge 12 hours that Ms. Hiner spent representing Mr. Hutchison in child support proceedings. Though Ms. Hiner struggles to show a logical nexus between those proceedings and the plaintiff's civil rights claim, her struggle is futile. The court finds no reason why the sheriff's department should subsidize the plaintiff's domestic problems. Second, Ms. Hiner's hours are completely undocumented, and appear to be retrospective approximations. The only hours that can be accounted for are those spent in consultation with Mr. Sutherlin, and those, only because they are documented *1449 in his records. Ms. Hiner claims fees for "[a]pproximately 10 hours in meetings and consultations with plaintiff's attorney Mike Sutherlin"; Mr. Sutherlin's records reflect 9.8 hours of such activity. The defendants complain that this is duplicative billing, but the court declines to rule that two attorneys cannot both bill for mutually beneficial conferences that advance their client's interest. Indeed, an important purpose of such meetings — avoiding redundant efforts — actually redounds to the defendants' benefit. These 9.8 hours are properly billable and properly compensable. As for the other 28.5 undocumented hours claimed by Ms. Hiner, the court notes once again that the burden of establishing compensable work rests on the plaintiff, and Ms. Hiner has wholly failed to satisfy this burden. Indeed, the complete lack of documentation supports an inference that no compensable work was in fact done. However, the record reflects that Ms. Hiner did provide valuable services to Mr. Hutchison, and it comports with the purpose of section 1988 as well as with equity that Ms. Hiner receive some compensation. Therefore, in exercising its equitable discretion, the court will allow one-third of the undocumented hours — 9.5 hours — to be compensable. Ms. Hiner's total compensation is therefore 19.3 hours × $75.00 per hour ___________________ $1,447.50 G. Conclusion Plaintiff's attorney Sutherlin is entitled to $30,143.75 in attorney's fees (this includes Mr. Korin's compensation). His itemized costs must be reduced by $280 for the undocumented research of attorney Warne. Thus the costs awarded amount to $1,759.20. Attorney Hiner is entitled to $1,447.50. It is so ORDERED. NOTES [1] According to personnel in the Sheriff's Department, the complaint was not pursued because it was "unfounded." Plaintiff's Reply Brief, Exhibit A, p. 88, deposition of Officer Willsey. [2] A prevailing defendant can only recover attorney's fees where the plaintiff's suit was "frivolous, unreasonable, or without foundation." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978). [3] The defendants' contention that Mr. Hutchison lacked standing to bring a meritorious claim on Count I presents a close constitutional question. Count I sought damages, and the personal, concrete harm suffered by Mr. Hutchison surely affords him standing under Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). But the count also seeks declaratory and injunctive relief, and the Supreme Court has held that to have standing for equitable relief, there must be a "real and immediate threat of repeated injury." City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983) (quoting O'Shea v. Littleton, 414 U.S. 488, 496, 94 S.Ct. 669, 676, 538 L.Ed.2d 674 (1974)). Thus the plaintiff would have had to allege that he would have another encounter with the Sheriff's Department resulting in a citizen-complaint, and that he would again be required to submit to a polygraph. Plaintiff did not so allege. Without these allegations there is no "case or controversy" for Article III purposes. Count I is problematic because it presents a mixed claim for legal and equitable remedies. The court is hesitant to resolve the issue of Count I's compensability on these grounds for two reasons. First, the parties have not briefed the issue. Second, the issue of whether to compensate the plaintiff for time spent on Count I can be resolved without reaching this constitutional issue. [4] Thus if a civil rights suit "generates an `external benefit' (a benefit not reaped by [the plaintiff] himself), there should be compensation for having created it." Id. at 1248. Here, an intangible benefit could be a Sheriff's Department more sensitive to prisoner abuse and the citizen-complaint system. [5] Plaintiff's Reply Brief, p. 7. [6] To the contrary, the defendant sheriff asserts that changes in citizen-complaint procedures stemmed from campaign promises, not from the plaintiff's lawsuit. Defendants' Response to Plaintiff's Memorandum in Support of Attorney Fees (hereinafter referred to as "Defendants' Response"), Exhibit B. [7] See also Pudge v. Fruehauf Corp., 690 F.Supp. 692, 696-97 (N.D.Ill.1988), where the court did not award attorneys fees for time spent on a dismissed claim to a plaintiff who prevailed on other issues after a four-day jury trial. [8] Even if the scope of section 1988 "prevailing" could be stretched to include Count I, the recovery for time spent on the count would be de minimus. In Hensley, 461 U.S. at 436, 440, 103 S.Ct. at 1941, 1943, the Supreme Court emphasized that the attorneys fees awarded must be reasonable in light of the "results obtained." Fees should be reduced to reflect limited success, and in view of the facts in the present case, any possible success under Count I was very limited indeed. [9] The magistrate did order the plaintiff to break down the attorney fees "as to each count of the complaint" at a pretrial conference on September 10, 1987. The plaintiff objects that it was impractical and "awkward" to do so (Plaintiff's Reply, p. 13) because the time spent on Count I had "multiple purposes," including use of data gathered for possible punitive damages connected with the other counts (Plaintiff's Reply, pp. 8-9). But the plaintiff bears the burden of proof, and it is certainly more "awkward" for the court to try to parse out the non-compensable from the compensable hours that it is for the plaintiff. See n. 10, infra. [10] For example, the billing entry for April 7, 1986, covers the following stated activities: Telephone conference with City Legal; telephone conference with attorney for Merit Commission; telephone conference with sheriff's office regarding citizen-complaint procedures. It is not clear what the telephone calls to City Legal or the Merit Commission concerned. The call regarding the citizen-complaint procedures, however, relates to Count I. The plaintiff is responsible for keeping billing records "in a manner that will enable the reviewing court to identify distinct claims." Hensley, 461 U.S. at 437, 103 S.Ct. at 1941. Because the plaintiff has made no effort to indicate which portion of the time was spent on compensable claims, the entire 2.0 hours must be deducted. [11] The defendants concede the fairness of apportioning the billing entries in this fashion. Because this opinion must refer extensively to Mr. Sutherlin's billing records, they are included as Appendix A*; his associate's (Mr. Korin) records are reproduced in Appendix B.* * Publisher's Note: Appendices omitted from published opinion. [12] The content of the Willsey deposition clearly relates primarily to Count I citizens-complaint procedures, and is thus excludable. See Plaintiff's Reply, Exhibit A. [13] None of the time spent on the Willsey deposition is compensable. The court will subtract half of the time spent deposing on 5/06/87, and one-fourth of the time spent reviewing the four depositions on 8/03/87. [14] Defendants who are ultimately found liable for less than their settlement offer recover their attorney fees from civil rights plaintiffs only if the lawsuit was frivolous or without foundation. Adams v. Wolff, 110 F.R.D. 291 (D.Nev.1986). [15] Engle v. Dills, IP82-494-C (Sept. 9, 1986). [16] It could be argued that these rationales only apply to situations where the subsequent offer of judgment is for the same amount as the first. After all, the defendants' reading of Rule 68 would not deter [and indeed would not even apply to] settling the case for more than the original offer. This argument fails to recognize that the plaintiff is still subject to manipulation by defendants who, knowing the scope of Rule 68, insist on settling only for the original amount offered. Such defendants could easily avoid the import of "costs then accrued" by including attorneys fees in the offered settlement. This too would deter settlement. This clearly contravenes the congressional purpose of section 1988 as well as Rule 68, as discussed in the text. [17] The defendants also object to the "$131.25 copying costs claimed by the plaintiff, for lack of documentation. While it is true that the plaintiff bears the burden of documenting costs (Hensley, 461 U.S. at 433, 103 S.Ct. at 1939), this burden should not be carried to ridiculous extremes. Copy machines do not disgorge receipts every time they are used, nor can the defendants reasonably expect such minutiae to be documented by practitioners who lack the sophisticated computer resources of large firms. The number of copies made was quite reasonable, and this court will accept the plaintiff's sworn statement that they were "necessary or professionally appropriate." Plaintiff's Memorandum, Attached Affidavit of Mr. Sutherlin. Therefore no deduction will be made for those costs. [*] Publishers Note: Appendices omitted from published opinion. [18] The plaintiff did not contest in his Reply that the entry was documented. [19] The twelve factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment due to accepting the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) the time limitations imposed; (8) the amount involved and the results obtained; (9) the attorney's experience and ability; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. [20] The Seventh Circuit seems particularly to disfavor the use of "risk of losing" as a multiplier. See In re Burlington Northern, Inc., 810 F.2d 601, 608 (7th Cir.1986); McKinnon v. Berwyn, 750 F.2d 1383, 1392 (7th Cir.1984). [21] The court will construe "in-court time" liberally to include time spent before magistrate and in government supervised pretrial conferences and settlement discussions. [22] These hours reflect time spent on the Plaintiff's Reply Brief. Time spent on the Plaintiff's opening memorandum is included within the 287.5 hours claimed. [23] See Appendix B.* * Publishers Note: Appendices omitted from published opinion. [24] These additional hours were spent after the affidavit (Plaintiff's Memorandum, Exhibit B) which enumerated hours billed up to January 16, 1989. [25] Defendants' Response, p. 19.

55 F.3d 636 U.S.v.Safe and Sure Products, Inc.* NO. 94-2593 United States Court of Appeals,Eleventh Circuit. May 12, 1995 1 Appeal From: M.D.Fla., No. 92-00096-MISC-T-21C 2 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE STATE OF ARIZONA, Appellee, v. GREGERY KEETEN, Appellant. No. 1 CA-CR 18-0525 FILED 9-24-2019 Appeal from the Superior Court in Maricopa County No. CR2016-149044-001 The Honorable Jay R. Adleman, Judge AFFIRMED COUNSEL Arizona Attorney General's Office, Phoenix By Casey Ball Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Mikel Steinfeld Counsel for Appellant  STATE v. KEETEN Decision of the Court MEMORANDUM DECISION Judge Diane M. Johnsen delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge David D. Weinzweig joined. J O H N S E N, Judge: ¶1 Gregery Keeten appeals his conviction and sentence for misconduct involving weapons. For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Mesa police detectives contacted Keeten during an undercover investigation into prostitution and sex trafficking.1 They found Keeten in the driver's seat of his parked car, a handgun beside him. Keeten was on supervised probation for an armed robbery conviction at the time. ¶3 A grand jury indicted Keeten on one count of misconduct involving weapons, a Class 4 felony. After a five-day trial, the jury found him guilty as charged, and the superior court sentenced him to a term of 10 years' imprisonment. Keeten timely appealed, and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2019), 13-4031 (2019), and -4033(A)(1) (2019).2 DISCUSSION A. Motion to Suppress. ¶4 Before trial, Keeten moved to suppress evidence of the firearm, arguing the detectives lacked reasonable suspicion to conduct an investigatory stop when they detained him in his parked car. Keeten argues on appeal that the superior court erred by denying his motion. 1 We view the facts in the light most favorable to sustaining the verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013). 2 Absent material revision after the relevant date, we cite the current version of rules and statutes. 2  STATE v. KEETEN Decision of the Court ¶5 The Fourth Amendment protects individuals against unreasonable searches and seizures. U.S. Const. amend. IV. Evidence obtained by a search and seizure that violates the Fourth Amendment is generally inadmissible in a criminal trial. Mapp v. Ohio, 367 U.S. 643, 654- 55 (1961); State v. Valenzuela, 239 Ariz. 299, 302, ¶ 10 (2016). We review the denial of a motion to suppress for an abuse of discretion. State v. Mitchell, 234 Ariz. 410, 413, ¶ 11 (App. 2014). We review de novo, however, the superior court's legal determination whether a search "complied with the dictates of the Fourth Amendment." State v. Valle, 196 Ariz. 324, 326, ¶ 6 (App. 2000). In doing so, we will uphold the superior court's ruling if it is legally correct for any reason. State v. Huez, 240 Ariz. 406, 412, ¶ 19 (App. 2016). ¶6 A police officer may briefly detain a person for investigative purposes if the officer has reasonable, articulable suspicion based upon the totality of the circumstances that the suspect is involved or about to be involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 21, 30 (1968); State v. Teagle, 217 Ariz. 17, 22-23, ¶ 20 (App. 2007). "Although 'reasonable suspicion' must be more than an inchoate 'hunch,' the Fourth Amendment only requires that police articulate some minimal, objective justification for an investigatory detention." Teagle, 217 Ariz. at 23, ¶ 25. In applying this standard, "we accord deference to a trained law enforcement officer's ability to distinguish between innocent and suspicious actions." Id. at 24, ¶ 26. ¶7 At an evidentiary hearing on the motion to suppress, the State presented evidence that undercover detectives responded to a sexually explicit advertisement in the "Female Escorts" section of the website "backpage.com," which commonly ran advertisements for prostitution. Through text messages, the detectives negotiated a price for some services and arranged to meet two females the next afternoon. At the designated time, detectives observed Keeten drive his car through the parking lot of the apartment complex at which they had agreed to meet. ¶8 Keeten parked the car, and two females got out and walked toward the apartment. Detectives intercepted them before they reached the apartment. Meanwhile, other detectives had obtained information that the parked car was registered to Keeten and that he was on supervised probation following an armed robbery conviction. They approached Keeten's car and found him in the driver's seat next to the handgun. ¶9 In response to the motion to suppress, the State argued that the officers' prior communications with the contact from the advertisement, along with their training and experience, caused them to reasonably suspect 3  STATE v. KEETEN Decision of the Court that the driver of the car was transporting the two females to the apartment complex for prostitution. At the hearing, detectives recounted their exchange of text messages with the contact listed in the "backpage.com" advertisement. In the texts, the detectives solicited sexual services, once by using the abbreviation "FS" (by which they meant certain "full service" sex) and once by expressly using the word "sex." The reply to the solicitation was "we can discuss in person honey," and negotiation of price immediately followed. The recipient of the solicitation then offered the detectives a "two girl special." The detectives asked whether the second "girl" was "young"; the response was "[y]es she's young honey." At one point, the recipient of the solicitation asked, "[A]re you affiliated with law enforcement?" The detectives further testified that in prostitution activity, a "pimp" commonly will drive the prostitute to an appointment and wait until the conclusion of the appointment to drive her away. ¶10 The superior court denied the motion to suppress, finding that the State met its burden by a preponderance of the evidence to establish that the stop, the search and the seizure were lawful. We agree. Based upon the training and experience of the detectives, the nature of their undercover operation, the sexually explicit substance of the advertisement, its placement in "backpage.com," and the illicit content of the text messages, the detectives had reasonable suspicion that the person or persons who responded to their texts were engaging or about to engage in prostitution. When Keeten arrived with two females at the appointed place and time, the officers thus had reasonable, articulable suspicion that he was transporting the females for prostitution in violation of A.R.S. § 13-3210 (2019) or was acting as their "pimp" in violation of A.R.S. § 13-3203 (2019). ¶11 Given the totality of the circumstances, the superior court did not err by denying Keeten's motion to suppress. B. Purported Disclosure and Brady Violations. ¶12 Keeten next argues the State violated its disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963), and Arizona Rule of Criminal Procedure 15 by failing to disclose copies of the "backpage.com" advertisement and the text messages before the first evidentiary hearing. Keeten contends the superior court erred by denying his multiple motions for sanctions based on the alleged violations. ¶13 Rule 15.7 governs a superior court's duty and power to sanction a party for a discovery violation. The court maintains broad discretion to determine the nature of a sanction. See State v. Moody, 208 Ariz. 4  STATE v. KEETEN Decision of the Court 424, 454, ¶ 114 (2004); State v. DeCamp, 197 Ariz. 36, 40, ¶ 22 (App. 1999). We review the imposition of a discovery sanction for an abuse of discretion. Moody, 208 Ariz. at 454, ¶ 114. The superior court abuses its discretion in ruling on a motion for a discovery sanction "only when 'no reasonable judge would have reached the same result under the circumstances.'" State v. Naranjo, 234 Ariz. 233, 242, ¶ 29 (2014) (quoting State v. Armstrong, 208 Ariz. 345, 354, ¶ 40 (2004)). A sanction must be proportional to the discovery violation. State v. Payne, 233 Ariz. 484, 518, ¶ 155 (2013). An appropriate sanction "should have a minimal effect on the evidence and merits of the case." State v. Towery, 186 Ariz. 168, 186 (1996). ¶14 We likewise review a superior court's ruling on an alleged Brady violation for an abuse of discretion. See State v. Arvallo, 232 Ariz. 200, 206, ¶ 36 (App. 2013). Under Brady, the State is required to disclose all exculpatory evidence in its possession that is material to the issue of guilt or punishment. Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987) (citing United States v. Agurs, 427 U.S. 97, 110 (1976), and Brady, 373 U.S. at 87); see also Ariz. R. Crim. P. 15.1(b)(8), (f)(2), (3) (disclosure requirements). To establish a Brady violation, a defendant must show: (1) the undisclosed evidence is favorable, i.e., exculpatory or impeaching, for the defendant; (2) the State failed to disclose the evidence, whether intentionally or inadvertently; and (3) prejudice resulted. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). If the State fails to timely disclose exculpatory evidence, the court may impose sanctions based on the degree of prejudice caused and the availability of sufficient, less stringent remedies. See State v. Ramos, 239 Ariz. 501, 504, ¶ 9 (App. 2016). ¶15 The disclosure issue arose at the conclusion of the evidentiary hearing, after a detective had testified about the "backpage.com" advertisement and the text messages. The detective testified on cross- examination that copies of the advertisement and the texts may be available for review. According to the prosecutor, the items had not been impounded, and hence had not been disclosed, because no prostitution arrest was made. ¶16 Keeten requested disclosure of the items. The superior court ordered the State to make the disclosure and recessed the hearing in the meantime. After the State disclosed the items, Keeten filed several motions for sanctions, alleging discovery violations. The court granted Keeten a second evidentiary hearing and set the hearing for a date more than three months after the State disclosed the materials at issue. 5  STATE v. KEETEN Decision of the Court ¶17 In denying Keeten's motion to suppress, the superior court also denied his motions for sanctions. The court ruled the State should not be sanctioned for failing to disclose the items before the first day of the hearing and that Keeten had not shown any prejudice arising out of what the court deemed an ancillary matter. ¶18 Brady applies only to exculpatory evidence, and Keeten argues the advertisement and text messages were exculpatory because they stopped short of showing an express "sex for money" agreement. The advertisement and text messages, however, constituted inculpatory, corroborating evidence of prostitution that included sexually explicit exchanges concerning negotiations over the price to be paid for services, along with concern for law enforcement contact, all of which directly implicate a "sex for money" transaction. See Strickler, 527 U.S. at 281-82 (Brady evidence must be favorable to the defendant). Moreover, as noted, the issue to which the advertisement and text messages were relevant was whether the officers had reasonable suspicion of prostitution to conduct an investigatory stop; an express agreement was not required. ¶19 Additionally, when presented with the disclosure issue at the end of the first day of the hearing, the superior court recessed the hearing to address the issue and only resumed the hearing three months after the State had disclosed the items. Even if it could be said that the State "suppressed" the items under these circumstances, the significant length of time between the eventual disclosure of the materials and the second day of hearing remedied any potential prejudice to Keeten. See id. (no Brady violation absent prejudice). ¶20 As for the superior court's decision not to impose a discovery sanction under Rule 15, both the 2017 and 2018 versions of Rule 15.7 required the court to consider whether a party's failure to comply with discovery obligations was (1) harmless or (2) could not have been disclosed earlier even with due diligence. See Ariz. R. Crim. P. 15.7(b) (2017); Ariz. R. Crim. P. 15.7(a) (2018).3 Here, to remedy any possible prejudice, the 3 Rule 15.7 was modified, but the relevant provision remained substantively the same. Compare Ariz. R. Crim. P. 15.7(b) (2017) with Ariz. R. Crim. P. 15.7(a) (2018). The modifications became effective January 1, 2018. Ariz. R. Crim. P. 15.7(a) (2018). Keeten's first three motions for sanctions were filed in 2017; he filed his final motion in 2018. The record does not contain a ruling on the 2018 motion, but it raised similar issues as the earlier motions and we deem it denied as a matter of law. See State v. Hill, 174 Ariz. 313, 323 (1993). 6  STATE v. KEETEN Decision of the Court superior court continued the evidentiary hearing more than 90 days after the State had completed its disclosure, giving Keeten the opportunity to use the materials to the extent he thought they were exculpatory. See State v. Martinez-Villareal, 145 Ariz. 441, 448 (1985) ("In order for a reviewing court to find an abuse of discretion, appellant must demonstrate that he suffered prejudice by nondisclosure."); see also State v. Lee, 185 Ariz. 549, 556 (1996) ("The trial court's failure to impose a particular sanction, or any sanction at all, was not an abuse of discretion" when the defendant had "suffered no prejudice.") In denying the motions for sanctions, the superior court found that Keeten failed to show any prejudice resulting from the delayed disclosure, meaning any failure at the outset by the State to comply with its disclosure obligations was harmless. The court did not abuse its discretion in making that ruling. C. Motion for Mistrial. ¶21 Keeten finally argues the superior court erred by denying his motion for mistrial after a witness violated an order on a motion in limine. We review the denial of a motion for mistrial for an abuse of discretion. State v. Jones, 197 Ariz. 290, 304, ¶ 32 (2000). In evaluating whether a mistrial is warranted, the superior court "is in the best position to determine whether [improper] evidence will actually affect the outcome of the trial." Id. When improper evidence has been admitted, the superior court should consider: (1) whether the remarks brought information to the jurors' attention that they would not be justified in considering to reach their verdict; and (2) the probability that the jurors, under the circumstances of the particular case, were influenced by the remarks. Id. Because a "declaration of a mistrial is the most dramatic remedy for trial error," it should be granted "only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted." State v. Adamson, 136 Ariz. 250, 262 (1983). ¶22 After jury selection, Keeten moved in limine to preclude any reference to the fact that he was on "intensive probation" at the time of his arrest, arguing such evidence would be excessively prejudicial. The State agreed with Keeten's request, and the superior court ordered that the reference would be precluded. The court, however, permitted the State to offer evidence that Keeten was on felony supervised probation to prove his status as a prohibited possessor. ¶23 At trial, responding to a question on cross examination about whether Keeten was performing community service on the date of the incident, Keeten's probation officer stated that Keeten "had it on his 7  STATE v. KEETEN Decision of the Court intensive -– sorry. He had it on his weekly schedule, yes." The testimony concluded without any other mention of "intensive probation." ¶24 Keeten moved for a mistrial, and the prosecutor advised the court that he had instructed the probation officer both orally and by email not to mention "intensive." The superior court denied the motion but offered to provide a curative instruction. Keeten declined the court's offer. ¶25 Although the witness's use of "intensive" referred to information the court had precluded, the witness stopped before finishing saying the phrase and the jury heard no other testimony concerning "intensive probation." Throughout trial, Keeten did not dispute that he was a prohibited possessor; indeed, early in jury selection, his counsel informed the jury of that fact. The superior court permitted the State to present evidence that Keeten was on felony supervised probation. Thus, any potential prejudice resulting from the statement at issue was inconsequential in relation to the extensive undisputed evidence that Keeten had a prior felony conviction for which he was on supervised probation. ¶26 Considering the partial nature of the statement and the witness's self-correction, the jury may have interpreted the phrase simply as a misstatement. The absence of any juror questions regarding the phrase or Keeten's type of probation supports that proposition. In any event, the single, partial use of the phrase did not provide sufficient cause for a mistrial. The superior court did not abuse its discretion by denying the motion and offering to give a curative instruction as an alternative. CONCLUSION ¶27 For the foregoing reasons, we affirm the conviction and resulting sentence. AMY M. WOOD • Clerk of the Court FILED: AA 8 

Filed 5/15/15 P. v. Rogel CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, G049102 v. (Super. Ct. No. 11NF3214) IVAN ROGEL, OPINION Defendant and Appellant. Appeal from a judgment of the Superior Court of Orange County, Carla Singer, Judge. Affirmed in part, reversed in part, and remanded for resentencing. Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Parag Agrawal and Ryan Harrison Peeck, Deputy Attorneys General, for Plaintiff and Respondent.  A jury convicted Ivan Rogel of attempted murder (count 1), aggravated assault with a knife (counts 2, 3), misdemeanor assault on a peace officer (count 4), and misdemeanor simple assault (count 6). The jury also found true sentence enhancement allegations that counts 1 through 3 were committed at the direction of, in association with, or for the benefit of a criminal street gang (Underhill), and that Rogel personally inflicted great bodily injury on the victims. The court sentenced Rogel to a total prison term of 22 years, including 10 years for the gang enhancement on count 1. Rogel challenges the sufficiency of the evidence to support the gang enhancement findings, and we agree. No substantial evidence proves Rogel committed attempted murder and aggravated assault to benefit or promote Underhill, or that he acted with the specific intent to benefit Underhill. Consequently, we reverse the gang enhancement attached to counts 1 through 3 for insufficiency of the evidence. Rogel also claims the court misdirected the jury on the primary activities element of the gang enhancement jury instruction and failed to instruct on voluntary intoxication as it relates to the specific intent element of the gang enhancement. But, in light of our conclusion insufficient evidence supports the gang enhancement findings, there will be no retrial and we need not reach these issues. Rogel’s remaining claims are: the court denied him a fair trial by admitting evidence of his prior gang-related contacts with law enforcement and by improperly denying his mistrial motion based on jury misconduct; the prosecutor committed misconduct by not controlling the gang expert’s testimony and by displaying an irrelevant picture of gang members during closing argument; and cumulative error as the result of multiple acts of prosecutorial misconduct. We find these claims meritless. For these reasons, which we will explain more fully below, we affirm the convictions and the great bodily injury enhancement findings, but reverse the gang enhancement findings. As modified, the judgment is affirmed and the matter is remanded for resentencing. 2  FACTS On October 29, 2011, Nicholas Soto, his pregnant wife, Rebecca Vega, Rebecca’s father, Frank Vega, and her mother, Nicole Martinez, attended a Halloween party at a house on North Carol Street in Anahiem.1 This is an area in Anaheim not known to be in any criminal street gang’s claimed territory. The party was large and loud, and Soto’s family spent most of their time standing together near a small backyard patio that people were using as a dance floor. Frank, who was wearing a full-body gorilla costume with headdress, said the party had music, a disc jockey, and beer. About an hour after Soto and his family arrived, a group of young men walked into the backyard. Someone at the party told Soto they thought the young men were uninvited Underhill gang members. Sometime later, Rebecca and Soto saw two young men groping Martinez while she tried to dance. Soto intervened and the two young men engaged him in a cursing match. One of the young men yelled to Soto, “You don’t know who you’re messing with.” The verbal exchange turned physical, and a group of partygoers gathered around the combatants. When the dust settled, Soto discovered he had been stabbed in the elbow and right rib cage. Soto pointed to a male Hispanic about 18 years old, five feet, eight inches tall with medium build, wearing a blue and white checked shirt and a dark hat, and he told Rebecca that person had stabbed him. Rebecca saw this man run and join a “group of . . . guys” standing together in a different part of the backyard. Frank, still in his gorilla costume minus the headdress, did not see the scuffle on the dance floor, but “a bunch of screaming” drew his attention there. Frank started to separate the combatants as he searched for Rebecca. When he found her, 1 To avoid confusion, we refer to Frank Vega and Rebecca Vega by their first names. 3 Rebecca said, “Nick was stabbed.” Frank lifted Soto’s shirt and exclaimed, “What the hell?” He turned around and saw a bunch of guys. Rebecca pointed at someone in a checked shirt and black hat and said, “Dad, it’s him.” Frank tried to grab the man in the checked shirt as the man attempted to leave the party, which started another fight. Frank eventually fell to the ground where, it seemed to him, several people repeatedly punched and kicked him. Later, Frank discovered he had also been stabbed. After the fight, friends took Frank to the hospital where he spent the next two weeks recovering from seven stab wounds. Meanwhile, Rebecca took Soto inside to check his wounds before he was transported to the hospital by ambulance. While Rebecca and Soto were inside they heard a car crash in front of the house. When they ran outside, Rebecca and Soto saw a car bumper lying in the street and several police officers around the house. Unbeknownst to the partygoers, Anaheim Police Officers Matt Ellis and Brandon Young, Anaheim Police Sergeant Steve Pena, and Anaheim cadet Marcus Zappia had gone to North Carol Street on reports of a loud party and a fight. Ellis and Young arrived before the fight, and they called for backup when the fight broke out. Pena and Zappia responded, but the fight was over by the time they arrived. The four officers were in different places around the house when they all heard what sounded like a car crash. Making their way to the street, the officers saw a silver Honda Civic reversing away from a damaged parked car at about 20 miles per hour. The Civic collided with another car before it backed to the end of the cul-de-sac. Pena and Zappia approached the Civic on foot. Just as Zappia shined a light on the Civic, the car lurched forward and headed out of the cul-de-sac at a high rate of speed, nearly hitting Pena and Zappia in the process. Pena and Zappia got a good look at the driver of the Civic. They both identified Rogel as the driver, and they said Rogel was wearing a checked shirt. 4  Ellis used a patrol car to intercept the Civic. As the Civic approached, it swerved and crashed into Ellis’s patrol car. Rogel was able to drive away, but the officers pursued him. Ellis chased Rogel through various neighborhoods at speeds up to 40 miles per hour before the Civic collided with another parked car. Rogel jumped out of the now disabled Civic and ran through several backyards before officers caught him. At the time of his arrest, Rogel was wearing a checked shirt and black pants. He had visible cuts on his hands, and blood on his knuckles and clothing. Rogel was five feet, nine inches tall and weighed 150 pounds. Ellis and Young noticed that Rogel smelled of alcohol, and that he had bloodshot eyes and a wobbly gait. Soto later picked Rogel’s picture in a photographic lineup. Rebecca was also shown the photographic lineup. She pointed to Rogel’s picture, but said she was not sure if that person was the stabber, or merely someone she remembered seeing at the party. Rebecca also told officers she had recognized a friend of hers at the party, Oscar Ivan Baiza, and she told them Baiza was an Underhill gang member when she knew him in high school. Rebecca did not see Baiza and defendant together at the party. In fact, she testified Baiza left the party before the fighting started. Gang Expert Testimony Anaheim Police Detective Mike Brown testified as the prosecution’s gang expert. A 10-year police veteran, Brown has participated in over 200 gang-related crime investigations over his four years with the gang division, and he has qualified in court as a gang expert on numerous occasions. In addition to extensive training and experience with gangs, Brown has daily contact with members of the over 30 active criminal street gangs in Anaheim. During these contacts, Brown and other officers generate field identification cards for the suspected gang members they contact. The field identification cards contain the suspected gang member’s vital statistics, a description of his or her clothing, tattoos, and any other distinguishing marks. It may also include statements the individual makes regarding his or her gang affiliation. 5  According to Brown, police officers also distribute Street Terrorism Enforcement and Prevention Act (STEP) notices to suspected gang members. Giving someone a STEP notice lets the person know that law enforcement considers him or her to be a member of a criminal street gang. The notice advises the recipient of the enhanced penalties available when convicted of gang-related crimes. Brown stated individuals gain membership in a gang by being beaten by a group of gang members (jumped-in), by having family members already in the gang (walked-in), or by committing a crime for the gang (crimed-in). With respect to Hispanic criminal street gangs, Brown said these gangs tend to be territorial and claim neighborhoods in the city as their “turf,” although he admitted the instant crimes occurred in a neighborhood as yet unclaimed by any known criminal street gang. He also said the number 13 is very important in Hispanic gang culture because it can represent the 13th letter of the alphabet, M, and the letter M is associated with the Mexican Mafia. Brown testified most of the Hispanic gangs in Anahiem “fall under” the Mexican Mafia. Brown also testified gang members consider tattoos to be a badge of honor and a way to advertise loyalty to their gang. In fact, Brown testified, “[i]t’s a huge disrespect for anybody to get a tattoo representing a gang that they’re not from.” Graffiti, too, represents the gang, and it is used to mark turf. It is a sign of disrespect to write graffiti in a rival gang’s territory. Brown also described what occurs during a gang “hit- up.” Brown claimed a gang hit-up can be a verbal or nonverbal challenge, including throwing gang hand signs or asking someone, “Where you from?” Hit-ups usually result in violence. Brown stated respect is the most important thing to gang members. An act of disrespect triggers a violent response. In fact, gang members may suffer consequences for not responding to another person’s disrespect. Furthermore, it is the violent gangs and gang members who garner the most respect. 6  As Brown explained it, acts of violence are one way to gain respect and demonstrate the will “do what the gang wants them to do.” Violent acts are also a way for young gang members to “put-in” work for their gang and enhance their reputation. The same is true of “backing-up,” or assisting, another gang member in the commission of an assault or other crime. Brown also said gang members often brag about violent crimes and acts of violence they commit, all in an effort to establish a fearsome reputation. Brown explained victims of gang-related crimes are often reluctant to cooperate with police because they fear retaliation from the gang. As he described, “It’s harder for us to go in and investigate a crime in a gang neighborhood if the neighborhood won’t even talk to us. And that happens on a regular basis because the gang itself has [instilled] so much fear within the neighborhood. If they cooperate with the police, if they’re seen talking to the police, if they’re a witness or a victim in a crime that was committed within their neighborhood they could be assaulted in the future.” Accordingly, the commission of particularly violent crimes benefits the individual gang member and his gang by instilling fear in the community and rival gang members. By the same token, gang members rarely cooperate with police because they do not want to be labeled “a rat.” During his career, Brown has investigated more than 50 crimes committed by members of the Underhill criminal street gang, and he has spoken to over 100 Underhill members. According to Brown, Underhill’s known rivals include the gangs La Jolla, East Side Anaheim, and Barrios Small Town. Brown said Underhill started as a party crew in 1985 in the area of State College Boulevard and Underhill Street in Anaheim. Over time, the gang’s territory shifted, and the gang now uses several names, including Underhill, Underhill Street, Hillside, and Los Cyclones. Brown testified common symbols representing Underhill are “AUST,” for Anaheim Underhill Street, “UST” for Underhill Street, and the letter “U.” The gang also has recognized hand signs and graffiti. 7  Brown opined that Underhill had approximately 15 to 25 members and around 50 active participants and associates in October 2011. According to Brown, once an associate commits “to participating in a criminal activity with the individual, they [sic] become more of an active participant of that gang.” Brown testified the primary activity of Underhill was the commission of felony vandalism and felony weapons possession or gun possession. He also testified about two felonies committed by documented Underhill members for the benefit of Underhill. The first was a 2008 aggravated assault committed by Underhill member Rafael Reyes. The second was a 2007 carjacking, robbery, and gun possession committed by gang member Brendon Ruelas. Brown testified he knew Rogel from several in-field contacts. Brown said gang members are often known by a gang moniker, or nickname, which may be a childhood name or a physical characteristic or trait. Brown knew Rogel’s gang moniker, Chucky, although he did not know the story behind the nickname. Brown said he also knew Baiza from several previous contacts in Underhill territory, and he believed Baiza was an Underhill associate. Brown testified to numerous police contacts with Rogel in 2009 and 2010. In November 2009, undercover police officers twice found Rogel in Underhill’s claimed territory with other documented Underhill members. In December, Rogel and three documented Underhill members were stopped as they drove through Underhill’s claimed territory. The arresting officers saw blood on the face of one of the occupants of the car and stopped the car for traffic violations. Officers searched the passenger compartment and found a sawed off shotgun and a sock full of shotgun shells. When contacted at the scene, Rogel said he knew there was a shotgun in the car. In May 2010, Rogel told Brown he associated with Underhill, and other officers saw Rogel in Underhill’s claimed territory. In June, Brown conducted a search of Rogel’s home. He found a book containing graffiti of the letters “UST,” and the 8 words, “Chucky,” and “Hillside.” In July, defendant was discovered in Underhill’s claimed territory with a butterfly knife. Rogel told officers he kept the knife for protection. In September, police officers detained Rogel in connection with fresh graffiti in Underhill’s claimed territory. According to Brown, Rogel’s frequent trips to Underhill’s claimed territory suggested Rogel “associate[d] with individuals that live in that neighborhood and belong in that.” Brown also pointed to Rogel’s tattoos (“Hillside” is tattooed on his right hand, “Cyclones” on his right fingers, and the letter “A” on his right leg), and he testified the tattoos were further evidence of Rogel’s gang affiliation. Brown testified “Hillside” refers to the Underhill gang, and “Cyclones” is a subset of the Underhill gang. The letter “A” is a common tattoo for all Anaheim gang members. Brown said Rogel added all but one of his tattoos after his arrest in this case. In Brown’s opinion, Rogel was an active participant in Underhill when he committed the charged offenses. The fact Rogel added new gang tattoos after committing these crimes merely confirmed Brown’s belief. The prosecutor asked Brown to assume the following facts: “A known and documented Orange County gang member is at a house party in the City of Anaheim. While at the party and in front of numerous people, the gang member is confronted and accused of inappropriate behavior towards a middle-aged female . . . . [¶] . . . [¶] by a young male adult. After being confronted, the gang member stabs the individual who had confronted him in the chest with a knife. [¶] Shortly after the first stabbing, the gang member is then involved in a second altercation with a male in his mid-30’s, who is associated with . . . the first stabbing victim. During this incident, the gang member stabs the man seven times in the chest and in the back with a knife, causing grave injuries. [¶] After this incident, the gang member flees from the area and, to avoid capture, drives his car at a high rate of speed at a police sergeant and a police cadet nearly hitting them. The gang member then rams a police car. That police car was attempting to block the gang member’s exit at the time it was struck. The gang member continues to flee at a high rate 9 of speed while being pursued by multiple police officers in pursuit. [¶] After crashing his car, the gang member runs from the car while being chased by multiple police officers through several yards. The gang member is taken into custody after an extensive search. [¶] Some additional facts: That also at that same party was another known associate of the same gang.” The prosecutor then asked a hypothetical using these assumed facts, and Brown opined the attempted murder and aggravated assaults were committed at the direction of, for the benefit of, or in association with the Underhill gang. Brown based his opinion on “the totality of the circumstances, knowing that there was other associates of Underhill . . . present at the time the crime was committed or prior to the crime being committed, individuals at that party knew other individuals that possibly may be involved with Underhill were there, and the violent act of the crime itself.” Again using these assumed facts, the prosecutor asked if “a crime such as the one described in the hypothetical promote, further or assist the gang?” Brown said it would and for the same reasons. Brown acknowledged the crimes were not committed in Underhill territory. Still, Brown said, Underhill benefitted from the commission of these crimes because the crimes instilled fear in the community where the crimes occurred and in Underhill’s rivals. He also observed that the hypothetical gang member’s actions showed other gangs and gang members that Underhill has no regard for law enforcement. Defense Defendant called Dr. Robert Shomer to testify as an expert in eyewitness identification. According to Shomer, eyewitness identification is the least reliable means of identification available, and an eyewitness’s confidence in his or her identification has little correlation with the accuracy of the identification. High-stress situations tend to impair the accuracy of eyewitnesses. He also explained “source confusion” as something that happens when a witness misidentifies a bystander to a crime for the perpetrator. 10  According to Shomer, Rebecca and Soto’s identifications of defendant were vulnerable due to the high-stress situation of the fight and the chaos of multiple bystanders. Moreover, Shomer testified, Soto’s identification of Rogel from the photographic lineup could have been tainted by suggestive police lineup procedures. DISCUSSION 1. Sufficiency of the Evidence - Gang Enhancements Rogel challenges the sufficiency of the evidence to support the jury’s findings that the attempted murder of Frank (count 1), and the aggravated assaults upon Frank and Soto (counts 2 and 3) were gang related. (Pen. Code, § 186.22 subd. (b)(1).) a. Elements, Proof and Standard of Review To prove a gang enhancement under Penal Code section 186.22, subdivision (b)(1), the People must show the defendant committed a crime “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” “The gang enhancement under [Penal Code] section 186.22[, subdivision] (b)(1) requires both that the felony be gang related and that the defendant act with a specific intent to promote, further, or assist the gang . . . .” (People v. Rodriguez (2012) 55 Cal.4th 1125, 1138-1139.) The enhancement applies only to “gang-related” crimes. (People v. Castenada (2000) 23 Cal.4th 743, 745.) “Not every crime committed by gang members is related to a gang.” (People v. Albillar (2010) 51 Cal.4th 47, 60.) “[E]xpert testimony about gang culture and habits [may be used] to reach a finding on a gang allegation. [Citation.]” (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196 (Frank S.).) An expert’s opinion that “particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was ‘committed for the benefit of . . . a[] criminal street gang’ within the meaning of [Penal Code] section 186.22[, subdivision] (b)(1).” (People v. Albillar, supra, 51 Cal.4th at p. 63; see People v. Vang (2011) 52 Cal.4th 1038, 1048.) 11  Our task in reviewing the sufficiency of the evidence is to examine the whole record in the light most favorable to the judgment to determine whether it discloses reasonable, credible, and solid evidence from which a reasonable juror could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-577.) “‘“‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.”’ [Citations.]” [Citation.]’ [Citations.]” (People v. Cravens (2012) 53 Cal.4th 500, 507-508.) In other words, a conviction stands “‘unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” [Citation.]” (Id. at p. 508.) b. Insufficient Evidence Rogel asserts the prosecution failed to prove the fight on the dance floor was anything more than a solo dispute over Rogel’s inappropriate advances towards Martinez. Moreover, Rogel argues, the absence of evidence the fight involved other gang members, gang-related challenges or threats, displays of gang-related tattoos, hand signs, or clothing, and the fact the crimes occurred in neutral territory, fatally undermines gang expert Brown’s opinion that the crimes were gang related. We agree. The cases of Frank S, supra, 141 Cal.App.4th at p. 1192, and People v. Ochoa (2009) 179 Cal.App.4th 650 (Ochoa) are instructive. In Frank S. a police officer stopped a minor for running a red light on his bicycle, and found a concealed knife, a bindle of methamphetamine, and a red bandana in the minor’s possession. (Frank S., supra, 141 Cal.App.4th at p. 1195.) The minor told police he had been attacked two days earlier and “needed the knife for protection against ‘the Southerners’ because they feel he supports northern street gangs.” (Ibid.) The minor identified himself as a Norteno gang affiliate. (Ibid.) According to the trial testimony of a gang expert, the minor was an active Norteno and his possession of the knife benefitted his gang because “it helps provide them protection should they be assaulted.” (Id. at pp. 1195-1196.) 12  The appellate court reversed the gang enhancement finding stating: “In the present case, the expert simply informed the judge of her belief of the minor’s intent with possession of the knife, an issue reserved to the trier of fact. She stated the knife benefits the Nortenos since ‘it helps provide them protection should they be assaulted by rival gang members.’ However, unlike in other cases, the prosecution presented no evidence other than the expert’s opinion regarding gangs in general and the expert’s improper opinion on the ultimate issue to establish that possession of the weapon was ‘committed for the benefit of, at the direction of, or in association with any criminal street gang . . . .’ [Citation.] The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense. In fact, the only other evidence was the minor’s statement to the arresting officer that he had been jumped two days prior and needed the knife for protection. To allow the expert to state the minor’s specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended.” (Frank S., supra, 141 Cal.App.4th at p. 1199.) In sum, the “evidence established the minor has an affiliation with the Nortenos,” but “membership alone does not prove a specific intent to use the knife to promote, further, or assist in criminal conduct by gang members.” (Ibid.) Similarly, in Ochoa the defendant acted alone in committing a carjacking with a shotgun. (Ochoa, supra, 179 Cal.App.4th at pp. 653, 662.) There was no evidence the defendant called out a gang name, displayed gang hand signs, wore gang clothing, or that the victim saw the defendant’s gang-related tattoos. (Ochoa, supra, 179 Cal.App.4th at pp. 662-623.) Furthermore, the crime had not occurred in the defendant’s gang’s claimed territory, nor had it occurred in any rival gang’s territory. (Ibid.) Therefore, the court found, the evidence was insufficient to sustain the gang-related prong of the gang enhancements. 13  The Ochoa court explained, “There was no evidence that gang members committed carjackings or that a gang member could not commit a carjacking for personal benefit, rather than for the benefit of the gang. . . . . While the sergeant effectively testified that carjacking by a gang member would always be for the benefit of the gang, this ‘“did nothing more than [improperly] inform the jury how [the expert] believed the case should be decided,”’ without any underlying factual basis to support it.” (Ochoa, supra, 179 Cal.App.4th at p. 662.) Attempting to distinguish Ochoa and Frank S., the People assert the “gang expert testimony and the presence of at least one Underhill gang member at the party” support a finding the crimes benefitted Underhill. They claim Brown did not merely speculate Rogel’s crimes benefitted Underhill. Instead, “[t]he expert’s testimony was supported by words that were spoken at the scene, [Rogel’s] actions subsequent to the stabbings, including acquiring gang tattoos after the stabbings, [Rogel’s] earlier self- admission that he was a[n] Underhill gang member, repeatedly being in the company of other gang members, his possession of gang-related graffiti, and the documented criminal history of other Underhill gang members.” The facts are rather slimmer than that. The undisputed evidence is Rogel acted with an unidentified compatriot, not Baiza, in the groping of Martinez. Based upon the record before us, it appears Soto was stabbed for interfering with Rogel’s aggressive attempt to dance with Martinez, and Frank was hurt simply because he tried to prevent Rogel from leaving. There is no evidence any other gang members were involved in the fight, or that any other gang member was at the party when it started. Rebecca had seen Baiza earlier, and knew he had been an Underhill member in high school, but the parties agree Baiza left before the fight started. None of the witnesses tied Baiza or any other suspected Underhill gang members to Rogel. Frank heard rumors other Underhill gang members were present, but rumors are not evidence. Further, nothing in the record suggests either the victims or the witnesses even knew Rogel was a gang member. 14  True, one of the two young men who accosted Martinez said something threatening before the fight started, but there was no gang reference of any kind. Neither Rogel nor his unidentified companion ever issued any gang challenges or threats, flashed any gang signs, or shouted any gang slogans. In addition, it is also undisputed the crimes did not occur in Underhill’s claimed territory or in any rival gang’s territory. In short, Rogel did not associate with any other gang members at the party, and he did nothing at the party to identify himself as an Underhill gang member, before, during or after committing the attempted murder and the aggravated assaults. Rogel’s words and actions that night simply do not support Brown’s gang-related opinions. The fact Rogel got new gang tattoos after he was arrested in this case is not substantial evidence of his intent in committing the charged offenses. It is relevant to show his Underhill membership, which was never seriously contested, but gang membership alone does warrant the enhanced penalties provided by Penal Code section 186.22. (Frank S., supra, 141 Cal.App.4th at p. 1199.) Plus gang membership, by definition, involves frequent association with other gang members, possession of gang graffiti, and a host of other peculiarities endemic to gang culture as testified to by Brown. So here, as is in Frank S. and Ochoa, the prosecution presented no evidence to establish the gang enhancements, other than Brown’s opinions on the ultimate issues. And Brown opinions did nothing more than improperly inform the jury how he believed the gang enhancements should be decided, without any underlying factual support. On these points In re Daniel C. (2011) 195 Cal.App.4th 1350 (Daniel C.) is also instructive. There, a minor entered a supermarket with two other young men. After his companions left the store, the minor took a bottle of whiskey and walked out without paying for it. A store employee confronted him, and the minor broke the bottle, hit the employee with the broken bottle, and ran. (Id. at p. 1353.) He was seen fleeing in a truck with three other young men. The police later located the truck, the minor, and his companions, all of whom were wearing clothing with some red in it. (Id. at p. 1354.) 15  The minor admitted going to the store to get alcohol, but he said his friends did not know he intended to steal it. (Daniel C., supra, 195 Cal.App.4th at p. 1354. ) The minor was a Norteno gang affiliate, one of his friends was a gang member, and another was a gang associate. (Id. at pp. 1357-1358.) The juvenile court found true allegations the minor committed a robbery. The court also made true findings on three separate enhancement allegations, including a gang enhancement. (Id. at p. 1357.) On appeal, the appellate court concluded there was insufficient evidence to support the specific intent prong of the enhancement. (Daniel C., supra, 195 Cal.App.4th at pp. 1357-1365.) There was no substantial evidence which tied the minor’s acts to his gang when he stole the whiskey and assaulted the store employee. Of particular note, the minor’s companions had already left the store before he took the alcohol, and they did not assist the minor in the theft or assault. (Id. at p. 1361.) The Daniel C. court also found insufficient evidence to support the gang expert’s opinion the minor and his companions “planned or executed a violent crime in concert . . . to enhance their respect in the community or, to instill fear,” primarily because no evidence suggested they entered the store with the intent to commit a violent crime. (Daniel C., supra, 195 Cal.App.4th at pp. 1363-1364.) The juvenile court specifically found that “the breaking of the bottle was ‘happenstance,’” and the attack on the employee was a “spur-of-the-moment” reaction. (Id. at p. 1363.) Here, too, after Baiza left the party, Rogel engaged in a spur-of-the-moment altercation in reaction to Soto’s interference on the patio dance floor. It was happenstance that Rogel upped the ante by wielding his knife and two people were seriously injured as a result, but the prosecution failed to present substantial evidence the stabbings were for the benefit of Underhill, or that Rogel committed these crimes with the specific intent to promote Underhill. Hence, the gang enhancement findings must be reversed and the matter must be remanded for resentencing. In light of this disposition, we need not address Rogel’s challenges to the gang enhancement jury instructions. 16 2. Gang Evidence - Constitutional Right to Fair Trial Rogel also complains his constitutional right to a fair trial was compromised due to the prosecution’s insistence on pursuing irrelevant gang allegations. He specifically lists two points during the trial at which his constitutional rights were purportedly violated. We discuss and reject each in turn. a. Mistrial Motion The first of these asserted errors occurred during voir dire and involves the trial court’s denial of Rogel’s mistrial motion. Rogel obliquely argues the court abused its discretion by denying his mistrial motion, but he does not provide either reasoned argument or citation to authority. While we are not required to consider this claim on the merits (People v. Islas (2012) 210 Cal.App.4th 116, 128), we review the record and conclude the court did not err. At the beginning of voir dire, the court read the charges, including the gang enhancements alleged against Rogel. Many potential jurors’ voiced concern about sitting on a case involving criminal street gang allegations and several were excused and replaced on this basis. Part way through the process, the court asked a group of replacement jurors if there was anything they wanted to say. When it came to the juror sitting in seat No. 15, the court asked, “Anything I need to know about you?” The juror responded, “Yes. I had a 19-year-old nephew in 2002 and he was – the person that killed him was a member of Anahiem Underhill street gang.” The court asked the juror if he would be a “good juror in this case,” and the juror responded that he could “see both sides.” Although the juror admitted feeling resentment at the loss of his nephew, he told the court he could be a fair and impartial juror in this case. A short time later, after an unreported sidebar discussion, the court excused three jurors, including the juror seated in position No. 15, and continued with voir dire. The following day, defense counsel moved for a mistrial. After a brief discussion the court denied the motion, subject to case law either party might present in the future. 17  The following morning, defense counsel raised the issue again. On this occasion, counsel conceded he should have asked the court to strike the entire venire and repeat voir dire. In the alternative, counsel asked the court to admonish the jurors that statements given by prospective jurors during voir dire are not evidence. The court denied Rogel’s mistrial motion, but gave the admonishment requested by the defense. The denial of a motion for mistrial is reviewed under the abuse of discretion standard, and should be granted only when a party’s chances of receiving a fair trial have been irreparably damaged. (People v. Ayala (2000) 23 Cal.4th 225, 282.) The denial of a motion to dismiss an entire jury panel is also reviewed under the abuse of discretion standard. (People v. Martinez (1991) 228 Cal.App.3d. 1456, 1466-1467.) The court here found Rogel was not unduly prejudiced by the juror’s revelation, and Rogel has failed to show his chance of receiving a fair trial was irreparably damaged. As noted, a number of jurors voiced concern about sitting on a case involving gangs. The one juror with personal experience with gangs was excused, and the jury court admonished, “Statements given by prospective jurors during jury selection also is not evidence.” In our view, the court correctly denied defendant’s mistrial motion and properly limited the definition of evidence to facts adduced during trial. b. Butterfly Knife and Shotgun Evidence Prior to trial, Rogel moved under Evidence Code section 352 to exclude evidence he possessed a butterfly knife in July 2010 and jointly possessed a shotgun in December 2009. The court denied Rogel’s motion, concluding evidence of his prior contacts with law enforcement tended to prove his “gang affiliation, which goes directly to the allegation that the defendant committed the present crimes for the benefit of, in association with, or at the direction of [Underhill].” The court also found evidence of these two weapons possession incidents would not be unduly prejudicial. Rogel claims the court abused its discretion by admitting evidence of these two weapons possession incidents. We disagree. 18  “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) This “permits the trial judge to strike a careful balance between the probative value of the evidence and the danger of prejudice, confusion and undue time consumption,” and “requires that the danger of these evils substantially outweighs the probative value of the evidence.” (People v. Lavergne (1971) 4 Cal.3d 735, 744; see also People v. Tran (2011) 51 Cal.4th 1040, 1047.) “A trial court’s exercise of discretion in admitting or excluding . . . will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner . . . .” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) The court here carefully weighed the evidentiary value of Rogel’s history with weapons and his association with Underhilll against its potential for undue prejudice. Evidence Rogel twice possessed weapons in Underhill’s claimed territory, once while he was in the company of other Underhilll gang members, was relevant to the gang enhancement allegations and not any more prejudicial than the facts of the underlying crimes. So the court made a reasoned decision to admit this evidence, and Rogel fails to establish that decision was arbitrary, capricious, or patently absurd. Additionally, the court gave CALCRIM No. 1403, which explained the jury could only consider the gang evidence for the limited purpose of determining whether the defendant acted with the intent required to prove the enhancement and his motive, or the credibility of a witness. We presume the jurors followed this limiting instruction and considered evidence of Rogel’s prior police contacts and weapons possessions solely to prove his intent and motive with respect to the gang allegations. (See People v. Yoder (1979) 100 Cal.App.3d 333, 338.) In light of this admonishment and on this record, any claimed error could not have been prejudicial. (Evid. Code, § 353 [miscarriage of justice required to set aside a verdict or finding based on improperly admitted evidence].) 19 3. Prosecutorial Misconduct “When a prosecutor’s intemperate behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal Constitution is violated. Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury. [Citation.]” (People v. Panah (2005) 35 Cal.4th 395, 462.) “‘In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review.’ [Citation.] When a claim of misconduct is based on the prosecutor’s comments before the jury, “‘the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’” [Citations.]” (People v. Friend (2009) 47 Cal.4th 1, 29, 97.) a. Probation Status Rogel claims prosecutorial misconduct concerning evidence of his probation status. During a discussion between court and counsel concerning Rogel’s prior police contacts, the court learned Brown discovered the butterfly knife during a probation search. Later, when the court ruled admissible the prior-contacts evidence, the court also observed, “the fact [Rogel] was on probation at that time is unnecessary to the officer’s opinion and could in itself be more prejudicial than probative.” Still later, during the direct examination of Brown, the prosecutor made a reference to the July 2010 butterfly knife incident and engaged Brown in the following colloquy: “[Prosecutor] You spoke of the fact that there was an occasion at which you were at Mr. Rogel’s residence? [¶] . . . [¶] [Brown] He was on probation. We were there conducting a probation check and his sister allowed us in the house.” There was no objection and Brown testified about the probation search. 20  A few questions later, the prosecutor asked, “Was there also a time in which Mr. Rogel was contacted on July 15, 2010?” Brown said yes. The prosecutor asked, “During that occasion was Mr. Rogel contacted by law enforcement?” Brown answered, “I believe he was contacted by probation officers who were walking in the neighborhood.” Defense counsel objected on Evidence Code section 352 grounds. The court declared a recess, and conducted a hearing outside the presence of the jury. At the conclusion of this hearing, the court told the prosecutor, “I would caution you not to ask any question or elicit any answer that indentifies [Rogel] as a probationer because it is irrelevant and it is highly prejudicial to the defendant . . . .” There were no further references to Rogel’s probationary status. Because defense counsel never objected on prosecutorial misconduct grounds, Rogel has forfeited the issue on appeal. Notwithstanding that forfeiture, we find no misconduct. Nothing suggests the prosecutor framed his questions to impermissibly elicit information about Rogel’s probationary status. In fact, Brown’s answers were nonresponsive to the prosecutor’s questions. Further, the prosecutor heeded the court’s admonition and there were no further references to Rogel’s probationary status during the remainder of the trial. Thus, we see no prosecutorial misconduct on this point. b. Chucky Moniker Rogel also claims prosecutorial misconduct in connection with Brown’s remarks about his gang moniker - Chucky. After eliciting Brown’s testimony about the derivation of gang monikers, the prosecutor asked, “Do you know anything regarding Mr. Rogel’s association with the word Chucky?” Brown answered, “I’ve seen it at his house graffiti’d. I’ve seen it on walls. But other than that, I’m not sure why.” The prosecutor then asked, “Do you know what Chucky stems from?” Brown responded, “I know there’s a little doll, several horror films called Chucky.” Defense counsel objected on relevance and speculation grounds. The court sustained the relevance objection and promptly admonished the jury to disregard that part of Brown’s testimony. 21  Nevertheless, Rogel complains, “The gang expert’s suggestion at the behest of the prosecutor that appellant was named after a knife-wielding serial killer was highly prejudicial.” In essence, Rogel disregards the presumption the jury followed the court’s admonition. (People v. Homick (2012) 55 Cal.4th 816, 866-867.) We see nothing in the record that supports Rogel’s belief the jury disregarded the court’s direction and drew wildly negative inferences from Brown’s brief and speculative horror film reference. Again, we perceive no prosecutorial misconduct on this issue. c. Mexican Mafia Rogel next claims prosecutorial misconduct in Brown’s Mexican Mafia testimony. Recall, Brown said 13 represents the 13th letter of the alphabet, M, and the letter M is associated with “the Mexican Mafia, which most criminal street gangs, the Hispanic ones, fall under.” The prosecutor asked, “Is the number 13 often associated with Southern California Hispanic street gangs?” Brown answered, “That’s correct.” When the prosecutor asked if the number 13 also showed allegiance to something, Brown responded, “Yes. It shows an allegiance to the Mexican Mafia or Sureños.” Defense counsel objected on relevance and non-responsive grounds. The court sustained the relevance objection, struck Brown’s answer, and instructed the jury to disregard it. Rogel summarily asserts the trial court’s order sustaining defense counsel’s objection and striking Brown’s second reference to the Mexican Mafia did not cure the prejudice caused by mentioning it. Because this assertion is not supported by authority, reasoned argument, or citations to the record, we need not consider it. (People v. Islas, supra, 210 Cal.App.4th at p. 128.) Even so, it appears the prosecutor’s questions sought to elicit Brown’s expert testimony linking the number 13 to southern California street gangs like Underhill. Nothing suggests the prosecutor intentionally elicited Brown’s two concededly irrelevant and prejudicial references to the Mexican Mafia. Under these circumstances, we conclude there was no prosecutorial misconduct in connection with Brown’s brief references to the Mexican Mafia, 22  d. Closing Argument Finally, Rogel claims prosecutorial misconduct occurred during closing argument, when the prosecutor projected a slide which depicted a chart entitled, “Definitions: ‘Criminal Street Gang’ – PC 186.22(f).” On one side, the chart listed four elements in the definition of a criminal street gang under Penal Code section 186.22, subdivision (e). On the other side of the chart, there was a highly inflammatory and irrelevant photograph of five shirtless, Hispanic young men with shaved heads. The group of five was kneeling behind some graffiti and displaying gang hand signs. Underneath this picture were two cartoon drawings, one of a gun shooting a bullet and the other of a hand holding pills, a small baggie of methamphetamine, and a marijuana cigarette. Beneath the cartoon drawings was the word “18th St.” and beneath that there were two black boxes with the words, “Member” over the word “CONVICTED.” As he projected the slide, the prosecutor told the jury the chart was not related to this case, but simply demonstrative of the facts the People had to prove in order to establish Underhill was a criminal street gang under Penal Code section 186.22, subdivision (e). Defense counsel objected on Evidence Code section 352 grounds “to the slide and the photographs in it.” The court immediately directed the prosecutor to take down the slide and called for a chambers conference. In chambers, the court advised the prosecutor that displaying the chart could constitute prosecutorial misconduct because it might inflame the passions of the jury. The court marked the slide as an exhibit for appellate review, and precluded the prosecutor from projecting the slide during the remainder of closing argument. Back in the courtroom, the court admonished the jury, “the display [the prosecutor] had up for a matter of seconds, as far as I could tell, was inappropriate to demonstrate a point that he was making in his argument. I am directing you to disregard the photograph and the two drawings. They do not appear to be any evidence in this particular case. And I don’t believe that you should be making any inference from those items.” 23  Again, Rogel did not object on grounds of prosecutorial misconduct, and so has forfeited this claim. Still, nothing in the record demonstrates the brief projection of the slide rendered Rogel’s trial “fundamentally unfair,” particularly in light of the court’s prompt corrective actions, nor is it reasonably probable he would have obtained a more favorable result without the slide. (People v. Panah, supra, 35 Cal.4th at p. 462.) 4. Cumulative Prejudice Rogel claims the cumulative effect of these alleged instances of prosecutorial misconduct deprived him of his state and federal Constitutional right to a fair trial. We have already concluded Rogel’s claimed instances of prosecutorial misconduct were either not misconduct or not prejudicial. In any event, Rogel fails to demonstrate any of the purported errors, whether considered individually or collectively, deprived him of a fair trial, and the evidence of his guilt is overwhelming. Thus, we reject his cumulative error claim. (See People v. Harris (2013) 57 Cal.4th 804, 859.) DISPOSITION The gang enhancement findings on counts 1, 2, and 3 are reversed. The judgment is affirmed in all other respects, and the matter is remanded for resentencing. THOMPSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J. 24 

16-3033-cv Novick v. AXA Network LLC, AXA Advisors, LLC UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated Term of the United States Court of Appeals for the Second Circuit, held at the 2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the 3 27th day of October, two thousand seventeen. 4 5 Present: RALPH K. WINTER, 6 JOHN M. WALKER, JR., 7 ROSEMARY S. POOLER, 8 Circuit Judges. 9 _____________________________________________________ 10 11 STEVEN S. NOVICK, 12 13 Plaintiff-Counter-Defendant-Appellant, 14 15 v. 16-3033-cv; 16 16-3749-cv 17 AXA Network, LLC, AXA Advisors, LLC, 18 19 Defendants-Counter-Claimants-Appellees. 20 _____________________________________________________ 21 22 Appearing for Appellant: Lynne M. Fischman Uniman, Andrews Kurth Kenyon, LLP, New 23 York, N.Y. (Michael S. Finkelstein, Finkelstein & Feil, LLP, 24 Bohemia, N.Y., on the brief) 25 26 Appearing for Appellee: Frank C. Morris, Jr. (Ronald Green, Aime Dempsey, David Clark, 27 on the brief), Epstein Becker & Green, PC, New York, N.Y. 28 29 Appeal from the United States District Court for the Southern District of New York (Hellerstein, 30 J.). 31 1  1 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 2 AND DECREED that the judgment of said District Court on the merits in favor of AXA be and 3 hereby is AFFIRMED, and that the order with respect to AXA’s attorney fees be and hereby is 4 REMANDED for further consideration. 5 6 Plaintiff-Counter-Defendant-Appellant Steven Novick appeals from several rulings by 7 the United States District Court for the Southern District of New York (Hellerstein, J.) issued 8 over the course of lengthy litigation, specifically: a February 1, 2011 order dismissing tort-based 9 claims; a September 15, 2016 order granting attorney fees to defendants; and rulings made prior 10 to and during a trial held between June 27, 2016 and July 14, 2016 that disallowed expert 11 testimony, excluded parol evidence, and denied an adverse inference that had been previously 12 approved by the district court. We assume the parties’ familiarity with the underlying facts, 13 procedural history, and specification of issues for review. 14 15 In November 2002, Novick, a stockbroker and insurance salesman with a sizeable book 16 of clients, entered into several agreements with AXA Advisors, a broker/dealer, and AXA 17 Network, an insurance company (collectively, “AXA”), pursuant to which Novick became 18 affiliated with those companies as an independent contractor. AXA also agreed to loan Novick a 19 total of $1.5 million to assist in his employment transition. In connection with these loans, 20 Novick executed promissory notes in favor of AXA, one in January 2003 for $500,000 (the 21 “January Note”) and the other in August 2003 for $1 million (the “August Note”). The parties 22 also signed a “clarifying document,” which provided that Novick’s customer lists acquired prior 23 to his affiliation with AXA that did not pertain to his business with AXA would remain his 24 property. 25 26 Novick’s affiliation with AXA was terminated in October 2006. Novick asserts that 27 AXA retaliated against him for whistle-blowing on a fellow AXA affiliate, while AXA claims 28 that Novick violated its business practices. Novick brought suit alleging a variety of contract and 29 tort-based claims; AXA counter-sued for the balance of the notes. 30 31 On appeal, Novick first challenges the district court’s 2011 order dismissing his tort- 32 based claims as duplicative of his contract claims. We review a district court's grant of a motion 33 to dismiss de novo, “construing the complaint liberally, accepting all factual allegations in the 34 complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. 35 Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). Under New York law, when a valid 36 agreement governs the subject matter of a dispute between parties, claims arising from that 37 dispute are contractual; attempts to repackage them as sounding in fraud, conversion, and other 38 torts are generally precluded, unless based on a duty independent of the contract. See N.Y. Univ. 39 v. Continental Ins. Co., 87 N.Y.2d 308 (Ct. App. 1995); Diesel Props S.r.l. v. Greystone Bus. 40 Credit II LLC, 631 F.3d 42, 54 (2d Cir. 2011); Mid–Hudson Catskill Rural Migrant Ministry, 41 Inc. v. Fine Host Corp., 418 F.3d 168, 175 (2d Cir. 2005). As a result, “causes of action ... based 42 on the same facts as the cause of action to recover damages for breach of contract” generally 43 should be dismissed as duplicative of the contract claim. Edem v. Grandbelle Int’l, Inc., 988 44 N.Y.S.2d 244, 245 (2d Dep’t 2014). 45 2  1 Here, the district court did not err in dismissing Novick’s tort-based claims as duplicative 2 of his breach of contract claim. Beyond the bare argument that his tort claims “implicate 3 different legal duties,” Novick did not allege any actionable legal duty owed to him by AXA, 4 outside the contract, that would support a tort-based claim. Indeed, Novick himself has 5 repeatedly acknowledged that the tort-based claims are based on contractual obligation. 6 7 Novick also challenges the district court’s refusal to give a previously approved adverse 8 inference, arguing that the district court violated the law-of-the-case doctrine. We review a 9 district court’s adherence to its prior rulings under the law-of-the case doctrine for abuse of 10 discretion. See Devilla v. Schriver, 245 F.3d 192, 198 (2d Cir. 2001). “[W]hen a court has ruled 11 on an issue, that decision should generally be adhered to by that court in subsequent stages in the 12 same case.” United States v. Uccio, 940 F.2d 753, 758 (2d Cir. 1991) (citing Arizona v. 13 California, 460 U.S. 605, 618 (1983)). However, we have noted that “[t]he doctrine of the law of 14 the case is not an inviolate rule,” United States v. Birney, 686 F.2d 102, 107 (2d Cir. 1982); 15 rather, the doctrine “is discretionary and does not limit a court’s power to reconsider its own 16 decisions prior to final judgment,” Aramony v. United Way of Am., 254 F.3d 403, 410 (2d Cir. 17 2001) (citation omitted). The decision whether or not to apply law-of-the-case is, in turn, 18 informed principally by the concern that disregard of an earlier ruling not be allowed to prejudice 19 the party seeking the benefit of the doctrine. Birney, 686 F.2d at 107. “In this context, prejudice 20 refers to a lack of sufficiency of notice or a lack of sufficient opportunity to prepare armed with 21 the knowledge that the prior ruling is not deemed controlling.” Uccio, 940 F.2d at 758 (quoting 22 Birney, 686 F.2d at 107). 23 24 In the instant case, the district court initially ordered an adverse inference in 2015, 25 finding that AXA had acted improperly in connection with certain audio tapes that documented 26 the period immediately prior to and following Novick’s termination. At the final pretrial 27 conference in 2016, the district court heard argument on a motion made by AXA to preclude the 28 adverse inference, and reserved decision. Ultimately, the district court declined to give the 29 adverse inference charge. Under these circumstances, Novick had extensive notice that the court 30 intended to reconsider its earlier ruling, given AXA’s motion and the district court’s clear 31 indication that it would consider the matter further. Thus, Novick did not lack “sufficient 32 opportunity to prepare armed with the knowledge that the prior ruling is not deemed 33 controlling.” Uccio, 940 F.2d at 758 (quoting Birney, 686 F.2d at 107). 34 35 Next, Novick challenges myriad evidentiary rulings. “We review a district court’s 36 evidentiary rulings, including those as to expert testimony, for abuse of discretion.” Callahan v. 37 Wilson, 863 F.3d 144, 153 (2d Cir. 2017) (citing Lore v. City of Syracuse, 670 F.3d 127, 155 (2d 38 Cir. 2012)). 39 40 First, Novick argues that he was impermissibly prevented from calling an expert at trial. 41 Expert testimony should be liberally admitted, if the expert’s “scientific, technical, or other 42 specialized knowledge will assist the trier of fact to understand the evidence.” Fed. R. Evid. 702; 43 Nimely v. City of New York, 414 F.3d 381, 395 (2d Cir. 2005). “The proponent of the expert 44 testimony has the burden to establish the [Rule 702] admissibility requirements, with the district 45 court acting as a gatekeeper to ensure that the expert’s testimony both rests on a reliable 3  1 foundation and is relevant to the task at hand.” In re Pfizer Inc. Sec. Litig., 819 F.3d 642, 658 (2d 2 Cir. 2016) (citation omitted). 3 4 Generally, Novick argues that the trial was riddled with technical terms and that the jury 5 would have benefitted from expert testimony on the operation of the compensation agreements. 6 However, Novick has not specified what technical language he believes required expert 7 explication, nor has he provided any basis to conclude that the compensation calculations were 8 beyond the ken of the average juror. As a result, we find no abuse of discretion in the district 9 court’s decision to bar expert testimony. 10 11 Next, Novick argues that he was wrongly precluded from entering parol evidence of his 12 negotiations with AXA regarding his compensation. In New York, “it is well settled that 13 extrinsic and parol evidence is not admissible to create an ambiguity in a written agreement 14 which is complete and clear and unambiguous upon its face.” Sec. Plans, Inc. v. CUNA Mut. Ins. 15 Soc., 769 F.3d 807, 815-16 (2d Cir. 2014) (citing W.W.W. Assocs., Inc. v. Giancontieri, 77 16 N.Y.2d 157, 163 (Ct. App. 1990)). “Evidence outside the four corners of the document as to 17 what was really intended but unstated or misstated is generally inadmissible to add to or vary the 18 writing.” W.W.W. Assocs., 77 N.Y.2d at 162. Parol evidence “is admissible only if a court finds 19 an ambiguity in the contract.” Schron v. Troutman Sanders LLP, 20 N.Y.3d 430, 436 (Ct. App. 20 2013). 21 22 In the main, Novick argues that his affiliation agreements are ambiguous because of two 23 references to commissions paid in accordance with schedules published by AXA. Novick argues 24 that, because of these references, he should be allowed to introduce statements made by the 25 parties during negotiations. However, the contracts’ reference to the schedules does not create 26 ambiguity. Rather, the contracts very clearly incorporate those documents by reference. See 27 Progressive Cas. Ins. Co. v. C.A. Reaseguradora Nacional De Venezuela, 991 F.2d 42, 47 (2d 28 Cir. 1993). Since Novick does not argue that the schedules themselves are ambiguous, or that 29 other elements of the contract are unclear, there is no basis to open the floodgates to the 30 statements made by parties during negotiations. 31 32 Finally, Novick challenges the district court’s entry of an attorney fee award pursuant to 33 the January and August Notes. While we review the district court’s interpretation of a contract de 34 novo, “[w]e review an award of attorney’s fees for abuse of discretion if the district court has 35 awarded the fees under a valid contractual authorization.” Mid-Hudson Catskill Rural Migrant 36 Ministry, Inc. v. Fine Host Corp., 418 F.3d 168, 177 (2d Cir. 2005). Where a contract clearly 37 provides for an attorney fee award, we are “highly deferential” to the district court’s 38 determination of the appropriate amount to be awarded. Oscar Gruss & Son, Inc. v. Hollander, 39 337 F.3d 186, 198 (2d Cir. 2003). Under New York law, “fees on fees”—or fees for efforts 40 expended in connection with collecting attorney fees—are not recoverable absent a specific 41 contractual provision that “explicitly provide[s] for such fees.” Jones v. Voskresenskaya, 5 42 N.Y.S.3d 16, 18 (1st Dep’t 2015) (citing 546–552 W. 146th St. LLC v. Arfa, 950 N.Y.S.2d 24 43 (1st Dep’t 2012)). Such a provision must evidence “unmistakably clear intent regarding the 44 recovery of fees on fees.” IG Second Generation Partners, L.P. v. Kaygreen Realty Co., 980 45 N.Y.S.2d 479, 481 (2d Dep’t 2014). 46 4  1 Novick does not contest that the January and August Notes provide for attorney fees; 2 rather, he asserts that the fees awarded here, totaling $263,206.40, were excessive. The district 3 court disagreed, largely without explanation, and awarded AXA all of the fees it sought. We find 4 this to be in error principally because AXA is entitled only to fees for work performed as part of 5 its effort to recover on the notes, and by granting AXA’s request for fees in full, the district court 6 almost certainly awarded fees to AXA for attorney work hours unattributable to the notes 7 litigation. We note that certain of Novick’s claims or defenses may have been asserted as 8 grounds for a setoff to any judgment entered in the notes litigation, and thus AXA would be 9 entitled to recovery for hours spent on that portion of the litigation. On remand, the district court 10 should assess whether the hours identified in AXA’s motion relate to work for which AXA 11 cannot claim reimbursement, and, if so, which corresponding adjustments are necessary. We 12 leave it to the district court to decide, in its discretion, how best to make those adjustments. 13 14 We also take issue with the fact that the district court appears to have awarded Novick 15 “fees on fees,” which were not provided for in the January or August Note. Novick is correct that 16 the notes do not manifest an “unmistakably clear intent” to allow such fees. Accordingly, on 17 remand, the district court should also determine what amount, if any, of the total fee award was 18 attributable to “fees on fees.” If the district court determines that such “fees on fees” were 19 assessed, the total fee award should be decreased by that amount. 20 21 We have considered the remainder of appellant’s arguments and find them to be without 22 merit. Accordingly, the judgment of the district court on the merits hereby is AFFIRMED, and 23 the order with respect to AXA’s attorney fees is hereby REMANDED for further consideration. 24 25 FOR THE COURT: 26 Catherine O’Hagan Wolfe, Clerk 27 5 

199 F.Supp.2d 704 (2001) UNITED STATES of America, Plaintiff, v. Arvin RIDLEY, Defendant. No. CR-3-01-047(02). United States District Court, S.D. Ohio, Western Division. December 28, 2001. *705 *706 Dick Chema, Dayton, OH, for plaintiff. Kenneth L. Lawson, Cincinnati, OH, Derek Farmer, Columbus, OH, for defendants. DECISION AND ENTRY OVERRULING DEFENDANT'S REQUEST FOR DISCLOSURE OF FAVORABLE EVIDENCE (DOC. # 24); DECISION AND ENTRY OVERRULING DEFENDANT'S MOTION FOR BILL OF PARTICULARS (DOC. # 25); DECISION AND ENTRY SUSTAINING DEFENDANT'S REQUEST FOR DISCOVERY (DOC. # 26); DECISION AND ENTRY OVERRULING DEFENDANT'S MOTION TO SUPPRESS STATEMENTS (DOC. # 29); CONFERENCE CALL SET RICE, Chief Judge. In Count 1 of the Indictment (Doc. # 10), the Defendant Arvin Ridley ("Defendant") is charged with conspiring to possess with intent to distribute and to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. § 846. In Count 2, he is charged with possessing with intent to distribute approximately 48 kilograms of cocaine, in violation of 21 U.S.C. § 841. This case is now before the Court on the following motions filed by the Defendant, to wit: Request for Disclosure of Favorable Evidence (Doc. # 24); Motion for Bill of Particulars (Doc. # 25); Request for Discovery (Doc. # 26); and Motion to Suppress Statements (Doc. # 29). Herein, the Court rules upon those motions in the above order. I. Defendant's Request for Disclosure of Favorable Evidence (Doc. # 24) With this motion, which is based upon Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Defendant requests that the Court order the Government to disclose all evidence it knows or becomes known to it, which is favorable to the Defendant and material to either his guilt or penalty. *707 Under Brady, the Government is obligated to disclose evidence to a criminal defendant which is both favorable to the defendant and material either to guilt or to punishment. Kyles v. Whitley, 514 U.S. 419, 432, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). That obligation extends to impeachment evidence, as well as to exculpatory evidence. United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). See also, United States v. Mullins, 22 F.3d 1365, 1372 (6th Cir.1994) ("Clearly, Brady recognizes no distinction between evidence which serves to impeach a Government witness' credibility and evidence which is directly exculpatory of the defendant."). Brady did not, however, create a constitutional right to discovery in a criminal prosecution. See e.g., Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) ("There is no general constitutional right to discovery in a criminal case, and Brady did not create one...."); United States v. Bencs, 28 F.3d 555, 560 (6th Cir.1994) (same), cert. denied, 513 U.S. 1117, 115 S.Ct. 915, 130 L.Ed.2d 796 (1995). Indeed, the Sixth Circuit has held that the Government is typically the sole judge of whether evidence in its possession is subject to disclosure under Brady. United States v. Driscoll, 970 F.2d 1472, 1482 (6th Cir.1992), cert. denied, 506 U.S. 1083, 113 S.Ct. 1056, 122 L.Ed.2d 362 (1993); Presser, 844 F.2d at 1281. Given that Brady does not provide a right of discovery, this Court overrules Defendant's Request for Favorable Evidence (Doc. # 24). This ruling should not, however, be construed as relieving the Government of its obligations under Brady. II. Motion for Bill of Particulars (Doc. # 25) With this motion, the Defendant requests a bill of particulars, requiring the Government to disclose the following information, to wit: 1) the names of all individuals who, according to the Government, participated in the charged offenses, including their addresses and telephone numbers; 2) the exact place or location where the charged offenses are alleged to have occurred; 3) the precise time of day or night when the charged offenses are believed to have occurred; 4) the precise manner in which the Defendant is alleged to have committed the charged offenses; 5) the identity of any witnesses who are alleged to have been present when the charged offenses occurred; and 6) the actions of the Defendant that are alleged to have constituted the charged offenses. Under Rule 7 of the Federal Rules of Criminal Procedure, which governs the prosecution by an indictment or information in criminal cases, a court may direct the filing of a bill of particulars. See Rule 7(f). "The test in this Circuit for determining whether a bill of particulars should issue is whether the indictment is sufficiently specific to inform defendants of the charges against them, to protect them from double jeopardy, and to enable them to prepare for trial." United States v. Hayes, 1989 WL 105938, at *3, 884 F.2d 1393 (6th Cir.1989) (citing United States v. Azad, 809 F.2d 291, 296 (6th Cir.1986), cert. denied, 481 U.S. 1004, 107 S.Ct. 1626, 95 L.Ed.2d 200 (1987)). Accord United States v. Salisbury, 983 F.2d 1369, 1375 (6th Cir.1993) ("A bill of particulars is meant to be used as a tool to minimize surprise and assist [a] defendant in obtaining the information needed to prepare a defense and to preclude a second prosecution for the same crimes"); United States v. Birmley, 529 F.2d 103, 108 (6th Cir. 1976) ("The purposes of a bill of particulars are to inform the defendant of the nature of the charge against him with sufficient precision to enable him to prepare for trial, to avoid or minimize the danger of surprise at the time of trial, and to enable him to plead his acquittal or conviction *708 in bar of another prosecution for the same offense, when the indictment itself is too vague and indefinite for such purposes"). However, a bill of particulars is not intended to allow the defense "to obtain detailed disclosure of all evidence held by the government before trial." Salisbury, 983 F.2d at 1375. See also, United States v. Cooper, 1990 WL 67885, 902 F.2d 1570 (6th Cir.1990) ("A bill of particulars is not a discovery device and should not be used `to obtain detailed disclosure of the government's evidence prior to trial.' United States v. Kilrain, 566 F.2d 979, 985 (5th Cir.), cert. denied, 439 U.S. 819, 99 S.Ct. 80, 58 L.Ed.2d 109 (1978)."). "This is particularly true in a conspiracy case in which the Government is not required to disclose all overt acts alleged to have occurred in furtherance of the conspiracy." Hayes, 1989 WL 105938, at *3, 884 F.2d 1393; accord United States v. Martin, 1987 WL 38036, at *3, 822 F.2d 1089 (6th Cir.1987) (need for a bill of particulars is particularly obviated "in a conspiracy case where the Government is not required to disclose all overt acts alleged to have occurred in furtherance of the conspiracy"). The Court overrules the Defendant's Motion for Bill of Particulars (Doc. # 25). It is apparent from the briefing of his Motion to Suppress Statements (Doc. # 29) that the Defendant is aware of the facts and circumstances leading to this prosecution. Therefore, a bill of particulars is not necessary in order to avoid surprise at trial or to permit the Defendant to prepare for trial. In addition, the Indictment is sufficiently detailed to prevent the Defendant from being prosecuted a second time for the offenses with which he is charged in this prosecution. Finally, examining the type of the information the Defendant is seeking with this motion demonstrates that he is using his request for a bill of particulars in order to obtain a detailed description of the Government's proof against him. A bill of particulars is not to be used as such a discovery tool. See Hayes, supra (affirming the decision of the District Court to deny defendant's request for a bill of particulars, because he was using it as a general discovery request). Accordingly, the Court overrules the Defendant's Motion for a Bill of Particulars (Doc. # 25). III. Request for Discovery (Doc. # 26) With this motion, the Defendant requests that the Government be ordered to disclose all information he is entitled to receive under Rule 16 of the Federal Rules of Criminal Procedure. The Government has not responded to this motion. Rule 16(a)(1) provides that a criminal defendant is entitled to discover certain categories of information. The Court sustains the Defendant's motion and orders the Government to provide the materials to which the Defendant is entitled under Rule 16(a)(1), to the extent same have not already been provided, within seven (7) days from date. IV. Motion to Suppress Statements (Doc. # 29) With this motion, the Defendant requests that the Court suppress statements which he gave to federal law enforcement officials on April 11, 2001. On July 6, 2001, the Court conducted an oral and evidentiary hearing on this motion. In accordance with the briefing schedule established by the Court, the parties have submitted their post-hearing memoranda. See Docs. # 53 and # 55. The Court now rules upon that motion. The Court begins by setting forth its findings of fact, based upon the evidence presented during the hearing on Defendant's motion. The genesis of this prosecution and the Defendant's Motion to Suppress Statements was the theft, in early April, 2001, of 48 kilograms of cocaine. On Monday, *709 April 9, 2001, Special Agent Robert Brawner ("Brawner") of the Federal Bureau of Investigation ("FBI") met the Defendant and his cousin in the parking lot of the University of Dayton Arena.[1] Prior to that meeting, Defendant's cousin had told Brawner that the Defendant was in the possession of a large quantity of cocaine, in the range of 20 kilograms.[2] During their meeting on April 9th,[3] Defendant told Brawner that Sentel Alexander Smith ("Smith") had been involved in the theft of 20 kilograms of cocaine from a residence in Trotwood, Ohio. According to the Defendant, he was merely holding the cocaine for the individual who had stolen it. He also told Brawner that he was willing to deliver the 20 kilograms of cocaine to Government agents, but that he did not want to be involved. Approximately one and one-half hours after that meeting had terminated, Defendant's cousin delivered 20 kilograms of cocaine to Brawner at the University of Dayton Arena. During their first meeting, the Defendant lied to Brawner about his involvement in the theft of the cocaine and the amount of cocaine which had been stolen. Brawner continued his investigation of the matter and, over the next few days, discovered information that cast doubt upon the story the Defendant had told Brawner on April 9th. For instance, on April 11, 2000, Smith told Brawner and Agent Thomas Buchenroth ("Buchenroth") of the Internal Revenue Service that he (Smith) and the Defendant had been involved in the theft of two pieces of luggage from a residence in Trotwood. According to Smith, he and the Defendant discovered 48 kilograms of cocaine inside the two pieces of luggage. Smith also told the officers that the Defendant had set up the theft of the luggage, and had recruited him to participate in the theft. In addition, Smith informed Brawner and Buchenroth that the cocaine was being stored at the residence of Bobby Eugene Johnson ("Johnson"), an individual who worked as a cook for Defendant at an after-hours establishment.[4] Thus, Smith had given the officers information which cast doubt on Defendant's statements that only 20 kilograms of cocaine had been stolen and that he had not been involved in that theft. As a consequence, Brawner decided to speak with the Defendant again. In the early evening hours of April 11th, Brawner telephoned Defendant, leaving a message that there was a problem regarding the cocaine and asking Defendant to return the telephone call. Shortly thereafter, Defendant returned Brawner's telephone call. Brawner told the Defendant that he wanted to meet and to talk, and the two agreed to meet in the parking lot of the Crystal Water Company, a business establishment located on South Patterson Boulevard in Dayton. At about 8:15 p.m., on April 11th, Brawner met the Defendant at that parking lot. Brawner arrived in an automobile with FBI Agent Steven Morris ("Morris"). FBI Agent Don Riedman ("Riedman") and Detective Kevin Bollinger ("Bollinger") of the Dayton Police Department observed the meeting from a separate automobile. The Defendant arrived alone in the same vehicle he had driven to his meeting with Brawner two days earlier. Brawner and Morris got out of their vehicle, while the Defendant exited his. *710 Brawner then informed the Defendant that there were inconsistencies in the version of events he had recounted during their earlier meeting. Brawner also asked Defendant whether he possessed any weapons or drugs. The Defendant indicated that he did not and gave Brawner consent to search his vehicle. Brawner searched the vehicle, discovering neither contraband nor weapons. The two continued to converse for a few moments, following which Brawner asked the Defendant whether he would be willing to go to the FBI office located in the Federal Building in downtown Dayton, in order that they could have a more private meeting. The Defendant agreed, accompanying Brawner in his vehicle.[5] When they arrived, Brawner parked that vehicle at the rear of the Federal Building and entered that building from the rear. When they entered the offices of the FBI, the Defendant and Brawner went to a conference room, where they were joined by Buchenroth. In that room, Brawner began to question the Defendant, who, in essence, confessed his involvement in the theft of 48 kilograms of cocaine. During this process, Brawner left the room for a while.[6] During his absence, Brawner was told that Johnson had given agents an additional 16 kilograms of cocaine and had related a version of events to them which confirmed what Smith had told Brawner. When Brawner returned to the conference room, he read Defendant the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Defendant indicated that he understood his rights and signed a form indicating that he was willing to waive those rights, and to continue to speak with Brawner and Buchenroth, both of which he did.[7] In his Post-Hearing Memorandum (Doc. # 53), the Defendant argues that the Court should suppress the statements he gave to Brawner and Buchenroth, before he was given his Miranda warnings, because those statements occurred in the context of a custodial interrogation. In addition, the Defendant contends that his statements, made after he had been given those warnings, must be suppressed, because they were involuntary. The Defendant also argues that his statements must be suppressed, because he had been arrested before making those statements and the officers lacked probable cause to seize him. As a means of analysis, the Court will discuss the Defendant's three arguments in the above order. A. Pre-Miranda Statements The Defendant argues that the Court should suppress his statements on April 11th, which he made prior to the time that Brawner read the Miranda warnings to him. Under Miranda, the prosecution cannot use the statements of a defendant who has been subjected to a custodial interrogation, unless that questioning has been preceded by certain warnings. In Miranda, the Supreme Court defined "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into *711 custody or otherwise deprived of his freedom of action in any significant way." 384 U.S. at 444, 86 S.Ct. 1602. See also, Stansbury v. California, 511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994); Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). Herein, Brawner and Buchenroth questioned Defendant; therefore, the parties focus their arguments on the question of whether the Defendant was in custody when that questioning occurred. In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but "the ultimate inquiry is simply whether there [was] a `formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (quoting Mathiason, supra, 429 U.S. at 495, 97 S.Ct. 711). Stansbury, 511 U.S. at 322, 114 S.Ct. 1526. As the United States Supreme Court has instructed, "the only relevant inquiry is how a reasonable man in the suspect's shoes would have understood his situation." Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). Accord, United States v. Crossley, 224 F.3d 847, 861 (6th Cir.2000). In United States v. Mahan, 190 F.3d 416 (6th Cir.1999), the Sixth Circuit restated familiar principles that must be applied to ascertain whether an individual was in custody when interrogated: For an individual to be "in custody," there must be "a formal arrest or restraint on freedom of movement of the degree associated with formal arrest." Thompson [v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995)] (citation and internal quotation omitted). In determining whether a suspect is "in custody" for purposes of applying the Miranda doctrine, "the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). See also Thompson, 516 U.S. at 112, 116 S.Ct. 457 (stating that the custody determination hinges upon whether, "given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave"). Id. at 421. In United States v. Salvo, 133 F.3d 943, 948 (6th Cir.), cert. denied, 523 U.S. 1122, 118 S.Ct. 1805, 140 L.Ed.2d 943 (1998), the Sixth Circuit explained: The Supreme Court has distinguished between "custodial interrogation" and the mere questioning of a suspect in a "coercive environment": [A] noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a "coercive environment." Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. [Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977)]. See also, United States v. Phillip, 948 F.2d 241, 247 (6th Cir.1991), cert. denied, 504 U.S. 930, 112 S.Ct. 1994, 118 L.Ed.2d 590 (1992) ("Coercive environments not rising to the level of formal arrest ... do not constitute custody within the meaning of Miranda."); United States v. Knox, 839 F.2d 285, 291-292 (6th Cir.1988), cert. denied, 490 *712 U.S. 1019, 109 S.Ct. 1742, 104 L.Ed.2d 179 (1989). Id. at 948. During the suppression hearing, the Defendant testified that, as soon as he arrived at the parking lot of the Crystal Water Company, he observed an officer standing outside a Chevrolet Suburban holding a "long rifle with a big clip in it." Transcript of July 6, 2001 Hearing (Doc. # 46) at 151. Defendant also testified that shortly thereafter, Brawner indicated that there were inconsistencies in the story Defendant had told him two days earlier and that the agents were going to take him "downtown," so that they could get it right. Id. at 152. At that point, the Defendant asked Brawner whether he would be going to jail, and the agent said that the Defendant was definitely going to "do some time," perhaps two to three years. Id. According to Defendant's testimony, Brawner then asked another agent to handcuff the Defendant, with his hands behind his back. Id. The Defendant testified that he was then transported to the FBI office. Id. at 153. If the Defendant's testimony is believed, he was taken into custody at the parking lot of the Crystal Water Company, and his statements prior to the time he was given the Miranda warnings must be suppressed. However, Brawner's testimony regarding events surrounding his meeting with the Defendant at the parking lot differs dramatically. According to Brawner's testimony, the Defendant voluntarily agreed to accompany him to the office of the FBI in the Federal Building and that he was not placed in handcuffs. Based upon the reasons which follow, the Court concludes that the Defendant's testimony was not credible, while Brawner's was. In addition, the Court concludes that under Brawner's version of events, the Defendant was not in custody prior to the time that he was given his Miranda warnings. During his cross-examination, the Defendant conceded that he had lied to Brawner, during their April 9th meeting, about his involvement in the theft of the cocaine and the amount of cocaine which had been stolen. Doc. # 46 at 160. Consequently, it cannot be questioned that the Defendant is willing to tell untruths. However, the Court does not base its finding that the Defendant's testimony lacked credibility, solely upon the fact that he had lied to Brawner on an earlier occasion. In addition, Defendant's testimony during the suppression hearing was simply not believable. For instance, the Defendant testified that when he arrived at the Crystal Water Company parking lot, he observed an officer standing outside a vehicle holding a rifle with a large clip of ammunition in it. This Court cannot believe that a law enforcement officer would stand in the parking lot of a business establishment, near to downtown, holding a rifle with a large clip therein. Moreover, although the Defendant admitted that he had lied to Brawner about the amount of cocaine that had been stolen, 48 kilograms, and his involvement in that theft, he attempted to place blame on his cousin (Brawner's informant) for the fact that only 20 kilograms were turned over to the authorities on April 9th. In addition, the Defendant testified that at the parking lot of the Crystal Water Company, he asked Brawner whether he was going to jail and the agent told him yes, perhaps for two to three years. However, at other times during his testimony, the Defendant complained about the failure of Brawner and Buchenroth to tell him how much time he would have to spend in jail. That inconsistency causes the Court to doubt the credibility of the Defendant's testimony. Rather than crediting the testimony of the Defendant, the Court believes that given by Brawner. Accepting Brawner's version of events, the Court concludes that *713 the Defendant was not in custody when he was questioned at the office of the FBI, before having been read his Miranda rights. When he met the Defendant at the parking lot of the Crystal Water Company, Brawner asked the Defendant whether he would accompany the agents to that office, in order that the inconsistency between his April 9th statement and other information learned during the investigation could be discussed. In response, the Defendant voluntarily agreed to accompany Brawner to the office for that purpose. The Defendant was not told he was under arrest, nor was he restrained in any manner (by handcuffs or otherwise). Brawner testified that the Defendant could have left at any time. The only conceivable reason for concluding that the Defendant was in custody is that the interview occurred in the offices of the FBI. That fact alone is not sufficient to cause this Court to conclude that the Defendant was in custody at the offices of the FBI. See e.g., Beheler, 463 U.S. at 1125, 103 S.Ct. 3517 (fact that interrogation occurs at police station does not, in itself, require Miranda warnings); Mathiason, 429 U.S. at 495-96, 97 S.Ct. 711 (same). Although being questioned in an FBI office may constitute a coercive environment, such an environment, in and of itself, does not result in a custodial interrogation. Accordingly, the Court concludes that the Defendant was not in custody when he was questioned by Brawner and Buchenroth, before he was given his Miranda warnings. Therefore, the failure to administer those warnings does not serve as the basis for suppressing Defendant's pre-Miranda statements.[8] B. Post-Miranda Statements Additionally, the Defendant argues that the Court should suppress the statements he made to Brawner and Buchenroth, after being given the Miranda warnings, because those statements were involuntary. This Court cannot agree. While reaffirming Miranda, the Supreme Court, in Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 *714 (2000), noted that "[c]ases in which a defendant can make a colorable argument that a self-incriminating statement was `compelled' despite the fact that law enforcement authorities adhered to the dictates of Miranda are rare." Id. at 444, 86 S.Ct. 1602 (internal quotation marks and citation omitted). This is not one of those rare cases. In United States v. Gatewood, 230 F.3d 186 (6th Cir.2000) (en banc), the Sixth Circuit noted that "`coercive police activity is a necessary predicate to finding that a confession is not voluntary.'" Id. at 192 (quoting Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986)). Herein, there is no evidence that the agents employed coercive tactics on the Defendant in order to compel him to discuss his involvement in the theft of the 48 kilograms of cocaine. For instance, there is no evidence that the Defendant was subjected to any form of physical or psychological abuse, while he was interrogated by Brawner and Buchenroth. The Defendant was given the Miranda warnings, indicated that he understood them and that he was willing to continue to talk to the officers. C. Lack of Probable Cause The Defendant also argues that his statements must be suppressed, because he had been arrested or seized, without probable cause, before he made those statements. The Court agrees with the implicit legal premise that the statements of a person who has been arrested or seized without probable cause must be suppressed, even if he was given Miranda warnings before being interrogated. However, based upon the evidence presented during the evidentiary hearing, the Court concludes that the Defendant was not seized before being interrogated and that, even if he was arrested, that seizure was supported by probable cause. Accordingly, the Court rejects the Defendant's argument in this regard. The Sixth Circuit recently reiterated that "a `seizure' occurs for purposes of the Fourth Amendment when the police detain an individual under circumstances where a reasonable person would feel that he or she is not at liberty to leave." United States v. Butler, 223 F.3d 368, 374 (6th Cir.2000), citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). See also, United States v. Obasa, 15 F.3d 603, 606 (6th Cir.1994). Herein, the Court finds that the Defendant was not seized when he was transported to the offices of the FBI. Rather, he voluntarily agreed to accompany Brawner to that facility, in order that the two could have a private discussion. Moreover, Brawner testified that the Defendant was free to leave during the interview. Even if the Defendant had been arrested or seized, when he was transported to those offices, the Court would conclude that the seizure was supported by probable cause. Although the officers did not have a warrant to arrest the Defendant, it is well-settled that the warrantless arrest of an individual does not violate the Fourth Amendment, as long as officers have probable cause to believe that the individual is committing or has committed an offense. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); United States v. Dotson, 49 F.3d 227 (6th Cir.), cert. denied, 516 U.S. 848, 116 S.Ct. 141, 133 L.Ed.2d 87 (1995). In Dotson, the Sixth Circuit explained the test to be applied to determine whether a warrantless arrest was lawful: The Supreme Court has held that the test for whether an arrest is constitutionally valid is "whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of *715 which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); see United States v. Thomas, 11 F.3d 620, 627 (6th Cir.1993), cert. denied, 511 U.S. 1043, 114 S.Ct. 1570, 128 L.Ed.2d 214 (1994). Id. at 230. The Sixth Circuit has further explained that probable cause is "reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion." United States v. Padro, 52 F.3d 120, 122-23 (6th Cir.1995). Moreover, "`probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.'" United States v. Wright, 16 F.3d 1429, 1438 (6th Cir.) (quoting Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)), cert denied, 512 U.S. 1243, 114 S.Ct. 2759, 129 L.Ed.2d 874 (1994). In addition, an officer who has probable cause to believe that a person has committed some crime need not know precisely what crime he has committed. United States v. Anderson, 923 F.2d 450, 457 (6th Cir.), cert. denied, 499 U.S. 980, 111 S.Ct. 1633, 113 L.Ed.2d 729 (1991). Of course, the Government has the burden of proving that probable cause existed. United States v. Porter, 701 F.2d 1158 (6th Cir.), cert. denied, 464 U.S. 1007, 104 S.Ct. 524, 78 L.Ed.2d 708 (1983). Herein, on April 9th, the Defendant had told Brawner that Smith was involved in the theft of 20 kilograms of cocaine and indicated that he was merely holding the cocaine for Smith. Using his cousin as an intermediary, the Defendant furnished 20 kilograms of cocaine to that officer. However, two days later, Smith told Brawner that he had participated with the Defendant in the theft of 48 kilograms of cocaine from a residence in Trotwood. Smith also told Brawner that another individual was storing the cocaine for the Defendant. The fact that the Defendant had been able to furnish 20 kilograms of cocaine to Brawner, coupled with Smith's statements, causes this Court to conclude that reasonable grounds to believe Defendant had committed or was committing an offense relating to trafficking in cocaine were present and, therefore, that probable cause to arrest him existed at the time he agreed to accompany Brawner to the offices of the FBI. Accordingly, the Court overrules the Defendant's Motion to Suppress Statements (Doc. # 29). Counsel listed below will note that the Court has scheduled a telephone conference call on Thursday, January 3, 2002, at 8:20 a.m., for the purpose of selecting a new trial date and other dates for this prosecution. NOTES [1] The Defendant has not requested that the Court suppress his April 9th statements to Brawner. [2] The Defendant's cousin was a long-time informant employed by Brawner. [3] Brawner was accompanied on April 9th by FBI Agent Don Riedman. [4] Smith also helped the officers recover four kilograms of cocaine which were being stored at Smith's cousin's residence. [5] The Defendant's vehicle was driven to and parked behind the Federal Building. Brawner testified that this was done in order to prevent Defendant's vehicle from being seen parked outside the building in which the office of the FBI was located. [6] When Brawner left, Buchenroth remained and continued to question the Defendant. Buchenroth was joined by Bollinger who merely took notes of the conversation. [7] Those two law enforcement officials witnessed the form. It was signed at 9:22 p.m., a little over an hour after Brawner had met the Defendant at the parking lot of the Crystal Water Company. [8] During the suppression hearing, Brawner testified that, shortly after he and the Defendant got to office of the FBI, the Defendant asked Brawner whether he needed a lawyer. Brawner responded that he could not advise the Defendant on that subject. To the extent that Defendant believes that his question to Brawner mandates the suppression of his statements, in accordance with the rule announced in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), this Court cannot agree. As an initial matter, the rule established in Edwards is applicable only if a person is subjected to an interrogation while in custody. See Burket v. Angelone, 208 F.3d 172, 197 (4th Cir.), cert. denied, 530 U.S. 1283, 120 S.Ct. 2761, 147 L.Ed.2d 1022 (2000); United States v. Wyatt, 179 F.3d 532, 538 (7th Cir.1999); United States v. Bautista, 145 F.3d 1140, 1147 (10th Cir.), cert. denied, 525 U.S. 911, 119 S.Ct. 255, 142 L.Ed.2d 210 (1998). Since this Court has concluded that the Defendant was not in custody when the questioning occurred, there was no violation of the rule established in Edwards. Moreover, even if the Defendant had been in custody, his question to Brawner would not be sufficient to invoke his right to counsel. In United States v. Suarez, 263 F.3d 468 (6th Cir.2001), the Sixth Circuit reiterated that, in accordance with Edwards, the custodial interrogation of a person must stop, if he asks for the assistance of counsel. Id. at 482, 101 S.Ct. 1880. Therein, the Sixth Circuit also noted that the request for the assistance of counsel must be unambiguous and unequivocal. Id. (citing Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994)). Herein, if it were necessary to decide, this Court would conclude that the Defendant's question to Brawner was not an unambiguous and unequivocal request for counsel. See Diaz v. Senkowski, 76 F.3d 61, 65 (2nd Cir. 1996) ("Do you think I need a lawyer?" not an unambiguous request for counsel); United States v. Ogbuehi, 18 F.3d 807, 813 (9th Cir. 1994) (defendant's questions during his interrogation, "Do I need a lawyer?" or "Do you think I need a lawyer?" not unequivocal request for counsel).

573 F.2d 1306 U. S.v.Benge No. 78-6057 United States Court of Appeals, Fourth Circuit 4/18/78 1 E.D.Va. AFFIRMED

72 So.3d 728 (2009) RAY KELLER v. NATIONAL COLL. ATHLETIC ASS'N. No. 1081104. Supreme Court of Alabama. December 11, 2009. DECISION WITHOUT PUBLISHED OPINION Affirmed.

Filed 9/23/13 P. v. Watts CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer) ---- THE PEOPLE, Plaintiff and Respondent, C071486 v. (Super. Ct. No. 62002697) JAMES ROBERT WATTS, Defendant and Appellant. A jury convicted defendant James Robert Watts in 1999 of four counts of forcible rape (Pen. Code, § 261, subd. (a)(2)),1 penetration by a foreign object (§ 289, subd. (a)), assault with a deadly weapon likely to produce great bodily injury (§ 245, subd. (a)(1)), attempting to dissuade a witness (§ 136.1, subd. (c)(1)), and misdemeanor battery (§ 242). (People v. Watts (Dec. 15, 2000, C034074) [nonpub. opn.] at p. 1.) The jury also sustained great bodily injury, deadly weapon and one strike allegations against 1 Undesignated statutory references are to the Penal Code. 1 defendant (§§ 12022.8, 12022.7, subd. (a), 12022.3, subd. (a), 12022, subd. (b)(1), former 667.61, subds. (a), (b), and (e)). The trial court sentenced defendant to 117 years to life in prison. In an unpublished opinion, this court struck a one year weapons enhancement and affirmed the judgment as modified. (People v. Watts, supra, C034074 [nonpub. opn.] at p. 11.) The California Department of Corrections and Rehabilitation (CDCR) subsequently sent a letter to the trial court in May 2012 identifying an error in defendant’s sentence. The letter said the trial court imposed a consecutive one-year term (one-third the three year middle term) on count four [attempting to dissuade a witness by force] (§ 136.1, subd. (c)(1)), but section 1170.15 provides that if a consecutive term is imposed for a violation of section 136.1, the trial court must impose a full middle term. At a June 20, 2012 resentencing hearing, the trial court modified the sentence to impose a three-year consecutive term for the section 136.1 conviction on count four. The trial court prepared an amended abstract of judgment reflecting the modified judgment. Defendant appeals, arguing he must be resentenced again because (1) the trial court did not understand that it had discretion to impose a concurrent term on count four, (2) defense counsel was ineffective in failing to argue for a lower sentence at resentencing, and (3) the amended abstract of judgment must be corrected to reflect defendant’s time in custody before resentencing. We conclude (1) given the context of the trial court’s statements at resentencing, the trial court understood and properly exercised its discretion; (2) defendant’s claim of ineffective assistance fails because he has not established prejudice; and (3) we will remand the matter and direct the trial court to calculate and award any presentence credit to which defendant is entitled. In all other respects we will affirm the judgment. 2  BACKGROUND When defendant initially appeared for the resentencing hearing, the trial court informed defendant that CDCR identified a sentencing error. The trial court then said: “[T]hey pointed out correctly that you were convicted of dissuading . . . a witness by force, and that requires under the Code a full consecutive middle term, not on a one-third middle consecutive term. It makes a difference of two years, but I’m required to impose that additional time, at least as [CDCR] has interpreted that, and that’s how I have interpreted it. [¶] You are here without an attorney. If you want to have consultation with an attorney, I’m very happy to give you that opportunity. In my opinion, it’s a legal issue that is, -- I don’t have discretion. I have to impose the additional two-year period, but there may be a different view on this.” Defendant said he wanted counsel, and the trial court appointed counsel for the resentencing hearing. The matter was continued until 1:30 p.m. that day so defendant could speak with his attorney. When the hearing reconvened at 1:30 p.m., the trial court said to defense counsel: “[Y]ou understand the circumstances, based upon the letter from [CDCR], dated May 14th of this year, regarding essentially the unauthorized sentence imposed by this Court, erroneously imposing a one-third midterm sentence on the Penal Code Section 136.1(c)(1) violation, rather than the full term midterm. And because it’s an unauthorized sentence, the Court is obligated to correct that error whenever it is brought to its attention. [¶] And so it would be my intent, subject to any further comment that you might have, to in fact correct that error, to impose a three-year midterm on Count 4, rather than a one-year reduced term.” Defense counsel did not object to the three-year term in count four. Defense counsel, the prosecutor and the trial court spent the remainder of the hearing discussing this court’s prior opinion and its effect on the sentence. 3  DISCUSSION I Defendant contends the matter must be remanded for resentencing again because the trial court did not understand that it had discretion to impose a concurrent term on count four. Section 1170.15 states: “Notwithstanding subdivision (a) of Section 1170.1 which provides for the imposition of a subordinate term for a consecutive offense of one-third of the middle term of imprisonment, if a person is convicted of a felony, and of an additional felony that is a violation of Section 136.1 or 137 and that was committed against the victim of, or a witness or potential witness with respect to, or a person who was about to give material information pertaining to, the first felony, or of a felony violation of Section 653f that was committed to dissuade a witness or potential witness to the first felony, the subordinate term for each consecutive offense that is a felony described in this section shall consist of the full middle term of imprisonment for the felony for which a consecutive term of imprisonment is imposed, and shall include the full term prescribed for any enhancements imposed for being armed with or using a dangerous or deadly weapon or a firearm, or for inflicting great bodily injury.” Defendant correctly points out that a trial court retains the discretion to impose a concurrent term for a violation of section 136.1. Defendant claims the trial court’s comments during the resentencing hearing indicate that it did not understand this discretion. We disagree. The trial court understood and exercised its discretion in imposing the consecutive sentence on count four. The trial court’s comments at resentencing were merely to explain to defendant and his counsel that when a consecutive sentence is imposed on a conviction for a violation of section 136.1, section 1170.15 requires the trial court to impose the full middle term. The trial court was explaining why it needed to change the unauthorized portion of the sentence. 4  Given the context of the trial court’s statements, we conclude the trial court understood and properly exercised its discretion at resentencing. II Defendant next contends his appointed counsel was ineffective in failing to argue for a lower sentence at resentencing. But defendant has not established prejudice, an essential element of an ineffective assistance claim. (In re Avena (1996) 12 Cal.4th 694, 721.) Defendant has not shown, and nothing in the record indicates, that there was a reasonable probability that defendant would have obtained a more favorable result had defense counsel argued for a lower sentence. III Defendant further contends the abstract of judgment must be corrected to reflect defendant’s time in custody before resentencing. The People acknowledge that the trial court should be directed to prepare an amended abstract of judgment reflecting presentence credits. “[W]hen a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody.” (People v. Buckhalter (2001) 26 Cal.4th 20, 29, original italics.) We will remand the matter and direct the trial court to calculate and award any presentence credit to which defendant is entitled and to prepare a second amended abstract of judgment reflecting defendant’s presentence credit. DISPOSITION The matter is remanded to the trial court with directions to calculate and award any presentence credit to which defendant is entitled, and to prepare a second amended abstract of judgment reflecting defendant’s presentence credit. The trial court shall 5 forward a certified copy of the second amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed. MAURO , J. We concur: NICHOLSON , Acting P. J. DUARTE , J. 6 

IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON July 19, 2012 Session EDWARD HANSON v. J.C. HOBBS COMPANY, INC. Appeal from the Chancery Court of Henry County No. 08CI20751 Ron E. Harmon, Chancellor No. W2011-02523-COA-R3-CV - Filed November 21, 2012 This case arises out of the sale of a tractor. The plaintiff purchaser bought a tractor online from the defendant company, which specializes in the sale of tractors. The company advertised the tractor as having many fewer hours of use than it actually had. After taking possession of the tractor and learning the tractor’s true condition, the purchaser filed this lawsuit against the company, alleging breach of contract, fraudulent misrepresentation, rescission, and violation of the Tennessee Consumer Protection Act. After a bench trial, the trial court held in favor of the purchaser, and awarded compensatory damages and attorney fees. The company now appeals, arguing inter alia that the evidence does not support an award of compensatory damages under the Tennessee Consumer Protection Act. We affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is Affirmed H OLLY M. K IRBY, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J., W.S., and D AVID R. F ARMER, J., joined. Jason G. Howell, Murray, Kentucky, for Plaintiff/Appellee Edward Hanson George Robert Whitfield, III, and W. Brown Hawley, II, Paris, Tennessee, for Defendant/Appellant J.C. Hobbs Company, Inc.  OPINION F ACTS AND P ROCEEDINGS B ELOW Plaintiff/Appellee Edward Hanson (“Hanson”) lives in Clifton, Illinois and has worked there as a farmer his entire adult life. Hanson works on his family farm with his brother and his son. After determining that he needed to purchase a tractor, Hanson and his son spent about three weeks researching used tractors online. In February 2007, Hanson and his son found a 1995 John Deere 8400 tractor for sale, advertised on eBay by Defendant/Appellant J.C. Hobbs Company, Inc. (“Hobbs Co.”). The eBay ad was entitled: “JOHN DEERE 8400 MFWD/LOW HOURS/NR!!!!!” (emphasis in original). The description in the ad emphasized that the tractor had “low hours” of usage: HERE’S THE LAST ONE WE HAVE,, ,,, AS WITH ALL OF THEM WE’LL START THE BID OUT LOW TO GIVE YOU ALL A SHOT,,, WE HAVE A NICE 8400 JOHN DEERE, 4X4, POWER SHIFT, LOW HOURS!!!,,,SHOWING ON THE METER,, . . . WE’VE BEEN ASKING $70,000 FOR IT ,,,, MINUS THE NEW RUBBER IT NEEDS... OR IT WILL SELL TO THE HIGHEST BIDDER ON EBAY!!!!! THIS TRACTOR HAS 20-30% RUBBER LEFT ON IT.. IT’S HAD SOME ROAD TRAVEL TIME ON IT,,, THE INTERIOR LOOKS REAL GOOD , IT HAS ONE SMALL TEAR IN THE LEFT CORNER POST, AND ONE TINNSY TEAR IN THE LEFT SIDE PIECE OF UPHOLSTERY, IT HAS A 16 SPEED POWER SHIFT TRANS, AND 4 REVERSES, IT SHIFTS FLAWLESSLY,, THE SEAT LOOKS GREAT!!, HEAD LINER LOOKS GREAT, IT’S GOT AN AM/FM RADIO,, IT WORKS!!!,,,,,, IT HAS REAR REMOTES,,,, IT’S SHOWING NO OIL LEAK AT THE PRESENT TIME,, . . . IT HAS 20.8 REAR RUBBER,, FIRESTONE RADIALS, AND IT WILL SOON NEED TO BE REPLACED,, THIS IS THE ONLY DOWN SIDE TO THIS ONE,, POOR RUBBER,,, THE REST IS FINE. NICE LOOKING 225 HP,, LOW HOUR 4X4, 8400 JOHN DEERE TRACTOR,,,, WE OFFER SHIPPING US WIDE,, THIS ONE WILL COST $2.50 A LOADED MILE...... SOLD AS IS WHERE IS NO WARRANITE [sic] IMPLIED OR EXPRESSED, IN THE STATE OF TENNESSEE,,, . . . . (emphasis in original). The phrase “LOW HOURS” appeared in the advertisement three separate times. For two of those, it was bolded and in larger font than the rest of the advertisement. The advertisement stated the number of hours on the tractor as 2506 and -2- included several photographs, including one showing the tractor’s hour meter displaying the number “2506.” The eBay description stated that the tractor needed new tires. It did not include a serial number. Hanson placed an online bid on the tractor. He then called Mr. J.C. Hobbs of Hobbs Co. to ask some questions, including an inquiry as to the missing serial number. In response to Hanson’s telephone question, Mr. Hobbs supplied a serial number. Using the serial number he had been provided, Hanson researched the tractor further before continuing to bid on it. From his research, Hanson estimated that new tires for the tractor would cost about $8000. Eventually, Hanson purchased this tractor for $55,600. Prior to shipping the tractor, and prior to Hanson’s payment for it, Hobbs Co. faxed Hanson a sales contract. The contract contained this disclaimer: “Buyer hereby certifies the Seller does not represent the tractor or equipment hours as accurate.” The contract also included a clause stating that if Hanson filed a legal action against Hobbs Co., Hanson would “be responsible for payment of Seller[’]s attorney fees, court costs and litigation expenses.” Hanson signed this contract and faxed it back to Hobbs Co. After receiving Hanson’s certified check, Hobbs Co. delivered the tractor to Hanson’s farm in Illinois. Before the delivery truck even left his farm, Hanson could see some problems with the tractor. He made several unsuccessful attempts to call Mr. Hobbs; after a while, the delivery truck left. Hanson attempted to make several repairs to the tractor, and in the course of doing so, learned that Mr. Hobbs had given him an incorrect serial number. Hanson also learned, to his dismay, that the tractor actually had 10,000 more hours than was shown on the hour meter featured in the eBay advertisement. Finally, in April 2008, Hanson filed the instant lawsuit against Hobbs Co. in the Chancery Court of Henry County, Tennessee. The claims in the complaint were based on the fact that the tractor had 10,000 more hours than was shown on the hour meter in the eBay advertisement, as well as the missing/incorrect serial number. The complaint alleged that Hobbs Co. breached its contract with Hanson; violated the Tennessee Consumer Protection Act (“TCPA”); and fraudulently misrepresented the use and condition of the tractor. The complaint sought compensatory damages, treble damages under the TCPA, and attorney fees. In the alternative, the complaint sought rescission of the contract. Hobbs Co. filed an answer, denying liability and seeking its attorney fees and expenses. A bench trial was held in August 2011. The trial court heard testimony from Hanson, and Hobbs, as well as each party’s expert witness. -3- Hanson testified at the outset. He said that he had considerable experience with tractors, and over the course of his farming career had owned approximately ten of them. To maintain his farm, Hanson said that he will typically put approximately 300-400 hours on a tractor per year. Before buying the tractor at issue in this lawsuit, Hanson said, he had never bought a tractor at an online auction. When Hanson saw the Hobbs Co. eBay ad, he was particularly drawn to the fact that the advertised tractor was the John Deere 8400 model and that it had a low number of hours on it. Asked whether he attributed any significance to the fact that the ad said that the tractor had low hours “showing on the meter,” Hanson said he did not. Hanson said that he would not have been interested in purchasing a tractor with 12,500 hours on it, and if he had purchased such a tractor, he would have paid no more than $25,000 for it. Based on his research, and taking into consideration that the tractor would need new tires, Hanson believed that $64,000 was a fair price for this tractor as advertised in the eBay ad. After Hanson made his first online bid, he became concerned that the eBay ad listed no serial number for the tractor. He called Hobbs Co. about this before placing a follow-up bid on the tractor. Hanson said that Mr. Hobbs told him that this was a low hour tractor and that it was really in good shape. Hanson asked Mr. Hobbs why the tires were in such poor condition given the low hours on the tractor, and Mr. Hobbs explained that the tractor had done a lot of roadwork. Hanson testified that Mr. Hobbs gave him a serial number during that telephone call, and he used the serial number to research the tractor before bidding further on it. After submitting the winning online bid for the tractor, Hanson called Hobbs Co. and made arrangements for payment. The sales contract was sent to him, and he signed it and returned it. Seven or eight days later, the tractor was delivered to Hanson’s farm in Illinois. When the tractor arrived, Hanson said, it did not look as good as the photos in the eBay ad. Until the tractor arrived, Hanson was not aware that the serial number plate on the tractor was missing. This concerned Hanson because the banker who loaned Hanson the money to purchase the tractor had requested the serial number, and Hanson had given the banker the serial number that Mr. Hobbs had supplied him over the telephone. Hanson also immediately noticed that the steering on the tractor was very loose. While the delivery truck was still at his farm, Hanson tried several times to call Mr. Hobbs, to no avail. Later, when Hanson eventually spoke to Mr. Hobbs, he reassured Hanson that the missing serial number was not a matter of great concern. Mr. Hobbs claimed that the serial number he gave Hanson during the initial telephone call was based on the etchings on the tractor where the missing serial number plate used to be. In early April 2007, Hanson discovered several other problems with the tractor. When he tried to order parts to fix the tractor, he could not find parts that fit it. Stumped, Hanson called a tractor mechanic and salesperson, Lester Hegg, who determined that the serial -4- number Mr. Hobbs had given Hanson did not go with that tractor. Hegg was able to determine the correct serial number for the tractor, the details of its original purchase, and how it had been used. In this way, Hanson learned that the tractor had 12,500 hours on it, rather than the 2,500 hours shown on the tractor’s hour meter. Hanson called Mr. Hobbs and told him that he had determined the correct serial number for the tractor and that it had 10,000 hours more than had been indicated in the Hobbs Co. advertisement. He asked Mr. Hobbs what the company planned to do about these problems. At first Mr. Hobbs told Hanson he would get back to him, and then later stopped accepting Hanson’s telephone calls. Hanson said that he had been left with the impression that Hobbs Co. would buy back the tractor. Consequently, in the meantime, Hanson used the tractor on his farm, and just did his best to repair it so that it would be suitable for use. Between April 2007 and February 2008, he spent $22,536.41 on repairs to the tractor. In addition, Hanson and his son spent 30 to 40 hours making repairs to the tractor; Hanson valued their labor at $15 per hour. Hanson put approximately 450 hours on the tractor, using it on his farm. Eighteen months after he bought the tractor from Hobbs Co., Hanson finally traded it in to purchase another tractor. He received a $42,500 credit toward the purchase; Hanson’s new tractor was valued at $155,500. Overall, Hanson estimated his total losses on the Hobbs Co. tractor at $35,000 to $40,000, factoring in the purchase price, money spent to repair it, and time invested in it. Hanson offered the testimony of Lester Hegg (“Hegg”) as an expert. Hegg said that he had approximately 34 years of experience working with John Deere tractors, as a mechanic and as a salesman. Hegg said he had also occasionally appraised tractors. At the time of trial, Hegg was working at a John Deere dealership in Melvin, Illinois. Hegg helped Hanson ascertain the correct serial number and the true number of hours of usage on the tractor purchased from Hobbs Co. Hegg said he discerned the true number of hours on the tractor by using a technique of diagnostic assessment that was common knowledge for tractor mechanics, though not widely known among tractor consumers such as farmers. Hegg contrasted the value of the tractor as advertised by Hobbs Co. with the value of the tractor with the true number of hours of usage. As advertised on eBay, Hegg estimated the value at approximately $60,000 without new tires and $70,000 with new tires. The same tractor with approximately 12,000 hours, Hegg said, would be worth very little because a potential customer “would not have even been interested nor got [sic] involved with it . . . . [b]ecause of the amount of hours that was [sic] on it.” Hegg explained that 10,000 additional hours on a tractor roughly equates to an additional 500,000 miles on a car. In fact, Hegg said, he’d never seen a tractor with as much as 12,000 hours on it. Nevertheless, Hegg -5- was able to get Hanson a trade-in value on the tractor of $42,500 because the global market and the farm economy changed between the time Hanson purchased the Hobbs Co. tractor and when Hanson traded it in. Hegg had found an overseas buyer for the tractor who was willing to buy the tractor at that price; he explained, and that enabled Hanson to trade it in at a higher value. Hegg opined that the repairs Hanson did on the tractor while he owned it were “reasonable and necessary” to keep it operating properly while he used it. Mr. Hobbs testified on behalf of Hobbs Co. He said that the business of Hobbs Co. was the sale of construction and farm machinery, primarily tractors, mostly over the internet. On average, Hobbs Co. sold approximately 100-200 tractors per year, 30% to dealers and 70% to farmers. Hobbs Co. bought the tractor at issue from Mr. Hobbs’ brother-in-law for $34,000, which included freight; the brother-in-law had bought the tractor at an auction for $29,500. Mr. Hobbs claimed that he had never dealt with a 8400-model John Deere tractor before buying this one. Prior to selling the tractor, Hobbs Co. made only cosmetic changes to it, such as painting the tractor and installing new upholstery in it. He rode in the tractor once and physically looked at the motor, but he did not examine the tractor’s mechanical workings. After making these cosmetic changes, Hobbs Co. then placed the tractor up for bid on eBay. Mr. Hobbs claimed that he put in the eBay advertisement everything he knew to be wrong with the tractor, including the fact that it had worn-out tires. Mr. Hobbs said that hundreds of people responded to the advertisement on eBay. Mr. Hobbs acknowledged that the eBay advertisement for the tractor did not include a serial number. Mr. Hobbs claimed that he obtained the serial number he provided to Hanson by looking where the tractor’s missing serial number plate had been and attempting to make out the etchings there. Mr. Hobbs said he told Hanson this when Hanson called him to ask why the serial number plate was missing. After this, Hobbs Co. did not hear from Hanson for several months. Mr. Hobbs confirmed that the sales contract with Hanson stated expressly that Hobbs Co. did not certify the number of hours on the tractor as accurate. Mr. Hobbs indicated that this was a standard contractual provision for all of the tractors the company sold. After some time, Hanson called Mr. Hobbs again and told him that the actual hours on the tractor were far more than what had been advertised, and that the serial number Mr. Hobbs had provided was not correct. Mr. Hobbs testified that he did not know how this happened; he said he had just looked at the hours shown on the tractor’s meter and had attempted to make out the etchings for the serial number where the tractor’s serial number plate had been. -6- Hobbs Co. called as its expert witness Henry Hobby, a sales manager for Tennessee Tractors, a John Deere dealership with nine store locations. Mr. Hobby worked 14 years for John Deere corporate in sales and marketing. Mr. Hobby explained how to ascertain a lost serial number for a tractor and how to determine the actual hours of usage for a tractor. He did not have personal knowledge of the specific tractor at issue in the lawsuit. Mr. Hobby said that selling a tractor without a serial number would be considered “poor ethics.” This concluded the testimony at trial. At the conclusion of the proof, the trial court issued an oral ruling. It found that the “difference between the hours advertised on the tractor and the actual hours on the tractor was deceptive to the purchaser.” It held Hobbs Co. liable to Hanson in the amount of $24,686, and explained how it arrived at this figure. The trial court asked counsel for both parties if they desired any additional findings, to which both responded in the negative. On October 19, 2011, the trial court entered a written order. The order included the trial court’s oral ruling plus additional findings: 3. The Defendant is a merchant and dealer of the subject tractor in the course and scope of its business. 4. The Defendant had superior knowledge as to the value, condition, and other items with regard to tractors. 5. The Defendant advertised this subject tractor online on E-bay as advertising a John Deere 8400 tractor represented to have 2,506 hours that this tractor was a 1995 model and no serial number was given in the advertisement. 6. Plaintiff[’]s witness Lester Haigh [sic] is qualified as an expert on this tractor. 7. In examination of the electrical control unit of this subject tractor by Mr. Haigh [sic] revealed that the tractor actually had 12,506 hours on it. The method of going into the electrical controls and retrieving this information is reliable and accepted. 8. There is no question from a review of the electrical control reading that this is the same tractor that Defendant sold Plaintiff through the E-bay advertisement. -7-  9. Defendant testified that he sold 100-200 tractors a year. 10. A number or serial number stamped into the back housing of the tractor was obviously not installed by the manufacturer. 11. The difference in hours on the subject tractor as advertised and as actually existed was deceptive to the purchaser and entitles recovery by the Plaintiff. The trial court’s order also reaffirmed its judgment in favor of Hanson in the amount of $24,686. Consistent with the oral explanation given at the conclusion of the trial, the written order explained the calculation of damages as follows: 12. The difference between the price paid by Plaintiff at purchase and the actual value of the tractor was $20,000.00 at the time of purchase. The Plaintiff expended $22,536.00 on the tractor during his ownership, plus $600.00 of his own labor, for the total of $43,136.00. 13. The tractor was used for 450 hours by the Plaintiff. The court assesses a fair value of the use of these hours at the price paid for the tractor of $41.00 per hour based upon a division of the tractor's value by the number of hours in the tractor. The total amount of this 450 hours of use at $41.00 per hour equals $18,450.00, said amount to be deducted from Plaintiffs gross damages of $43,136.00. 14. The Plaintiff’s total damages to be awarded in this matter are $24,686.00, said amount of damages calculated by deducting the $18,450.00 in usage allowance for the subject tractor from the $43,136.00 of gross damages. 15. The Court will award the Plaintiff a reasonable attorney's fee and the attorney should file an appropriate affidavit for the Court to consider in that regard. 16. Only compensatory damages are being awarded since the Court declines to award treble damages as there is no finding of any intentional or fraudulent act by the Defendant. Hanson was awarded attorney fees and directed to file an appropriate affidavit. -8- After entry of this order, Hobbs Co. filed a “Motion to Reconsider.” The motion was based on the assumption that the trial court’s award to Hanson was made pursuant to the TCPA, in light of the trial court’s finding that the advertisement on the tractor was “deceptive” as to the tractor’s hours of usage. In the motion, Hobbs Co. argued that the TCPA did not apply in this case, so there was no basis for an award of either compensatory damages or attorney fees. In the alternative, Hobbs Co. argued that the trial court improperly included in the compensatory damage award the cost of replacement tires, because the need for new tires on the tractor was disclosed in the eBay advertisement. A week prior to the hearing on the Hobbs Co. motion to reconsider, Hanson filed a sworn affidavit on his attorney fees and litigation expenses. The affidavit reflected a total of $6,019 in such attorney fees and expenses. On November 15, 2011, the trial court held a hearing on the motion to reconsider. At this hearing, counsel for Hobbs Co. argued that the TCPA did not apply because the tractor was not a “good” within the meaning of the Act. On this basis, Hobbs Co. asked the trial court to set aside the award of compensatory damages, “[t]here being no other findings to support an award of damages.” In the alternative, if the trial court deemed the TCPA to be applicable, counsel for Hobbs Co. stated: “[W]e would sincerely appreciate it if for the record the Court would specify the provisions or the particular subsection of the TCPA that authorized the private cause of action.” The following exchange then ensued: THE COURT: Did I give each of you an opportunity to submit any proposed findings that you had that you– [COUNSEL FOR HANSON]: I believe that Mr. Hawley [co-counsel for Hobbs Co.] may have worked with you on the proposed findings. But as per the ruling from the bench – THE COURT: I generally give each side an opportunity to file – present to the Court any further findings that they request. [COUNSEL FOR HOBBS CO.]: Yes, Your Honor. THE COURT: I don’t recall – I don’t think I’ve received any request for findings. -9-  [COUNSEL FOR HOBBS CO.]: There is no – I’m not sure if that was in the packet of information or not. But we would ask in this motion to reconsider that you would rule on this issue of whether or not the tractor is a good. THE COURT: Your motion is overruled. Hobbs Co. then filed its notice of appeal. In February 2011, the appellate court determined that the trial court’s order was not final, based on the trial court’s failure to determine whether the contract was rescinded, enter an order awarding attorney fees and pre-judgment interest, and enter a written order adjudicating the motion to reconsider filed by Hobbs Co. The matter was remanded to the trial court for entry of a final order. In response, in March 2012, the trial court entered an order of final judgment. The order stated that the trial court had considered the motion to reconsider filed by Hobbs Co. as both a Rule 52.02 motion to amend and a Rule 59.04 motion to alter or amend the October 2011 judgment. The trial court denied this motion as well as any ore tenus requests for clarification and for additional findings of facts and conclusions of law. The order awarded Hanson attorney fees and pre-judgment interest based on the affidavit Hanson filed in November 2011. The order also included an across-the-board dismissal of any remaining claims: “Any claims in [Hanson’s] complaint not specifically addressed by this Court’s Order filed on October 19, 2011, including [Hanson’s] request for rescission of the contract underlying this action, are dismissed with prejudice.” The appellate court then took up this appeal. ISSUES ON A PPEAL AND S TANDARD OF R EVIEW On appeal, Hobbs Co. presents the following issues: I. Whether the Chancery Court erred as a matter of law in holding that the Tennessee Consumer Protection Act (“the TCPA”) applied to the transaction at issue in this case [because a tractor does not fall under the statutory definition of “goods” under the TCPA]1 : the sale of a tractor by Appellant to Appellee for use in Appellee’s business, trade, profession of farming. 1 This inserted language was not included in the Issues Presented for Review in the Hobbs Co. appellate brief; however it appears in the table of contents and the argument section of the brief. -10-  II. If the TCPA applied to the transaction at issue in this case, whether the Chancery Court erred as a matter of law or a matter of fact in holding that the Appellant’s advertisement was deceptive under the TCPA. III. Whether the TCPA is the sole basis of recovery under the Chancery Court’s Orders, and if not, whether the Chancery Court erred as a matter of law in [finding] any alternative holding that would entitle Appellee to recover. IV. Whether the Chancery Court erred as a matter of fact in finding that the tractor at issue in this case had been used for 12,506 hours at the time of sale (as opposed to 2,506 hours as appeared on the tractor’s hour meter). V. If any damages were appropriately awarded to Appellee under any legal theory, whether the Chancery Court erred as a matter of law in calculating the damages, including by A) failing to account for the value received by Appellee when Appellee traded-in the tractor at issue in this case for a new tractor, and B) including the value of the tractor tires in the damage award although the advertisement clearly stated that the tractor tires required replacement. VI. Whether the Chancery Court erred in awarding attorney’s fees and discretionary expenses to Appellee. Hanson rewords many of these same issues but raises no additional issues.2 Because this was a bench trial, we review the trial court’s findings of fact de novo on the record, presuming those findings to be correct unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); see Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). When the trial court’s factual findings are based on its assessment of witness credibility, we will not reevaluate that assessment absent clear and convincing evidence to the contrary. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). Questions of law are reviewed de novo, with no presumption of correctness. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000). 2 Hanson raised no additional issues and did not request attorney fees on appeal. -11-  A NALYSIS Rule 52.01 At the outset, we must address the sufficiency of the trial court’s findings of fact and conclusions of law under Rule 52.01 of the Tennessee Rules of Civil Procedure. Effective July 1, 2009, Rule 52.01 was amended to require trial courts to make specific findings of fact and conclusions of law in all cases: In all actions tried upon the facts without a jury, the court shall find the facts specially and shall state separately its conclusions of law and direct the entry of the appropriate judgment. . . . If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rules 41.02 and 65.04(6). Tenn. R. Civ. P. 52.01 (2009). Under Rule 52.01 as amended, trial courts are required to issue findings of fact and conclusions of law, regardless of whether a request is made by the parties. “Without such findings and conclusions, this court is left to wonder on what basis the [trial] court reached its ultimate decision.” Heritage Operating, LP v. Henry County Propane Gas, Inc., No. W2011-01162-COA-R3-CV, 2012 WL 2989120, at *8; 2012 Tenn. App. LEXIS 479, at *23 (Tenn. Ct. App. July 23, 2012) (citing In re K.H., No. W2008-01144-COA-R3-PT, 2009 WL 1362314, at *8; 2009 Tenn. App. LEXIS 225, at *22 (Tenn. Ct. App. May 15, 2009); In re M.E.W., No. M2003-01739-COA-R3-PT, 2004 WL 865840, at *19; 2004 Tenn. App. LEXIS 250, at *58 (Tenn. Ct. App. Apr. 21, 2004)). In this case, the trial court did make some findings of fact and conclusions of law, but they were incomplete. The trial court’s findings did not include, for example, a statement of the legal theory of recovery for the trial court’s award of compensatory damages. In the hearing on the motion to reconsider filed by Hobbs Co., the trial court was explicitly asked to state whether the award was made pursuant to the TCPA and, if so, the subsection of the TCPA on which it was based. The trial court declined to do so. In light of the trial court’s refusal to state the basis for its award, we must look at the findings of fact and conclusions of law the trial court did make, to determine whether they are sufficient for us to conduct our appellate review of the trial court’s award. Both parties’ appellate briefs indicate that the most likely basis for the trial court’s award is the TCPA. The catchall provision in the TCPA, Tennessee Code Annotated § 47-18- -12- 104(b)(27), was specifically referenced in Hanson’s complaint. At the time of the proceedings below, this subsection provided as follows: (b) [T]he following unfair or deceptive acts or practices affecting the conduct of any trade or commerce are declared to be unlawful and in violation of this part: * * * (27) Engaging in any other act or practice which is deceptive to the consumer or to any other person; Tenn. Code Ann. § 47-18-104(b)(27)(2001).3 As noted above, the statute says that, to be covered, the act or practice in question must “affect[] the conduct of . . . trade or commerce. . .” These terms are defined in Tennessee Code Annotated §47-18-103(19)4 to mean “the advertising, offering for sale, lease or rental, or distribution of any goods, services, or property, tangible or intangible, real, personal, or mixed, and other articles, commodities, or things of value wherever situated[.]” Tenn. Code Ann. § 47-18-103(19)(2012). We look first, then, at whether the trial court made findings on the required statutory elements for an award under subsection (27) of the TCPA. This Court has discussed the elements necessary, in general, to prove a claim under the TCPA: In order to recover under the TCPA, the plaintiff must prove: (1) that the defendant engaged in an unfair or deceptive act or practice declared unlawful by the TCPA and (2) that the defendant’s conduct caused an “ascertainable loss of money or property, real, personal, or mixed, or any other article, commodity, or thing of value wherever situated . . . .” Tenn. Code Ann. § 47- 3 In October 2011, Tennessee Code Annotated § 47-18-104(b)(27) was amended to provide that only Tennessee’s Attorney General was vested with authority to enforce it. The subsection now states: “Engaging in any other act or practice which is deceptive to the consumer or to any other person; provided, however, that enforcement of this subdivision (b)(27) is vested exclusively in the office of the attorney general and reporter and the director of the division.” Tenn. Code Ann. § 47-18-104(b)(2012). See 2011 Tenn. Pub. Acts 510, at *15; 2011 Tenn. Pub. Ch. 510; 2011 Tenn. HB 2008 (effective Oct. 1, 2011). This amendment applies to “all liability actions for injuries, deaths and losses covered by this act which accrue on or after [October 1, 2011],” so we apply the prior version of this statute to this case. 4 At the time this lawsuit was filed, the terms “trade,” “commerce”, and “consumer transaction” were defined in Tenn. Code Ann. § 47-18-103(11) (2001). See 2010 Tenn. Pub. Acts 1055 (effective July 1, 2010) and 2010 Tenn. Pub. Acts 779 (effective April 16, 2010). To avoid confusion, we will refer to the current citation. -13-  18-109(a)(1). The defendant’s conduct need not be willful or even knowing, but if it is, the TCPA permits the trial court to award treble damages. Tenn. Code Ann. § 47-18-109(a)(3); Concrete Spaces, Inc. v. Sender, 2 S.W.3d 901, 910 n. 13 (Tenn. 1999); Holmes v. Foster Pontiac GMC, Inc., Shelby Law No. 9, 1989 WL 48515, at *4 (Tenn. Ct. App. May 10, 1989), perm. app. denied, (Tenn. Oct. 2, 1989); Haverlah v. Memphis Aviation, Inc., 674 S.W.2d 297, 306 (Tenn. Ct. App.1984). Tucker v. Sierra Builders, 180 S.W.3d 109, 115-16 (Tenn. Ct. App. 2005) (footnote omitted); see also Wickham v. Sovereign Homes, LLC, No. W2011-02508-COA-R3-CV, 2012 WL 4358635, at *6 (Tenn. Ct. App. Sept. 25, 2012). The TCPA is applicable only to a transaction between a person engaged in business and a member of the consuming public, that is, the defendant in a TCPA claim must be “in the business of advertising, offering for sale, lease, or rental, or distributing goods, services, or property.” White v. Eastland, No. 01-A-019009CV00329, 1991 WL 149735, at *3 (Tenn. Ct. App. Aug. 9, 1991); see also Campbell v. Teague, W2009-00529-COA-R3-CV, 2010 WL 1240732, at *5; 2010 Tenn. App. LEXIS 238, at *16 (Tenn. Ct. App. Mar. 31, 2010) (citing White). In this case, the trial court made findings that Hobbs Co. is “a merchant and dealer of the subject tractor,” satisfying the requirement that the defendant in a TCPA claim be in the business of advertising and offering for sale the tractor at issue. It also found that the “difference in hours on the subject tractor as advertised and as actually existed was deceptive” to Hanson, and that the deception resulted in monetary damages to Hanson. The October 2011 order also stated that the trial court declined to make a “finding of any intentional or fraudulent act” by Hobbs Co., so it declined to award treble damages. Overall, these findings meet the elements of a TCPA claim under subsection (b)(27). We are puzzled by the trial court’s specific refusal to state whether its award of damages was made pursuant to Section §47-18-104(b)(27), where such an explicit holding is mandated by Rule 52.01 in the absence of any request, but here was even requested by a party. We have remanded for such findings in previous cases. See, e.g., Lake v. Haynes, No. W2010-00294- COA-R3-CV, 2011 WL 2361563, at *5; 2011 Tenn. App. LEXIS 304, at *12-15 (Tenn. Ct. App. June 9, 2011). On occasion, however, “when faced with a trial court’s failure to make specific findings, the appellate courts may ‘soldier on’ when the case involves only a clear legal issue, or when the court’s decision is ‘readily ascertainable.’” Simpson v. Fowler, No. W2011-02112-COA-R3-CV, 2012 WL 3675321, at *4; 2012 Tenn. App. LEXIS 592, at *11 (Tenn. Ct. App. Aug. 28, 2012) (citing Burse v. Hicks, No. W2007-02848-COA-R3-CV, 2008 WL 4414718, at *2; 2008 Tenn. App. LEXIS 571, at *5 (Tenn. Ct. App. Sept. 30, 2008); Burgess v. Kone, Inc., No. M2007-02529-COA-R3-CV, 2008 WL 2796409, at *2; 2008 Tenn. App. LEXIS 406, at *7 (Tenn. Ct. App. July 18, 2008)). -14- In this case, Hanson included several theories of recovery in his complaint, including, inter alia, the TCPA and breach of contract. As mentioned above, the complaint specifically noted the catchall provision of the TCPA, Section 47-18-104(b)(27), but was not limited to that TCPA provision. In an effort to resolve the litigation between the parties, we will “soldier on” to examine whether the damage award to Hanson can be sustained under Section 47-18- 104(b)(27), before looking at whether the trial court’s award may have been made under an additional theory of recovery. See Mills v. Partin, No. M2008-00136-COA-R3-CV, 2008 WL 4809135, at *6; 2008 Tenn. App. LEXIS 666, at *15-16 (Tenn. Ct. App. Nov. 4, 2008) (finding that the trial court’s decision was based on the violation of the other catchall provision in the TCPA, found in Section 47-18-104(a)5 despite the fact that the trial court failed to specify which TCPA provisions were violated). TCPA Turning now to the substantive arguments raised on appeal, Hobbs Co. argues that the award of damages to Hanson cannot be sustained under the TCPA because the Act is not applicable in this case. Hobbs Co. contends that the subject tractor is not a “good” within the definition contained at Tennessee Code Annotated § 47-18-103(7) because Hanson purchased the tractor to use for commercial farming purposes, and consequently the TCPA does not apply. In response, Hanson contends that this argument by Hobbs Co. is based only on the first half of the statutory definition of “goods,” and ignores the second half of the definition, which explicitly includes chattels obtained for use in “a franchise, distributorship agreement, or similar business opportunity.” Tenn. Code Ann. § 47-18-103(7).6 Therefore, Hanson maintains, the definition includes business chattels such as the tractor at issue. After reviewing the statute, we find that we need not decide whether the subject tractor is a “good” under the TCPA. Section 47-18-104(b)(27) makes unlawful any “act or practice which is deceptive to the consumer or to any other person,” without specifically referring to goods.7 As noted above, the predicate to this subsection states that the act at issue must “affect[] the conduct of . . . trade or commerce,” and the statutory definition of this term 5 Tenn. Code Ann. § 47-18-104(a) has been amended as well. 6 The entire definition of “goods” in Tennessee Code Annotated § 47-18-103(7) includes “any tangible chattels leased, bought, or otherwise obtained for use by an individual primarily for personal, family, or household purposes or a franchise, distributorship agreement, or similar business opportunity.” Tenn. Code Ann. § 47-18-103(7). 7 Many of the subsections in Tennessee Code Annotated § 47-18-104(b) refer specifically to goods or services. See, e.g., Tenn. Code Ann. § 47-18-104(b)(1), (2), (4)-(10), (18), (22), and (23)(2012). -15- refers to goods. The reference to goods in this definition, however, is in a long string of items covered by the phrase “trade or commerce,” including “goods, . . . or property, tangible or intangible, real, personal, or mixed, and other articles, commodities, or things of value wherever situated[.]” Tenn. Code Ann. § 47-18-103(19). Hobbs Co. does not argue on appeal that the tractor does not fit within this broad definition of trade or commerce. As to the argument that the tractor transaction is not covered by the TCPA because Hanson purchased it to use in his farming business, Hobbs Co. has cited no authority for this assertion, and we have found none. This issue is without merit. Hobbs Co. argues next that the trial court erred in finding that the tractor at issue had 10,000 more hours of usage than was advertised. Hobbs Co. notes that its expert Hobby said that the hour meter on a John Deere tractor cannot be modified, and Hanson’s expert Hegg testified that it would be highly unusual for a tractor’s hour meter to “roll over,” that is, after reaching 10,000 hours, for the meter to start back at zero. Under these circumstances, Hobbs Co. argues, the trial court erred in crediting Hegg’s testimony that the subject tractor actually had 12,506 hours of use. In his testimony, Hegg explained that he divined the actual number of hours of use for the subject tractor by using a method of diagnostic assessment that was well known by expert tractor mechanics. The testimony by the Hobbs Co. expert, Hobby, did not directly contradict this, in that Hobby indicated that his expertise did not extend to the tractor mechanics. The trial court clearly credited Hegg’s testimony on the actual number of hours of usage for the tractor. On appeal, we give great deference to the trial court’s assessment of the witnesses’ credibility. Church v. Church, 346 S.W.3d 474, 481 (Tenn. Ct. App. 2010); In re M.L.D., 182 S.W.3d 890, 894 (Tenn. Ct. App. 2005). The trial court’s factual finding on the tractor’s hours of usage is fully supported by the evidence. Hobbs Co. next argues that its eBay advertisement was not “deceptive” because the advertisement contained “as is” disclaimer language and a warranty disclaimer. In light of this, Hobbs Co. maintains, Hanson ended up paying a much lower price than he would have paid for a tractor with a warranty. Hobbs Co. also relies on the fact that its eBay advertisement said only that the tractor had low hours “on the meter,” and it is undisputed that the hour meter on the tractor at issue in fact read 2,506 hours. It insists that it would be unreasonable to expect a seller such as Hobbs Co. to inspect each tractor offered for sale to determine the actual number of hours of usage. There is no single, bright-line standard for determining whether a particular act or practice is deceptive under the TCPA. Campbell, 2010 WL 1240732, at *6; 2010 Tenn. App. LEXIS 239, at *18-19 (citing Fayne v. Vincent, 301 S.W.3d 162, 177 (Tenn. 2009); Ganzevoort v. Russell, 949 S.W.2d 293, 300 (Tenn. 1997); Tucker, 180 S.W.3d at 116). The determination -16- of whether a specific representation in a given case is “deceptive” is a question of fact. In Tucker v. Sierra Builders, this Court explained: A deceptive act or practice is one that causes or tends to cause a consumer to believe what is false or that misleads or tends to mislead a consumer as to a matter of fact. Thus, for the purposes of the TCPA . . . , the essence of deception is misleading consumers by a merchant’s statements, silence, or actions. Tucker, 180 S.W.3d at 116 (citing Jonathan Sheldon & Carolyn L. Carter, Unfair and Deceptive Acts and Practices § 4.2.3.1, at 118-19 (5th ed. 2001)); see also Campbell, 2010 WL 1240732, at *7; 2010 Tenn. App. LEXIS 239, at *20-21. Moreover, “[t]o be considered deceptive, an act is not necessarily required to be knowing or intentional,” so a negligent misrepresentation may serve as the basis of a claim under the TCPA. Fayne, 301 S.W.3d at 177. We decline to hold that the waivers, disclaimers, and “as is” language contained in the sales contract shield Hobbs Co. from liability under the TCPA. See Tenn. Code Ann. § 47-18- 113(a)(2001) (“No provision of this part may be limited or waived by contract, agreement, or otherwise . . .”); see also Morris v. Mack's Used Cars, 824 S.W.2d 538, 540 (Tenn. 1992) (allowing a seller to avoid liability for unfair or deceptive acts or practices by the use of contractual disclaimers would contravene the broad remedial intent of the TCPA); Smith v. Scott Lewis Chevrolet, Inc., 843 S.W.2d 9, 11 (Tenn. Ct. App. 1992). We also respectfully reject the argument that there was no deceptive act because the advertisement stated that there were 2,506 hours “on the meter,” which was technically true. It is true that, in one place in the ad, the phrase “low hours” was modified by the phrase “ showing on the meter.” 8 However, the ad referred three times to the tractor’s “low hours,” only once with the qualifying phrase “showing on the meter.” Reviewing the advertisement overall, we agree with the trial court that it clearly conveys that the tractor in fact had “low hours” of usage. Hegg testified that a tractor with 10,000 hours could be equated to a car with 500,000 miles, and he considered 12,500 hours of usage to be extremely high. This supports a finding that the tractor could not truthfully be described as having “low hours.” Based on all of this evidence, we hold that the record fully supports the trial court’s finding that the advertisement was “deceptive” within the meaning of the TCPA. Under all of these circumstances, we affirm the award of compensatory damages to Hanson pursuant to the TCPA, Tennessee Code Annotated § 47-18-104(b)(27). 8 In the course of the description of the tractor in the eBay ad, it states the following: “LOW HOURS!!!,,,SHOWING ON THE METER,,” (emphasis and difference in font size in original). -17-  Damages Calculation Hobbs Co. questions the trial court’s calculation of damages in this case. Hobbs Co. argues that the trial court erred in failing to account for the trade-in value received by Hanson when he traded in the subject tractor for a new tractor. Hobbs Co. also contends that the trial court erred in not excluding from the damages calculation the value of the new tractor tires, because the eBay advertisement clearly stated that the purchaser would need to replace the tires on the tractor. The proper measure of damages is a question of law, reviewed on appeal de novo. Poole v. Union Planters Bank, N.A., 337 S.W.3d 771, 789 (Tenn. Ct. App. 2010) (citing Beaty v. McGraw, 15 S.W.3d 819, 829 (Tenn. Ct. App. 1998); Sexton v. Sevier County, 948 S.W.2d 747, 749 (Tenn. Ct. App. 1997)). However, the actual calculation of damages is a question of fact. Poole, 337 S.W.3d at 789 (citing Spence v. Allstate Ins. Co., 883 S.W.2d 586, 594 (Tenn. 1994); Reagan v. Wolsieffer, 240 S.W.2d 273, 275 (Tenn. Ct. App. 1951)). “This Court will modify a trial court’s award of damages based on the proper measure only if the evidence preponderates against the amount of damages awarded.” Poole, 337 S.W.3d at 789; see also Beaty, 15 S.W.3d at 829 (citing Tenn. R. App. P. 13(d); Armstrong v. Hickman County Highway Dept, 743 S.W.2d 189, 195 (Tenn. Ct. App. 1987)). From our review of the record, we agree that the basis for the numbers used by the trial court is not crystal clear. However, the numbers are within a range that is supported by the evidence in the record. The trial court valued the tractor with 2500 hours at approximately $63,600 with new $8,000 tires. The tractor with the actual 12,500 hours, plus 450 hours of use by Hanson, with new tires and Hanson’s repairs, received a trade-in value of $42,500. These figures support the trial court’s holding that the difference in value amounted to approximately $20,000. The trial court added $23,136, spent by Hanson on repairs to the tractor and labor costs. This yields the $43,136 in damages found by the trial court. We also note that Hanson testified he would not have been interested in this tractor at all had he known its true hours of usage, and thus, would not have spent money on new tires for a tractor with 12,500 hours. This testimony was supported by Hegg’s expert testimony that virtually no buyer would be interested in a tractor with over 12,000 hours of usage. Under these circumstances, we find it was not improper for the trial court to include the amount spent on new tires in its calculation of damages. Overall, we find that the calculation of compensatory damages is supported by a preponderance of the evidence in the record. Attorney Fees Finally, Hobbs Co. argues that the trial court erred in awarding attorney fees and discretionary expenses to Hanson, and in declining Hobbs Co.’s request for an award of -18- attorney fees and expenses. Hobbs Co. notes that the contract Hanson signed contained an unrestricted attorney-fee-shifting provision, which required Hanson to pay the attorney fees incurred by Hobbs Co. if Hanson brought an action against Hobbs Co., regardless of the outcome of the litigation. Hobbs Co. argues that this agreement should be enforced as written, and thus, Hobbs Co. should be entitled to have Hanson pay all attorney fees, court costs, and expenses incurred by both parties in litigating this matter. As noted above, we have affirmed the award of compensatory damages pursuant to the TCPA. For this reason, we find that the trial court’s award of attorney fees to Hanson was also pursuant to the TCPA. As with the use of disclaimers and “as is” language in a contract, the use of a contractual provision such as that asserted by Hobbs Co. in this case would be contrary to the remedial intent of the TCPA. On this basis, we reject the argument that the attorney fee award to Hanson should be reversed, and that Hanson should be required to pay the fees incurred by Hobbs Co. based on the provision in the sales contract. The award of attorney fees and expenses to Hanson is affirmed. All other issues raised on appeal are pretermitted by our holdings herein. C ONCLUSION The decision of the trial court is affirmed. Costs on appeal shall be assessed against Appellant J.C. Hobbs Co., Inc. and its surety, for which execution may issue if necessary. ___________________________ HOLLY M. KIRBY, JUDGE -19- 

11th Court of Appeals Eastland, Texas             Opinion   Justin Karl Roderick Appellant Vs.                   No. 11-02-00141-CR -- Appeal from Collin County State of Texas Appellee   The jury convicted Justin Karl Roderick of felony driving while intoxicated and assessed his punishment at confinement for seven years.  Appellant has filed in this court a motion to dismiss his appeal.  In the motion, appellant requests that he be allowed to Awithdraw [his] notice of appeal and dismiss this appeal.@  The motion is signed by both appellant and his counsel.  Pursuant to TEX.R.APP.P. 42.2, we grant appellant=s motion.  Accordingly, the appeal is dismissed.    PER CURIAM   August 29, 2003 Do not publish.  See TEX.R.APP.P. 47.2(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 95-5481 JEFFREY BLAKE JOHNSON, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 95-5482 ROBERT LEE BRUCE, JR., Defendant-Appellant. Appeals from the United States District Court for the Western District of Virginia, at Charlottesville. Glen M. Williams, Senior District Judge. (CR-94-61) Argued: December 6, 1996 Decided: February 12, 1997 Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge, and DAVIS, United States District Judge for the District of Maryland, sitting by designation. _________________________________________________________________ Affirmed by unpublished per curiam opinion. _________________________________________________________________ COUNSEL ARGUED: Frederick Theodore Heblich, Jr., PARKER, MCELWAIN & JACOBS, P.C., Charlottesville, Virginia, for Appellant Johnson; Richard Andrew Davis, Charlottesville, Virginia, for Appellant Bruce. Donald Ray Wolthuis, Assistant United States Attorney, Roa- noke, Virginia, for Appellee. ON BRIEF: Robert P. Crouch, Jr., United States Attorney, Roanoke, Virginia, for Appellee. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION PER CURIAM: Appellants Robert Lee Bruce, Jr. and Jeffrey Blake Johnson were indicted for their participation in a drug conspiracy that operated in the Harrisonburg, Virginia area. The indictment alleged that Bruce was the principal and Johnson was a lieutenant in the conspiracy. Bruce was charged with one count of drug conspiracy, nine drug dis- tribution counts, the use of a firearm in connection with a drug offense under 18 U.S.C. § 924(c)(1), being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1), and attempting to escape from custody. Johnson was charged with one count of drug conspiracy and three drug distribution counts. The drug charges were supported by the testimony of more than half a dozen witnesses who were involved with the defendants in crack cocaine distribution and by surveillance evidence of controlled buys of crack cocaine through the use of a confidential informant. The firearms counts against Bruce arose from a reverse sting operation in which Bruce attempted to use cash and cocaine to purchase an auto- matic M-16 rifle in a hotel room. Bruce and Johnson were tried before a jury and convicted on all counts. Bruce was sentenced to life in prison, plus a consecutive term 2 of 30 years for the section 924(c) conviction. Johnson was sentenced to 360 months in prison. Appellants challenge these convictions on numerous grounds. I. Appellants first argue that the government failed to make adequate disclosure of exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83 (1963). A week before the trial, the government learned that its confidential informant for the controlled crack cocaine pur- chases, Dewayne Lingenfelter, had on two occasions falsely impli- cated Bruce as being involved in drug transactions and had used crack cocaine during the time frame of the investigation. J.A. at 293-95. The government disclosed this information to defense counsel, noti- fied the jury of it during the government's opening statement, and even warned the jury to "think of [Lingenfelter] as the man that if you asked if it was sunny outside, that you best go look out the window yourself . . . there best be some corroboration for what he tells you." J.A. at 91. Following completion of the trial, defense counsel obtained infor- mation that Lingenfelter had pleaded guilty to a charge of making a false report to police in violation of Virginia Code§ 18.2-461 for false denial of his involvement in an unwitnessed single car accident. J.A. at 60-61. The government was unaware of this conviction because the records of it were in the General District Court for the City of Staunton, whereas the conspiracy activity at issue in the case sub judice took place in Harrisonburg. After the trial but prior to sen- tencing, Johnson and Bruce moved to dismiss the indictments, or in the alternative for a new trial, because of the new information regard- ing Lingenfelter. The district court rejected the motion, stating that the Government furnished every bit of information it had. And this was something that, for whatever failure, did not get to the NCIC to be picked up. And whatever it was, it was available equally to both sides . . . . With all of the mas- sive testimony impeaching this man . . . [disclosure of the prior offense] would have been of such minor significance 3  that I don't think it would have changed the result of this case. Supp. J.A. at 27-28. The information, which was unknown to the gov- ernment and was kept in records located in another jurisdiction, was not within the obligation of the government to discover. United States v. Meros, 866 F.2d 1304, 1308 (11th Cir. 1989) ("A prosecutor has no duty to undertake a fishing expedition in other jurisdictions in an effort to find potentially impeaching evidence every time a criminal defendant makes a Brady request for information regarding a govern- ment witness."). Furthermore, given the government's extensive dis- closure to the defense and to the jury regarding Lingenfelter's credibility, the information regarding the unwitnessed single car acci- dent does not even arguably create a "reasonable probability" that the result of the proceeding would have been different with disclosure, nor does it "undermine[ ] confidence in the outcome of the trial." United States v. Bagley, 473 U.S. 667, 678, 682 (1985). II. Appellants next argue that the district court's calculation of drug weights was clearly erroneous. We disagree. The district court's find- ings that Bruce was responsible for 6.63 kilograms of cocaine and that Johnson was responsible for more than one kilogram of cocaine are more than adequately supported by evidence in the presentence report adopted by the district court. The calculation for Johnson was sup- ported by the statements of codefendants Benny Paul and Helen Har- rison, who testified to having seen Johnson possess and sell cocaine. Paul estimated the amount at one kilogram. J.A. at 759. Harrison stated that she saw Johnson and another individual with large plastic bags of crack cocaine covering a six-foot long table and "stated she could not even see the tabletop and that the crack cocaine bags were piled up on one another." J.A. at 761. Regarding Bruce, the presen- tence report states that "[u]nrefuted evidence" shows that the group headed by Bruce distributed "no less than 6.63 kilograms of cocaine base," J.A. at 824, and Bruce offers no evidence to the contrary. Under such circumstances, the district court's reliance on the presen- tencing report was not clearly erroneous. 4 III. Appellants next argue that the district court erred in approving a three-point upward adjustment for Johnson's role in the offense and a four-point upward adjustment for Bruce's role. Again we review for clear error and find no error. Johnson objects to the three-point enhancement for his role as a "manager or supervisor" of the criminal activity under U.S.S.G. § 3B1.1(b). The presentence report states that"[e]vidence indicates Johnson acted as a supervisor for Bruce, overseeing the distribution of cocaine base." J.A. at 804. Bruce's supervisory role is supported by Harrison's testimony that she, Annette McCarthy, and Mervin "Sonny" Jones sold cocaine for Johnson at his direction. J.A. at 760- 61, 803. Johnson argues for the first time on appeal that he should have received at most a two point enhancement because the presentence report cites U.S.S.G. § 3B1.1(c), which provides for a two point enhancement, rather than subsection (b), which provides for a three point enhancement. However, the citation of subsection (c) in the pre- sentence report is evidently nothing more than a clerical error, and the sentencing hearing makes clear that Johnson, the prosecution, and the court were aware that the presentence report called for a three point enhancement. J.A. at 772, 776. In fact, Johnson's written objection to the presentence report refers to the "three-point upward adjustment," and the "Addendum to the Presentence Report" correctly cites U.S.S.G. § 3B1.1(b). J.A. at 814, 817. Bruce's argument that he was not an "organizer or leader" of the criminal activity under U.S.S.G. § 3B1.1(a) is particularly far-fetched. Considerable trial testimony established that Bruce was the leader of an extensive organization that made weekly trips to the Washington, D.C., area to obtain cocaine and cocaine base. See, e.g., 678-82. For example, Tracy Johnson testified that Bruce employed her as a runner and that Bruce delivered crack cocaine to Jeffrey Johnson and directed him to resell it. J.A. at 595, 598. Additionally, Bruce directed security efforts, including strip searches and the posting of lookouts. See, e.g., J.A. at 433, 488, 657-58, 761. 5 IV. Johnson and Bruce challenge the sufficiency of the evidence for the jury's verdict on the conspiracy and substantive drug distribution counts. However, a rational trier of fact could easily find Johnson and Bruce guilty beyond a reasonable doubt on these charges. The con- spiracy charge was proven by, among other things, the cooking of cocaine in Helen Harrison's kitchen. Johnson cooked powder cocaine into crack while Bruce, as discussed above, sat at the kitchen table surrounded by bags of cocaine and crack cocaine. J.A. at 477-82. This is further supported by the evidence, discussed above, regarding John- son's role as a "manager or supervisor" in the drug-distribution orga- nization and Bruce's role as its "organizer or leader." Appellants' only argument regarding the sufficiency of the evidence for the substantive drug distribution convictions is that the testimony of Lingenfelter and Tracy Johnson was inherently unreliable. However,"[t]he credibility of witnesses is a matter solely within the provence of the jury, and is not reviewable by this court." Pigford v. United States, 518 F.2d 831, 836 (4th Cir. 1975). V. Bruce also challenges his 18 U.S.C. § 924(c) conviction, arguing that there was insufficient evidence to prove either that he "use[d] or carrie[d]" a firearm or that he did so "during and in relation to" a drug trafficking crime. The § 924(c) conviction arose from a videotaped incident in which Bruce offered to exchange drugs and money for a machine-gun. Confidential informant David L. Hines testified that he met Bruce in a hotel room, where Bruce searched the room, covered the smoke detector, and strip searched Hines. J.A. at 431-33. In the course of negotiating with Hines regarding the amount of money and drugs he would give for the gun, Bruce picked up and examined the M-16 using a bedsheet. J.A. at 433-34. Bruce and Hines then moved out to the parking lot, where Bruce showed Hines cocaine and crack cocaine together with a Tech-9 firearm in his car. J.A. at 436-42. Bruce told Hines, "I've got the dope and I've got the cash, now, you bring the gun out here and we can do a deal." J.A. at 436. Negotia- tions broke off without completion of the transaction. Under our circuit's precedent, the exchange of drugs for a firearm constitutes "use" of the firearm under § 924(c)(1). United States v. 6 Harris, 39 F.3d 1262, 1269 (4th Cir. 1994); see also United States v. Zuniga, 18 F.3d 1254, 1259 (5th Cir. 1994) (same). In a case not cited by either Bruce or the United States, defendant Reginald Boone gave Napoleon Yarn money and drugs in payment for Yarn to procure a shotgun for Boone. Harris, 39 F.3d at 1269. We held that this exchange or barter of cocaine for the mere "service" of obtaining a shotgun was sufficient for § 924(c) purposes, id., and we subse- quently held that the validity of Boone's conviction was unaffected by the Supreme Court's decision in Bailey v. United States, 116 S. Ct. 501 (1995). United States v. Boone, No. 95-5055 (4th Cir., Aug. 16, 1996) (unpublished); see also United States v. Ulloa, 94 F.3d 949, 956 (5th Cir. 1996) (reaffirming Zuniga, supra, in light of Bailey). The evidence supporting the § 924(c) conviction is considerably stronger here than in Harris, because Bruce negotiated directly with the possessor of the gun, rather than through a middle-man, and because Bruce physically handled the gun for valuation purposes in the course of negotiating over the drugs-for-gun exchange. According to the Supreme Court, a gun can be "used" as"an item of barter" even if the proposed drug transaction is not consummated. Smith v. United States, 508 U.S. 223, 226, 229 (1993) (holding that the proposed exchange of a gun for narcotics constitutes "use" under § 924(c)). Therefore, under all of the circumstances, Bruce"used" the firearm under § 924(c). There can be no doubt that this use was "during and in relation to" the predicate drug trafficking offenses of possession of cocaine with intent to distribute and the ongoing conspiracy to possess with intent to distribute crack cocaine. Given our circuit precedent, we have little trouble deciding that Bruce "used" a firearm"during and in relation to" a drug trafficking offense. VI. The district court clearly did not commit reversible error in ques- tioning prosecution witness Benny Paul in front of the jury regarding Paul's concerns about being jailed with Bruce. The district court's alleged error occurred in response to Paul's testimony that he was afraid of Bruce, J.A. at 557-61, and that Bruce made statements about finding out who were the "snitches," J.A. at 561. The district court, 7 however, merely asked Paul whether he wanted to be moved from the Orange County Jail, and Paul responded "I would like to be moved." J.A. at 561. Although Bruce did not object to this question during the trial, he now argues on appeal that the district court's question consti- tuted an impermissible comment on the evidence. The essence of Bruce's challenge is that the court's question could leave the jury with the impression that the court believed Paul's testi- mony. However, the court's concern for Paul's safety in no way indi- cates that the court considered Paul's testimony credible. Rather, the court most likely was concerned that the mere fact that Paul testified that he had seen Bruce with crack cocaine, had seen him involved in a shoot-out, and had seen him with weapons on many occasions, could jeopardize Paul's safety, regardless of whether the court found any of Paul's testimony to be credible. Furthermore, there is no rea- son to believe that the court's question regarding whether Paul wished to be transferred to another jail in any way prejudiced Bruce. VII. Bruce argues for the first time on appeal that the government engaged in sentencing entrapment or sentencing manipulation by allegedly introducing narcotics into the negotiations over the sale of the gun to Bruce in order to obtain the 18 U.S.C.§ 924(c) conviction and thereby enhance Bruce's sentence. However, drugs were not injected into the deal merely for sentencing purposes, as Bruce alleges: The drugs were at the core of the deal. Furthermore, Bruce's predisposition toward the use of drugs for the procurement of the gun is evidenced by Willie Scott's testimony that Bruce told him prior to the meeting at the hotel that he intended to trade drugs or money for the gun, J.A. at 689, and by the fact that Bruce brought drugs to the motel and displayed them to the informant in the parking lot. VIII. Finally, appellants have failed to establish that the district court abused its discretion by allowing the introduction of testimony regarding drug involvement and firearms not mentioned in the indict- ment. 8 Appellants first assert that evidence of a shoot-out on Kelly Street was extrinsic evidence. This evidence, however, to which there was no objection at trial, is clearly relevant to the conspiracy charge. Benny Paul and Cory Dark testified that the shootout was part of a competition between drug distribution organizations. J.A. at 531-34, 573-74. Furthermore, the conspiracy indictment alleged that "[m]embers of the conspiracy were involved in several shootings dur- ing the course of the conspiracy, to settle disputes with rival crack dealers, and to settle disputes within the conspiracy itself." J.A. at 24. Second, Bruce asserts that Lingenfelter testified that he purchased cocaine from Bruce prior to the start of the conspiracy. However, Lin- genfelter's testimony regarding his purchases from Bruce on "[s]everal occasions" prior to becoming an informant for the police in no way establishes that these purchases were prior to the start of the conspiracy. J.A. at 313. Third, appellants object for the first time on appeal to the testimony of Tracy Johnson regarding her drug involvement with Bruce during the 1980s. However, the prosecution specifically asked Johnson about her drug dealings with Bruce during 1993-1994, the time of the charged conspiracy. J.A. at 594. Johnson's statement that she "knew Rob back in the 80s" is neither evidence of prior acts nor prejudicial to Bruce. J.A. at 595. Fourth, appellants allege that trial testimony referred to firearms that were used, carried and displayed during the conspiracy but that were not specifically mentioned in the indictments. These guns, though not themselves mentioned in the indictment, were part of the conspiracy conduct charged in the indictment. CONCLUSION For the reasons stated herein, we affirm the judgment of the district court. AFFIRMED 9 

781 F.Supp. 1307 (1991) In re AIR CRASH DISASTER AT SIOUX CITY, IOWA, ON JULY 19, 1989. No. MDL-817, Nos. 90 C 4973, 90 C 4986 and 91 C 1219. United States District Court, N.D. Illinois, E.D. December 26, 1991. *1308 Philip H. Corboy, Francis Patrick Murphy, Corboy & Demetrio, P.C., Chicago, Ill., David E. Rapoport, Becker, Baizer & Rapoport, Highland Park, Ill., Arthur Alan Wolk, Wolk, Genter & Harrington, Philadelphia, Pa., Kevin M. Forde, Kevin M. Forde, Ltd., Chicago, Ill., for plaintiffs. John W. Adler, Fred C. Begy III, Richard A. Walker, Adler, Kaplan & Begy, Chicago, Ill., for defendant United Airlines. Steven L. Hogan, Bryan, Cave, McPheeters & McRoberts, Los Angeles, Cal., Norman J. Barry, Daniel Cummings, Alan S. Madans, Rothschild, Barry & Myers, Chicago, Ill., for defendant McDonnell Douglas. Charles W. Douglas, Sara J. Gourley, Sidley & Austin, Chicago, Ill., for defendant General Elec. Michael J. Merlo, Craig A. Chapello, Pretzel & Stouffer, Chicago, Ill., for Titanium Metals. Michael H. West, Pope, Ballard, Shepard & Fowle, Chicago, Ill., for ALCOA. John Hoff, Lapin, Hoff, Slaw & Laffey, Chicago, Ill., for Reactive Metals. MEMORANDUM OPINION AND ORDER CONLON, District Judge. In this consolidated multidistrict litigation arising from an air crash at Sioux City, Iowa, plaintiffs Jan Brown, Donna McGrady and Susan White move for partial summary judgment on their strict products liability claims against defendants McDonnell Douglas Corporation and General Electric Company. BACKGROUND On July 19, 1989, United Airlines Flight 232 from Denver to Chicago crashed during an attempted emergency landing at Sioux City, Iowa. Of the 296 people on board, 112 were killed as a result of the crash. Plaintiffs were flight attendants on the ill-fated Flight 232. *1309 The crew of Flight 232 was forced to attempt an emergency landing at Sioux City shortly after an uncontained explosion in the aircraft's rear engine. The explosion resulted from the fragmentation and separation of the engine's number one fan disk. Plaintiffs' facts ¶¶ 20-21. The fragments of the fan disk exited the engine housing at a high velocity and severed two of the aircraft's three hydraulic lines, resulting in a total loss of hydraulic fluid in all three of the aircraft's independent hydraulic systems. Plaintiffs' facts ¶¶ 12, 21, 23. The total loss of hydraulic fluid rendered the aircraft's hydraulic-powered flight controls inoperable. Plaintiffs' facts ¶¶ 21-23. The crew attempted to maneuver the aircraft down for an emergency landing by using differential engine power from the two remaining engines. However, the total disabling of the aircraft's conventional flight controls frustrated the crew's attempt to land the plane safely. The doomed aircraft, owned and operated by United Airlines, was a DC-10 manufactured by McDonnell Douglas in California. Plaintiffs' facts ¶ 13; McDonnell Douglas' facts ¶ 5. General Electric designed and manufactured the CF6-6 engines used to power the aircraft, including the rear engine that failed in the Sioux City accident. Plaintiffs' facts ¶ 14. The number one fan disk that fragmented and caused the uncontained engine failure was also designed and manufactured by General Electric. Plaintiffs' facts ¶ 15. The subject fan disk contained an undetected metallurgical flaw called a hard alpha inclusion when General Electric sold the CF6-6 engine to McDonnell Douglas on January 22, 1972. Plaintiffs' facts ¶¶ 15-16. The fragmentation of the General Electric fan disk occurred as a result of a fatigue crack that developed in the area of the hard alpha inclusion subsequent to the manufacture and sale of the engine. Plaintiffs' facts ¶ 24. The fatigue crack in the fan disk went undetected during regular maintenance shop inspections by United Airlines, including the final inspection of the fan disk conducted in October 1988. General Electric's facts ¶ 15 and additional facts ¶¶ 8-9. DISCUSSION Plaintiffs move for summary judgment on their strict products liability claims against General Electric and McDonnell Douglas. Summary judgment must be granted when the record shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Colan v. Cutler-Hammer, Inc., 812 F.2d 357, 360 (7th Cir.) (per curiam), cert. denied, 484 U.S. 820, 108 S.Ct. 79, 98 L.Ed.2d 42 (1987). A party opposing a motion for summary judgment must set forth specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir. 1989). All reasonable factual inferences must be viewed in favor of the non-moving party. Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir.1989). Consideration of plaintiffs' motions may proceed only on the basis of evidence that is admissible at trial. Colan v. Cutler-Hammer, Inc., 812 F.2d at 365 n. 14 (7th Cir.); Turner v. Chicago Housing Authority, 760 F.Supp. 1299, 1302 (N.D.Ill. 1991). Plaintiffs' motions and accompanying 12(m) statement liberally refer to the National Transportation Safety Board's Accident Report ("the NTSB report") addressing the Sioux City accident. Plaintiffs may not use any portion of the NTSB report for any purpose at trial. See Memorandum Opinion and Order of December 20, 1991. Accordingly, the court shall not consider the NTSB report in deciding plaintiffs' present motions. I. General Electric Plaintiffs move for summary judgment on their strict liability claim against General Electric. As an initial matter, the parties appear to agree that the substantive law of Ohio should govern the issue of General Electric's liability. However, the question of which state's substantive law governs claims of liability against General Electric has not yet been addressed in *1310 these proceedings. Accordingly, the court will address the issue now. Plaintiffs each filed suit in an Illinois forum, thus Illinois choice of law rules apply. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). Illinois applies the "most significant relationship" test to determine the applicable substantive law in tort actions. Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593 (1970). Four contacts are particularly important in determining which state has the most significant relationship to the occurrence and the parties: (1) the place of injury, (2) the place of the conduct causing the injuries, (3) the domicile and place of business of the parties, and (4) the place where the parties' relationship is centered. Id., 46 Ill.2d at 47-48, 262 N.E.2d at 596. Iowa is the place of injury, the first contact under Illinois tort choice of law analysis. However, Iowa's interests have not been accorded great weight in earlier choice of law determinations during these proceedings, principally because the eventual crash in Iowa was an entirely fortuitous, unforeseen emergency landing in Sioux City. In re Air Crash Disaster at Sioux City, 734 F.Supp. 1425, 1435 (N.D.Ill.1990). The second contact, the place where the injury-causing conduct occurred, points to Ohio. Ohio has a substantial and ongoing interest in the present action because the allegedly defective fan disk was manufactured and installed in a General Electric engine at a General Electric plant in Ohio. Ohio's status as the place where the injury-causing conduct occurred makes it the only state with a clear substantial ongoing relationship to the present action against General Electric because examination of the remaining two contacts lead to inconclusive results. General Electric is a New York corporation with its principal place of business in New York. The parties agree that plaintiff Brown is a citizen of Illinois and that the McGrady plaintiffs were citizens of Michigan at the time they filed their action. The parties dispute the domicile of plaintiff White. White contends that she was a citizen of Illinois at the time of filing, while General Electric contends White was an Ohio citizen. This issue need not be resolved, as the resolution would contribute little to the choice of law analysis because the domicile contact does not lead to a clear answer. Finally, the parties' relationship is not centered in any particular state, thus this contact is equally inconclusive. Accordingly, Ohio law shall govern the liability claims against General Electric in these actions. Plaintiffs' strict liability claims arise under Ohio Rev.Code § 2307.73, governing product liability claims against manufacturers. That statute states: (A) A manufacturer is subject to liability for compensatory damages based on a product liability claim only if the claimant establishes, by a preponderance of the evidence, both of the following: (1) ... the product was defective in manufacture or construction as described in section 2307.74 of the Revised Code ...; (2) A defective aspect of the product in question described in division (A)(1) ... was a proximate cause of harm for which the claimant seeks to recover compensatory damages. Ohio Rev.Code § 2307.73(A). According to the provisions of Ohio Rev.Code § 2307.74: A product is defective in manufacture or construction if, when it left the control of its manufacturer, it deviated in a material way from the design specifications, formula, or other performance standards of the manufacturer, or from otherwise identical units manufactured to the same design specifications, formula or performance standards. A product may be defective in manufacture or construction as described in this section even though its manufacturer exercised all possible care in its manufacture or construction. Plaintiffs contend that the product in question, the General Electric fan disk, was defective because it was sold containing a hard alpha inclusion. The evidence is uncontroverted that the hard alpha inclusion contained in the fan disk had an undesirable metallurgical flaw. However, plaintiffs *1311 have not established that the metallurgical flaw constitutes a "defect" within the meaning of the statute. Ohio courts appear not to have had an opportunity to construe the meaning of the "material deviation" standard stated in § 2307.74 since the implementation of Ohio's product liability statutes in January 1988. A literal application of § 2307.74 requires that plaintiffs establish that the flaw constitutes a material deviation from design specification or industry performance standards. Evidence exists in the record that it is well known among users of titanium that titanium ingot has a certain incidence of hard alpha inclusion. See General Electric Exh. J, Affidavit of Harold Margolin ¶ 5 ("Margolin Aff."). Moreover, evidence in the record suggests that users of titanium ingot are generally aware that it is not possible to completely eliminate hard alpha inclusions and that these inclusions may pass the most rigorous inspection processes undetected. See General Electric Exh. I, Affidavit of James Williams at 2. However, because of titanium's other metallurgical qualities, the aircraft industry often specifies the use of titanium over other metals despite the incidence of inclusions. Margolin Aff. ¶ 5. This evidence inferentially suggests a general aircraft industry acceptance of titanium containing some degree of hard alpha inclusion in products manufactured from titanium. Additionally, Ohio case law addressing product liability claims arising prior to the implementation of the Ohio product liability statutes further suggests that plaintiffs' bare equation of a hard alpha inclusion with an actionable product defect should not be credited at the present time. In cases arising prior to the implementation Ohio's product liability statutes, Ohio courts applied a "consumer expectation" standard to determine if a product was defective in its manufacture. See e.g., State Farm Fire & Casualty Co. v. Chrysler Corp., 37 Ohio St.3d 1, 523 N.E.2d 489 (1988). Under the consumer expectation standard, a product was regarded as defective if it was more dangerous than an ordinary consumer would expect when the product is used in an intended or reasonably foreseeable manner. See Jackson v. Alert Fire & Safety Equip., Inc., 58 Ohio St.3d 48, 567 N.E.2d 1027, 1030 (1991). If a consumer expectation construction of § 2307.74 is applied to the present dispute, the testimonial evidence regarding industry awareness and acceptance of some level of hard alpha inclusion in titanium again suggests an issue of material fact regarding industry standards and end-user expectations regarding the characteristics of titanium ingot. Thus, absent further evidence or explication of Ohio law from plaintiffs, plaintiffs have failed to establish that no material facts exist and that they are entitled to judgment as a matter of law with respect to their theory that the mere presence of a hard alpha inclusion in the General Electric fan disk constitutes a statutorily significant product defect. Even accepting plaintiffs' contention that the hard alpha inclusion constitutes an actionable defect in the General Electric fan disk, issues of material fact also exist regarding proximate causation. Plaintiffs describe their claim that the hard alpha inclusion proximately caused their injuries as a "proposition [that] proves itself." Plaintiffs' Memorandum at 9. This breezy assertion falls short of meeting plaintiffs' heavy burden at the present summary judgment stage. Under Ohio law, the question of proximate cause is deemed a factual question to be decided by the jury in all but the most extreme cases. Miles v. Kohli & Kaliher Assoc., Ltd., 917 F.2d 235, 249 (6th Cir.1990) (applying Ohio law) (citations omitted). Plaintiffs fail to establish that the present case provides the extreme circumstances that might warrant removing the question of proximate cause from the jury. Plaintiffs necessarily base their claim against General Electric upon a theory involving a lengthy chain of causation. Plaintiffs' injuries occurred as a result of the crash of Flight 232. That crash, by plaintiffs' own characterization, "resulted from a loss of control" of the aircraft. Plaintiffs' Memorandum at 10. The loss of control, by plaintiffs' own characterization, *1312 resulted from a loss of hydraulic power that in turn was the result of a "loss of all hydraulic fluid." Plaintiffs' facts ¶ 23. The loss of fluid resulted from a severing of hydraulic lines when the stage one fan disk fragmented and separated during the flight. The fan disk separated, according to plaintiffs, as a result of a hard alpha inclusion. General Electric responds that plaintiffs' evidence regarding the proximate cause of the crash raises material issues of fact regarding intervening causation that may serve to cut off General Electric from all liability. As General Electric notes, in a strict liability action under Ohio law, the causal connection between an allegedly defective product and a plaintiff's injuries may be broken by an intervening act. R.H. Macy & Co. v. Otis Elevator Co., 51 Ohio St.3d 108, 554 N.E.2d 1313, 1317 (1990). An intervening cause may cut off the manufacturer's liability where the intervening cause is unforeseeable and is the proximate cause of the injury or damage. Id. Plaintiffs' designated expert, Manuel Raefsky, has stated that the crash was caused by a metal fatigue crack in the failed engine's fan disk that developed over a 17 year period and should have been detected by United Airlines during five overhaul shop visits prior to the crash. General Electric Exh. C, Deposition of Manuel Raefsky at 142, 151-53 ("Raefsky Dep."). Additionally, plaintiffs' hydraulics expert, James Foody, has alternatively opined that the crash was caused by a flaw in the design of the DC-10 aircraft that rendered all of the aircraft's hydraulic systems vulnerable to a single uncontained engine failure. General Electric Exh. D, Deposition of James Foody at 8-9, 15, 78-79; see also General Electric Exh. E, Statement of J.J. Foody regarding UAL-232 Accident. This evidence clearly creates material issues of fact regarding the related issues of proximate and intervening causation. Whether these causes subsequent to General Electric's alleged injury-causing conduct were unforeseeable to General Electric, thus cutting off General Electric from liability, is an issue that is purely factual in nature under Ohio law and thus inappropriate for resolution at the summary judgment stage. Cascone v. Herb Kay Co., 6 Ohio St.3d 155, 451 N.E.2d 815, 819-20 (1983); Miles v. Kohli & Kaliher Assoc., Ltd, 917 F.2d at 251 (intervening actor's failure to remedy a dangerous condition was not so patently unforeseeable as to justify the unusual measure of removing the question of proximate cause from consideration of the jury). Accordingly, plaintiffs have failed to establish that they are entitled to summary judgment on their strict liability claims against General Electric. II. McDonnell Douglas Plaintiffs move for summary judgment on their strict liability claims against McDonnell Douglas under the same theory of the case they advanced against General Electric. Plaintiffs contend that McDonnell Douglas manufactured and sold a defective DC-10 because it contained a metallurgically flawed fan disk.[1] Plaintiffs also contend that their claims against McDonnell Douglas are governed by California's strict products liability law. Although McDonnell Douglas does not take issue with plaintiffs' position that California substantive law governs all liability claims against it, the issue of which state's law governs claims of liability against McDonnell Douglas has not yet been formally resolved. Resolution of the choice of law issue again proceeds under the Illinois "most substantial relationship" test outlined in the previous section addressing claims against General Electric. See Ingersoll v. Klein, 46 Ill.2d at 47-48, 262 N.E.2d at 595-96 (1970). The only significant difference in the analysis as it applies to McDonnell Douglas is that the injury-causing conduct occurred in California. No other state has as substantial and *1313 ongoing a relationship to the claims against McDonnell Douglas as California. Accordingly, California law shall govern plaintiffs' liability claims against McDonnell Douglas. In order to establish strict liability under California law against McDonnell Douglas on the basis of a manufacturing defect, plaintiffs must prove: (1) that the product was defectively manufactured; (2) the defect in the product existed at the time the DC-10 left McDonnell Douglas' control; (3) the alleged defect was the proximate cause of injury; and (4) the injury resulted from a foreseeable use of the product. See e.g., Doupnik v. General Motors Corp., 225 Cal.App.3d 849, 859, 275 Cal.Rptr. 715 (1990). As under Ohio law, an actionable defect in the manufacture of a product exists if the product differs from the manufacturer's intended result or if the product differs from apparently identical products from the same manufacturer. Id. California, like Ohio, recognizes certain limits to actions based in strict liability. First, California recognizes the doctrine of intervening causation in strict product liability cases. See e.g., Stevens v. Parke, Davis & Co., 9 Cal.3d 51, 107 Cal.Rptr. 45, 507 P.2d 653 (1973). An intervening cause may cut off a defendant manufacturer's liability for a defective product where a plaintiff's injury is proximately caused by an unforeseeable intervening act. See id., 9 Cal.3d at 69, 107 Cal.Rptr. at 56, 507 P.2d at 664. Plaintiffs contend, with little supporting analysis, that the facts supporting summary judgment on their strict liability claims against General Electric under Ohio law equally favors summary judgment on their strict liability claims against McDonnell Douglas. Given the similarity of the product liability laws of Ohio and California, it is not surprising that plaintiffs' motion with respect to the claims against McDonnell Douglas fail for the same reasons as plaintiffs' claims against General Electric. As noted in the context of addressing the claims against General Electric, plaintiffs' own evidence raises issues of fact regarding the related issues of proximate and intervening causation. For example, plaintiffs' expert, Manuel Raefsky, has testified that the crash was caused by a metal fatigue crack that should have been detected by United Airlines during subsequent inspections of the fan disk. Raefsky Dep. at 142, 151-53. This evidence, at a minimum, creates a strong inference of intervening causation. The foreseeability of a purported intervening cause is a question of fact. Thus, "[i]f there is room for reasonable men to differ as to whether the intervening act was reasonably foreseeable, then the question is properly left to the jury." Id., citing McEvoy v. American Pool Corp., 32 Cal.2d 295, 195 P.2d 783 (1948); Restatement (Second) of Torts § 453, comment e. A second possible limit to plaintiffs' strict product liability claim against McDonnell Douglas is suggested in the seminal California case establishing the concept of strict liability in tort, which plaintiffs cite in support of the present motion. The court in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal. Rptr. 697, 377 P.2d 897 (1963), held that a manufacturer is strictly liable "when an article he places on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to a person." Id. 59 Cal.2d at 62, 27 Cal. Rptr. at 700, 377 P.2d at 900 (1963) (emphasis added). Evidence regarding United's failure to detect a metal fatigue crack thus may take on an even greater significance when viewed against the backdrop of Yuba Power, particularly to the extent that Yuba Power suggests that McDonnell Douglas may be absolved of liability as a matter of law if its DC-10 and fan disk were not to be used unless regularly inspected by their owner. Accordingly, plaintiffs fail to establish that no genuine issues of material fact exist and that they are entitled to judgment as a matter of law with respect to their claims against McDonnell Douglas. CONCLUSION Plaintiffs' motions for partial summary judgment against General Electric and McDonnell Douglas are denied. NOTES [1] Plaintiffs and McDonnell Douglas filed supplemental papers in which they dispute the history of both the ill-fated DC-10 and the metallurgically flawed fan disk. However, the parties do not dispute the critical fact that McDonnell Douglas installed the flawed fan disk in a DC-10 that it then placed in the market.

442 Mich. 127 (1993) 499 N.W.2d 341 PEOPLE v. McCLINE Docket No. 94614. Supreme Court of Michigan. Decided April 16, 1993. Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Carl J. Marlinga, Prosecuting Attorney, Edward L. Graham, Assistant *128 Prosecuting Attorney, and Robert J. Berlin, Chief Appellate Attorney, for the people. PER CURIAM: Early in the defendant's jury trial, before any testimony was taken, a new judge was substituted. The Court of Appeals found the substitution to be reversible error. Because the defendant was not prejudiced by this substitution, his conviction should not have been reversed. We vacate the judgment of the Court of Appeals and remand this case to the Court of Appeals for further consideration of the defendant's remaining issues. I A jury convicted the defendant of delivering more than 650 grams of cocaine.[1] He is serving a life term of imprisonment. This case was originally assigned to Macomb Circuit Judge Frederick D. Balkwill, who presided during the proceedings that took place before trial. Judge Balkwill also conducted the jury selection, which took three days. After the jury had been selected and instructed regarding its duties, Judge Balkwill announced to the jury that the remainder of the case would be heard by retired Macomb Circuit Judge Frank E. Jeannette. The jurors were asked to go upstairs to the courtroom occupied by Judge Jeannette. When the jury had left Judge Balkwill's courtroom, the attorney for a codefendant expressed surprise and asked Judge Balkwill to explain the change. Judge Balkwill responded: The chief judge has indicated that Judge Jeannette has been brought back to handle cases that *129 are over 180 days to permit the regular courts to clear up the dockets, and the chief judge has determined that this case being over 180 days is one of the cases that Judge Jeannette could hear. He's determined, based on the case log, that one judge can pick a jury and another judge can hear the trial. The defendant's attorney then complained of the lack of notice. The objections were joined by counsel for a second codefendant, who asked why the defense attorneys were "the last to know." The defense objections were renewed the following day. Judge Jeannette then presided over the defendant's trial, received the jury's verdict, and imposed the life sentence.[2] The Court of Appeals reversed the defendant's conviction, finding the transfer to have been improper. People v McCline, 197 Mich App 711; 496 NW2d 296 (1992). Judge JANSEN dissented. The prosecutor has applied to this Court for leave to appeal. II In reversing the defendant's conviction, the Court of Appeals relied primarily upon Freeman v United States, 227 F 732, 741-760 (CA 2, 1915), where the Second Circuit characterized "[t]he continuous presence of the same judge" as essential: It is the opinion of this court that in a criminal case trial by jury means trial by a tribunal consisting of at least one judge and twelve jurors, all of whom must remain identical from the beginning to the end. It is not possible for either the government or the accused, or both, to consent to a *130 substitution either of one judge for another judge, or of one juror for another juror. The continuous presence of the same judge and jury is equally essential throughout the whole of the trial. [Freeman, 227 F 759-760.] In the present case, the Court of Appeals acknowledged that "[m]ost cases have refused to apply Freeman to those instances where the substitution has occurred before any evidence was introduced." The panel also noted that, "[m]ost of the more recent cases involving this area of the law seem to agree with the conclusion that substitution of trial judges at the conclusion of voir dire, but before opening arguments or the admission of evidence, requires that the defendant show prejudice to constitute error requiring reversal." 197 Mich App 714-715. Despite the preponderance of contrary authority, the majority reversed because of the possibility of "subtle or intangible prejudice...." Id. at 715. The majority held that reversal is required if a substitution was made after the beginning of voir dire, except as provided in MCR 2.630.[3] Because there was no indication that Judge Balkwill had become disabled, the majority concluded that the defendant was "deprived of his constitutional right to a jury trial...." Id. at 716. *131 In dissent, Judge JANSEN explained the general rule and its recognized exceptions: The general rule is that it is error requiring reversal to substitute a judge to preside over the remainder of a trial in which evidence was adduced while the original judge was presiding. State v McClain, 194 La 605, 613-614; 194 So 563 (1940); Commonwealth v Thompson, 328 Pa 27, 29; 195 A 115 (1937); State v Johnson, 55 Wash 2d 594, 596; 349 P2d 227 (1960). The theory behind the general rule is that the second or substituted judge, not being familiar with the prior testimony or evidence, is not in a position to give the accused a fair and impartial trial as contemplated under the law. McClain, supra at 614. The only judge competent to instruct the jury is the one who heard the testimony, observed the demeanor of the witnesses and had an opportunity to form an opinion with respect to their credibility, and knows something about the "atmosphere" of the case. Thompson, supra at 29. Another judge, without knowledge of such matters taking place during the trial and with no possibility of learning from the record all the attendant circumstances of the trial, is not qualified to properly charge the jury. Id. At other stages of trial, a different rule exists. Id. at 30. In Thompson, an exception to the general rule was recognized for the substitution of a judge occurring during the selection of the jury. Id.; McClain, supra at 614. The examination of jurors during voir dire does not elicit any information that can be used in the trial of the case; rather, such examination is merely for the purpose of securing a competent, fair, and unprejudiced jury. That function can be properly performed by any judge. Thompson, supra at 31; McClain, supra at 614; Johnson, supra at 596. [Id. at 719-720.] *132 In light of the harmless error rule,[4] Judge JANSEN concluded that "in circumstances such as those in the present case, a defendant must establish prejudice by the substitution of one judge for another when the substitution occurs before the opening statements of counsel and the introduction of evidence." Id. at 722. Because Judge Jeannette heard "[t]he entire case, from the opening statements to the rendition of the verdict," Judge JANSEN could see no prejudice to the defendant.[5]Id. at 721. III As the Court of Appeals majority acknowledged, the great weight of authority favors the rule that substitution of a judge before opening argument or the admission of evidence is not an automatic ground for reversal.[6] While "it is not the best practice to have a substitute judge preside over part of an ongoing trial,"[7] "the rule against substitution is designed to insure that the judge who hears the testimony as to the facts also applies the law thereto."[8] We thus agree with the analysis provided by the Washington Supreme Court in State v Johnson, supra at 596: *133 The second assignment of error presents a new question in this jurisdiction. The general rule, as stated by the appellant in his brief, is that a judge may not be substituted to preside over the remainder of a trial after evidence has been adduced before the original judge. The leading case is Commonwealth v Thompson, 328 Pa 27; 195 A 115; 114 ALR 432. As a rule, a judge cannot finish the performance of a duty already entered upon by his predecessor where that duty involves the exercise of judgment and the application of legal knowledge to, and judicial deliberation of, facts known only to the predecessor. Durden v People, 192 Ill 493; 61 NE 317 [1901]; Commonwealth v Thompson, supra; 30 Am Jur 25, § 39. It immediately is apparent that the substitution of a judge after the jury has been sworn but before any evidence has been taken, does not involve this objection. As was said in Commonwealth v Thompson, supra, the examination of jurors under voir dire does not elicit any information that can be used in the trial of the case. Such examination is merely for the purpose of securing a competent, fair, and unprejudiced jury. That function can be performed properly by any judge, but after a jury is selected and sworn, a different situation arises.[[9]] In the present case, the Court of Appeals relied on Freeman, but that 1915 decision is readily distinguishable. Well along in a four-month trial, *134 after the prosecution had introduced the testimony of 106 witnesses and had rested its case, a new judge was substituted. It was in that procedural context that the Second Circuit said that the "continuous presence of the same judge" is essential. It is far preferable that a single judge preside over all aspects of a trial. For the reasons stated above, though, we agree that a substitution following voir dire, and before opening statements or the introduction of proof, is not a ground for automatic reversal.[10] Because the substitution in this case took place before opening argument or the introduction of any testimony, and because the defendant has demonstrated no prejudice, we set aside the judgment of the Court of Appeals. IV In deciding the defendant's appeal, the Court of Appeals found that the trial court had made an erroneous evidentiary ruling. However, the Court of Appeals did not (in light of its holding with regard to the main issue) reach the question whether the error warranted reversal or was harmless. The Court of Appeals also declined to address the defendant's claims regarding his sentence. We therefore vacate the judgment of the Court of Appeals and remand this case to the Court of Appeals for further consideration of the evidentiary issue, and for disposition of the defendant's sentencing issue. MCR 7.302(F)(1). CAVANAGH, C.J., and BRICKLEY, BOYLE, RILEY, GRIFFIN, and MALLETT, JJ., concurred. *135 LEVIN, J. I would grant leave to appeal, and dissent from the peremptory reversal of the Court of Appeals. NOTES [1] MCL 333.7401(1), (2)(a)(i); MSA 14.15(7401)(1), (2)(a)(i). [2] Later, Judge Balkwill entered orders appointing appellate counsel for the defendant. [3] after a verdict is returned or findings of fact and conclusions of law are filed, the judge before whom an action has been tried is unable to perform the duties prescribed by these rules because of death, illness, or other disability, another judge regularly sitting in or assigned to the court in which the action was tried may perform those duties. However, if the substitute judge is not satisfied that he or she can do so, the substitute judge may grant a new trial. [MCR 2.630.] See also MCR 6.440, which concerns death, sickness, or other disability of a judge during a criminal matter, and MCR 8.111(C), which governs reassignments where a judge is disqualified or for other good reason cannot undertake an assigned case. [4] MCR 2.613; MCL 769.26; MSA 28.1096. [5] Judge JANSEN noted defense counsel's statement to Judge Balkwill that he might have handled jury selection differently if he had known that the case would be tried before a different judge. Judge JANSEN said that these concerns do not rise to the level of prejudice or miscarriage of justice sufficient to warrant reversal. [6] People v Rodriguez, 786 P2d 472, 473 (Colo App, 1989), State v Amarillas, 141 Ariz 620, 622; 688 P2d 628 (1984), State v Wallen, 114 Ariz 355, 359; 560 P2d 1262 (Ariz App, 1977), Jones v State, 327 So 2d 913, 914-915 (Ala Crim App, 1975), and Bellah v State, 415 SW2d 418, 420 (Tex Crim App, 1967). [7] Amarillas, n 6 supra. [8] Anno: Substitution of judge in criminal case, 83 ALR2d 1032, 1034. [9] In Johnson, the court further explained: In this case, the state had made its opening statement when the judge was substituted. However, that statement was repeated in the presence of the substitute judge. That statement is not evidence, and it is not contended that the first judge was called upon to make any ruling during the course of the opening statement which affected the later conduct of the trial. Nor, for that matter, is it contended that the appellant was in any way prejudiced by the substitution of judges. The substitution did not offend the general rule relied upon by the appellant, and was not reversible error. [55 Wash 2d 596-597.] [10] As we have observed in the past, rules of automatic reversal are disfavored. People v Mosko, 441 Mich 496, 502; 495 NW2d 534 (1992); People v France, 436 Mich 138, 161; 461 NW2d 621 (1990).

929 A.2d 240 (2007) COM. v. IN INTEREST OF T.F.[11] No. 3252 EDA 2005. Superior Court of Pennsylvania. May 2, 2007. Vacated, Reinstated and Remanded. NOTES [11] Petition for reargument denied June 6, 2007.

United States Court of Appeals, Eleventh Circuit No. 96-8338. Michael WALKER, Plaintiff-Appellee, v. Robert SCHWALBE, individually, and in his official capacity; Darrell Dean, individually and in his former official capacity; Roy Parrish, individually and in his official capacity; David Evans, in his official capacity only, Defendants-Appellants. May 15, 1997. Appeal from the United States District Court for the Northern District of Georgia. (No. 4:92-CV-010-HLM), Harold L. Murphy, Judge. Before BIRCH, Circuit Judge, and RONEY and FARRIS*, Senior Circuit Judges. FARRIS, Senior Circuit Judge: Defendants interlocutorily appeal the district court's holding that they are not entitled to qualified immunity. We have jurisdiction pursuant to 28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (denial of qualified immunity is immediately appealable under the collateral order doctrine). We affirm. BACKGROUND Vista Community Programs provides social services for Walker, Chattooga, Catoosa, and Dade counties in northern Georgia. Vista is funded by the Walker County Board of Health through a contract with the Georgia Department of Human Resources. Michael Walker was hired by Vista in 1982. In 1986 he was promoted to supervise all * Honorable Jerome Farris, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by designation. Vista services for the developmentally disabled. He was responsible for all budgetary issues pertaining to mental retardation programs. Throughout his career he received excellent performance reviews. Darrell Dean was in charge of overseeing Vista as the Department of Human Resources District Health Director. In 1988 he hired Robert Wesley as Vista's Area Director and Tom Nickell as Vista's business manager. Wesley was Walker's superior at Vista. During Wesley and Nickell's tenure, Vista budget information supplied to employees became less accurate. Walker complained to Wesley and Nickell that some budget practices violated Department regulations and prevented Walker from effectively managing the budgets for which he was responsible. After Walker and others voiced these concerns, Wesley and Nickell began to withhold budget information from Vista employees. Walker also expressed concern to Wesley that (1) the garage Vista used to service its vehicles (chosen by Wesley without receiving bids) charged exorbitant prices and was not properly fixing the vehicles, (2) Wesley had directed all employees to have their Vista vehicles cleaned at a business run by Vista employees and their relatives, and (3) employee committees, which met during work hours, conducted fund-raising in the community to raise money allegedly for Vista but instead used the money for weekend social activities. In July 1991 Georgia's governor directed all state agencies to submit budget reduction proposals. Walker learned that Wesley and Nickell had proposed closing Vista's Chattooga County Service Center. Walker urged them to reconsider because he believed the proposed closure was inconsistent with the Department of Human Resources' budget proposal request. The defendants claim that Walker also learned that there was a proposal to cut his position. When Walker's efforts with Wesley and Nickell failed he sought assistance from state legislators. In August 1991 high-level Vista employees Ernest Taylor, Nora Swafford, and Walker met with several state representatives and senators. They discussed Walker's budgetary concerns and a three-page list of "possible improprieties" at Vista. When Walker had knowledge of a particular impropriety he shared that information. He was primarily concerned with budget expenditures, the car wash service, and the car repair service. Walker stated in his deposition that he never feared that Wesley's budget proposal would cost him his job because he believed he was protected by the state merit system policies. The defendants claim that Taylor had prepared the list of improprieties and was the person primarily concerned about the improprieties, that Walker did not know about the list and was only involved to protect his job, and that the legislators already knew of these problems. As a result of the meeting with state legislators, the Department of Human Resources began an investigation of impropriety at Vista. David Nave conducted the investigation, assisted by Robert Schwalbe. In October, Dean (the Department of Human Resources employee who oversaw Vista) informed Vista staff that Wesley and Nickell were being dismissed, that Dean would be assuming the responsibilities of Area Director, and that Schwalbe would be assuming Nickell's former position. Dean delegated responsibility to Schwalbe for most daily administrative activities at Vista. In November 1991 Nave completed the investigative report. It concluded that Vista had been mismanaged, that there had been misconduct and violations of Georgia law, and that Vista administration had shown little regard for Department policy. The report included investigations of several alleged instances of nepotism and concluded that at least one was a clear violation. The investigation and report generated a great deal of media attention in northwest Georgia. Dean ultimately resigned his position at the Department of Human Resources due to the investigation and media attention. Some Walker County Board of Health members were upset that the legislators, not the Board, had been contacted about the improprieties. The Board was also embarrassed about the negative publicity. It considered refusing to renew the county's status as lead funding county for Vista. Members of the Board were aware that Walker was among those who had complained to the legislators. In 1990 and 1991 Walker's wife, Crystal Walker, served as a Vista teacher consultant. Her immediate supervisor was Amanda Boyd, Director of the Walker County Service Center. Walker was Boyd's superior in the Vista mental retardation program. Prior to hiring Mrs. Walker, Walker and Boyd reviewed all available written policies regarding employment of relatives to ensure that it was permitted. Walker suggested that Boyd contact the personnel office regarding the issue. The Georgia Department of Human Resources Administrative Policy and Procedures Manual stated that employment of relatives, which includes spouses, is not precluded, but that relatives shall not be employed in situations in which a direct superior-subordinate relationship would exist. Walker and Boyd concluded that Mrs. Walker could be hired, and agreed that Boyd would be wholly responsible for all supervision, terms, and conditions of her employment. Walker, Wesley, and Dean each signed Mrs. Walker's contract. Defendants have produced documents, which they allege were the applicable policies, that prohibit the employment of any relatives in an employee's entire chain of command. After the release of the investigative report, Schwalbe met with Walker and stated that a member of the Walker County Board of Health had asked Schwalbe to review the Vista contracts with Mrs. Walker. The next day Schwalbe gave Walker a notice of proposed demotion and disciplinary salary reduction. The notice charged that Walker had violated Vista conflict of interest policies by hiring his wife. It also stated that Walker was "negligent and inefficient" for directing a subordinate to obtain approval from Walker's superior for the contract with his wife. Walker pursued a written appeal to Dean on December 16, 1991. Dean upheld the proposed demotion and salary reduction, which amounted to almost $3,200 a year. Schwalbe and Dean each knew that Walker had been one of the employees who had spoken with the legislators. On December 19 Dean informed Walker he would be transferred to another Vista center forty miles from his home. Walker later applied for a promotion to his previous position but was denied without an interview. He subsequently abandoned his career at Vista. Defendants presented evidence that other Vista employees were disciplined for violating anti-nepotism policies. After the meeting with the legislators, Taylor (the Vista employee who had prepared the list of improprieties) was removed from the management team at Vista and placed under the authority of one of his subordinates. After the investigation, Swafford (the third Vista employee who met with the legislators) was removed from the management team at Vista and transferred from the office where she had worked for twelve years. No justifications were given for these actions. Walker filed suit under 42 U.S.C. § 1983 against Schwalbe and Dean for violating his right to First Amendment speech by demoting him in retaliation for his conversation with the legislators. Defendants moved for summary judgment. The district court held that Walker had established a genuine issue of material fact that he was demoted in retaliation for his speech and that the defendants were therefore not entitled to a ruling of qualified immunity prior to trial. The defendants appeal interlocutorily. DISCUSSION QUALIFIED IMMUNITY A. Standard of Review A district court's ruling that an official's conduct violated clearly established law so that the official is not entitled to a ruling of qualified immunity prior to trial is reviewed de novo. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985); Johnson v. Clifton, 74 F.3d 1087, 1090 (11th Cir.), cert. denied sub nom Hill v. Clifton, --- U.S. ----, 117 S.Ct. 51, 136 L.Ed.2d 15 (1996). B. Method of Review A defendant may interlocutorily appeal a district court's holding that he is not entitled to qualified immunity. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985). Where this occurs there are effectively two issues on appeal: (1) whether the district court's holding that a genuine issue exists as to what conduct the official engaged in was correct, and (2) whether the official is entitled to qualified immunity for that conduct. The first issue is factual, the second legal. Johnson v. Jones, --- U.S. ----, ---- - ----, 115 S.Ct. 2151, 2156-59, 132 L.Ed.2d 238 (1995). Where, as here, the defendants contest the district court's legal holding, we may also consider the factual issue because it is part of the core qualified immunity analysis. Johnson v. Clifton, 74 F.3d at 1091. We do so, and "simply take, as given, the facts that the district court assumed when it denied summary judgment for that (purely legal) reason." Id.; see Cooper v. Smith, 89 F.3d 761, 762 (11th Cir.1996) (in most qualified immunity interlocutory appeals the appellate court accepts the facts that the district court assumed). C. Genuine Issue of Material Fact as to Defendants' Conduct We analyze First Amendment retaliatory demotion claims under a four-part test: (1) whether the employee's speech involves a matter of public concern, (2) whether the employee's interest in speaking outweighs the government's legitimate interest in efficient public service; (3) whether the speech played a substantial part in the government's challenged employment decision, and (4) whether the government would have made the same employment decision in the absence of the protected conduct. Beckwith v. City of Daytona Beach Shores, 58 F.3d 1554, 1563-64 (11th Cir.1995) (citing Bryson v. City of Waycross, 888 F.2d 1562, 1565-66 (11th Cir.1989)). First, we examine the content, form, and context of the employee's speech to determine whether it addresses a matter of public concern. Bryson, 888 F.2d at 1565. Viewing the evidence in the light most favorable to Walker, Walker spoke with the legislators because he was concerned with how Vista funds were being spent. "[A] core concern of the first amendment is the protection of the "whistle-blower' attempting to expose government corruption." Id. at 1566. Walker spoke at a meeting with elected public officials about improving the services Vista provides to the public. His speech was on a matter of public concern. Second, Walker had a significant interest in speaking with the legislators in order to prevent harm to the Vista program and the community it serves. Defendants argue they have a significant interest in enforcing the anti-nepotism policy. This is beside the point. The issue is whether the government has an interest in preventing the speech. Whether the government had valid reasons for its actions is only relevant to the third part of the test. Defendants have no legitimate reason for preventing Walker's speech. The second element of the Bryson test is satisfied. Third, an employee's initial burden to demonstrate that a retaliatory intent was a substantial factor behind the government's employment decision is not a heavy one. Beckwith, 58 F.3d at 1565. Walker has produced evidence that Dean had a motive to retaliate against Walker because his speech led to the investigation that led to Dean's resignation. The investigation embarrassed members of the Walker County Board of Health. The Board asked Schwalbe to investigate Mrs. Walker's contract. Schwalbe had a motive to retaliate because he answered to Dean and the Board. There is a genuine issue as to which nepotism policy was in effect when Mrs. Walker was hired. Viewing the evidence in a light most favorable to Walker, he did not violate any applicable policy. Even if the broader anti-nepotism policy was in effect, Walker still received a severe penalty where it appears he did everything he could to make sure he was acting within Vista regulations. In addition, the second of the two reasons given for the demotion, that Walker was "negligent and inefficient" for having a subordinate check with a superior about the proper regulations, is illogical considering the situation. Walker may well have been attempting to make sure that there was no actual impropriety and no appearance of it, but we do not resolve questions of fact. Finally, adverse employment actions were also taken against Taylor and Swafford, the other two Vista employees who met with the legislators. From this evidence a factfinder could reasonably conclude that the people who spoke with the legislators were punished for doing so. Defendants have presented credible evidence that Walker only talked with the legislators out of concern for his own job and that he was only fired for violating the anti-nepotism policy. However, viewed in the light most favorable to Walker, there is a genuine issue of material fact as to whether his speech played a substantial role in his demotion. Walker has satisfied the third element of the Bryson test. Fourth, reasonable inferences from the same evidence also create a genuine issue as to whether the defendants would have taken the same action had Walker not spoken out. The district court properly concluded that the circumstantial and direct evidence produced by Walker satisfied his burden of creating a genuine issue of material fact that he was demoted in retaliation for his speech. D. Qualified Immunity Even though Walker has established a genuine issue of material fact, the defendants may be protected from liability by the doctrine of qualified immunity. Qualified immunity "protects government officials ... from liability if their conduct violates no "clearly established statutory or constitutional rights of which a reasonable person would have known.' " Lassiter v. Alabama A & M University, 28 F.3d 1146, 1149 (11th Cir.1994) (en banc) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). "When considering whether the law applicable to certain facts is clearly established, the facts of cases relied upon as precedent are important. The facts need not be the same as the facts of the immediate case. But they do need to be materially similar." Lassiter, 28 F.3d at 1150 (quoting Adams v. St. Lucie County Sheriff's Dept., 962 F.2d 1563, 1573, 1575 (11th Cir.1992) (Edmonson, J., dissenting), approved en banc, 998 F.2d 923 (11th Cir.1993)). Qualified immunity focuses on the actual, specific details of concrete cases. Lassiter, 28 F.3d at 1149-50. Plaintiffs may not discharge their burden by referring to general rules and abstract rights. Id. at 1150. "Only in the rarest of cases will reasonable government officials truly know that the termination or discipline of a public employee violated "clearly established' federal rights." Hansen v. Soldenwagner, 19 F.3d 573, 576 (11th Cir.1994). Defendants contend that the qualified immunity doctrine requires an objective analysis that does not consider a defendant's state of mind. Therefore, defendants argue, they are entitled to qualified immunity because Walker's violation of the anti-nepotism policy was an objectively valid reason to demote him, and the defendants' subjective, allegedly retaliatory, intent in doing so is irrelevant. See id. at 578 (subjective motivation of officials is irrelevant to whether qualified immunity exists). Defendants are correct that there is generally no subjective component to qualified immunity analysis and that the test is based on objective legal reasonableness. Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987); Lassiter, 28 F.3d at 1150. However, in the cases that held there should not be subjective analysis, the official's state of mind was not an essential element of the underlying constitutional violation. Tompkins v. Vickers, 26 F.3d 603, 607-08 (5th Cir.1994). Where the official's state of mind is an essential element of the underlying violation, the state of mind must be considered in the qualified immunity analysis or a plaintiff would almost never be able to prove that the official was not entitled to qualified immunity. We hold, as every Circuit that has considered this issue has held, that where subjective motive or intent is a critical element of the alleged constitutional violation the intent of the government actor is relevant. See Tompkins, 26 F.3d at 608 (5th Cir.) (subjective intent must be considered in qualified immunity analysis where the official's motive or intent is a critical element of the constitutional violation); Branch v. Tunnell, 937 F.2d 1382 (9th Cir.1991) (same); Siegert v. Gilley, 895 F.2d 797 (D.C.Cir.1990) (same), aff'd on other grounds, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); Pueblo Neighborhood Health Centers v. Losavio, 847 F.2d 642 (10th Cir.1988) (same); Poe v. Haydon, 853 F.2d 418 (6th Cir.1988); Musso v. Hourigan, 836 F.2d 736 (2d Cir.1988) (same); see also Ratliff v. DeKalb County, 62 F.3d 338, 341 (11th Cir.1995) (subjective intent is relevant to qualified immunity analysis if discriminatory intent is a specific element of the constitutional tort). The government official's state of mind is a critical element in First Amendment retaliatory demotion claims. It must be considered in this case. Because Walker has established a genuine issue of material fact as to retaliation, it must be assumed at this stage that the defendants did retaliate against him for his speech. At the time the defendants acted in 1991, clearly established law informed reasonable government officials that Walker could not be punished for his First Amendment speech. See Pickering v. Board of Education of Township High School District 205, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (criticism of Board of Education by employee for its allocation of school funds is a matter of public concern and protected by the First Amendment); Bryson, 888 F.2d at 1566 (1989) (core concern of First Amendment is protection of whistle-blower attempting to expose government corruption). The facts of these cases are materially similar to the instant case. Lassiter, 28 F.3d at 1150. The law against retaliation for exercise of First Amendment rights was clearly established. Defendants argue that denial of qualified immunity here would be equivalent to the court's holding that once an employee has engaged in First Amendment speech he may no longer be punished for valid reasons. This argument misses the point. An employee may still be punished for valid reasons. However, when the employee can establish a genuine issue of material fact that the true reason for the punishment was actually the speech, then the case must go to trial. Defendants spend a substantial portion of their briefs arguing that they are entitled to qualified immunity because there is no clearly established law that a demotion for violation of an anti-nepotism policy violates a person's rights. This argument is inapposite. Walker has established a genuine issue that he was demoted in retaliation for his speech. The qualified immunity analysis is therefore made under the assumption that he was demoted for this reason.  A reasonable Vista official could not have thought that he could retaliate against Walker for exercising his First Amendment speech rights. Further, a reasonable official could not have thought that he could retaliate against Walker for exercising his rights under the guise of the anti-nepotism policy. AFFIRMED. RONEY, Senior Circuit Judge, concurring: I concur. When the defendants first moved for qualified immunity, the district court denied it as untimely. On appeal, a panel of this Court issued a writ of mandamus directing the district court to rule prior to trial on defendants' defense of qualified immunity. The district court responded by deciding that the defendants are not entitled to qualified immunity on this record. It seems to me that we have jurisdiction and the responsibility to decide, prior to trial, whether the district court properly denied that motion. Even if we do not, no harm is done. The trial would continue either way. I understand Judge Farris's opinion as deciding only an issue of law, squarely presented by the motion for qualified immunity, and although evidentiary and factual issues may have been argued on this appeal, the affirmance by this Court does not hinge on a resolution of those factual issues. BIRCH, Circuit Judge, concurring in part and dissenting in part: I agree with the majority's determination that the speech at issue in this case fairly may be characterized as constituting speech on a matter of public concern. I therefore concur in the majority's conclusion that the facts presented, viewed in the light most favorable to the plaintiff, sufficiently establish an underlying First Amendment claim. I believe, however, that we lack jurisdiction to review the remaining—and more fundamental—argument advanced by the defendants on the issue of qualified immunity. For this reason, I respectfully dissent from that portion of the majority's decision discussing and concluding that the defendants are not entitled to qualified immunity with respect to Walker's retaliation claim. The Supreme Court most recently articulated the jurisdictional underpinnings of an interlocutory appeal based on qualified immunity in Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) and Behrens v. Pelletier, --- U.S. ----, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). In Johnson, although the defendants appealed the denial of their summary judgment motion based on the assertion of a qualified immunity defense, the Supreme Court found that they had failed to raise the purely legal question of qualified immunity—that is, whether, viewing the facts in the light most favorable to the plaintiff, the law was clearly established that the defendants violated the plaintiff's constitutional right. Rather, the Court found that the only issue on appeal was whether the record thus far supported the plaintiff's claim that the defendants had engaged in the conduct of which the plaintiff accused them. The district court had found this factual issue to be in dispute. The Court concluded that, although this factual issue arose in the context of qualified immunity, it nonetheless was nothing more than a question of evidentiary sufficiency, "i.e. which facts a party may, or may not, be able to prove at trial," Johnson, --- U.S. at ----, 115 S.Ct. at 2156, and as such was not an appealable, final order. In reaching its decision, the Court noted that " "a qualified immunity ruling ... is ... a legal issue that can be decided with reference only to undisputed facts and in isolation from the remaining issues of the case.' " Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 n. 10, 105 S.Ct. 2806, 2817 n. 10, 86 L.Ed.2d 411 (1985)) (omissions in original). The Supreme Court subsequently clarified Johnson in Behrens v. Pelletier, --- U.S. ----, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). Although Behrens concerned primarily the propriety of multiple interlocutory appeals on the issue of qualified immunity, the Court explained: Johnson held, simply, that determinations of evidentiary sufficiency at summary judgment are not immediately appealable merely because they happen to arise in a qualified-immunity case; if what is at issue in the sufficiency determination is nothing more than whether the evidence could support a finding that particular conduct occurred, the question decided is not truly "separable" from the plaintiff's claim, and hence there is not a "final decision".... Johnson reaffirmed that summary-judgment determinations are appealable when they resolve a dispute concerning an "abstract issue of law" relating to qualified immunity—typically, the issue whether the federal right allegedly infringed was "clearly established." Behrens, --- U.S. at ----, 116 S.Ct. at 842 (citations and brackets omitted). Bearing in mind the language of Johnson, our court has been careful to construe narrowly our jurisdiction over interlocutory appeals involving the qualified immunity question. See, e.g., Johnson v. Clifton, 74 F.3d 1087, 1091 (11th Cir.) ("[T]he factual issue ... can only be heard because it is a necessary part of the core qualified immunity analysis, the resolution of which constitutes a final, collateral order; when the core qualified immunity issue is not appealed, then the factual issue may not be either."), cert. denied, --- U.S. ----, 117 S.Ct. 51, 136 L.Ed.2d 15 (1996); Ratliff v. DeKalb County, 62 F.3d 338, 341 (11th Cir.1995) ("[W]e decline to review the denial of summary judgment on [the] ground ... [that] the district court in considering defendant's motions assumed erroneous facts or assumed facts which were unsupported by the evidence in the record."). The defendants submit that they demoted Walker for violating a state anti-nepotism policy; according to the defendants' version of events, the fact that Walker also may have exercised his rights under the First Amendment (which they dispute) is irrelevant and coincidental. In my view, the defendants do not posit the question of whether, assuming that the defendants did fire Walker for engaging in protected activity, the defendants are entitled nonetheless to qualified immunity; rather, the defendants ask that we assume all facts as the defendants allege them to be and find, on that basis, that their conduct did not violate any clearly established law. I believe that we do have jurisdiction to determine whether the district court's factual findings support the defendants' factual contention that Walker violated a valid anti-nepotism policy in place at the time these events transpired.1 1 It is worth noting that our circuit precedent is not entirely clear regarding the extent to which we may conduct independent factual review of disputed issues of fact in an interlocutory appeal based on qualified immunity. Compare Ratliff v. DeKalb County, 62 F.3d at 341 ("[W]e decline to review the denial of summary judgment on [the] ground ... [that] the district court in considering defendant's motions assumed erroneous facts or assumed facts which were unsupported by the evidence in the record.") with Cottrell v. Caldwell, 85 F.3d 1480, 1486 (11th Cir.1996) ("In exercising our interlocutory review jurisdiction in qualified immunity cases, we are not Moreover, were we to find conclusive evidentiary support for the defendants' version of the facts in this case, our circuit precedent suggests that we could exercise jurisdiction to resolve the question presented by the defendants regarding qualified immunity. This is not the circumstance presented here. The district court found a predicate fact to be in dispute—that is, the court found a question of fact to exist as to what specific state regulation governing VISTA employees was in place at the time Walker acted; we have not found that the district court erred with respect to this finding. I do not believe that the posture of this case as it has been framed by the defendants permits us to "assume" either that Walker did, in fact, violate a state law or that the defendants demoted him solely for asserting his right to free speech. As a result, we cannot evaluate properly the extent to which the application of materially similar facts to the law might have clearly established that the defendants' conduct violated (or did not violate) Walker's constitutional rights. The defendants offer no justification for violating Walker's First Amendment right on the basis that Walker's exercise of that right affected their ability to "promote the efficiency of the public services [the state] performs," Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th Cir.1989), because they contend that they demoted him for an entirely different reason—i.e. the violation of a valid state anti-nepotism policy. Indeed, the defendants do not required to make our own determination of the facts for summary judgment purposes; we have the discretion to accept the district court's findings if they are adequate. But we are not required to accept them") (citations and quotation omitted). argue in this appeal that, viewing the facts in the light most favorable to the plaintiff, they nonetheless are entitled to qualified immunity. Rather, the defendants argue, in essence, that viewing the facts as the defendants allege them to be, they had another legitimate reason for demoting Walker, separate and apart from any First Amendment concerns. Because there is no conclusive support for the defendants version of the facts, the defendants' challenge effectively requires that we decide a factual issue—whether there is conclusive foundation to confirm the defendants' contention that Walker did violate state law—based neither on the record nor the drawing of reasonable inferences based on facts previously found. In my opinion, this type of purely factual decision-making is not the proper subject of an interlocutory appeal based on qualified immunity.2 This is not to say that we may never exercise jurisdiction whenever the underlying intent of a state actor is intertwined with the issue of qualified immunity; indeed, our circuit precedent holds otherwise. See, e.g., McMillian v. Johnson, 88 F.3d 1554, 1566 (8th Cir.1996) ("[W]e have held that intent or motivation may not be ignored when intent or motivation is an essential element of the underlying constitutional tort.... When [defendants'] purpose to punish [the plaintiff] is considered, there is no question that 2 See also Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir.1996) ("[I]nsofar [as] a genuine issue of material fact exists for trial, namely whether Carnell informed the officers that she had been raped, we conclude that we do not have jurisdiction [under Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) ] to address that issue. And the resolution of that disputed issue of fact impacts the question whether reasonable officials could have believed their conduct ... was lawful in light of the circumstances") (citation omitted). their conduct violated clearly established law.") The question of how to reconcile the subjective component of the intent determination often implicated in a discrimination action with the objective nature of qualified immunity was most recently addressed in Foy v. Holston, 94 F.3d 1528 (11th Cir.1996). Foy involved the state's removal of two children from a religious community to foster care. The plaintiffs claimed the state's conduct was motivated by religious discrimination; the state proffered evidence to show that the children were being mistreated. Acknowledging that the discriminatory-intent element "can cloud the question of whether the official acted lawfully or unlawfully in the circumstances," id. at 1534, we held that the defendants nonetheless were entitled to qualified immunity: One trigger to the doctrine's application depends upon whether the record establishes that the defendant, in fact, did possess a substantial lawful motive for acting as he did act. At least when an adequate lawful motive is present, that a discriminatory motive might also exist does not sweep qualified immunity from the field even at the summary judgment stage.... Where the facts assumed for summary judgment purposes in a case involving qualified immunity show mixed motives (lawful and unlawful motivations) and pre-existing law does not dictate that the merits of the case must be decided in plaintiff's favor, the defendant is entitled to immunity. ... [T]he record does show Defendants had, in fact, cause to understand that [a child] was possibly being mistreated. The record also shows Defendants were, in fact, aware of information that would warrant investigation of other children.... .... ... Because, given the circumstances and the state of the law, a reasonable child custody worker could have considered Defendants' conduct arguably proper even if Defendants were motivated in substantial part by unlawful motives, Defendants' conduct was objectively reasonable for the purposes of qualified immunity. Foy, 94 F.3d at 1534-35. In Foy, unlike this case, "the record, in fact, show[ed] substantial lawful intent, while not ruling out some unlawful intent, too." Id. at 1535 n. 9. Moreover, even assuming that the defendants in Foy acted with some discriminatory animus, the law did not clearly establish that a reasonable social worker faced with evidence of child abuse should not act to remove a mistreated child from the abusive environment. These factors critically distinguish Foy from the instant action; here, the record does not show conclusively that the defendants possessed, at 3 least in part, a lawful motive for their conduct. Stated 3 Again, I note that our precedent is ambiguous regarding the correct analytical framework in a qualified-immunity context when intent is an element of the cause of action. Compare McMillian, 88 F.3d 1554, in which the court assumed, for purposes of qualified-immunity analysis, that the defendants possessed an intent to punish the plaintiff, regardless of possible evidence of a lawful motive on the part of the defendants, with Foy, 94 F.3d at 1534-35 ("[W]hen an adequate lawful motive is present, that a discriminatory motive might also exist does not sweep qualified immunity from the field ... Unless it, as a legal matter, is plain under the specific facts and circumstances of the case that the defendants' conduct—despite his having adequate lawful reasons to support the act—was the result of his unlawful motive, the defendant is entitled to immunity."). There are other contexts in which the role of evidence of subjective intent of a state actor complicates the qualified-immunity question. Some courts have found, for instance, that a finding of a genuine issue of fact with respect to a defendant's subjective intent necessarily precludes entitlement to qualified immunity when the claim advanced is deliberate indifference to medical needs under the Eighth Amendment. See, e.g., Weyant v. Okst, 101 F.3d 845, 858 (2nd Cir.1996) ("[W]hether it was reasonable for the officers to believe their actions met the standard set by those principles depends on whether one believes their version of the facts. That version is sharply disputed, and the matter of the officers' qualified immunity therefore cannot be resolved as a matter of law."); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.) (stating as follows: The doctors further argue that Jackson failed to show a genuine issue of material fact as to whether they were deliberately indifferent, in fact, to his medical needs. As to that question differently, because the record does not reveal definitively that Walker violated a valid state anti-nepotism policy at the time the relevant events occurred, it also does not explicitly show that the defendants could have demoted Walker, at least in part, for violating this policy. Indeed, because we cannot discern conclusively at this juncture whether the defendants had some lawful justification for their decision to demote Walker, we do not know whether there exists an application of materially similar facts to law that may or may not have placed the defendants on notice that their conduct violated a clearly established right; in other words, we cannot decide the core qualified immunity question. For this reason, I believe that it is inappropriate to reach the remaining issue raised in this appeal. we lack jurisdiction.... It is a question reviewable after trial. We are instructed by the Supreme Court [in Johnson v. Jones ] that appellate jurisdiction is lacking.... Given the district court's determination that there is a triable issue as to deliberate indifference, the doctors were not entitled to summary judgment on the ground that they could reasonably believe their conduct did not violate clearly-established law. cert. denied, --- U.S. ----, 117 S.Ct. 584, 136 L.Ed.2d 514 (1996) (citations omitted)). The claim of deliberate indifference obviously is not at issue in this case. An examination of this claim does serve to highlight, however, the unsettled state of the law as it pertains to the court's basis for jurisdiction—as well as its analytical approach—in qualified-immunity cases when subjective intent is raised as a disputed predicate question of fact. 

724 N.W.2d 202 (2006) CALBERT v. BRIGGS (ABRAHAMSON, C.J., DISSENTS, ROGGENSACK, J., DID NOT PARTICIPATE) No. 2004AP1294 Supreme Court of Wisconsin September 11, 2006. Petition for Review Denied.

111 F.Supp.2d 865 (2000) Elena LOPEZ v. WAL-MART STORES, INC. et al. No. CIV.A.G-00-393. United States District Court, S.D. Texas, Galveston Division. August 23, 2000. Jim S Adler, Houston, TX, John M O'Quinn, O'Quinn Kerensky et al, Houston, TX, Russell Thomas Lloyd, O'Quinn & Laminack, Houston, TX, for Elena Lopez, plaintiffs. Terri Truitt Griffiths, Mayer Brown & Platt, Diana L Davis, Mayer Brown & Platt, Houston, TX, for Wal-Mart Stores, Inc., a Delaware Corporation, Sams Club, an operating segment of Wal-Mart Stores, Inc., Sam's East Inc, Joe Cabrerra, Andy Flores, defendants. ORDER GRANTING PLAINTIFF'S MOTION TO REMAND KENT, District Judge. Plaintiff Elena Lopez, a former employee of Defendant Wal-Mart Stores, Inc., originally filed suit in the 23rd Judicial District Court of Brazoria County, Texas, seeking, among other things, unspecified statutory penalties for the alleged failure to comply with applicable wage laws and *866 damages for allegedly unpaid wages. Asserting the existence of federal question jurisdiction, Defendants timely removed to this Court on July 10, 2000. Now before the Court is Plaintiff's Motion To Remand, filed July 27, 2000. For reasons set forth in more detail below, Plaintiff's Motion is GRANTED. Removal of FLSA Actions "Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of the which the district courts have original jurisdiction, may be removed by the defendant or defendants..." 28 U.S.C. § 1441(a)(emphasis added). The propriety of removal is governed by the "well-pleaded complaint rule," which looks to the plaintiff's complaint to determine whether the pleading raises issues of federal law sufficient to support federal question jurisdiction. See Giles v. NYLCare Health Plans, Inc., 172 F.3d 332, 336 (5th Cir. 1999). However, it is well settled that a court is not bound by the labels Plaintiff uses to describe his cause of action. Instead, under the "artful pleading doctrine", the court is bound to look beyond the labels and examine the substance of the complaint to determine if it states a claim which arises under federal law. See In Re Carter, 618 F.2d 1093, 1101 (5th Cir.1980) ("[T]he accepted rule in this circuit is that upon removal the removal court should inspect the complaint carefully to determine whether a federal claim is necessarily presented, even if the plaintiff has couched his pleading exclusively in terms of state law."); Amoco Chem. Co. v. Tex Tin Corp., 902 F.Supp. 730 (S.D.Tex.1995). Defendants contend that Plaintiffs have inadvertently pleaded a claim under federal law. For example, Defendants argue that Plaintiffs prayer for "statutory penalties" invokes relief which is only available under federal law, specifically the federal Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. (the "FLSA"). Plaintiff responds by arguing that the relief prayed for is available under Texas state law, and thus the face of the Complaint does not reveal the existence of federal question jurisdiction. For purposes of ruling on Plaintiff's Motion To Remand, the Court will assume that Defendants are correct: Plaintiff has prayed for relief which is only available under the FLSA. Unfortunately for Defendants, this assumption does not automatically make Plaintiff's claims removable, because the removal statute provides that certain actions are removable "[e]xcept as otherwise expressly provided by Act of Congress..." 28 U.S.C. § 1441(a)(emphasis added). The relevant portion of the FLSA provides that an action for an FLSA violation "may be maintained ...in any Federal or State court of competent jurisdiction..." 29 U.S.C. § 216(b)(emphasis added). "The word `maintain' arguably carries the connotation that an action may not only be commenced but also carried on to conclusion." Haun v. Retail Credit Co., 420 F.Supp. 859, 862 (W.D.Pa.1976). But if the word "maintain" is understood as giving the Plaintiff a right to both institute a suit in state court, and also carry that suit to its conclusion, then § 216(b) of the FLSA constitutes the sort of express bar to removal contemplated by 28 U.S.C. § 1441(a). For more than fifty years, the federal courts have been divided on the question of whether the presence of the word "maintain" in the FLSA precludes the removal of such suits. Cases rejecting removal include: Johnson v. Butler Bros., 162 F.2d 87 (8th Cir.1947); Esquivel v. St. Andrews Constr., 999 F.Supp. 863 (N.D.Tex.1998); Pauly v. Eagle Point Software Co., Inc., 958 F.Supp. 437 (N.D.Iowa 1997); Bintrim v. Bruce-Merilees Elec. Co., 520 F.Supp. 1026 (W.D.Pa. 1981); Haun, 420 F.Supp. at 859; Carter v. Hill and Hill Truck Line, Inc., 259 F.Supp. 429 (S.D.Tex.1966) and Wilkins v. *867 Renault Southwest, Inc., 227 F.Supp. 647 (N.D.Tex.1964). Other decisions permit removal of an FLSA claim. See Cosme Nieves v. Deshler, 786 F.2d 445 (1st Cir.1986); Winebarger v. Logan Aluminum, Inc., 839 F.Supp. 17 (W.D.Ky.1993), and Ramos v. H.E. Butt Grocery Co., 632 F.Supp. 342 (S.D.Tex. 1986). The Fifth Circuit, while recognizing this split of authority, has expressly declined to rule on the question of whether the word "maintain" precludes removal of an FLSA action. See Baldwin v. Sears, Roebuck, 667 F.2d 458, 461 (5th Cir.1982) ("The question of removability of FLSA actions is not before us, and we do not attempt to address that issue."). Because there is no binding Supreme Court or Fifth Circuit on this point, the Court is free to decide the issue. It appears to the Court that the better reasoned line of authority is that which reads the word "maintain" as precluding removal. The word "maintain" plainly implies that a plaintiff is given a right to not only institute a suit in state court, but to keep it there until a final judgment is rendered, despite defendant's desire to remove it to a federal court. "Maintain...is usually applied to actions already brought, but not yet reduced to judgment. In this connection it means to continue or preserve in or with; to carry on." BLACK'S LAW DICTIONARY 953 (6th ed.1990); see also Esquivel, 999 F.Supp. at 864. If Congress merely meant that a plaintiff may institute a suit in state court, there is far more apt language available to express that intention. See, e.g., 15 U.S.C. §§ 1681-1681t (providing that an action under the Fair Credit Reporting Act "may be brought" in a district court or other court of competent jurisdiction.); Esquivel, 999 F.Supp. at 865. The Court concludes that even if Defendants are correct that the face of Plaintiff's Complaint reveals the existence of federal question jurisdiction, Plaintiff's disguised FLSA claims are not removable. Consequently, Plaintiff's Motion To Remand is GRANTED, and this action is hereby REMANDED to the 23rd Judicial District Court of Brazoria County, Texas. All Orders and Injunctions relating to discovery and preservation of evidence REMAIN IN FORCE, and the Court retains PLENARY JURISDICTION to enforce these Orders, until such time as they are altered by a competent court of record upon remand. The parties are ORDERED to file no further motions on these issues in this Court, including motions to reconsider or the like. Any and all further relief shall be sought from the appropriate Texas state court. The parties are also ORDERED to bear their own taxable costs and expenses incurred herein to date. IT IS SO ORDERED.

977 P.2d 890 (1999) 132 Idaho 628 STATE of Idaho, Plaintiff-Respondent, v. Terry L. THOMPSON, Defendant-Appellant. No. 23801. Supreme Court of Idaho, Boise, October 1998 Term. April 6, 1999. *891 Wiebe & Fouser, P.A., Canyon County Public Defenders; Thomas A. Sullivan, Deputy Public Defender, Caldwell, for appellant. Thomas A. Sullivan argued. Hon. Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued. SCHROEDER, Justice. Terry L. Thompson appeals from the judgments of conviction for sexual battery of a minor and assault and appeals from the sentence for sexual battery of a minor entered against him in the district court. I. BACKGROUND AND PRIOR PROCEEDINGS Thompson was charged under section 18-1508A of the Idaho Code (I.C.), sexual battery of a minor child sixteen or seventeen years of age, because he had allegedly touched a 16-year-old girl's breasts with his hand and mouth and was at least five years older than the girl. The indictment also charged him with aggravated assault under I.C. §§ 18-901(b) and 18-905(a) because he had allegedly threatened the girl with a knife. The district court ordered a psychological evaluation of Thompson pursuant to stipulation of the parties to determine whether Thompson was competent to stand trial. Based on the psychological report, the district court found that Thompson was competent to stand trial. Thompson's attorney called him to testify at the trial. Prior to Thompson taking the stand, the trial court granted the State's motion to allow cross-examination regarding a prior felony conviction, limiting the examination to the fact of the conviction. The court prohibited reference to the nature of the prior conviction—i.e., lewd and lascivious conduct. Later in the trial, Thompson moved for admission of his written psychological evaluation. The State stipulated to the admission. Thereafter, during cross-examination of Thompson's ex-wife, the State requested a ruling on whether it would be allowed to cross-examine her regarding the reasons for her divorce from Thompson, assuming the reason to be Thompson's prior felony conviction *892 for lewd conduct he engaged in with their daughter. The court initially refused, ruling that the prior conduct was too remote. The State responded that the prior bad act evidence was already in evidence in the psychological report. Thompson moved to strike that portion of the report which referred to his history of sexual abuse, the prior conviction and sentence. The trial court denied the motion. Thompson then moved to withdraw the report from evidence. The court also denied this motion, and the State was allowed to inquire why Thompson and his ex-wife had divorced. She testified that he was having an affair with a 21-year-old woman. Near the conclusion of the case, the trial judge asked the parties if they had objections to the proposed jury instructions. Thompson inquired about instructions on lesser included offenses. After the instructions on that subject were called to his attention, Thompson replied that the instructions were "satisfactory." The jury returned verdicts of guilty to the charge of sexual battery of a minor and assault. The trial court sentenced Thompson to a unified 35 years with 15 years fixed for the sexual battery of a minor. Thompson appeals the convictions and the sentence for sexual battery. He contends that the trial court erred in the following respects: (1) by ruling that if he testified in his own defense, the State could elicit on cross-examination the fact that he had a prior felony conviction, (2) by refusing to strike prejudicial and inadmissible evidence from the psychological report and by refusing to withdraw the report, (3) by allowing his ex-wife to testify as to the reasons she divorced him, and (4) by failing to instruct the jury on the lesser included offense of sexual abuse of a minor. Thompson argues that the cumulative effect of the above errors deprived him of a fair trial. II. THE TRIAL COURT PROPERLY ADMITTED EVIDENCE OF THOMPSON'S PRIOR CONVICTION ON THE ISSUE OF CREDIBILITY. Thompson argues that his prior felony conviction for lewd and lascivious conduct under I.C. § 18-1508A should not have been introduced to impeach his credibility at trial. Rule 609, of the Idaho Rules of Evidence (I.R.E.), provides, in pertinent part: (a) General rule. For the purposes of attacking the credibility of a witness, evidence of the fact that the witness has been convicted of a felony and the nature of the felony shall be admitted if elicited from the witness or established by public record, but only if the court determines in a hearing outside the presence of the jury that the fact of the prior conviction or the nature of the prior conviction, or both, are relevant to the credibility of the witness and that the probative value of admitting this evidence outweighs its prejudicial effect to the party offering the witness. I.R.E. 609(a). Under this rule the trial court must apply a two-prong test to determine whether evidence of the prior conviction should be admitted: (1) the court must determine whether the fact or nature of the conviction is relevant to the witness' credibility; and (2) if so, the court must determine whether the probative value of the evidence outweighs its prejudicial impact. State v. Bush, 131 Idaho 22, 30, 951 P.2d 1249, 1257 (1997). In reviewing the trial court's decision as to the first prong concerning relevance, the standard of review is de novo. Id. (citing State v. Raudebaugh, 124 Idaho 758, 766, 864 P.2d 596, 604 (1993)). In reviewing the trial court's decision as to the second prong concerning whether the probative value of the evidence outweighs its prejudicial impact, the standard of review is abuse of discretion. Id. at 31, 951 P.2d at 1258. When reviewing an exercise of discretion on appeal, this Court conducts the following inquiry: (1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the court acted within the outer bounds of such discretion and consistently with legal standards applicable to specific choices; and (3) whether the court reached its decision by an exercise of reason. Id. (citing State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989)). *893 A. First Prong—Relevance In State v. Ybarra, 102 Idaho 573, 634 P.2d 435 (1981), the Court recognized that "`different felonies have different degrees of probative value on the issue of credibility,'" id. at 580, 634 P.2d at 442 (quoting People v. Rollo, 20 Cal.3d 109, 141 Cal.Rptr. 177, 569 P.2d 771, 775 (1977)), and identified three categories of felonies to determine whether a prior conviction could be used for impeachment. Category one involves crimes such as perjury which are "intimately connected" with the issue of credibility. Id. Category two involves crimes such as robbery or burglary which are "somewhat less relevant" to the issue of credibility. Id. Finally, category three involves "`[a]cts of violence ... [which] generally have little or no direct bearing on honesty and veracity.'" Id. at 581, 634 P.2d at 443 (quoting Rollo, 141 Cal.Rptr. 177, 569 P.2d at 775). With regard to category two crimes, the Ybarra court noted: "On the other hand robbery, larceny, and burglary, while not showing a propensity to falsify, do disclose a disregard for the rights of others which might reasonably be expected to express itself in giving false testimony whenever it would be to the advantage of the witness. If the witness had no compunction against stealing another's property or taking it away from him by physical threat or force, it is hard to see why he would hesitate to obtain an advantage for himself or friend in a trial by giving false testimony. Furthermore, such criminal acts, although evidenced by a single conviction, may represent such a marked break from sanctioned conduct that it affords a reasonable basis of future prediction upon credibility ...." Id. (quoting Ladd, Credibility Test—Current Trends, 89 U. PA. L. REV. 166, 180 (1940)). In Bush this Court held that evidence of a prior Wyoming conviction for immoral acts with a child could be introduced for impeachment purposes under I.R.E. 609. 131 Idaho at 31, 951 P.2d at 1258. The Court stated that "[t]he determination whether evidence of a particular felony conviction is relevant to credibility depends on the particular facts and circumstances of each case and must therefore be decided on a case-by-case basis." Id. One of the important facts to consider, the Court noted, was the definition of the particular crime. Id. In concluding that Bush's Wyoming conviction was relevant to the issue of credibility, the Court stated: A sex crime against a minor does not specifically relate to honesty or veracity as does the crime of perjury, and therefore, does not fall within the first category described in Ybarra. Further, the sex crime involved here is not defined in Wyoming law as a violent felony, and therefore does not fall within the third category described in Ybarra. Thus, we conclude that under the specific facts of this case, the Wyoming crime falls within the middle category described in Ybarra, i.e., a crime which, while not directly showing a propensity to falsify, does disclose a disregard for the rights of others which one might reasonably expect to express itself in giving false testimony if such would be advantageous to the witness. Since Bush had no compunction against engaging in immoral acts with a minor, there is no reason to believe that he would hesitate to gain an advantage for himself in this case by giving false testimony. Committing an immoral act with a minor is the type of "marked break from sanctioned conduct that [ ... ] affords a reasonable basis" for predicting credibility. Id. (quoting Ybarra, 102 Idaho at 581, 634 P.2d at 443). Thompson argues that because his previous conviction of sexual battery, I.C. § 18-1508, is defined as a "crime of violence" by the legislature in I.C. § 19-5307, his prior conviction falls under Ybarra's category three crimes which have little or no direct bearing on honesty and veracity. Idaho Code § 19-5307 enumerates I.C. § 18-1508 (dealing with lewd conduct with a minor child under sixteen) under the heading of "Fines in cases of crimes of violence." Section 19-5307 lists a number of crimes and sets forth the provisions for imposing fines which operate as a civil judgment. The question is whether this legislative classification moves Thompson's prior felony conviction into a category three crime under Ybarra as an "act of violence" which has little or no direct bearing on honesty or veracity. The Court believes it does not. It is clear that the legislature was not attempting to classify crimes for evidentiary *894 purposes in § 19-5307. The legislature was addressing the unrelated issue of fines and the enforcement of those fines as civil judgments. Should the legislature's classification of § 18-1508 as a crime of violence be controlling, an anomaly would arise that the admissibility of a prior conviction for impeachment purposes could turn on the state in which the act occurred. The Wyoming and Nevada statutes considered in Bush and State v. Muraco, 132 Idaho 130, 968 P.2d 225 (1998), were essentially the same as I.C. § 18-1508. This Court has approved the use of the convictions under the Wyoming and Nevada statutes for impeachment. Bush, 131 Idaho at 31, 951 P.2d at 1258; Muraco, 132 Idaho at 132-33, 968 P.2d at 227-28.[1] To say that the Idaho conviction for the same type of conduct could not be used because of I.C. § 19-5307 would lead to an inconsistent result that would not have a rational basis. The Court must look at the nature of the charge for evidentiary purposes, not the unrelated legislative classification dealing with fines and their enforcement. Thompson also argues that an act only falls under I.C. § 18-1508 if it is committed with the intent of gratifying lust, passions, or sexual desires and is, by definition, a crime of passion. Consequently, Thompson maintains that his prior conviction under this statute falls under category three and should not have been admitted. The Nevada statute analyzed by this Court in Muraco also criminalized certain conduct which was committed with "the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of that child." NEV.REV.STAT. § 201.230 (1987). As previously noted, this Court held that evidence of the defendant's prior conviction for lewdness under the Nevada statute was admissible for impeachment purposes under I.R.E. 609. Muraco, 132 Idaho at 133, 968 P.2d at 228. The Nevada statute considered in Muraco, the Wyoming statute considered in Bush and the Idaho statute considered in this case all criminalize similar conduct. Consistent with Bush and Muraco, the Court affirms the trial court's conclusion that Thompson's prior conviction under I.C. § 18-1508A was relevant for impeachment purposes under I.R.E. 609. B. Second Prong—Probative Value Thompson claims that the trial court erred by only engaging in the requisite balancing of probative value versus prejudicial impact with regard to the nature of his prior conviction, not with regard to the fact of his prior conviction. Idaho Rule of Evidence 609 allows evidence of a prior conviction only if the fact of the conviction or the nature of the conviction, or both, are relevant and if the probative value outweighs its prejudicial effect. I.R.E. 609(a). The trial court commented with regard to the admissibility of Thompson's prior conviction under I.R.E. 609 as follows: [COURT]: ... Counsel has brought to the Court's attention that the defendant may take the stand but he would like to have an evidentiary ruling before he makes that decision. The evidentiary ruling is regarding his prior criminal record. Counsel for the defendant, Mr. Swafford, has informed the Court that the defendant has a prior felony conviction for lewd and lascivious conduct. The Court finds that that type of conviction does go to the believability, credibility of a witness. Lewd and lascivious conduct is a type of crime that is deceitful and it would have some probative value under Idaho Rule of Evidence ... [609] to credibility. The trial court read I.R.E. 609 verbatim and discussed the time limitations set forth under the rule. The court concluded that Thompson's prior conviction fell within the ten-year time limitation and then addressed the State's request to question Thompson about the nature of his prior conviction: COURT: Under 609 the Court does find involved in this case—and since the credibility of the witness is questioned by the examination as well as this Court observing her demeanor while on the stand I feel that the probative value of the lewd and lascivious conduct, nothing more being said *895 to the jury than that, that it would not add to the attack for a felony conviction and its prejudicial value far outweighs any of its probative value with regard to the lewd and lascivious conduct action because even though he's not charged with a lewd and lascivious conduct criminal offense in this particular case, the only reason he is not is because the alleged victim was not under 16 years of age. So the Court will allow if you take the stand, Mr. Thompson, will allow the State to ask if you've been convicted of a felony offense. I've already instructed the jury that if they hear that they can take that and apply that to the credibility. That's whether they would believe you or not. The Court would rule that the nature of the offense, lewd and lascivious conduct, does not add sufficiently enough to the attack of your credibility to outweigh the prejudicial value, so— (Court is reviewing.) COURT: Indicates that are relevant to his credibility and that the probative value of admitting this evidence outweighs its prejudicial effect to the party offering the witness. And the Court finds that the probative value does not—or I should say does not outweigh the prejudicial effect so the Court's not allowing the nature of the offense. Thompson did not request any further clarification of the trial judge's analysis after the judge asked the parties if they would like him to restate his findings. In State v. Rodgers, 119 Idaho 1066, 812 P.2d 1227 (Ct.App.1990), the Court of Appeals affirmed the result and analysis employed by the district court when weighing the probative value of the defendant's prior conviction against its prejudicial impact. The district court in Rodgers considered several factors: (1) the impeachment value of the prior crime, (2) the remoteness of the prior conviction, (3) the witness' criminal history, (4) the similarity between the past crime and the crime charged, (5) the importance of the witness' testimony, (6) the centrality of the credibility issue, and (7) the nature and extent of the witness' criminal record as a whole. Id. at 1073, 812 P.2d at 1234. The district court concluded that the prior conviction was relevant to the defendant's credibility and that its probative value outweighed the prejudicial effect. The court, therefore, allowed evidence of the fact of the conviction, but to minimize prejudice it did not allow evidence of the nature of the offense. The Court of Appeals held that the district court had not abused its discretion. This Court concurred in the "analysis and disposition" of this issue in its review of the Court of Appeals decision. State v. Rodgers, 119 Idaho 1047, 1052, 812 P.2d 1208, 1213 (1991). The trial court in the present case considered many of the same factors considered in Rodgers, including the impeachment value of the prior crime, the remoteness of the prior conviction, the similarity between the past crime and the crime charged, and the centrality of the credibility issue. The trial court recognized that the issue of credibility was particularly central in this case because the evidence consisted of basically the victim's word against Thompson's word. To minimize prejudice the trial court initially ruled that evidence of the nature of Thompson's prior conviction should not be admitted into evidence. The trial court properly applied the two-prong test in determining whether to admit evidence of Thompson's prior conviction. III. THE TRIAL COURT ERRED BY REFUSING TO STRIKE PREJUDICIAL AND INADMISSIBLE EVIDENCE FROM THE PSYCHOLOGICAL REPORT AND BY REFUSING TO WITHDRAW THE REPORT. Thompson moved for the admission of the psychological report which had been prepared for the purpose of determining whether he was competent to stand trial. The report was admitted by stipulation as Defendant's Exhibit A. Thereafter Thompson moved to strike a portion of the report and finally to withdraw the report altogether, when the prosecutor proposed to cross-examine defendant's ex-wife on the cause of their divorce. When Thompson objected, the prosecutor pointed out that the report contained the information that was anticipated in *896 Thompson's ex-wife's testimony, including information about Thompson's prior sexual history and conviction. The language in the psychological report which Thompson moved to strike read: Mr. Thompson also has a history of sexual abuse. He indicated that his daughter reported that he sexually abused her. Mr. Thompson completed the Rider Program in Cottonwood, probation and treatment as a sex offender through the SANE program. According to Mr. Thompson, he did not sexually abuse his daughter. He said that she turned him in because he was pursuing a sexual interest with her friends. The trial court denied the motion to strike and the request to withdraw the report. Thompson claims the trial court erred by refusing to strike the prejudicial and inadmissible evidence from the report and by refusing to withdraw the report. A threshold question is whether this issue has been properly preserved for appellate review. "The general rule in Idaho is that an appellate court will not consider an alleged error on appeal in the absence of a timely objection to that alleged error at trial." State v. Stevens, 126 Idaho 822, 824, 892 P.2d 889, 891 (1995). "[O]rdinarily an objection comes too late for the purpose of review on appeal, if made for the first time after the jury has retired or the cause has been submitted to them, or after the close of the arguments, or on motion for new trial or otherwise, after the verdict has been rendered." Hayward v. Yost, 72 Idaho 415, 424, 242 P.2d 971, 976 (1952). Thompson's objection came before the report was published to the jury, before the close of arguments, and before the case had been submitted to the jury. The objection was properly preserved for appellate review. Ordinarily, appellate courts review trial court decisions admitting or excluding evidence under the abuse of discretion standard. Morris ex rel. Morris v. Thomson, 130 Idaho 138, 144, 937 P.2d 1212, 1218 (1997). There are no Idaho cases which specifically address the standard of review with regard to a trial court's ruling on a motion to withdraw evidence. The State relies on State v. Gray, 129 Idaho 784, 932 P.2d 907 (Ct.App.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 81, 139 L.Ed.2d 39 (1997), for the proposition that when Thompson agreed to the admission of the report, he effectively waived any objection to its admissibility. The Court of Appeals in Gray, however, held that agreeing to the admission of evidence which had previously been deemed inadmissible is a waiver of any prior objection. Id. at 794, 932 at 917. The Gray court did not address whether agreeing to the admission of evidence constituted a waiver of any subsequent objection which is the situation in the present case. Gray is not instructive. The State relies on out-of-state authority for the proposition that a motion to strike previously admitted evidence "will be allowed only in cases where the ground of objection was unknown and could not have been known with ordinary diligence at the time the evidence was received." Jones v. Spidle, 446 Pa. 103, 286 A.2d 366, 368 (1971) (emphasis omitted). See also Murphy v. Waldrip, 692 S.W.2d 584, 589 (Tex.Ct.App.1985) (before motion to withdraw evidence is granted, moving party must make a showing why there was no objection made at the time the evidence was admitted). These rules, however, have not been adopted in Idaho. The general rule recognized in Idaho is that the trial court has sole discretion in deciding whether to admit or exclude evidence. This discretion, however, is not unlimited. The trial court must exercise reason in making its decision. The trial court based its denial of Thompson's motion to strike or withdraw the report on the fact that Thompson's counsel had previously stipulated to admission of the report, and the fact that Thompson had already testified that (1) he had been previously convicted, (2) he had mental problems, (3) he had been treated at the state hospital in Blackfoot, and (4) he was currently being treated at the VA Hospital. The trial court stated: [W]e got a lot of stuff that's not relevant that was introduced by the defendant and I'm not going to go back and now just cross away things that the defendant *897 brought into the courtroom and not give the State an opportunity to clarify or explain those things. He indicated he had been convicted, he was sent to Blackfoot, he's had mental problems and the State stipulated for a psychological evaluation, so you're not going to pick and choose portions of it and not bring in other portions. We also now have Department of Health and Welfare records that were stipulated admitted and we have no proof of authenticity now. In response to Thompson's request to redact only a specific portion of the report relating to the nature of his prior conviction, the following conversation took place: COURT: Well, if the defendant had not mentioned himself all of these different matters the Court might have ruled differently. I already did rule that I was not going to get into the nature of the offense. ... MR. SWAFFORD: Well, your Honor, I would suggest that Mr. Thompson never mentioned anything about SANE, Cottonwood, et cetera. COURT: Well, he did when you stipulated to admit Exhibit A. It's a psychological evaluation. MR. SWAFFORD: Yes, your Honor. However, that would be far more prejudicial than probative of anything. I mean it would prove nothing about this offense. COURT: Well, I think it has a lot to do with this offense. I think it has a lot to do with Mr. Thompson taking the stand and testifying that he was in jail, he's been in jail, taking the stand and testifying that he has been in Blackfoot, that he's been convicted of a felony and he was sent to Blackfoot for it. MR. SWAFFORD: That paragraph there contains nothing about Blackfoot or jail. .... COURT: Well, I'm not undoing what you've already done. You already admitted and stipulated to admit Exhibit A and all these matters are already in here. They were brought in by the defendant himself, not necessarily the defendant's attorney. The defendant's attorney did not ask him to inform the jury of all of these other offenses. As I recall the question was "Have you been convicted of a felony" and then he went on about eight or nine years ago ... and then he went to a mental hospital in Blackfoot and on and on and on, so the Court's not undoing what's already been presented to the jury. A factor to be considered when determining a request to redact information or to withdraw an exhibit is whether prejudice would result to the other party; that is, has the opposing party relied on admission of the evidence? For example, has the opposing party foregone calling a witness or failed to have available documents in reliance on the evidence being admitted? The trial court did not address this question. In fact, the State concedes that there would have been no prejudice in withdrawing the exhibit. There was no detrimental reliance on the admission of the report. The trial court's failure to consider prejudice was inconsistent with applicable legal standards. A basis for the trial court's refusal to strike portions of the report or allow its withdrawal was that Thompson had opened the door to the evidence by his own testimony. However, contrary to the trial court's conclusion, Thompson's previous testimony did not open the door for admission of this evidence. The fact that Thompson testified that he was presently in jail, that he had been previously convicted of a felony, and that he had been treated for his mental problems at Blackfoot and was now being treated at the VA Hospital for his mental problems, did not suggest that his prior conviction was for lewd and lascivious conduct with his 15-year-old daughter or that he had "completed the Rider Program at Cottonwood, probation and treatment as a sex offender through the SANE program." Nothing in Thompson's testimony or the testimony received from the other witnesses suggested that Thompson had a "history of sexual abuse." Finally, by acknowledging the fact of his prior conviction directly rather than wait for the prosecutor to impeach him, Thompson did not waive his objection to evidence of his prior conviction. State v. Allen, 113 Idaho 676, 677-78, 747 P.2d 85, 86-87 (Ct.App.1987). The trial court failed to apply the proper legal standard when it denied the motion to strike and the request to withdraw the report. *898 The next question is whether the error in refusing to strike portions of the report or allow withdrawal of the report was harmless. An error may be deemed harmless if it does not affect a substantial right of the accused. I.C.R. 52. The determination of whether a substantial right has been affected hinges on whether it appears from the record that the error contributed to the verdict. An error is harmless if, and only if, the appellate court is able to say, beyond a reasonable doubt, that the jury would have reached the same result absent the error. State v. Brazzell, 118 Idaho 431, 435, 797 P.2d 139, 143 (Ct.App.1990) (citing State v. Boehner, 114 Idaho 311, 315, 756 P.2d 1075, 1079 (Ct.App.1988)). See also State v. Medrano, 123 Idaho 114, 120, 844 P.2d 1364, 1370 (Ct.App.1992); I.R.E. 103 (no error in the admission or exclusion of evidence unless it prejudices a substantial right of the defendant). The Court cannot conclude that the error was harmless. The error did prejudice a substantial right of the defendant. The trial court had expressly recognized that the prejudice of allowing evidence of the nature of Thompson's prior conviction outweighed any probative value considering the fact that the nature of the prior offense and the offense presently charged were very similar. The only witnesses for the State were a police officer and the victim, and the trial court determined the credibility of the alleged victim was "questionable." The alleged victim had previously made false allegations of sexual abuse against other persons. Thompson testified at trial and denied the victim's allegations of sexual battery. The Court cannot conclude beyond a reasonable doubt that Thompson would have been convicted without introduction of the objectionable language in the report. IV. THE TRIAL COURT ERRED BY ALLOWING KAREN THOMPSON TO TESTIFY AS TO THE REASONS SHE DIVORCED THOMPSON. The trial court allowed Karen Thompson (Karen) to testify on cross-examination why she divorced Thompson—because he was having an affair with a 21-year-old woman. The trial court indicated that because she testified that she was formerly married to Thompson, this testimony was within the scope of direct examination. However, the substantive testimony on direct was limited to the issue of the alleged victim's advance planning of making a tape of her conversation with Thompson and her prior accusations against other men. The State claims that Thompson failed to object to the State's inquiry of Karen concerning the reason she divorced Thompson. However, Thompson did make a timely objection, both at the time the State first requested a side-bar with the court to discuss whether the State could cross-examine Karen as to the reasons for her divorce from Thompson and immediately after the State asked Karen if she had divorced Thompson. The State's purpose for eliciting Karen's testimony as to the reason she divorced Thompson was to show motive under I.R.E. 404(b). The State assumed Karen would testify that the reason she divorced Thompson was because he was convicted for engaging in lewd and lascivious conduct with their 15-year-old daughter. The State also argued that because evidence of the fact that Thompson had been previously convicted for engaging in lewd conduct with his daughter was already in evidence through the psychological report, the State should be allowed to pursue its line of questioning regarding why Karen divorced Thompson. The trial court allowed the State to ask Karen why she divorced Thompson because it apparently believed evidence of the reason why she divorced Thompson was already in evidence. As noted, this evidence from the psychological report should not have remained in the record. The answer Karen gave in response to the prosecutor's question introduced additional evidence that was not admissible beyond what was in the report. V. CONCLUSION The trial court abused its discretion when it refused to strike evidence of the nature of Thompson's prior conviction from the psychological *899 report, or allow withdrawal of the report, and when it allowed the State to cross-examine Karen Thompson as to the reason she divorced Thompson. The Court is unable to conclude beyond a reasonable doubt that Thompson would have been convicted despite the trial court's error. The judgments of conviction and sentence are vacated, and the case is remanded for a new trial. It is not necessary to address the other issues raised on appeal. Chief Justice TROUT and Justices SILAK and WALTERS, CONCUR. Justice Pro Tem JOHNSON, CONCURRING IN PART AND DISSENTING IN PART. I concur in all of the Court's opinion except part II (The Trial Court Properly Admitted Evidence of Thompson's Prior Conviction on the Issue of Credibility), from which I respectfully dissent. In my view, the I.C. § 19-5307 characterization is important. Otherwise, I make no sense out of the analysis of the statutes in the other states in Bush and Muraco. Also, in my view, the trial court did not engage in any weighing of the "fact" of the prior conviction, only its "nature." When stripped of its nature, as the trial court did, I think the trial court then needed to weigh the probative value against the prejudicial effect concerning the fact of conviction. As I read the record, the trial court did not do so. NOTES [1] In Muraco, the Court reserved the question of how it would treat "the characterization of a felony conviction for a similar crime in Idaho." 132 Idaho at 133, 968 P.2d at 228. It is now necessary to address that question because of I.C. § 19-5307.

618 F.2d 111 McClainv.Pyne 79-1786 UNITED STATES COURT OF APPEALS Seventh Circuit 2/1/80 1 N.D.Ind. DISMISSED

101 Ariz. 561 (1967) 422 P.2d 125 STATE of Arizona, Appellee, v. Robert O'Dell FOWLER, Appellant. No. 1602. Supreme Court of Arizona. In Banc. January 4, 1967. Darrell F. Smith, Atty. Gen., Gary K. Nelson, Asst. Atty. Gen., for appellee. H.B. Daniels, Phoenix, for appellant. BERNSTEIN, Chief Justice. Defendant appeals from a conviction in the Superior Court of Maricopa County of first degree murder within the meaning of A.R.S. § 13-452. He has been sentenced to life imprisonment. For a number of years the defendant, although unmarried, had been living with one Miss Birdie McCoy Miller. On July 15, 1964 the defendant while sitting in Eastlake Park in the City of Phoenix, observed one Willie Lee Smith, with whom he had had previous "run-ins", heading toward a home where Birdie Miller was visiting. With suspicions aroused, the defendant left the park, obtained a revolver, and went to the home. Upon entering the bedroom of the residence the defendant encountered Smith engaged in an act of sexual intercourse with Birdie Miller. Testimony as to what occurred next is conflicting. It is the defendant's claim that he was attacked by Smith and that following a scuffle defendant drew his revolver and shot him. The dying man then fled from the home only to be tackled at the front of the house by a neighbor. It was at this point, at the front yard gate, that police were later to find a *562 knife, an item which has special significance on this appeal. The defendant at trial contended that the killing was justified on the grounds of self-defense. He based this contention on the reputation the victim allegedly had for carrying a knife (claiming that he was generally regarded as a "knifer"), testifying at trial that it was a resultant fear of bodily injury that caused him to shoot the decedent. No evidence that decedent was carrying a knife at the time of the shooting was presented at trial, a fact which the prosecution brought to the attention of the jury. It was not until after the trial and the conviction that defendant's counsel learned that the police had discovered a knife at the home and that it had remained in their custody in the police property room. Upon learning of the knife, the defendant filed in the trial court a motion for a new trial on the grounds that, one, new and material evidence had been discovered, and two, that the prosecuting attorney was guilty of misconduct in failure to produce the knife at trial. The trial court took the motions under advisement and subsequently denied a new trial. Rule 310 of the Arizona Rules of Criminal Procedure, 17 A.R.S. provides that if new and material evidence is discovered, which, if introduced at trial would probably have changed the verdict or the finding of the court, and the defendant could not with reasonable diligence have discovered and produced it upon the trial, the court shall grant a new trial. In the case of State v. Love, 77 Ariz. 46, 266 P.2d 1079, this court said it is largely in the discretion of the trial court as to whether a new trial on the ground of newly discovered evidence shall be granted and its action in overruling such motion will not be reversed unless an abuse of discretion manifestly appears. We have no quarrel with this appellate principle, and if it were not for the peculiar circumstances indicating a suppression of the fact that a knife had been found near the scene of the crime, we would not quarrel with the over-all discretion exercised by the trial court judge. Article 2, § 4 of the Constitution of Arizona, A.R.S. and Amendment XIV to the Federal Constitution provide that no person shall be deprived of his life or liberty without due process of law. By decision of the United States Supreme Court, due process is violated if the prosecution suppresses evidence favorable to an accused who has requested it where the evidence is material either to his guilt or to his punishment. Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. In the Brady case the defendant had participated in a robbery with another, during which a man was killed. Prior to trial, the defendant requested an examination of the extrajudicial statements made by his companion. Several of the statements were shown to him but the one in which the companion admitted to having committed the actual killing was not revealed until after the defendant had been tried and convicted. The United States Supreme Court affirmed the Maryland Court of Appeals holding that suppression of the above evidence denied defendant due process of law.[1] There has been some debate following the Brady decision, supra, concerning the limits of its holding. See Suppression of Evidence Favorable to an Accused, 34 F.R.D. 87; The Constitutional Disclosure Duty and the Jencks Act, 40 St. John's Law Review 206; 60 Columbia L.Rev. 858 (1960); 74 Yale L.Rev. 136. Some critics seem to feel that the Brady case should be limited to a pronouncement on "discovery" rights or read in close conjunction with the federal Jencks Act which entitles the accused in a federal prosecution to all previous statements made by a government witness relating to the subject matter of the witness' trial testimony, while others feel that it is strictly related to the duty of the prosecution to disclose material evidence. *563 Cases subsequent to Brady, supra, however recognize a broad duty on the part of the prosecution to disclose evidence favorable to the defendant. In the case of United States ex rel. Meers v. Wilkins, 326 F.2d 135 (2nd Circuit, 1964) the facts differed from Brady in that the defense counsel had made no request for the material, though undisclosed, evidence, but the court held that such request "is not a sine qua non to establish a duty on the prosecution's part." The court held that the prosecution was duty bound to disclose to a robbery defendant the existence of two disinterested eyewitnesses who would have testified that the prisoner had not participated in the robbery, and that failure to do so denied the prisoner a fair trial. In Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842 (4th Circuit, 1964) the Fourth Circuit Court of Appeals held that a defendant had likewise been denied due process of law when the prosecution failed to reveal the results of ballistic and fingerprint tests which tended to show that defendant's revolver, which had been introduced for identification purposes only, was not the one used to shoot a policeman, an act with which defendant had been charged. A number of state courts also have accepted in various forms the proposition that the prosecutor is under a duty to make disclosure of evidence in his possession which relates to the charges being brought against the defendant and that a conviction cannot stand when the prosecutor has either wilfully or negligently withheld material evidence favorable to the defendant. State v. Thompson, Mo., 396 S.W.2d 697; People v. Yamin, 45 Misc.2d 407, 257 N.Y.S.2d 11; Newton v. State, Fla.App., 178 So.2d 341; McMullen v. Maxwell, 3 Ohio St.2d 160, 209 N.E.2d 449. In the present case we are faced with the question of whether the failure of the state to reveal the relevant physical evidence found at the scene of the crime constituted a denial of due process. That many courts have recently found that the state has an obligation to disclose certain types of evidence certainly seems just when the duties of the prosecution are considered in their proper perspective. Both prosecutors and the police, as public officers acting on behalf of the state, are sworn to uphold the law and are duty bound to protect the rights of the innocent as well as to prosecute the guilty. Their primary duty is not to convict, but to see that justice is done. Canon 5, Canons of Professional Ethics. A prosecutor who fails to reveal evidence that clearly would aid the accused's defense would seem to have lost sight of his proper objective. Should his failure be a deliberate attempt to employ defendant's unknowingness to the prosecution's own advantage, his actions would become particularly reprehensible. Indeed, if the prosecutor in the instant case had learned of the knife in the police's custody, his following argument in summation before the jury would make him deserving of such reprehension: "You will recall that great effort was made to indicate the bad character of Willie Lee Smith. He is referred to as a knife carrier. Was there any evidence of the knife on Willie?" As was said in Curran v. State of Delaware, 3 Cir., 259 F.2d 707, 711, "* * * [T]he trial of a capital case, or indeed any other trial, no longer can be considered properly a game of wits and skill." A man faced with the possible prospects of losing his life or being subjected to an extended prison term should not be denied, at the whim of the state, evidence which may be vital to his defense. A defendant's right to a fair trial must not be regarded lightly. In State v. Wallace, 83 Ariz. 220, 319 P.2d 529, we said that when a man is charged with a homicide, the accused has a right to support his defense with all the circumstances of the occurrence. It would be wrong now for this court to permit public officers to stand in the way of the exercise of this right. The arguments in this case against finding a duty of disclosure are not convincing. The state justifies its action in *564 not revealing the knife by concluding that there was insufficient foundation to make it admissible as evidence. The reasons for so concluding were, one, that there was conflicting evidence as to the exact location where the knife was found, and two, several neighbors who were interrogated by the police were unable to identify the knife or its owner. Under the circumstances, however, we can hardly say that the sufficiency of the knife's foundation for evidence purposes was a matter for the prosecution's unilateral determination. In Griffin v. United States, 87 U.S.App.D.C. 172, 183 F.2d 990 dealing with facts strikingly similar to those of the present case, the court said: "* * * [T]he case emphasizes the necessity of disclosure by the prosecution of evidence that may reasonably be considered admissible and useful to the defense. When there is substantial room for doubt, the prosecution is not to decide for the court what is admissible or for the defense what is useful." 183 F.2d at pp. 992-93. Along the same line is the case of Ashley v. State of Texas, 319 F.2d 80 (5th Circuit 1963) where the court held that the prosecution's failure to reveal a state psychiatrist's report was not justified by the fact that the evidence might be inadmissible because in the form of an opinion. In passing the court said, "it is not the nature or the weight to be accorded to an opinion, but the fact that such an opinion had been formed." It is the defense's task to lay the foundation for evidence that it wishes to introduce at trial and it is the duty of the court to rule on the sufficiency of this offer. It is not for the prosecution to prevent or to perform either of these functions. It is not an answer that the defense attorney never requested the evidence. United States ex rel. Meers v. Wilkins, supra; Barbee v. Warden, Maryland Penitentiary, supra. While it may be true that other defense counsel might have learned about the finding of the knife, this is too speculative a conclusion under the circumstances to be given precedence over an accused's right to a fair trial. See United States ex rel. Thompson v. Dye, 221 F.2d 763 (3rd Circuit, 1955). Here the knife was discovered within a short time after the shooting when, in all probability, the defense counsel had not yet been contacted. A neighbor apparently was present when the knife was found by the police but there seems to be no good reason why the defense counsel under the facts of this case would have had any reason to believe that an interview of all the neighbors would add anything to his defense. We find that under the circumstances it was error for the prosecution to conceal the knife in question and as a result hold that the defendant was deprived of the fundamental fairness to which an accused is entitled. The knife being evience both material and relevant to the defendant's assertion that he acted in self-defense, should have been made available for the jury's consideration. As Judge Hastie in his concurring opinion in United States ex rel. Thompson v. Dye, supra. said: "It seems likely that many situations will arise in which a prosecutor can fairly keep to himself his knowledge of available testimony which he views as mistaken or false. But there are other circumstances in which a prosecutor must, or certainly should know that even testimony which he honestly disbelieves is of a type or from a source which in all probability would make it very persuasive to a fair minded jury." 221 F.2d at p. 769. We conclude that the special circumstances outlined above are present in this case and that defendant should have been granted a new trial. Judgment reversed and remanded. STRUCKMEYER, UDALL and LOCKWOOD, JJ., and McFARLAND, V.C.J., concur. NOTES [1] Regarding the matter of punishment rather than guilt, as the evidence had no relevance to guilt under the Maryland felony-murder rule.

979 F.2d 856 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.TRUSTEES OF THE ELECTRICAL WORKERS HEALTH AND WELFARE TRUST;Trustees of the Electrical Workers Pension Trust,Plaintiffs-Appellants,v.MARJO CORPORATION, d/b/a Desert Valley Electric, A Nevadacorporation, Grant General Contractors, Inc., a Californiacorporation; Paragon Construction, Inc., A Nevadacorporation; Weyher Bros. Co.; Tibesar Construction Co., aNevada corporation, and Doe Corporations and Doe Individuals1 through 5, Defendamts-Appellees.TRUSTEES OF THE ELECTRICAL WORKERS HEALTH AND WELFARE TRUST,et al., Plaintiffs-Appellants,v.MARJO CORPORATION, d/b/a Desert Valley Electric, a Nevadacorporation, et al., Defendants-Appellees.TRUSTEES OF THE ELECTRICAL WORKERS HEALTH AND WELFARE TRUST;Trustees of the Electrical Workers Pension Trust; Trusteesof the National Electrical Industry Fund; Members of theJoint Apprenticeship Training Committee; National EmployeesBenefit Board; Trustees of the Electrical Workers VacationSavings Plan Trust, Plaintiffs-Appellants,v.MARJO CORPORATION, d/b/a Desert Valley Electric, a NevadaCorporation; Grant General Contractors, Inc., a Californiacorporation; Paragon Construction, Inc., a Nevadacorporation; Tibesar Construction Co., a Nevadacorporation, and Doe Corporations and Doe Individuals 1through 5, Defendants-Appellees. Nos. 91-16150, 91-16581 and 91-16610. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 6, 1992.Decided Nov. 16, 1992.Redesignated an Authored OpinionMarch 16, 1993. 1 THE COURT HAS WITHDRAWN THIS OPINION. SEE 988 F.2d 865.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 09a0522n.06 No. 08-5715 FILED Jul 28, 2009 LEONARD GREEN, Clerk UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE MIDDLE ) DISTRICT OF TENNESSEE ANDRE THOMAS SAWYERS, ) ) OPINION Defendant-Appellant. ) _______________________________________) Before: MOORE and ROGERS, Circuit Judges; THAPAR,* District Judge. KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Andre Sawyers (“Sawyers”) appeals his below-guidelines sentence of 246 months of imprisonment, resulting from a conviction for one count of possession with intent to distribute five or more grams of cocaine base and one count of possessing firearms as a convicted felon. Sawyers was originally sentenced on April 7, 2003, to 262 months of imprisonment, but we vacated this sentence and remanded to the district court for resentencing in light of the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). The district court resentenced Sawyers on May 13, 2008. In the instant appeal, Sawyers claims that his new sentence is substantively unreasonable. For the reasons discussed below, we AFFIRM Sawyers’s sentence. * The Honorable Amul R. Thapar, United States District Judge for the Eastern District of Kentucky, sitting by designation.  I. FACTS AND PROCEDURE The facts of this case are not in dispute. In 2003, Sawyers was convicted of one court of possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) (Count One), and one count of being a felon in possession of firearms in violation of 18 U.S.C §§ 922(g)(1) and 924(a)(2) (Count Three). The district court sentenced Sawyers to 262 months of imprisonment for Count One and 120 months of imprisonment for Count Three, to be served concurrently. Sawyers appealed his sentence, we affirmed, and the Supreme Court denied Sawyers’s petition for a writ of certiorari. On May 21, 2005, Sawyers filed a 28 U.S.C. § 2255 motion asking the district court to vacate, set aside, or correct his sentence, which the district court denied. Sawyers appealed and, while that appeal was pending, we granted an unopposed motion to remand for resentencing in light of United States v. Booker. During resentencing, the parties and the court were provided a PSR that noted that Sawyers was a career offender and that he (1) was enrolled in several education classes; (2) had completed two six-week drug education classes and was enrolled in two more such classes; (3) had no disciplinary or incident reports while in prison; and (4) had paid his $200 special assessment. In response to the PSR, Sawyers filed both a sentencing memorandum and a supplemental sentencing memorandum. Neither memorandum asserted that the PSR miscalculated the guidelines range, or that Sawyers was not a career offender. In fact, Sawyers conceded that “[t]he new retroactive ‘crack cocaine amendment’ to the guidelines effectively has no applicability to Mr. Sawyers’ Guidelines range as Mr. Sawyers[] is a career offender under the Guidelines.” Record on Appeal (“ROA”) at 27 (Sawyers’s Sent. Mem. at 5). Sawyers did argue that the district court should vary downward from the guidelines range to time served (approximately 61 months at the time of the resentencing 2 hearing) because Sawyers (1) was convicted of possessing only a small amount of drugs; (2) was an addict who sold drugs primarily to support his habit; (3) was now 49 years old; (4) had two daughters and a stepdaughter who support him; (5) had only one prior drug conviction from twelve years before the instant offense; (6) has significant health problems, including hypertension, non-insulin- dependent diabetes mellitus, degenerative joint disease, hepatitis C, and obesity; and (7) had paid his special assignment and was participating in drug abuse and educational programs while incarcerated. Sawyers further contended that the district court should vary downward because “his career offender status overstates his true criminal history,” ROA at 27-28 (Sawyers’s Sent. Mem. at 5-6), and that, at the very least, his sentence should be reduced by sixteen months because the Bureau of Prisons improperly denied Sawyers credit for his pretrial detention. The district court resentenced Sawyers to 246 months of imprisonment.1 In so doing, the district court concluded that Sawyers was a career offender and was thus subject to an offense level of 34, a criminal history category of VI, and a guidelines range of 262 to 327 months of imprisonment. The district court also listed the 18 U.S.C. § 3553(a) factors, noted that it was aware of the advisory nature of the guidelines, and explained its rationale for sentencing Sawyers to 246 months: In terms of the Section 3553(a) factors of what a sentence is sufficient but not greater than necessary, . . . the defendant emphasizes his current age of 49, his poor health, relatively small amount of drug quantity, his efforts to better himself in prison and his good conduct in prison. And asks for essentially a time served sentence of 61 months. ... 1 Sawyers was also sentenced to four years of supervised release, several special conditions, and assigned a $200 special assessment. Sawyers does not challenge these aspects of his sentence. 3  The view of the Court is that this case is not just about what’s been characterized as ten grams of cocaine and 25 grams of marijuana and two guns. It is also about Mr. Sawyers’ criminal history which contrary to the way it has been characterized on his behalf, the Court views this very serious[ly]. Not just that he is in Criminal History Category VI because of career offender status, but the nature of the convictions: 1993, voluntary manslaughter conviction where Mr. Sawyers killed Nathaniel Newsom, and a 1993 reckless endangerment with a weapon conviction where he shot a man in the head and the groin area. Those are the types of crimes that the career offender status is meant to cover and, in the opinion of the Court, outweigh the mitigating factors in 3553 that I went over earlier about health and age and conduct in prison, efforts to better himself. And the Court also finds that a 61 months sentence of time served is not adequate to reflect the seriousness of the crime, [given] Mr. Sawyers’ criminal history. Having said that, I think that it is appropriate to reduce Mr. Sawyers’ sentence in part from the advisory guideline range. I recognize the advisory guideline range is not binding. And I am relying on the factor in 3553(a) dealing with the nature and circumstances of the offense and the history and characteristics of Mr. Sawyers dealing with the failure of the Bureau of Prisons to give him credit for time served. ... So the bottom line is the Court has considered the advisory guideline range which in its current status is 262 months. Mr. Bruno has represented that essentially Mr. Sawyers has not gotten credit for 16 months custody. That hasn’t been challenged as inaccurate. Subtract 16 months from the bottom of the guideline range of 262 months, you get 246 months sentence. Mr. Sawyers, I believe that’s the sentence that’s sufficient but not greater than necessary in this case. Record (“R.”) at 106 (Resent. Hr’g Tr. at 23-26) (emphases added). The district court then asked the parties if they had any objections, to which Sawyers’s counsel responded that he thought that “the 246 months sentence is greater than necessary in this particular case” and that “the Court [did not give] any weight to the mitigating factors related to Mr. 4 Sawyers and his family and his behavior since he’s been incarcerated.” R. at 106 (Resent. Hr’g Tr. at 29-30). The district court responded that the view of the Court is that the career offender status doesn’t overstate Mr. Sawyers’ criminal history but reflects what the career offender statute is meant to get at. Mr. Sawyers has a very violent history. In terms of giving weight to things such as health and age and family ties, I have considered it and simply believe it is outweighed. We have disagreement about that. R. at 106 (Resent. Hr’g Tr. at 30) (emphases added). Sawyers timely appealed. II. ANALYSIS On appeal, Sawyers’s only contention is that “the District Court erred when it failed to give any weight to the numerous mitigating 18 U.S.C. § 3553(a) factors that were presented to the District Court” in Sawyers’s sentencing memoranda. Sawyers Br. at 9. Sawyers’s argument is completely meritless, and we therefore affirm Sawyers’s sentence. “We review sentences imposed by the district court for reasonableness.” United States v. Walls, 546 F.3d 728, 736 (6th Cir. 2008). Our review of reasonableness encompasses both a procedural and a substantive component. See Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 597 (2007). We must “first ensure that the district court committed no significant procedural error.” United States v. Presley, 547 F.3d 625, 629 (6th Cir. 2008) (internal quotation marks omitted). “Assuming that the district court’s sentencing decision is procedurally sound, [this] court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Gall, 128 S. Ct. at 597. Sawyers makes no arguments regarding the procedural reasonableness of his sentence; thus, we will review Sawyers’s sentence only for substantive reasonableness. 5  “‘A sentence is substantively unreasonable if the district court select[s] the sentence arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider pertinent § 3553(a) factors or giv[es] an unreasonable amount of weight to any pertinent factor.’” Walls, 546 F.3d at 736 (quoting United States v. Caver, 470 F.3d 220, 248 (6th Cir. 2006)) (alterations in Caver). Even though we have chosen to afford a rebuttable appellate presumption of substantive reasonableness to a within-guidelines sentence, United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc), sentences outside the guidelines range are not presumptively unreasonable, see Rita v. United States, 551 U.S. 338, 127 S. Ct. 2456, 2467 (2007) (“The fact that we permit courts of appeals to adopt a presumption of reasonableness does not mean that courts may adopt a presumption of unreasonableness.”). Sawyers’s contention that his sentence is unreasonable because the district court did not accord any weight to the mitigating factors Sawyers detailed in his sentencing memorandum is belied by the record. Review of the sentencing transcript reveals that the district court considered all of Sawyers’s mitigating factors, but nonetheless concluded that these factors were outweighed by Sawyers’s criminal history. Indeed, when confronted with the same argument that Sawyers makes in this appeal, the district court stressed that it simply did not agree with Sawyers’s assessment of his criminal history or the weight to be accorded Sawyers’s other mitigating factors: “[T]he view of the Court is that the career offender status doesn’t overstate Mr. Sawyers’ criminal history but reflects what the career offender statute is meant to get at. . . . In terms of giving weight to things such as health and age and family ties, I have considered it and simply believe it is outweighed.” R. at 106 (Resent. Hr’g Tr. at 30) (emphases added). Thus, it is simply not true that the district court failed to give Sawyers’s mitigating factors any weight, but rather, the district court did not give these 6 factors the amount of weight that Sawyers felt they deserved. So long as the district court considered all of the required mitigating factors and did not accord any one factor an unreasonable amount of weight, the district court did not abuse its sentencing discretion. See Walls, 546 F.3d at 736; Presley, 547 F.3d at 631. Moreover, the district court completely reviewed the § 3553(a) factors, explained why it imposed a below-guidelines sentence, and did not consider any impermissible sentencing factors. Thus, we cannot say that the district court “select[ed] the sentence arbitrarily, bas[ed] the sentence on impermissible factors, fail[ed] to consider pertinent § 3553(a) factors or g[ave] an unreasonable amount of weight to any pertinent factor”; therefore, we cannot conclude that Sawyers’s sentence is substantively unreasonable. Walls, 546 F.3d at 736 (internal quotation marks omitted); see also United States v. Young, 553 F.3d 1035, 1056 (6th Cir. 2009) (holding that, for a within-guidelines sentence, because the district court specifically considered the mitigating evidence of a defendant and “enumerated the specific evidence and the § 3553(a) factors that led it to believe that the sentence[] it imposed w[as] appropriate,” the sentence was not substantively unreasonable). For all of these reasons, we affirm Sawyers’s sentence. III. CONCLUSION Because the district court did consider and weigh all of the proper mitigating factors before imposing a below-guidelines sentence, and thus did not abuse its discretion, we hold that Sawyers’s sentence is substantively reasonable and AFFIRM the sentence. 7 

Cite as 2014 Ark. 413 SUPREME COURT OF ARKANSAS No. CR-13-1067 JEREMY CLAY THOMPSON Opinion Delivered OCTOBER 9, 2014 APPELLANT APPEAL FROM THE SALINE COUNTY CIRCUIT COURT V. [NO. 63CR-12-442A-3] STATE OF ARKANSAS HONORABLE GRISHAM PHILLIPS, APPELLEE JUDGE REVERSED AND DISMISSED. DONALD L. CORBIN, Associate Justice Appellant Jeremy Clay Thompson appeals the order of the Saline County Circuit Court convicting him of the offense of failure to appear, a Class C felony, and sentencing him to a term of imprisonment of seven years. On appeal, he argues that the circuit court erred in denying his motion for a directed verdict because there was insufficient evidence to support his conviction because he had not yet been charged with a crime when he failed to appear. We accepted certification of this case from the Arkansas Court of Appeals because it involves an issue of first impression and an issue needing clarification of the law; hence, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(b)(1) and (5) (2014). We reverse and dismiss. Appellant was arrested on August 21, 2012, for the felony offense of theft of property. He was arrested pursuant to a warrant issued by the Saline County Circuit Court on  Cite as 2014 Ark. 413 August 17, 2012.1 Appellant signed an “Appearance Agreement” on August 22, 2012, agreeing to appear in the Saline County District Court on September 4, 2012, at 1:00 p.m. and agreeing to pay an unsecured cash bond of $2,500, which required him to pay $250 that day. This agreement was signed by Appellant and the Saline County sheriff. Appellant did not appear in district court that day as required, and the Saline County district judge issued an arrest warrant for Appellant on the theft charge and a failure-to-appear charge. The State subsequently filed a felony information on September 26, 2012, alleging that Appellant committed the offenses of theft of property, a Class D felony, failure to appear, a Class C felony, and was a habitual offender. After Appellant was arrested again, he appeared before a district judge and was released by order of the district court pursuant to a “Pre-Trial Release Order,” entered on November 21, 2012. Pursuant to this order, Appellant was required to post a $15,000 sheriff’s bond and was to appear in district court on December 11, 2012. This order also advised Appellant that a violation of the order could “result in sanctions including arrest, imposition of additional costs and/or revocation of Defendant’s release.” Appellant again appeared in district court on the required date. Thereafter, on December 13, 2012, the district court entered an appearance order stating that Appellant had been informed of the pending charges, had waived a formal reading, had entered a plea of not 1 At the bottom of this arrest warrant there is a “Return of Service” that was to be completed by the sheriff or deputy sheriff upon Appellant’s arrest and includes a blank to fill in the amount of bail ordered, as well as a blank for the signature of a judge. This was all left blank on Appellant’s arrest warrant. 2  Cite as 2014 Ark. 413 guilty, and had been ordered to appear in the Saline County Circuit Court on December 17, 2012. A jury trial was held on June 5, 2013, at which time the State nol-prossed the theft- of-property charge. Following the presentation of the State’s evidence, Appellant moved for a directed verdict. In so doing, Appellant argued that the State failed to meet its burden of proof because at the time of the alleged failure to appear, Appellant had not been formally charged with a criminal offense. The circuit court denied the motion. Appellant renewed his directed-verdict motion at the close of all the evidence, but the circuit court again denied it. Prior to the court instructing the jury, Appellant proffered a nonmodel jury instruction setting forth the offense of failure to appear, which included an element that a formal charge was pending at the time Appellant failed to appear. The circuit court declined to give this instruction. The jury found Appellant guilty and sentenced him as a habitual offender to a term of seven years’ imprisonment. This appeal followed. Appellant’s sole point on appeal is that the circuit court erred in denying his motion for a directed verdict because he could not be convicted of the offense of felony failure to appear when he had not yet been charged with any criminal offense. The State counters that the circuit court properly denied Appellant’s motion because, even assuming that there must be a felony charge pending at the time Appellant failed to appear, the theft-of-property charge 3  Cite as 2014 Ark. 413 was pending in the sense that there was a pending offense awaiting the filing of formal charges.2 On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. See Laswell v. State, 2012 Ark. 201, 404 S.W.3d 818. In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. See id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. See id. When a defendant challenges the sufficiency of the evidence that led to a conviction, the evidence is viewed in the light most favorable to the State. See Sullivan v. State, 2012 Ark. 74, 386 S.W.3d 507. The issue in this appeal turns on the language found in the failure-to-appear statute, codified at Arkansas Code Annotated section 5-54-120. The version of the statute, which is applicable in this case, provided as follows: (a) A person commits the offense of failure to appear if he or she fails to appear without reasonable excuse subsequent to having been: .... (2) Lawfully set at liberty upon condition that he or she appear at a specified time, place, and court. 2 We disagree with the State’s assertion that Appellant’s argument is not preserved for our review because “the jury was not instructed to consider the pendency of the theft charge as an element of failure to appear.” The issue of which instructions were given is irrelevant to a review of a directed-verdict motion, because that motion is decided by the circuit court before the case is submitted to a jury. 4  Cite as 2014 Ark. 413 (b) Failure to appear is a Class C felony if the required appearance was in regard to a pending charge or disposition of a felony charge either before or after a determination of guilt of the charge. Ark. Code Ann. § 5-54-120(a)(2), (b) (Supp. 2011). Clearly, under section 5-54-120(b), the offense of failure to appear can only be a Class C felony if the required appearance was “in regard to a pending charge or disposition of a felony charge either before or after a determination of guilt of the charge.” Appellant asserts that the word “pending” as used in section 5-54-120(b) necessarily contemplates that a charge has already been filed against an accused. The State counters that such an interpretation defies basic rules of statutory construction. This court reviews issues of statutory interpretation de novo, as it is for this court to decide the meaning of a statute. See Newman v. State, 2011 Ark. 112, 380 S.W.3d 395. We construe criminal statutes strictly, resolving any doubts in favor of the defendant. See id. We also adhere to the basic rule of statutory construction, which is to give effect to the intent of the legislature. See id. We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language, and if the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. See id. Under these rules, we must first look to the plain language of the statute and only then, if the language is ambiguous, do we resort to the rules of statutory interpretation. In Webster’s New World Dictionary 998 (3d College ed. 1988), the word “pending” in its adjective form is defined as “not decided, determined, or established.” The definition uses the example “a 5  Cite as 2014 Ark. 413 pending lawsuit” to illustrate the word’s meaning. Similarly, Black’s Law Dictionary defines “pending” in its adjective form as “[r]emaining undecided; awaiting decision.” Black’s Law Dictionary 1248 (9th ed. 2009). Under these two definitions, it is clear that a “pending charge,” as used in section 5-54-120(b), means a charge that has been filed but not yet adjudicated. The State acknowledges the aforementioned definitions but argues that “pending” as defined in Black’s is also “commonly understood to refer to events—such as the filing of formal charges—after a case has been initiated by arrest.” See Black’s Law Dictionary 1248 (9th ed. 2009). But, the State fails to acknowledge the fact that its preferred definition of “pending” applies when the word is used as a preposition, such as “pending the filing of charges.” The word “pending” as used in section 5-54-120(b) is used as an adjective to modify the word “charge.” Moreover, we do not agree that interpreting “pending” to mean a charge that has already been filed would render the rest of the language in section 5-54- 120(b) superfluous. The remainder of that provision, “disposition of a felony charge either before or after a determination of guilt of the charge,” simply specifies that an accused must appear at proceedings when there is going to be a disposition of a felony charge, whether it be a trial, dismissal, or other adjudication of a felony charge (before a determination of guilt) or sentencing (after a determination of guilt). Accordingly, the circuit court erred in denying 6  Cite as 2014 Ark. 413 Appellant’s motion for a directed verdict because there was not sufficient evidence supporting his conviction.3 We therefore reverse and dismiss his conviction and sentence. Reversed and dismissed. BAKER and GOODSON, JJ., concur. COURTNEY HUDSON GOODSON, Justice, concurring. I agree that the evidence was insufficient to support the conviction in this case because the State failed to prove that Thompson had a pending charge against him; however, I write to clarify that a “pending charge” is not an element of the offense of failure to appear. Rather, the State was required to prove the existence of a “pending charge” because it sought to classify Thompson’s charge as a class C felony under the statute. The plain language of the statute governing the offense of failure to appear establishes the elements of that offense and states, A person commits the offense of failure to appear if he or she fails to appear without reasonable excuse subsequent to having been: (1) Cited or summonsed as an accused; or (2) Lawfully set at liberty upon condition that he or she appear at a specified 3 Although the issue was not raised by Appellant, we note our concern with the process surrounding Appellant’s arrest and release. The “Return of Service” on the initial arrest warrant was never completed nor does it bear the required signatures of the sheriff or a judge. The “Appearance Agreement” signed by Appellant, which was the basis for the charge of failure to appear, was signed only by Appellant and the Saline County sheriff. Cheryl Spade, the Saline County district court clerk, testified at trial that sometimes an accused is “bonded out by the Saline County Sheriff’s Department in advance and they set the date, and that’s what happened in this case.” Nothing in our Rules of Criminal Procedure allow the release of an arrested person by anyone other than a judicial officer. See Ark. R. Crim. P. 9.1, 9.2 (2012). 7  Cite as 2014 Ark. 413 time, place, and court. Ark. Code Ann. § 5-54-120(a) (Supp. 2013). Notably, the statutory elements do not incorporate the phrase “pending charge.” Indeed, the plain language of the statute indicates that the General Assembly did not intend to require a pending charge in all cases of failure to appear because it provided two distinct avenues for the offense to occur. First, a person can be convicted of failure to appear pursuant to subsection (a)(1) where he or she has been “cited or summonsed as an accused” and fails to appear without reasonable excuse. This subsection ostensibly covers those instances where the defendant has been formally charged by the State. The statute provides an additional possibility for conviction in subsection (a)(2), namely where a person has been “lawfully set at liberty upon condition that he or she appear at a specified time, place, and court.” As subsection (a)(1) covers those instances in which a person has been formally charged, subsection (a)(2) necessarily must mean something different. It is a fundamental principle of statutory interpretation that this court construes the statute so that no word is left void, superfluous, or insignificant, and this court gives meaning and effect to every word in the statute, if possible. Holbrook v. Healthport, Inc., 2014 Ark. 146; see also Ainsworth v. State, 367 Ark. 353, 240 S.W.3d 105 (2006). Thus, the statute contemplates that a person can commit the offense of failure to appear where there has been no formal charge as long as that person has been lawfully set at liberty upon condition that he or she appear at a specified time, place, and court. Subsection (b) deals with classification of the failure-to-appear offense and provides that an offense is a class C felony “if the required appearance was in regard to a pending charge or 8  Cite as 2014 Ark. 413 disposition of a felony charge either before or after a determination of guilt of the charge.” Ark. Code Ann. § 5-54-120(b) (Supp. 2013). Factors relating to classification of a crime are “relevant only to the determination of sentence” and not elements of the crime itself. Wilson v. State, 271 Ark. 682, 687-A, 611 S.W.2d 739, 742 (1981). Such classification factors must be established by a preponderance of the evidence. See Huff v. State, 2012 Ark. 388. In the instant case, the State sought to classify Thompson’s offense as a class C offense and thus was required to establish the existence of a pending charge, which it failed to do. As a result, I agree that the evidence was insufficient to support Thompson’s conviction for the offense of class C failure to appear. BAKER, J., joins. J. Brent Standridge, Saline County Deputy Public Defender, for appellant. Dustin McDaniel, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee. 9 

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 130 CAF 15-01276 PRESENT: WHALEN, P.J., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ. IN THE MATTER OF MADISON J.S., TYLER D.S., BENTLEY P.S., AND BROOKE R.S. --------------------------------------------- MEMORANDUM AND ORDER STEUBEN COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-APPELLANT; VICTORIA M. AND JASON W., RESPONDENTS-RESPONDENTS. CASEY E. ROGERS, BATH, FOR PETITIONER-APPELLANT. SALLY A. MADIGAN, ATTORNEY FOR THE CHILDREN, BATH. Appeal from an order of the Family Court, Steuben County (Joseph W. Latham, J.), entered July 27, 2015 in a proceeding pursuant to Family Court Act article 10. The order, insofar as appealed from, dismissed the petition insofar as it alleged that Madison J.S., Tyler D.S. and Brooke R.S. were derivatively neglected by respondents. It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: Petitioner appeals from an order that, insofar as appealed from, dismissed its petition to the extent that it alleged that Madison J.S., Tyler D.S., and Brooke R.S. (the subject children) were derivatively neglected by respondents. We affirm. Although Family Court determined that respondents neglected Bentley P.S., a sibling of the subject children, and Family Court Act § 1046 (a) (i) permits evidence of that neglect to be considered in determining whether the subject children were neglected, “the statute does not mandate a finding of derivative neglect” (Matter of Jocelyne J., 8 AD3d 978, 979), and “such evidence typically may not serve as the sole basis of a finding of neglect” (Matter of Evelyn B., 30 AD3d 913, 914, lv denied 7 NY3d 713). Because there is no evidence in the record that the “neglect was repeated . . . [or] was perpetrated on multiple victims,” and it is unclear whether the subject children “were nearby when the [neglect] occurred” (Matter of Cadejah AA., 33 AD3d 1155, 1157), we conclude that the court did not err in refusing to make a finding of derivative neglect. Entered: February 11, 2016 Frances E. Cafarell Clerk of the Court 

68 F.3d 469 In Matter of Patricio Mujica* NO. 94-30330 United States Court of Appeals,Fifth Circuit. Sept 11, 1995 Appeal From: M.D.La., No. CA-93-0261-B 1 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2

569 So.2d 782 (1990) Guadalupe GONZALEZ, Appellant, v. STATE of Florida, Appellee. No. 88-2542. District Court of Appeal of Florida, Fourth District. October 10, 1990. Rehearing and Certification Denied December 5, 1990. *783 Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant. Robert A. Butterworth, Atty. Gen., Tallahassee, and Alfonso M. Saldana, Asst. Atty. Gen., West Palm Beach, for appellee. STONE, Judge. We affirm appellant's conviction and sentence, except as to costs. The appellant was charged with one count of second-degree murder, with a firearm, and three counts of attempted second-degree murder, with a firearm. The shootings occurred in a barroom. The appellant was convicted of the lesser included offenses of third-degree murder, with a firearm, and three counts of aggravated battery, with a firearm. The court enhanced the third-degree murder conviction, a second-degree felony if committed without a firearm, to a first-degree felony. The appellant first argues that the state systematically excluded a black juror by the exercise of a peremptory challenge. He additionally asserts that the court may not enhance the conviction to a first-degree felony. The appellant objected to the excusing of one juror. That juror stated that one of her children had some kind of conflict with the law and had gone to trial within the past year. The excused juror was Afro-American, the defendant was of Hispanic descent. The appellant notes that another juror, who stated that she had been raised in Mexico and worked for the Immigration and Naturalization Service, had been excused earlier without objection. However, there is nothing in the record to indicate that she was a member of a particular minority group. The appellant has failed to meet his burden of demonstrating a substantial likelihood that the challenges were motivated solely by race. The trial court, specifically referring to the statements and responses in voir dire, found that there was no racial motivation for the challenges. Additionally, the court recognized that the appellee could offer a racially neutral explanation, supported by the record, for the challenge. The involvement of a juror's close family member with the law is a valid reason for a peremptory challenge. Cf. Sampson v. State, 542 So.2d 434 (Fla. 4th DCA 1989). See also United States v. Vaccaro, 816 F.2d 443 (9th Cir.1987), cert. denied, 484 U.S. 928, 108 S.Ct. 295, 98 L.Ed.2d 255 (1987). The state is not required to provide any additional explanation. See Reed v. State, 560 So.2d 203 (Fla. 1990); Smith v. State, 562 So.2d 787 (Fla. 1st DCA 1990); Davis v. State, 560 So.2d 1346 (Fla. 3d DCA 1990); Verdelotti v. State, 560 So.2d 1328 (Fla.2d DCA 1990); Adams v. State, 559 So.2d 1293 (Fla. 3d *784 DCA), dismissed, 564 So.2d 488 (1990); Stephens v. State, 559 So.2d 687 (Fla. 1st DCA 1990); Knight v. State, 559 So.2d 327 (Fla. 1st DCA 1990). Third-degree murder, a second-degree felony, may be enhanced to a first-degree felony if the defendant uses a firearm. See § 775.087(1)(b), Fla. Stat. Cf. Andrade v. State, 564 So.2d 238 (Fla. 3d DCA 1990); State v. Smith, 470 So.2d 764 (Fla. 5th DCA 1985), approved, 485 So.2d 1284 (1986). However, the appellant argues that his use of the firearm was an essential element of the crime. The court gave the third-degree murder charge, at the defendant's request, to afford him the benefits of a lesser included offense conviction, notwithstanding some question as to whether there was a basis for it in the record. We note that the appellant does not challenge his conviction nor deny that the verdict form included a finding that he committed the offense with a firearm. Appellant simply asserts that his use of the firearm must be considered an essential element. However, the mere fact that a firearm is used in the commission of a crime does not necessarily make it an essential element of that crime. Cf. Ingraham v. State, 527 So.2d 222 (Fla. 5th DCA), rev. denied, 534 So.2d 400 (1988); Strickland v. State, 415 So.2d 808 (Fla. 1st DCA 1982), aff'd., 437 So.2d 150 (1983); Williams v. State, 407 So.2d 223 (Fla. 2d DCA 1981); Pedrera v. State, 401 So.2d 823 (Fla. 3d DCA 1981). We acknowledge conflict with Franklin v. State, 541 So.2d 1227 (Fla. 2d DCA 1989). Therefore, the judgment and sentence, except as to costs, is affirmed. As to costs, the sentence is reversed and remanded for resentencing. See Mays v. State, 519 So.2d 618 (Fla. 1988); Jenkins v. State, 444 So.2d 947 (Fla. 1984). POLEN, J., concurs. ANSTEAD, J., concurs in part and dissents in part with opinion. ANSTEAD, Judge, concurring in part and dissenting in part. I concur in the affirmance of appellant's conviction but disagree as to the enhancement issue. In Lareau v. State, 554 So.2d 638 (Fla. 4th DCA 1989), this court noted that a defendant convicted of aggravated battery by using a weapon, may not be subjected to further enhancement of the penalty because when so charged the use of a weapon is an essential element under the aggravated battery offense set out in section 784.045(1)(b). This is true even though the offense of aggravated battery may be alleged and proven without involvement of a weapon. See also Cherry v. State, 540 So.2d 146 (Fla. 4th DCA 1989); Costantino v. State, 521 So.2d 338 (Fla. 4th DCA 1988). In other words, we have previously held that even though use of a weapon is not a necessary element in every aggravated battery case, when it is charged that way it is not proper to enhance the conviction. The same situation is involved herein where the appellant was convicted of third degree murder and the predicate felony involved the use of a weapon. In Webb v. State, 410 So.2d 944 (Fla. 1st DCA 1982), the First District determined that since it was necessary to prove aggravated assault involving the use of a firearm in order to establish a felony murder conviction, the elements of the underlying felony were essential to the felony murder conviction. Accordingly, the enhancement statute was inapplicable to such a conviction. The court applied the same logic with respect to a homicide conviction with an underlying charge of shooting into an occupied vehicle in Vause v. State, 424 So.2d 52 (Fla. 1st DCA 1982). Although reversed on other grounds, the supreme court approved the First District's opinion as it related to the instant issue in Vause v. State, 476 So.2d 141 (Fla. 1985). In Pinkerton v. State, 534 So.2d 425 (Fla. 5th DCA 1988), the Fifth District similarly disapproved enhancement in a third degree murder case where aggravated battery was the underlying felony: "While it is true that an aggravated battery may be committed without use of a deadly weapon, in this case the jury specifically found that defendant had committed *785 the aggravated battery under subsection (b) of the statute, i.e. while using a deadly weapon." 534 So.2d at 426. Recently, in Franklin v. State, 541 So.2d 1227 (Fla. 2d DCA 1989), the Second District held that the defendant's conviction for third degree murder could not be enhanced where the jury was instructed that in order to convict, it had to find that the defendant had used a weapon in committing an aggravated battery on the victim. In reaching its conclusion, the court reasoned: First, under Miller v. State, 460 So.2d 373 (Fla. 1984), appellant's second degree murder charge, for purposes of reclassification, included all lesser offenses. Thus, he was effectively charged with third degree murder. Second, although all third degree murder charges do not necessarily involve the use of a weapon (section 782.04(4), Florida Statutes (1987)), the information here specifically charged appellant with the use of a weapon. Third, the third degree murder jury instruction specifically required that in order to find appellant guilty of third degree murder, the jury would have to find that appellant had used a deadly weapon in the course of a battery. Finally, the jury was asked to and did make a specific finding that appellant used a weapon during the commission of the offense. 541 So.2d at 1228-1229. In State v. Trejo, 555 So.2d 1321 (Fla. 2d DCA 1990), the court applied the same reasoning in striking an enhancement. In the instant case, the appellant was charged with second degree homicide "by shooting said Vincente Jimenez with a firearm." The lesser-included third degree murder conviction was specifically based on the underlying charge of unlawful discharge of a destructive device to wit, a firearm.[1] On third degree murder, the trial court instructed the jury: "... the State must prove the following three elements beyond a reasonable doubt... The death occurred as a consequence of, and while the defendant was engaged in the commission of a crime of unlawfully discharging a destructive device." In the verdict, the jury found that the appellant had a firearm during the commission of the felony murder. Under our decision in Lareau and the other case law set out above, enhancement is not allowed herein since the third degree murder conviction was necessarily predicated on appellant's unlawful discharge of a firearm. NOTES [1] Section 790.001(6), Florida Statutes, defines "firearm" to include "any destructive device." Section 790.001(13) defines weapon to include ... "chemical weapon or device, or any other deadly weapon except a firearm or pocketknife." All of the items listed under the definition of "destructive device" are probably considered to be deadly weapons. See Section 790.001(4), Florida Statutes (explosive, incendiary, or poison gas bomb, grenade, mine, rocket, missile, or similar device; and includes ... (definition of firearm)). Thus, the "destructive device" charge on which the appellant's third degree murder conviction is grounded requires proof of the use of a "weapon" or "firearm." If "destructive device" could possibly encompass something other than the use of a weapon or firearm, then the particular facts of this case become more significant. In the instant case, the information refers to "by shooting ... a firearm." The only "destructive device" that was alleged or proven is a firearm. The jury found that the appellant had a firearm during the commission of the felony murder.

NO. 07-05-0344-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B MAY 12, 2006 ______________________________ TRAVIS NEALY, Appellant v. THE STATE OF TEXAS, Appellee _________________________________ FROM THE 140 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2005-408,476; HON. JIM BOB DARNELL, PRESIDING _______________________________ Memorandum Opinion ______________________________ Before QUINN, C.J. and CAMPBELL and HANCOCK, JJ. Appellant Travis Nealy appeals his conviction for aggravated assault with a deadly weapon after entering an open plea of guilty.  His sole issue involves the sufficiency of the evidence to support the conviction.   We overrule the issue and affirm the judgment of the trial court. Appellant was charged with “intentionally, knowingly, and recklessly caus[ing] bodily injury to Sherry Thomas, by driving and operating [a] motor vehicle and causing said motor vehicle to collide with a motor vehicle operated by the said Sherry Thomas . . . .”  Furthermore, he contends that the State failed to prove he drove recklessly since he did not remember driving, he was intoxicated, and his conduct only resulted in Thomas suffering minor injuries. According to the record evidence, the vehicles collided after appellant ran a red light at the same time Thomas attempted to drive through the intersection.  This was not his first collision that morning, however.  Minutes before striking Thomas, he had not only used his van to push a vehicle stopped at a red light but also side-swiped another car.  So too had he struck barrels, cones, and curbs appearing on or adjacent to the roadway during the same excursion.  Moreover, appellant did not stop after any of these prior incidents but continued on.  Indeed, his progress was halted only after colliding with Thomas because his vehicle was rendered inoperable.  He also conceded that although he had no recollection of driving that night, his conduct put others at risk.  Because voluntary intoxication is not a defense to the commission of a crime, Tex. Pen. Code Ann. §8.04(a) (Vernon 2003); Reyna v. State, 11 S.W.3d 401, 402 (Tex. App.–Houston [1 st Dist.] 2000, pet. ref’d, untimely filed), the foregoing evidence was and is sufficient to allow a rational jury to conclude beyond reasonable doubt that appellant drove or otherwise operated his vehicle recklessly. (footnote: 1)   See Tex. Pen. Code Ann. § 6.03(c) (Vernon 2003) (stating that a person acts recklessly with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur); Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979) (holding that the jury could have inferred from the fact that the defendant drove erratically on the wrong side of the road  for a number of miles in broad daylight without any recollection that he was aware of the risk and chose to ignore it).     Accordingly, the judgment is affirmed. Brian Quinn          Chief Justice Do not publish. FOOTNOTES 1:In so holding, we need not rely on the State’s contention that appellant executed a judicial confession sufficient, in and of itself,  to support the conviction.  The confession alluded to appeared in a document entitled “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession.”  Furthermore, it consisted of the following passage:  “I understand the foregoing allegations and I confess that they are true.”  Yet, absent from the document is a description or definition of the “foregoing allegations.”  Whether they were the allegations in the indictment or some other is unknown.  Nor did the trial court clarify the matter before accepting the plea and finding him guilty.

319 B.R. 795 (2005) In re M GROUP, INC., Debtor. Larry Waslow, in his capacity as Unsecured Claims Administrator of M Group, Inc., Plaintiff, v. Dover Findings, Inc., Defendant. Bankruptcy No. 00-1936-JKF. Adversary No. 02-3324-JKF. United States Bankruptcy Court, D. Delaware. January 20, 2005. *796 Bradford J. Sandler, Adelman, Lavine, Gold and Levin, PC, Duane David Werb, Werb & Sullivan, Wilmington, DE, for Larry Waslow, in his capacity as Unsecured Claims Administrator of M Group, Inc. Joanne Bianco Wills, Stephanie Ann Fox, Steven K. Kortanek, Klehr, Harrison, Harvey, Branzburg & Ellers, Victoria Watson Counihan, Greenberg Traurig, LLP, Wilmington, DE, for The Monet Group, Inc. Jeffrey Philip Wasserman, Ciconte, Roseman & Wasserman, Wilmington, DE, for Dover Findings. MEMORANDUM OPINIONS [1] JUDITH K. FITZGERALD, Bankruptcy Judge. Before the court are cross motions for summary judgment regarding avoidance and recovery of preferential transfers. In his complaint, the Unsecured Claims Administrator of the Debtor's estate ("UCA") asserts that within ninety days prepetition the Debtor issued checks totalling $24,027.34 to Dover Findings and that these payments constituted preferential transfers that are avoidable under 11 U.S.C. § 547.[2] The UCA asserts in his brief in support of his motion that "[t]he invoices attached as Exhibit 'B' show that the Transfers at issue were made on a debt that was antecedent pursuant to § 547(b)(2) because the Debtors' obligations were incurred before the Debtor made the Transfers". Dkt. No. 11 at 5 (emphasis added). In support of his motion the UCA attached checks dated from February 11, 2000, to April 7, 2000. The bankruptcy was filed on May 11, 2000. The UCA also attached invoices which he says correspond to checks dated 2/11/00 *797 2/18/00 3/03/00 3/10/00 3/17/00 3/31/00 4/7/00 See Exhibit A to Dkt. No. 11. However, it is impossible to read the copy of that portion of the invoices submitted on the same page as the copies of the checks because the copies are too faint to read the dates, invoice numbers, amounts, and other information printed thereon.[3] Furthermore, included in Exhibit A are the fronts and backs of only two cancelled checks: Date Date Check No. of Check Check Paid Amount _________ _________ ____________ _______ 290747 March 31, 2000 April 5, 2000 $9,379.10 291012 April 7, 2000 April 17, 2000 $1,197.02 At Exhibit B to his brief the UCA included invoices related to the transfers dated from November 17, 1999, to April 26, 2000. However, the only evidence with respect to dates payments were actually made, determined by the evidence of the dates the checks were paid by the bank, are the checks dated March 31 and April 7 referred to above.[4]See Barn-hill v. Johnson, 503 U.S. 393, 394-95, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992)(for preference purposes, the date the drawee bank honors a check is the date the transfer is deemed to have been made). With respect to its motion for summary judgment, Dover Findings provided as Exhibit A to the Supplemental Affidavit of Bruce Harris, CEO and founder of Dover Findings, Dkt. No. 16, checks and invoices dated from February 11, 2000, to March 17, 2000, including those checks dated March 31 and April 7 that the UCA relies on. With respect to the March 31 check, check number 290747 in the amount of $9,379.10, Dover Findings presents invoices totalling over $5,500 which amount does not approach the $9,379.10 for which the check was issued. With respect to the April 7 check, check number 291012 in the amount of $1,197.02, Dover Findings attaches two invoices, the total of which corresponds to the amount of the check. Dover Findings also provided a chart captioned "Monet Group Payment Record". See Dkt. No. 16, Exhibit B to Supplemental Affidavit of Bruce Harris. This chart lists the posting date (presumably of the invoices), document type (invoice or payment), document number, amount of invoice, amount paid, and the due date of the payment. There is nothing in the record to establish whether the "amount paid" stated on the Payment Record was actually paid on the date the check was issued, the date Dover Findings received payment, or the date the checks cleared the bank. However, with respect to those invoices listed on the Payment Record as having a payment date of April 5, 2000, the same date that check number 290747 cleared the bank, the total amount of the invoices, as well as the invoice numbers, is consistent with the other evidence that check number 290747 dated March 31, 2000, and paid by the bank on April 5, 2000, totalled $9,379.10. The Payment Record contains no reference to a payment on April 17. It does, however, refer to payments on April 14, 2000, but the invoice number of only one of the two invoices Dover Findings lists as paid on April 14 corresponds to the invoices listed by the UCA as paid by the check that cleared on April 17, check number 291012. *798 Based on the foregoing, the only conclusive evidence presented to the court of a preferential payment is that represented by check number 290747 dated March 31, 2000, and paid April 5, 2000, in the amount of $9,379.10. This amount will constitute an avoidable preference unless Dover Findings can establish that the payment was in the ordinary course of the parties' business or financial affairs and according to ordinary business terms. 11 U.S.C. § 547(c)(2)(B), (C). We find that Dover Findings has not established this defense. In its answer to the complaint, Dover Findings denies that the elements of a preferential transfer except that the payments were made within the 90 days prepetition. In its cross motion for summary judgment, Dover Findings states that "the Transfers are not preferential because they were made in the ordinary course of business under 11 U.S.C. § 547(c)(2)." Dkt. No. 14 at ¶ 11.[5] The elements necessary for the "ordinary course of business" exception to apply are provided in 11 U.S.C. § 547(c)(2): (c) The trustee may not avoid under this section a transfer— (2) to the extent that such transfer was— (A) in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee; (B) made in the ordinary course of business or financial affairs of the debtor and the transferee; and (C) made according to ordinary business terms. The transferee herein, Dover Findings, has the burden of proving these three elements. 11 U.S.C. § 547(g). See also In re First Jersey Securities, Inc., 180 F.3d 504, 512 (3d Cir.1999); J.P. Fyfe, Inc. of Florida v. Bradco Supply Corp., 891 F.2d 66, 69-70 (3d Cir.1989). The first prong of the test is not in dispute. The second prong requires that the dealings between the parties during the preference period be consistent with the prior practice between the parties. There is insufficient evidence of the parties' course of dealing before the preference period. The UCA provided invoices dating from November 1999, about three months before the preference period began. Dover Findings provided invoices from December 1999. They both provided the fronts of the same checks, including check numbers 290747 and 291012, but the parties' evidence of the number of invoices with respect to most of the checks differs and there is evidence of the date of payment only with respect to check numbers 290747 and 291012. There is no other evidence of the parties' course of dealing except the affidavit of Bruce Harris, Dover Findings' CEO and founder. See Dkt. No. 14. In his affidavit Mr. Harris states: 5. Dover Findings and M Group entered into transactions during the period of 3/99 and 4/00 in which Dover Findings manufactured and shipped unique jewelry supplies to M Group for the production of costume jewelry. *799 6. During the period between 3/99 and 4/00, Dover Findings sent invoices to M Group in which payment was requested within thirty days subsequent to the receipt of shipment. 7. During the pre-preference period from 3/99 to 1/00, M Group submitted a total of 82 payments, with a median of 36 days late and a mean of 38 days late. The payments ranged from 22 days after invoice to 92 days after invoice.[6] 8. During the alleged preference period, from 2/00 to 4/00, M Group submitted a total of 19 payments, with a median of 30 days late and a mean of 39 days late. The payments ranged from 16 days after invoice to 39 days after invoice. See also Dkt. No. 16, Exh. B to Letter Filed by Dover Findings. However, as noted above, except for the payments made by check numbers 290747 and 291012, the actual dates of payment (i.e., the date the drawee bank honored the checks) cannot be determined. Furthermore, neither party presented evidence of checks issued or paid during the pre-preference period. Therefore, the probative value of Dover Findings' evidence of the mean and median number of days for payment is insufficient to support its defense.[7] As stated earlier, the only conclusive evidence of preferential transfer relates to the check that was paid on April 5, check number 290747. With respect to the check paid on April 17, the parties' evidence of the invoices paid by that check is inconsistent. As noted above, the Payment Record provided by Dover Findings is insufficient. Accordingly, there is no evidence of what constituted the "ordinary course of business or financial affairs" of the Debtor and Dover Findings. 11 U.S.C. § 547(c)(2)(B). Because Dover must satisfy both § 547(c)(2)(B) and (c)(2)(C) in order to establish that the transfers are not avoidable, we need not examine its evidence of the industry standards under (c)(2)(C) in detail. We note, however, that that evidence, contained in Mr. Harris's affidavit, is also insufficient. See Dkt. No. 14 at 11119-15. Although his testimony establishes a long course of dealing in the industry, he neither identifies other companies nor what standard companies other than Dover Findings use with their customers.[8]*800 He provides only a general statement of what is done in the jewelry manufacturing industry.[9] The evidence supports a finding that a preferential transfer was made in the amount of $9,379.10. An appropriate order will be entered.[10] JUDGMENT ORDER GRANTING, IN PART, MOTION FOR SUMMARY JUDGMENT FILED BY LARRY WASLOW AND DENYING CROSS MOTION FOR SUMMARY JUDMENT FILED BY DOVER FININGS, INC. AND NOW, this 20th day of January, 2005, it is ORDERED, ADJUDGED and DECREED that the motion for summary judgment filed by Larry Waslow in his capacity as Unsecured Claims Administrator of M Group, Inc., is GRANTED, in part, as stated below. It is FURTHER ORDERED that the cross motion for summary judgment filed by Dover Findings, Inc., is DENIED. It is FURTHER ORDERED that judgment is entered for the Unsecured Claims Administrator of M Group, Inc., and against Dover Findings, Inc. in the amount of $9,379.10, plus interest as of the date of this Judgment. It is FURTHER ORDERED that pretrial narratives, listing all witnesses and with copies of all exhibits (legible, fronts and backs), premarked for identification, shall be filed and served by each party, with paper copies delivered to the undersigned in Pittsburgh in binder format, on or before Thursday, March 10, 2005. No extensions will be granted. It is FURTHER ORDERED that trial is set for Thursday, March 24, 2005, at 1:00 a.m., Courtroom A, U.S. Steel Tower, 600 Grant Street, Pittsburgh, Pennsylvania. Each side has two hours to present its case in chief and any rebuttal. Four hours, total, is reserved for trial. NOTES [1] The court's jurisdiction was not at issue. This Memorandum Opinion constitutes our findings of fact and conclusions of law. [2] In his motion for summary judgment the UCA asserts that Debtor made payments in the form of "checks and/or wire transfers". The evidence submitted includes only checks and invoices. [3] In some instances holes punched for insertion of the documents into a three-ring binder cut through information printed on the document. [4] We note that except for the checks dated March 31 and April 7, there is no evidence of the dates any of the checks were paid. [5] With a letter filed by Dover Findings after the motion for summary judgment and responses and replies were filed, Dover Findings submitted the UCA's response to Dover's first set of interrogatories to establish that there is no dispute regarding Dover's new value defense. See Dkt. No. 16. Inasmuch as neither party addressed the new value issue in their motions for summary judgment, we do not address it here. The only issues presented by the motions for summary judgment are those concerning the ordinary course defenses. [6] The record establishes that the payment that was 92 after invoice and one other very late payment were aberrations. Without the two atypically late payments, the pre-preference range was 22 to 52 days. [7] To the extent the mean and median statistics have any probative value they show that payments made in the pre-preference period ranged from between 22 and 52 days from the date of invoice (but see note 6 above) and in the preference period that the range was 16 to 39 days. We find the difference in range between the pre-preference and the preference periods to be significantly different (a range of six to thirteen days' difference) to establish that preferential transfers occurred. However, as stated, because it is not known what date Dover Findings is relying on as the date of payment, the statistics it provides are not meaningful for purposes of this preference analysis. [8] He states in his Affidavit the following: "9. Typically, in the jewelry manufacturing industry, the jewelry supply manufacturer ships supplies to the costume jewelry creator. 10. Within the standard practice of the jewelry manufacturing industry, the jewelry supplier sends an invoice to the costume jewelry creator requesting payment within thirty days subsequent to receipt of the shipment. 11. In the jewelry manufacturing industry, the costume jewelry creator ships the costume jewelry to retail stores where the jewelry is sold to the public. 12. Within the standard practice of the jewelry manufacturing industry, the retail stores most often pay costume jewelry manufactures [sic] up to 180 days after receipt of shipment. 13. Typically, in the jewelry manufacturing industry, the costume jewelry creator does not pay the supplier within the date requested on the invoice as a result of the delay in payment from the retail stores. 14. The billing practices between M Group and Dover Finding conformed with the standard billing practices of the jewelry manufacturing industry." Dkt. No. 14, Affidavit of Bruce Harris at ¶¶ 9 through 14. [9] We note that the UCA did not attempt to rebut Dover's witness. Dover's evidence, therefore, is uncontested. Nonetheless, it is not sufficient to satisfy § 547(c)(2)(C). [10] We note that it took many, many hours, to sort out the muddled evidence presented by the parties due to the incomplete nature of the documentation (even thought the parties have the necessary documentation and could have provided it) and the incomprehensible format in which it was presented. In the future, the court will simply deny the motion and set the matter for trial, which would substantially lessen the burden on this court, rather than attempt to sort through this kind of record.

399 So.2d 24 (1981) The STATE of Florida, Appellant, v. Norman PARKER, Jr., Appellee. No. 80-345. District Court of Appeal of Florida, Third District. May 19, 1981. *26 Janet Reno, State Atty. and Arthur Joel Berger, Asst. State Atty., for appellant. Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellee. Before HENDRY, SCHWARTZ and FERGUSON, JJ. HENDRY, Judge. Appellee, defendant below, has been indicted for a series of crimes in this jurisdiction. The state sought to introduce into evidence a handgun previously seized by the Washington, D.C. police in conjunction with a shooting involving the same defendant in that jurisdiction in 1978. The court below, at a suppression hearing, ordered that the handgun seized in Washington could not be *27 introduced into evidence. The state has appealed that suppression order. To determine the propriety of the suppression order, we must therefore review the circumstances on the evening of August 23, 1978 when the Washington, D.C. police seized the subject handgun. On that evening a barroom shooting was reported over the police radio and a lone suspect and his car were described. By automobile registration records and a physical description of the suspect, police traced the defendant to his residence near where the shooting occurred. Ms. Yerkin, an occupant of the house, opened the door to the officers who then entered without permission. Ms. Yerkin and another female occupant were ordered to stay outside on the front porch of the house. Several officers fanned out around the premises while others made a cursory search of the house. Not long after the police arrived, the defendant, unarmed and with hands raised above his head, appeared from a stairwell to the basement at the rear of the house and announced his surrender. He was then frisked, handcuffed, arrested, and transported from the scene. After the defendant was removed, the police carefully searched the house and the fenced back yard for evidence. The police then entered the yard next door where they noticed a revolver underneath a ladder next to the basement stairwell in the defendant's yard. Photographs admitted into evidence show the gun stuck into a crevice of the stairwell next to the fence. An officer was then posted to guard the weapon until evidence technicians arrived to conduct a thorough search of the area. During this time there were approximately eight or nine policemen combing the premises for evidence. The handgun and other evidence discovered inside the house were seized although no warrant was ever obtained.[1] On this appeal the state's primary argument is that the trial court erred in suppressing the handgun because the defendant failed to establish a reasonable expectation of privacy in the area where it was found. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In order to establish a zone of privacy upon which the government may not intrude without first obtaining a search warrant, a person must show: (1) an actual expectation of privacy in the area in question, and (2) that the expectation of privacy is in an area that society is prepared to recognize as reasonable. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); Shapiro v. State, 390 So.2d 344 (Fla. 1980), cert. denied, ___ U.S. ___, 101 S.Ct. 1519, 67 L.Ed.2d 819 (1981). Measured against this standard, we conclude that the defendant established a reasonable expectation of privacy in the Washington, D.C. residence and that this expectation extended to the back yard area where the gun was seized. This result is fully supported by the trial court's conclusion of law[2] that the defendant had a reasonable and legitimate expectation of privacy in the residence[3] which extended to the enclosed back yard and to the stairwell area adjoining his residence. Moreover, the defendant, by concealing the gun in the crevice, "exhibited an actual (subjective) expectation of privacy." Smith v. Maryland, supra, 442 U.S. at 740, 99 S.Ct. at 2580; Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. *28 507, 516, 19 L.Ed.2d 576, 588 (1967) (Harlan, J., concurring). The defendant has thus fulfilled the first prong of the two-part test for invoking the protection of the fourth amendment. The defendant has also satisfied the second requirement that the expectation of privacy be in an area recognized as reasonable by society, since one's dwelling has long been regarded as constituting a zone of privacy. This theory is rooted partly in real and personal property concepts and partly in society's recognition of a person's right to act as he wishes in certain places. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); State v. Morsman, 394 So.2d 408 (Fla. 1981); Norman v. State, 379 So.2d 643 (Fla. 1980). This expectation of privacy one has in his home has traditionally been extended to include the area surrounding and related to the dwelling. See Fixel v. Wainwright, 492 F.2d 480 (5th Cir.1974) (privacy expectation of defendant who occupied one unit of a four-unit apartment building held to extend to enclosed rear yard or curtilage not normally used as a common passageway); Norman v. State, 379 So.2d 643 (Fla. 1980) (holding that tobacco barn within fenced farm was included in expectation of privacy); State v. Morsman, 394 So.2d 408 (Fla. 1981) (defendant's expectation of privacy held to extend to rear unenclosed yard of residence); Huffer v. State, 344 So.2d 1332 (Fla. 2d DCA 1977) (reasonable expectation of privacy in hothouse located behind defendant's house, notwithstanding the fact that it was constructed of clear plastic sheets). Accord State v. Johnson, 301 N.W.2d 625 (N.D. 1981) (reasonable expectation of privacy in an unenclosed area to one side of defendant's home). What a person seeks to preserve as private may be constitutionally protected despite the fact that it is in an area accessible to the public. Katz v. United States, supra. Accordingly, there is even more compelling justification for finding a zone of privacy in the area where the defendant hid the gun since it was in an enclosed back yard not accessible to the public. Generally, the back yard is considered more private than the front because passersby cannot view this area. See Fixel v. Wainwright, supra; State v. Morsman, supra; Norman v. State, supra. Although the defendant's back yard was visible to his neighbors, he still had a reasonable expectation of privacy there as to the public in general, especially as to the location of the revolver, since it was secreted in a crevice not readily visible to the untrained eye. Compare with Lightfoot v. State, 356 So.2d 331 (Fla. 4th DCA), cert. denied, 361 So.2d 833 (Fla. 1978) where the defendant had marijuana plants growing out in the open, exposed to view. Consequently, we find that the defendant had an actual expectation of privacy in the back yard of his home, and that this area is recognized as a zone of privacy. Having determined that the defendant may claim the protection of the fourth amendment, we must next decide whether the state has justified the intrusion by demonstrating an exception to the warrant requirement. Warrantless searches are "per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). The exceptions are "jealously and carefully drawn," Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958), and the burden is on the state to demonstrate that the procurement of a warrant was not feasible because "the exigencies of the situation made that course imperative." Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Norman v. State, supra; Hornblower v. State, 351 So.2d 716 (Fla. 1977). The state attempts to justify the search and seizure by reliance on several well established exceptions to the warrant requirement. First, the state argues that the police action here was reasonable based on the existence of probable cause and exigent circumstances. Specifically, the state claims that a gun is a dangerous instrumentality *29 and, knowing that a weapon was involved in the incident, the police were justified in locating it and removing it from the scene so no one would get hurt. This argument is specious. Officers were posted all over the property, and the possibility that someone would walk into a private, enclosed yard which was swarming with police and remove the gun was highly unlikely. The police had complete control of the property from the moment they arrived on the scene, and once the suspect was taken into custody, had ample time to secure a warrant while officers guarded the area. The state also appears to rely on the "protective sweep" exception. However, the purpose of such a search when an arrest takes place is to check for possible accomplices, not evidence, and is justified only if necessary to allow officers to carry out the arrest without fear of violence. United States v. Bowdach, 561 F.2d 1160 (5th Cir.1977); Newton v. State, 378 So.2d 297 (Fla. 4th DCA 1979), cert. denied, 389 So.2d 1115 (Fla. 1980); Grant v. State, 374 So.2d 630 (Fla. 3d DCA 1979). In the present case, the police had no reason to believe that there might be anyone else present at the house other than the defendant and the two women — the broadcast had described a lone suspect and the police had already made a cursory check of the premises. We also find inapplicable the state's contention that the police were in hot pursuit of the defendant and were thus not required to obtain a warrant. Based on the fact that the extensive search of the premises which turned up the revolver did not even begin until after the defendant had been arrested, handcuffed, and taken away, the police were clearly not in "hot pursuit" of the defendant when they seized the gun. Nor can this seizure be justified as incident to arrest. This exception is rationalized as necessary to seize weapons to prevent an assault on arresting officers and to prevent the destruction of evidence. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Chimel restricts the scope of the search, however, to the person of the accused and the area within his immediate control. The search must also be contemporaneous with the arrest and not be remote in time or place, Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970), and where, as here, the search begins after the accused is taken away and continues for some time thereafter, it is a general exploratory search and not incident to arrest. United States v. Bell, 457 F.2d 1231 (5th Cir.1972). The state next argues that the seizure of the gun was justified on the basis that it was in plain view. A warrantless seizure of evidence in plain sight is constitutionally permissible only where three requirements are met: (1) the evidence must be observed in plain sight without the benefit of a search, (2) the police must have a legal right to be where they are at the time of the observation, and (3) the police must have probable cause to believe that the evidence observed constitutes contraband or fruits, instrumentalities, or evidence of crime. (e.s.) Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 202, 29 L.Ed.2d 564 (1971); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Spinkellink v. State, 313 So.2d 666 (Fla. 1975); Pomerantz v. State, 372 So.2d 104 (Fla. 3d DCA 1979), cert. denied, app. dism., 386 So.2d 642 (Fla. 1980); Hansen v. State, 385 So.2d 1081 (Fla. 4th DCA 1980). Assuming arguendo that the police had a legal right to be on the property next door when they spotted the gun,[4] and had probable cause to believe that the revolver was an instrumentality of the crime, this justification must still fail because a general exploratory search was in progress at the time the gun was discovered. See *30 Coolidge v. New Hampshire, supra; Pomerantz v. State, supra. The plain view doctrine may not be employed to extend a search until something turns up. The trial court found that the revolver was located only after the police conducted an extensive and thorough search of the defendant's yard. As such, the gun was not discovered inadvertently and the seizure was unreasonable. Finally, the state alleges that the defendant had abandoned the weapon, thus justifying the seizure. To constitute abandonment, the property must be discarded in a place where the person has no reasonable expectation of privacy, such as an open field, or public street. State v. Washington, 376 So.2d 1216 (Fla. 3d DCA 1979); State v. Oliver, 368 So.2d 1331 (Fla. 3d DCA 1979), cert. dism., 383 So.2d 1200 (Fla. 1980). As established by the record and our finding that the defendant had a legitimate expectation of privacy in the premise, his placement of the gun in the stairwell crevice does not amount to abandonment. For the reasons stated, and upon the authorities cited, we hold that the defendant had a legitimate expectation of privacy in the enclosed back yard of his residence where the revolver was found. In light of the state's failure to establish a valid exception to the warrant requirement, the search and subsequent seizure of the revolver violated the defendant's constitutional rights. Other points on appeal have been considered and found to be without merit. Accordingly, the trial court's order suppressing the evidence is affirmed. Affirmed. NOTES [1] The state challenges only the suppression of the handgun and the fruits thereof; no error is alleged with respect to suppression of the items seized from inside the house. [2] On review of a motion to suppress, a trial court's findings of fact and conclusions of law are presumed correct, and in testing the accuracy of these conclusions an appellate court must interpret the evidence and all reasonable deductions and inferences which may be drawn therefrom in the light most favorable to the trial judge's conclusion. Shapiro v. State, supra. [3] The trial court specifically found that the defendant resided at the house, ate his meals there, kept clothing and personal effects there, and continued to household expenses. [4] This is somewhat doubtful since the officers were no longer in hot pursuit when they went into the neighbor's yard and thus had no greater rights than an ordinary citizen who would be considered a trespasser if there without consent of the owner. It is unknown whether the police obtained consent before going into the neighboring yard.

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 07-1072 ___________ George W. Carlisle, Jr., * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Missouri Department of Economic * Development, * [UNPUBLISHED] * Appellee. * ___________ Submitted: February 13, 2008 Filed: March 7, 2008 ___________ Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges. ___________ PER CURIAM. George Carlisle, an African-American male, appeals the district court’s1 adverse grant of summary judgment in his Title VII action alleging that the Missouri Department of Economic Development discriminated against him when it failed to employ him for four positions. Having carefully reviewed the record, we conclude summary judgment was proper. Accordingly, we affirm for the reasons set forth in the district court’s well-reasoned opinion. See 8th Cir. R. 47B. 1 The Honorable Donald J. Stohr, United States District Judge for the Eastern District of Missouri. 

539 U.S. 945 Lutherv.Superior Court of California, Los Angeles County. No. 02-10176. Supreme Court of United States. June 23, 2003. 1 Appeal from the Ct. App. Cal., 2d App. Dist. 2 Certiorari denied.

501 F.Supp. 158 (1980) William L. PALOMBI v. GETTY OIL COMPANY t/a Getty. Civ. A. No. 79-1103. United States District Court, E. D. Pennsylvania. October 27, 1980. *159 Kenneth M. Rodgers, Philadelphia, Pa., for plaintiff. Richard G. Schneider, Philadelphia, Pa., for defendant. MEMORANDUM OPINION BECHTLE, District Judge. This action arose out of defendant Getty Oil Company's ("Getty") termination of plaintiff William L. Palombi ("Palombi") as the operator of a service station following some events deemed by defendant to be grounds upon which the franchise should be terminated, including Palombi's conviction in the United States District Court for price-gouging. This Memorandum Opinion is filed in support of the Court's Order of September 8, 1980, granting defendant's motion for summary judgment on plaintiff's only remaining claim.[1] *160 A motion for summary judgment under Fed.R.Civ.P. 56 must be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The evidence presented to the Court, and the inferences to be drawn therefrom, "must be viewed in the light most favorable to the opposing party." Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Based on these standards, the Court finds that the record supports the following findings of fact: In 1968, Palombi entered into a "lease" for a service station from Getty for a term of one year. The lease was renewable annually "subject to termination at the end of the initial period or any subsequent year by either party upon ten days' prior written notice to the other." See Amended Complaint, Ex. A, ¶ 2. Monthly rent was based on the number of gallons delivered. The lease provided that the premises were to be used "solely ... as a motor vehicle service station, and for the sale of such commodities and services as are usually sold at such stations." Amended Complaint, Ex. A, ¶ 4. The lease also required that the service station be kept open between specified hours and that Palombi, as lessee, maintain an adequate stock of tires, batteries and accessories. Palombi was further required to maintain the premises "in a good, clean, and tidy condition at all times" and to obtain Getty's approval of any advertising located on the premises. Under this agreement and subsequent renewals, Palombi operated the service station for several years without incident. Indeed, Palombi ranked first in sales of gasoline by-volume in the Philadelphia metropolitan area in each of the four years 1970-1973. See Motion of Defendant Getty Oil Company for Summary Judgment, Ex. 1; Answer to Interrogatory 21, at 13. In 1974, the Government instituted criminal proceedings in this district charging Palombi with, inter alia, selling gasoline at prices exceeding limits established by the Federal Emergency Petroleum Allocation Act of 1973, 15 U.S.C. §§ 751 et seq. (1976), and regulations promulgated thereunder-to which Palombi pleaded guilty. See Motion of Defendant Getty Oil Company for Summary Judgment, Ex. 5. Immediately thereafter, Palombi's gasoline sales fell and remained at a low level throughout the remainder of his tenure at the service station. See Motion of Defendant Getty Oil Company, Ex. 1; Answers to Interrogatories 15 and 21, at 10 and 13. On March 31, 1975, Getty terminated Palombi's lease.[2] A memorandum seeking clearance of the termination from Getty's legal department recited a host of reasons for the decision.[3] The last paragraph devoted to this itemization includes the following statement: Perhaps the most damaging of all to the reputation of this particular station, Getty Oil Eastern and our Getty Dealer organization, were charges ... when [sic] the United States Attorney's office had filed criminal and civil actions against Mr. Palombi for allegedly overcharging customers ... and with falsifying records to the Internal Revenue Service to justify higher prices. Motion of Defendant Getty Oil Company for Summary Judgment, Ex. 3, at 3. The price-gouging charge and subsequent conviction *161 are also the initial reasons specified by Getty in answer to the plaintiff's interrogatory seeking Getty's grounds for termination. Id., Ex. 1; Answer to Interrogatory 8, at 4. Nearly four years later, Palombi filed this action. Palombi's sole surviving claim at this stage of the litigation is that the gasoline station lease involved here constituted a franchise agreement and that Getty's termination of Palombi's franchise did not comply with the principles established by the Supreme Court of Pennsylvania in Atlantic Richfield Co. v. Razumic, 480 Pa. 366, 390 A.2d 736 (1978).[4] Like the instant case, Razumic involved the termination of a service station "lease" by the leasing oil company. The parties had signed what was captioned a "DEALER LEASE," authorizing the lessee to operate a service station for a term of three years, subject to the right of the lessee to terminate the lease on any anniversary date by giving 60 days' advance written notice to the lessor. Id. at 377, 390 A.2d at 741. The agreement in Razumic, much like the agreement here, determined rent by monthly volume of gasoline sold and required the dealer to provide a certified statement containing all the information necessary to calculate the monthly rental. The agreement also did not allow the dealer to "make any additions, alterations or improvement to the leased premises nor place, alter, remove, deface, or obliterate any signs, trademarks or color arrangements appearing thereon" without the lessor's consent. Further, one of several standardized riders accompanying the "DEALER LEASE" required that the service station be operated "in such a manner as to reflect favorably on [the lessor supplier's] goodwill, trademarks and trade names." Finally, the same rider required the dealer to operate the service station 24-hours-a-day/7-days-a-week; stock a sufficient inventory of tires, batteries and accessories; provide adequate lighting; and, "maintain adequate and sufficient attendants." Id. at 374-376, 390 A.2d at 740-741. The Razumic court held that such an agreement established a franchise relationship between the parties. Id. at 374, 390 A.2d at 740. That court noted that in such a relationship the franchisee benefits from the goodwill associated with the franchisor's trademark and products. However, as the court also noted, the continued value of that goodwill is heavily dependent upon the quality of the franchisee's service delivered in the name of the franchisor. The court reasoned that the investments necessarily undertaken justify the franchisee's expectation that those investments "will not be destroyed as a result of [the franchisor's] arbitrary decision to terminate their franchise relationship." Id. at 378, 390 A.2d at 742. Therefore, the Pennsylvania Supreme Court held that, "[c]onsistent with these reasonable expectations, and [a franchisor's] obligation to deal with its franchisees in good faith and in a commercially reasonable manner, [a franchisor] cannot arbitrarily sever its franchise relationship." Id. (emphasis added). The agreement involved in this case clearly contemplates a franchise relationship. As our recitation of the facts should indicate, the agreement here contains substantially the same provisions as the agreement involved in Razumic. Getty argues, however, that Palombi's termination was not arbitrary but was based, at least in part, upon Palombi's price-gouging conviction. In answer, Palombi contends that under Razumic a termination must be found to be reasonable under all the circumstances. Since the Court must be apprised of all the facts, Palombi argues, summary judgment is inappropriate. The Court rejects Palombi's interpretation of Razumic. The significant language in Razumic, quoted earlier, declares only that there is a duty upon the franchisor *162 not to act arbitrarily.[5] The Court interprets this language to mean that, if the franchisor can show at least one legally sufficient reason to terminate, the termination is valid under Razumic. The law could not reasonably be otherwise. A rule to the contrary would require courts to reexamine the reasonableness of an exercise of business judgment. Razumic seeks only to ensure that some sufficient reason exists for the termination. It does not guarantee every dealer a right to what would amount to de novo review. The Court turns then to the legal sufficiency of Getty's proffered ground for termination. Certainly there can be few more compelling justifications for terminating a service station franchise than the indictment and conviction of the franchisee for price-gouging. Through trademarks and advertising, the consumer comes to link supplier and dealer. When the dealer is convicted of price-gouging, the suggestion of fraud necessarily taints the supplier's reputation. That such a charge and conviction would support a dealer's termination seems indisputable. The Court finds additional support for this holding in the Pennsylvania Gasoline Act, Pa.Stat.Ann. tit. 73, §§ 202-1 et seq. (Purdon Supp.1980). In doing so, the court follows the example of the court in Razumic. Although the provisions of the Act were not expressly applicable to the agreement in Razumic,[6] the Razumic court relied upon it as an embodiment of "sound and beneficial legislative judgments which reflect both the expectations and obligations inherent in this franchise relationship." 480 Pa. at 380, 390 A.2d at 743. Since the Act prohibits suppliers of petroleum products from terminating service station operators unless the supplier acts for "one of" nine specified reasons, the Razumic court concluded that the Act supported the view that a franchise termination could not be arbitrary. The parties agree, and this Court concurs, that the Act is also not directly applicable here. Nevertheless, the Act lends support for this Court's decision. First, the Act does not require that the termination be found to be reasonable under all the circumstances. It is enough that the termination be based upon "one of" the enumerated reasons. Thus, the Act supports this Court's view of Razumic that a termination is permissible if there is one commercially reasonable basis for it. Further, the Act's enumerated reasons include two which comprehend the facts of this case: (8) Failure by the lessee dealer to comply with Federal, State or local laws or regulations which are related to the operation of the gasoline service station business and which may affect the relationship between the lessor supplier and the lessee dealer and such failure to comply therewith has or may have an adverse effect on the lessor supplier. (9) Conviction of the lessee dealer of a criminal offense which is related to the operation of the business or would affect the ability of the lessee dealer to operate the business or would tend to defame the reputation of the lessor supplier. Pa.Stat.Ann. tit. 73, § 202-3(b)(8), (9) (Purdon Supp.1980) (emphasis added). With regard to the first of these, Palombi's failure to comply with federal law or *163 regulations is conclusively established by his conviction. Moreover, since the federal law violated regulates the price charged at the pump, it is clearly "related to" the operation of a service station and may "affect" the relationship between the lessor supplier and the lessee dealer. Lastly, the failure to comply may indeed adversely affect a lessor supplier by causing consumers to buy elsewhere and subjecting the supplier's reputation to severe and irremediable damage. Even stronger in its support of this termination is the second-quoted provision. The offense of which Palombi was convicted — price-gouging — is "related to the operation of the business" because determining the price of the goods or services to be sold is of the essence of any business. Moreover, the offense is one which would "tend to defame the reputation of the lessor supplier." A franchise relationship purposely creates in the public mind so close an association between the dealer's service and the supplier's name that a dealer's conviction for price-gouging cannot help injuring the supplier's reputation for integrity and fairness.[7] Thus, under this provision, Palombi's price-gouging conviction is a legally sufficient ground for termination in those two respects. Since the Court concludes that Razumic requires only that the termination of a service station franchise not be arbitrary and, since the Court further finds Palombi's price-gouging conviction to be a legally sufficient ground for termination, the Court must conclude that Getty is entitled to judgment as a matter of law,[8] and so ordered on September 8, 1980. NOTES [1] As originally filed, plaintiff's amended complaint alleged several violations of the federal antitrust laws in addition to the state law claim treated herein. Plaintiff alleged that this Court had jurisdiction over the antitrust claims by reason of 28 U.S.C. § 1331 and over the state law claim by reason of the Court's pendent jurisdiction. Diversity was not alleged, apparently because the plaintiff a citizen of Pennsylvania-then believed that the defendant corporation was also a citizen of Pennsylvania for purposes of 28 U.S.C. § 1332. On June 24, 1980, plaintiff filed a motion to amend the complaint to allege diversity. Defendant did not oppose the motion. Getty shortly thereafter filed the instant motion for summary judgment. On August 26, 1980, while both of these motions were pending, the Court held a final pretrial conference. At that time, plaintiff withdrew all but one of the antitrust claims. The Court thereafter granted plaintiff's motion to amend the complaint to allege diversity. Finally, on September 8, 1980, in the course of further argument on the motion for summary judgment, plaintiff withdrew the remaining antitrust claim and declared he would rely solely on the state law claim. The viability of that claim is the subject of this Memorandum Opinion. [2] Plaintiff does not allege that defendant failed to give proper notice or otherwise failed to satisfy the formalities of termination required by the lease. [3] Since the Court holds that Palombi's conviction for price-gouging is, without more, a sufficient ground for termination, it need not repeat here the catalogue of Palombi's abuses. Therefore, the Court's holding is based in no way upon any other of the alleged acts of the plaintiff. [4] Both parties agree that, since the last renewal of Palombi's lease occurred prior to the effective date of both federal and state statutes regulating gasoline dealer terminations, neither is directly controlling. See Petroleum Marketing Practices Act, 15 U.S.C. §§ 2801-06 (Supp. II, 1978); Pennsylvania Gasoline Act, Pa.Stat. Ann. tit. 73, § 202-5 (Purdon Supp. 1980). [5] In the passage quoted earlier stating the holding of Razumic, the Supreme Court of Pennsylvania does refer to the duty of a franchisor "to deal with its franchisees in good faith and in a commercially reasonable manner." 480 Pa. at 378, 390 A.2d at 742 (emphasis added). This passage merely states that to terminate nonarbitrarily is to act in a "commercially reasonable manner." It does not hold that the termination must be completely reexamined by the Court to determine whether it was reasonable under all the circumstances. [6] The Act states that it "shall not apply to any agreement entered into prior to the effective date of this act, except that a renewal of such agreement shall not be excluded from the application of this act." Pa.Stat.Ann. tit. 73, § 202-5 (Purdon Supp.1980). The Act became effective on February 24, 1976, almost six years after the signing of the lease in Razumic and almost a year after the last renewal of Palombi's lease. [7] The Court notes that the Act does not require that the conviction be shown to have actually defamed the supplier's reputation. The plain language of the statute requires only that the conviction be of an offense which by its nature would tend to defame the supplier's reputation. [8] The Court, by Order of September 8, 1980, rejected Getty's alternative ground for summary judgment. Although the Court's view of this argument is not dispositive of the case, the Court notes here the reasoning behind its rejection: Getty argued that this case is controlled not by Razumic but by Amoco Oil Co. v. Burns, ___ Pa.Super. ___, 408 A.2d 521 (1979), petition for allocatur granted, May 16, 1980. In Burns, the court held that the Razumic standards do not apply where the lessor-supplier "explicitly reserve[s] the power to terminate without cause." Id. at ___, 408 A.2d at 524. The Burns court noted that the agreement in Razumic accorded a right to terminate only to the lessee-dealer, while the lease in Burns accorded such right to both parties "without limitation as to reasons or cause." Id. The Burns court concluded that this distinction was sufficient to permit the lessor-supplier to terminate arbitrarily. Id. Where a federal court is exercising diversity jurisdiction and applying state law, see Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and there is "no decision by ... [the State's highest] court then federal authorities must apply what they find to be the state law after giving `proper regard' to relevant rulings of other courts of the State." Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967). Therefore, a federal court may decline to follow a decision of a state intermediate appellate court where the decision-despite proper regard is clearly contrary to the reasoning of a recent decision of the state's highest court rendered on substantially the same point of law. Getty correctly states that the agreement in this case is functionally identical to the agreement in Burns. However, these leases do not explicitly state that termination may be without cause. They merely permit the lessor as well as the lessee to terminate, without mentioning whether termination may be without cause. To allow such language-or lack of language-to avoid the protections of Razumic would significantly undercut the decision. Dealers not covered by recent legislation would be subject to the sudden and unreasoned loss of their businesses because of a quirk of draftsmanship that hardly warned them that they could no longer expect termination only for cause. This Court concludes that, when the Supreme Court of Pennsylvania hears this case on allocatur, it will reverse. Thus, the Court could not grant summary judgment for the defendant on this ground.

59 F.Supp.2d 641 (1999) BARDEN DETROIT CASINO, L.L.C., a Michigan Limited Liability Company, Plaintiff, v. The CITY OF DETROIT, The Detroit City Council, Dennis W. Archer, Gilbert Hill, MaryAnn Mahaffey, Clyde Cleveland, Kenneth Cockrel, Jr., Sheila Cockrel, Kay Everett, Nicholas Hood, III, Brenda M. Scott, Alberta Tinsley-Talabi, The Michigan Gaming Control Board, Thomas Denomme, Paula Blanchard, Rich Davis, Geraldine Ford, and Michael Stacey, Defendants. No. 99-CV-72655. United States District Court, E.D. Michigan, Southern Division. July 22, 1999. *642 *643 Robert M. Carson, Birmingham, MI, for plaintiff. Morley Witus, Detroit, MI, Eric J. Eggan, E. Lansing, MI, for defendant. FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING PLAINTIFF'S MOTION FOR INJUNCTIVE RELIEF AND DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT ROSEN, District Judge. I. INTRODUCTION On May 25, 1999, Plaintiff, Barden Detroit Casino, L.L.C. ("BDC") initiated the instant lawsuit against the above-captioned State and Detroit Defendants challenging, inter alia, the constitutionality of the Casino Development Competitive Selection Process, Detroit City Code § 18-13-1, et seq. (the "Ordinance"), and the Michigan Gaming Control and Revenue Act, M.C.L.A. § 432.201, et seq. (the "Act"), which govern the selection and licensing of casino developers in the City of Detroit, respectively. In particular, BDC — which lost out in its bid to become one of three casino operators in Detroit to Detroit Entertainment, L.L.C. ("Atwater"),[1] Greektown Casino, L.L.C. ("Greektown"), and MGM Grand Detroit, L.L.C. ("MGM") — asserts that both the Ordinance and the Act award unconstitutional preferences to developers, particularly Atwater and Greektown, who lead the drive to bring casino gaming to Detroit. The case is presently before the Court on BDC's May 25, 1999 Motion for Preliminary Injunction, predicated on First Amendment, equal protection, and substantive due process challenges to the Act and the Ordinance enumerated in counts I - VI of its Verified Complaint for Damages and for Injunctive Relief.[2] In light of the Sixth Circuit's recent holding in Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Michigan Gaming Control Board, 172 F.3d 397 (6th Cir.1999), finding that the Ordinance implicates core *644 First Amendment rights and is, therefore, subject to strict scrutiny, BDC argues it can establish the requisite likelihood of success on the merits of its constitutional claims against the Detroit Defendants. As explained in greater detail, infra, BDC also asserts that the Act violates the Constitution both on its face and as applied. In response, the Detroit Defendants concede the unconstitutionality of the Ordinance for the purposes of the instant motion only,[3] opting instead to rely on the following three threshold, and potentially dispositive, defenses: (1) a Consent and Release executed by Don Barden on behalf of BDC; (2) the equitable doctrine of laches; and (3) BDC's alleged inability to establish injury-in-fact. The Detroit Defendants further assert that even if the Court reaches the substance of BDC's constitutional challenges to the Ordinance, the balance of equities and the public interest militate strongly against any injunctive relief. With respect to the Act, the State Defendants assert that no "case or controversy" exists because the 1997 amendments to the statute render the state preference inoperative. The Court met with the parties in chambers on June 17, 1999 and held a hearing at which it heard oral argument and took evidence with respect to the issues raised by BDC's Motion for Preliminary Injunction on June 28, 1999.[4] Without objection from the parties, and with the sole caveat that the Detroit Defendants expressly reserved the right, if necessary, to defend the constitutionality of the Ordinance at a later stage of the proceedings, the Court ordered the trial of this case, with respect to the final merits of BDC's request for injunctive relief, advanced and consolidated with the hearing on Plaintiff's Motion for Preliminary Injunction pursuant to Fed.R.Civ.P. 65(a)(2). Having heard the oral arguments of counsel and the testimony of witnesses at the June 28, 1999 hearing, and having reviewed the briefs, deposition transcripts, and other supporting documents submitted by the parties, the Court makes the following findings of fact and conclusions of law. To the extent that any findings of fact constitute conclusions of law, they are adopted as such. To the extent that any conclusions of law constitute findings of fact, they are so adopted. II. FINDINGS OF FACT Preliminarily, the Court observes that this litigation presents very close and finely-nuanced legal and factual questions of great complexity, novelty, and controversy that are of the highest import to the residents of the greater Detroit Metropolitan Region and the State of Michigan. The Court recognizes that because of the need for an expeditious resolution of this matter, all parties — and particularly their counsel — have worked with commendable diligence to prepare and present these issues to the Court for timely resolution. For this prodigious effort, the Court expresses its appreciation and endeavors in this decision to set forth its findings of fact and conclusions of law, and the analysis underlying each, as comprehensively as possible. A. The Parties 1. Barden Detroit Casino, L.L.C. Plaintiff, BDC, is a Detroit-based Michigan limited liability company, formed to engage in the development and operation of a casino gaming establishment in the City of Detroit. Don H. Barden resides in *645 the City of Detroit and serves as the Chairman and President of BDC.[5] Throughout the casino selection process, the law firm of Dykema Gossett, P.L.L.C., represented BDC. 2. The Detroit Defendants For the purposes of this decision, the "Detroit Defendants" consist of the City of Detroit, Detroit Mayor Dennis W. Archer (the "Mayor"), the Detroit City Council, and the currently elected members of the Detroit City Council: Gilbert Hill, Maryann Mahaffey, Clyde Cleveland, Kenneth Cockrel, Jr., Sheila Cockrel, Kay Everett, Nicholas Hood III, Brenda Scott, and Alberta Tinsley-Talabi. 3. The State Defendants Defendant Michigan Gaming Control Board (the "Board") is an agency of Michigan Government, M.C.L.A. § 432.204(1), established and organized pursuant to the Michigan Gaming Control and Revenue Act. The Board possesses the authority and duties enumerated in the Act, and all other powers necessary and proper to fully and effectively administer the Act for the purposes of licensing, regulating, and enforcing the system of casino gaming established under the Act. M.C.L.A. § 432.204(1). Defendants Thomas Denomme, Paula Blanchard, Rich Davis, Geraldine Ford, and Michael Stacey constitute the currently serving members of the Board. For the purposes of this decision, the Court collectively refers to the Board and its individual members as the "State Defendants." B. The Michigan Gaming Control and Revenue Act ("the Act") 1. The Original Act On November 5, 1996, the state electorate approved Proposal E, a state ballot initiative legalizing casino gaming in the State of Michigan. In order to codify this successful referendum, the State Legislature passed, and the Governor signed into law, the Michigan Gaming Control and Revenue Act, M.C.L.A. § 432.201, et seq. The Act established the Michigan Gaming Control Board as the body authorized to issue licenses to operate casinos in Michigan, and effectively limited casino development to the City of Detroit by restricting gaming to cities: (1) with a population of at least 800,000 at the time a license is issued; (2) located within 100 miles of any other state or country in which gaming was permitted on December 5, 1996; and (3) where a majority of voters have expressed approval of casino gaming in the city. M.C.L.A. § 432.202(l).[6] Although Proposal E, as it appeared on the November 5, 1996 ballot, made no mention of preferences for any class of license applicants,[7] the Act's licensing procedures, *646 in their original form, exempted certain preferred developers from the competitive bidding process and granted a tie-breaking preference to applicants that supported a city-wide ballot initiative in favor of casino gaming: (a) The board shall issue a license to operate a casino to an applicant upon a determination by the board that the applicant is eligible for a casino license. The board shall find that an applicant is eligible for a casino license if all of the following criteria are met: (1) prior to the date of application: (i) the applicant or its affiliates or affiliated companies was the initiator of any casino gaming proposal submitted for voter approval in the city in which the casino will be located and the voters approved the proposal; or (ii) the applicant was selected by the city pursuant to a competitive bidding process. * * * * * * (b) No more than three (3) licenses shall be issued by the board in any city. In the event that more than three (3) applicants meet the criteria provided for in Section 6(a) of this Act, licenses shall first be issued to applicants which submitted any casino gaming proposal for voter approval prior to January 1, 1995, in the city in which the casino will be located and the voters approved the proposal. M.C.L.A. § 432.206 (1996) (amended 1997). 2. The Amended Act Effective July 17, 1997, the Act was amended to eliminate the provision previously codified at § 432.206(a) exempting preferred developers from the competitive bidding process. While the Amended Act retained the tie-breaking preference at § 432.206(3), the viability of this preference was called into doubt by the addition of a new subsection, § 432.206(2), which effectively limits a city to submitting no more than 3 certified development agreements to the Board at one time. As amended, § 432.206 now reads, in pertinent part: (1) The board shall issue a casino license to a person who applies for a license ... who the board determines is eligible and suitable to receive a casino license under this act and the rules promulgated by the board. It is the burden of the applicant to establish by clear and convincing evidence its suitability as to character, reputation, integrity, business probity, experience, and ability, financial ability and responsibility, and other criteria as may be considered appropriate by the board. The criteria considered appropriate by the board shall not be arbitrary, capricious, or contradictory to the expressed provisions of this act. A person is eligible to apply for a casino license if all of the following criteria are met: (a) The applicant proposes to locate the casino in a city where the local legislative body enacted an ordinance approving casino gaming that may include local ordinances governing casino operations, occupational licensees and suppliers which are consistent with this act and rules promulgated by the board. (b) The applicant entered into a certified development agreement with the city where the local legislative body enacted an ordinance approving casino gaming. (c) The applicant or its affiliates or affiliated companies has a history of, or a bona fide plan for, either investment or community involvement in the city where the casino will be located. (2) A city shall not certify or submit and have pending before the board more than 3 certified development agreements. If an applicant is denied a casino license by the board, the city may then certify a development agreement with another applicant and submit the certified development agreement to the board. Nothing in this act shall be construed *647 to prevent the city from entering into more than 3 development agreements. (3) No more than three (3) licenses shall be issued by the board in any city.... In evaluating the eligibility and suitability of all applicants under the standards provided in this act, the board shall establish and apply the standards to all applicants in a consistent and uniform manner. In the event that more than three (3) applicants meet the standards for eligibility and suitability provided for in subsection (4) and (5), licenses shall first be issued to those eligible and suitable applicants which submitted any casino gaming proposal for voter approval prior to January 1, 1995, in the city in which the casino will be located and the voters approved the proposal.[8] M.C.L.A. § 432.206 (emphasis added). To the extent the tie-breaking preference is effective, the parties do not dispute that Atwater and Greektown are the only entities that satisfy the requirements of § 432.206(3). C. The Ordinance On June 18, 1997, the Detroit City Council adopted an Ordinance entitled the Casino Development Competitive Selection Process, Detroit City Code § 18-13-1, et seq., which authorizes the Mayor to select three casino developers to enter into certified development agreements with the city pursuant to a competitive request for proposal ("RFP/Q") process. §§ 18-13-3(a), 18-13-7(a). The Ordinance provides a preference for developers who took the initiative to bring casino gaming to Detroit, and lists "preference qualification" as one of several broad factors the Mayor should consider in reviewing proposals.[9] §§ 18-13-1, 18-13-3. More specifically, the Ordinance Statement of Intent provides: In selecting developers of casinos, it is in the best interest of the city to provide a preference to those developers who took the initiative to facilitate the development of casino gaming in the City of Detroit by proposing a casino gaming proposal approved by the voters of the city (City Ordinance 15-94 and 16-94), and who actively promoted and significantly supported the state initiative authorizing gaming. Detroit City Code § 18-13-1(i). Section 18-13-2 defines "preference" as a "more favorable position given to one prospective developer over another in the process established to select a designated developer," and further elaborates on the parties entitled to a preference as follows: (a) In considering proposals and in selecting a prospective developer with whom the mayor or his designee will negotiate a development agreement, a prospective developer is entitled to a preference if: (1) Its proposal meets the criteria established by this chapter and by the request for proposals; (2) It was the initiator of a casino gaming proposal which was approved by the voters of this city prior to January 1, 1995; and (3) It made significant contributions to the development of gaming within the city by actively promoting and significantly supporting a state initiative authorizing gaming. (b) Notwithstanding any other provision of this chapter, no more than one preference *648 shall be awarded to prospective developers who proposed city Ordinance No. 15-94, even if more than one prospective developer claims entitlement to such preference. (c) Notwithstanding any other provision of this chapter, no more than one preference shall be awarded to prospective developers who proposed city Ordinance No. 16-94, even if more than one prospective developer claims entitlement to such preference. Detroit City Code § 18-13-6. It is undisputed that while BDC did not qualify for a preference, Atwater and Greektown satisfied the § 18-13-6 preference requirements.[10] D. The RFP/Q and Selection Process 1. The RFP/Q Process Consistent with the Ordinance, the City formulated a competitive selection process which was divided into two stages, RFP I and RFP II. On June 23, 1997, the City published RFP I, which required prospective developers to submit detailed casino proposals and a $50,000 application fee by August 1, 1997. [Exhibit 34]. Eleven developers, including BDC, responded to RFP I. 2. The Consent and Release All developers that responded to RFP I were required to execute a Consent and Release, which in its entirety provides: CONSENT AND RELEASE WHEREAS, the City of Detroit is soliciting requests for the City of Detroit/Casino Project pursuant to Phase One and Phase Two documents issued by the City of Detroit, together with all alterations, supplements or amendments thereto (collectively, the "RFP/Q"). WHEREAS, to evaluate the personal, business and financial qualifications and professional capabilities and standing of each Proposer, the Proposer's Substantial Owners, Managers, the Substantial Owners of its Managers, their respective Affiliates and their respective Key Persons (each, a "Releasor" and collectively, the "Releasors"), the City of Detroit requires certain information about each Releasor which could be considered confidential and/or proprietary ("Information"). WHEREAS, the collection of Information by the City of Detroit is essential to select the highest quality Proposal for the City of Detroit. WHEREAS, some of the Information may be collected directly or indirectly from the Releasor and/or other Releasors. WHEREAS, other Information may be collected directly or indirectly from others such as law enforcement agencies, courts, gaming and other regulatory bodies, former employees, and financial sources. NOW, THEREFORE, the Releasor, in consideration of the City of Detroit's accepting for review a Proposal in which Releasor has an economic interest and other valuable consideration the sufficiency of which is hereby acknowledged, agrees as follows: 1. The definitions contained in the RFP/Q are incorporated herein by reference. 2. The Releasor hereby consents and agrees to abide by all of the City of Detroit's terms, conditions, rules and policies concerning the RFP/Q. 3. The Releasor agrees that the City of Detroit does not acknowledge or agree that any of the Information is confidential and/or proprietary. *649 4. Information collected will be used in at least the following ways: a. To evaluate Releasor's personal, financial and business history; b. To evaluate Releasor's personal, financial and business integrity, and criminal history, if any; and c. To evaluate Releasor's professional qualifications and capabilities and demonstrated past performance. 5. The City of Detroit may use the Information in any regulatory decision with respect to involvement in gaming in the City of Detroit and may provide this Information to any existing or new licensing or regulatory body with respect to involvement in gaming in Michigan. 6. Information may be shared with other government agency officials or advisers who may work with the City of Detroit in the RFP/Q evaluation process. 7. The City of Detroit may provide the Information to the Board or any successor or replacement thereto. 8. The City of Detroit and/or the Board may share the Information with other jurisdictions with which it has formal agreements. 9. The City of Detroit may provide such Information to law enforcement agencies for gaming related investigations or clearances. 10. The City of Detroit is controlled by certain statutes of the United States and State of Michigan and divisions thereof. The Releasor acknowledges that those statutes may provide access by third parties to the Information obtained regarding the Releasor. 11. The Releasor, and his, her or its heirs, executors, administrators, successors and assigns, hereby release the City of Detroit including all departments, agencies and commissions thereof, and their respective principals, agents, consultants, attorneys, advisors, employees, officers and directors (the "Releasees"), and hold each of them harmless from any damages, claims, rights, liabilities, or causes of action, which the Releasor ever had, now has, may have or claim to have, in law or in equity, against any or all of the Releasees, arising out of or directly or indirectly related to the (i) RFP/Q process and the selection and evaluation of Proposals submitted in connection therewith; (ii) release or disclosure of any Information whether intentional or unintentional; and (iii) use, investigation of, or processing of the Information. 12. The undersigned Releasor has read and understands this Consent and Release and hereby authorizes the direct and indirect collection of, and consents to the use and disclosure of, the Information as described herein. [Joint Exhibit 36]. As part of his RFP I proposal, Don Barden executed the Consent and Release on behalf of BDC and various other Barden controlled entities first on July 25, 1997 and again on August 1, 1997.[11] [Joint Exhibit 36]. 3. The Selection Process On August 23, 1997, the Mayor invited seven of the eleven prospective developers, including BDC, to proceed to RFP II.[12] All seven of these developers submitted proposals along with the $250,000 RFP II fee. On November 7, 1997, the Mayor eliminated BDC's proposal by narrowing the field to Atwater, Greektown, MGM, and Mirage. A final decision was then reached on November 20, 1997, when the Mayor announced the City's intent to negotiate certified development agreements with Atwater, Greektown, and MGM. The State *650 and the Detroit Defendants have raised important issues as to why BDC did not bring suit challenging the selection process at this time.[13] At his June 24, 1999 deposition, Mayor Archer testified extensively with respect to the application of preferences in the selection process. While indicating that Atwater and Greektown were eligible for preferences throughout the RFP/Q process, the Mayor unequivocally testified that no preference was applied until after the applicant field was reduced from seven to four. [Archer Dep., pp. 33, 63, 65]. Among the final four, the Mayor further testified that while the preference played no role in the final selection of Atwater, the preference did enable Greektown to prevail over Mirage. [Archer Dep., p. 57]. With respect to Atwater, the Mayor denied knowledge that Circus Circus agreed to pay Atwater $13 million for an assignment of preference rights, a fact which is not now contested. However, he acknowledged that the addition of Circus Circus substantially strengthened the Atwater group's bid: Q. [By Mr. Carson] Am I correct in my understanding that in the past you've stated that Atwater received no preference? A. [By Mayor Archer] That's correct. Q. Are you aware that to satisfy the local Atwater group's capital contribution to that casino entity, that it assigned its preference rights? A. No. * * * * * * Q. And that was the full extent of its capital contribution? A. No, I can't say that I knew that at all. Q. And that in addition to that, in consideration for that assignment, that the local people got — or Circus Circus agreed to pay additionally $13 million, five million cash and eight million when the casino license is issued? A. I don't know if — I don't recall sitting here whether or not that has been disclosed to me, but let me just indicate the following. Atwater is entirely different than the Atwater that proposed the, excuse me, ballot initiative for August 2nd, 1994. There have been, in my view, additions and deletions to what was commonly referred to as Atwater, but the group guts or the core group, I should say would be more appropriate, at least in my view, the proponents, namely Herb Strather, Nellie Varner and others, are the ones who were the principal outspoken advocates that began the August 2nd, 1994 initiative. Q. Who are the others that you can recall? * * * * * * A. I don't know all of the them, let's put it that way.... I was aware it seems to me that one time there was either a verbal or written agreement between Atwater and Mirage, and that didn't last, and it was clear that Atwater by and of themselves, whoever they were, did not have an entity that was in the casino gaming business, so I was *651 not at all surprised to see them partner up with or look for somebody who had casino gaming experience. Q. The so-called Atwater group was at least nominally one that was entitled to a preference under the Detroit ordinance; is that correct? A. They would have been, but it was not needed. Q. I'm saying they were entitled, is my question? A. Well, I don't know to quibble with you. I think in contemplation, if you were to ask the authors of their intent of the ordinance, I'm sure Atwater was contemplated, but in reality Atwater, now known I think as Detroit Entertainment, did not need a preference. They were strong enough that they didn't need it. Q. And indeed you made that judgment? A. Yeah. I was the one who made the recommendation to City Council, yes. Q. So at the time you made the judgment, you knew that Atwater nominally was entitled to a preference, but you made the judgments they did not need it or it did not need it? A. It clearly didn't need it. * * * * * * Q. Would it be safe to say, Mr. Mayor, that if the Atwater group, Detroit Entertainment, but the Atwater group was composed of all its constituents, other than Circus Circus, that you would not have viewed it in the same way and would not have selected it? A. That calls for conjecture because they didn't present it that way, and so since they didn't present it that way I couldn't evaluate it as I evaluated everybody else. What I had to evaluate was that which was written and given to me to take a look at so I can't divorce it out, sorry. Q. You're saying that the question as framed is so speculative that you could not make a judgment sitting here today that that group, absent Circus Circus, would have failed? A. I don't know that because I hadn't seen or, you know, nothing has come before me that would suggest otherwise. Now, one could speculate taking your hypothetical and saying if people who had no casino experience and came in and said, gee, we'd like to do this casino, we have put something on the ballot in August of 1994, we were successful there, we helped to put this on a statewide ballot and collectively we have no experience of running a casino, we've had no experience running a complex that the City has in mind, if that was it standing alone, nothing else, and no financial ability to build out a casino and none of the other criteria that's listed in all the criteria, they would not have been chosen. [Archer Dep., pp. 39-41, 43-45]. 4. City Council Ratification Following the Mayor's announcement of the selected developers, the City proceeded to negotiate development agreements with Atwater, Greektown, and MGM, which agreements were executed on March 12, 1998 and submitted to the City Council for approval pursuant to Detroit City Code § 18-13-8.[14] As part of the *652 negotiation process, each of the selected developers agreed to effectively cross-condition —or "tie-bar" — the development agreements by making the effective date of each agreement dependent on the City Council's approval of the other two agreements. More specifically, Art. I, § 1.1(a)(62) of each of the three development agreements provides: "Effective Date" means the date on which all of the following have been accomplished: the agreement has been executed by all parties hereto and the City Council has duly approved and certified the last of the following: (i) this Agreement; and (ii) the development agreements of each of the Other Land-Based Casino Developers. [Joint Exhibits 13-15, emphasis added]. On April 9, 1998, the City Council approved each of the three development agreements. Thereafter, the City forwarded the agreements to the Board on April 17, 1998, enabling the Board to accept and begin processing the selected developers' license applications.[15] E. Subsequent Developments 1. Proposal 1 Following the City Council's approval of the development agreements, Community Coalition, a Detroit-based organization advocating for increased local ownership of the casino projects, succeeded in placing a ballot initiative on the August 1998 city-wide ballot. The ballot initiative, known as Proposal 1, sought to amend the Ordinance to assure that a "Qualified Detroit-Based Developer" received one of the development agreements.[16] BDC satisfied the requirements of a "Qualified Detroit-Based Developer," which Proposal 1 defined as follows: QUALIFIED DETROIT-BASED DEVELOPER means a proposed developer, fifty (50%) percent or more of which is owned, directly or indirectly, by one or more individuals who meet each of the following criteria: (a) are (or were) residents of the City of Detroit at the time the submission of the proposed developer's proposal was (or is) submitted and for at least one year preceding such time, (b) have, prior to the date of the submission of the proposed developer's proposal, owned and operated a Detroit-Based Business, and (c) for a period of one (1) year or more, have been licensed by a state other than the State of Michigan to conduct casino operations (including riverboat gaming operations). For purpose of subclause (c), an individual shall be deemed to be licensed if it owns directly or indirectly, more than (50%) percent of a company that has been licensed to conduct casino operations (including riverboat gaming operations) by a state other than the State of Michigan. [Hearing Exhibit 6]. At the June 28, 1999 hearing, Mr. Barden testified that while he played no direct role in Community Coalition, he supported Proposal 1 and financed the Coalition's efforts to amend the Ordinance. [Hearing Transcript, pp. 203-204]. Despite these efforts, Detroit voters overwhelmingly rejected *653 Proposal 1 on August 4, 1998, choosing instead to approve another ballot initiative, Proposal 2, that effectively affirmed the selection criteria set forth in the Ordinance. 2. Temporary Casinos Despite the fact that each of the certified development agreements provides, inter alia, that "[N]o right shall be conferred or obligation imposed under this Agreement unless and until ... the Board has issued its Certificate of Suitability pursuant to the Act," MGM began construction of a temporary casino on November 20, 1998. Greektown and Atwater commenced construction of their temporary casino facilities on February 1, 1999 and February 8, 1999, respectively.[17] [Stipulated Fact 47]. At the June 28, 1999 hearing, Nelson Westrin, Executive Director of the Board, explained the current status of the selected developers' license applications as follows: MR. DRIKER: All right. Could you tell his Honor what status the licensing of the three casino applicants is right as of today where things stand in a nutshell? MR. WESTRIN: The Gaming Control Board has completed the background investigated [sic] of the MGM Grand, L.L.C. application. We commenced the required public investigator hearing on June 21st. Evidence was closed, and the Board is reconvening the hearing on July 20th for a final argument.[18] And to take a[v]ote on suitability; and, if appropriate, on whether or not a license should issue. THE COURT: As to MGM.? MR. WESTRIN: As to MGM Grand. THE COURT: Where are you with respect to the other two selectees? MR. WESTRIN: The background investigations which are required are still ongoing as to both of the other applicants. The Detroit Entertainment L.L.C. investigation is projected to be completed sometime in late July, early August. The Greektown Casino L.L.C. application investigation is projected to [be] complete[d] sometime [in] late October, early November. [Hearing Transcript, pp. 228-229]. F. Other Relevant Litigation 1. Lac Vieux BDC models its constitutional challenges in the instant case on a similar suit originally filed in the United States District Court for the Western District of Michigan by the Lac Vieux Desert Band of Lake Superior Chippewa Indians ("Lac Vieux") against the Board, the City of Detroit, the Mayor, and the City Council on February 25, 1997. As amended, Lac Vieux's Complaint alleged, inter alia, that the preferences in the Act and the Ordinance violated Lac Vieux's constitutional rights to free expression and equal protection.[19] On October *654 31, 1997, Judge Robert Holmes Bell granted summary judgment in favor of the Defendants, finding that Lac Vieux did not have standing to bring its equal protection challenges and that neither the Act nor the Ordinance implicated the First Amendment.[20] The district court further held that even if Lac Vieux had standing, its equal protection claims could not survive rational basis review. Lac Vieux, 172 F.3d at 403. However, in a unanimous decision issued on April 12, 1999, Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Michigan Gaming Control Board, 172 F.3d 397 (6th Cir.1999), the Sixth Circuit reversed the District Court's summary disposition of Lac Vieux's First Amendment and equal protection challenges to the Ordinance, and remanded these claims to the District Court for further proceedings. In particular, the Sixth Circuit found that Lac Vieux did have standing to bring both First Amendment and equal protection challenges to the Ordinance, and that the Ordinance does implicate important First Amendment concerns and is, therefore, subject to the very high constitutional standard of strict scrutiny by the Court: Although the city ordinance in this case does not directly prohibit or limit speech, it does implicate the First Amendment. The ordinance grants benefits and imposes burdens according to whether an individual or entity sufficiently supported a particular political issue. Specifically, it grants a preference to developers who initiated a prior local casino gaming proposal and actively promoted and significantly supported a state initiative authorizing gaming. The ordinance thereby denies a preference in the bidding process to certain developers on the basis of the content of their political speech, a category of speech which has been specifically recognized by the Supreme Court as particularly valuable and thereby carefully protected. It does not matter that the ordinance involves prior speech rather than prospective speech or a preference rather than a guarantee, because it imposes a burden based on the content of political speech and, therefore, implicates the First Amendment. * * * * * * [W]e conclude that the ordinance is content-based and is therefore subject to strict scrutiny.[21] Id. at 409-410 (internal quotations and citations omitted). In addition, the Sixth Circuit found that the District Court erred by subjecting Lac Vieux's equal protection challenge to the Ordinance to rational basis review: A statute challenged on equal protection grounds will be subject to strict scrutiny when the statute involves a suspect classification or has an impact on a fundamental right. If the statute does not involve a suspect classification or affect a fundamental right, then it will be subject to rational basis review. The district court found that the ordinance did not implicate the First Amendment, or any other fundamental right for that matter, and therefore applied rational basis review. However, in view of our holding that the ordinance does affect *655 rights under the First Amendment, it follows that it is subject to strict scrutiny review — because it implicates a constitutionally protected fundamental right, the right to freedom of speech. Id. at 410 (internal citations omitted). With respect to the State Act, however, the Sixth Circuit found that Lac Vieux lacked standing to bring either First Amendment or equal protection challenges. In reaching this decision, the panel reasoned: [T]he amended act appears to render the [Act's] preference ineffective. If the preference is ineffective, there can be no injury and no `case or controversy.' Although Lac Vieux attempts to rebut the defendants' and the intervenors' contention that the preference is ineffective, we find its argument neither fully developed nor convincing. We therefore hold that because the preference in the amended act is ineffective, Lac Vieux does not have standing to bring an equal protection challenge to the amended act. Id. at 406.[22] 2. NewCentury On October 7, 1997, NewCentury Detroit, L.L.C. ("NewCentury"), one of the four original bidders that the Mayor did not invite to respond to RFP II, filed suit in the United States District Court for the Eastern District of Michigan challenging, inter alia, the preferences in the Act and the Ordinance on First Amendment and equal protection grounds.[23]NewCentury Detroit L.L.C. v. City of Detroit, Case No. 97-75154. Following a November 3, 1997 hearing, Judge Nancy G. Edmunds issued an Order Denying Plaintiff's Motion for Preliminary Injunction on November 6, 1997.[24] In reaching this decision, Judge Edmunds concluded that the Ordinance did not implicate NewCentury's First Amendment rights, and that the Consent and Release executed by all of the developers who responded to RFP I, including BDC, undermined NewCentury's likelihood of success on the merits. [Order Denying Motion for Preliminary Injunction, pp. 7, 10]. Thereafter, the Court permitted counsel for NewCentury to withdraw, and no responses were filed to the Defendants' January 15, 1998 motions for summary judgment. On June 3, 1998, Judge Edmunds issued an Order Granting Defendants' Motions for Summary Judgment. With respect to NewCentury's claims directed at the State, the Court found that the 1997 amendments to the Act rendered the state preference inoperative. [Order Granting Summary Judgment, pp. 12-13]. In addition, the Court found that the Consent and Release barred all claims against the City: A release is valid if it is fairly and voluntarily made. See Newton v. Rumery, 480 U.S. 386, 417, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987); Salmeron v. United States, 724 F.2d 1357, 1361 (9th Cir. 1983) ("release of claims for violations of civil and constitutional rights must be voluntary, deliberate and informed"). The Court finds no indication that the RFP/Q releases fail to meet this standard. The document language is clear and unambiguous; the releases specifically informed Plaintiffs that they were waiving any and all claims regarding the RFP/Q process. Plaintiffs' complaint presents no allegation of fraud, coercion, or other misconduct regarding the City's solicitation of signatures for the release. Thus, the record before this Court is *656 bereft of any evidence of unfairness. Moreover, Plaintiffs are sophisticated parties with legal counsel. As such, the Court would find it difficult to countenance a claim of involuntariness, overreaching, or unconscionability. Rather, the Court finds that the release is not impugned by any unfairness or involuntariness and that it therefore remains valid and binding on the Plaintiffs. [Order Granting Summary Judgment, pp. 7-8, internal footnote and citation omitted]. NewCentury did not pursue an appeal of Judge Edmund's decision to the Sixth Circuit. G. Procedural Summary On May 25, 1999, approximately six weeks after the Sixth Circuit issued its opinion in Lac Vieux, BDC initiated the present lawsuit by filing a fifteen-count Verified Complaint for Damages and for Injunctive and Declaratory Relief. Counts I-VI, the predicate for BDC's instant request for injunctive relief, set forth First Amendment, equal protection, and substantive due process challenges to the Act and the Ordinance. In Count VII, BDC asserts that both the Act and the Ordinance violate the Michigan Constitution's prohibition against special legislation. Count VIII presents a § 1983 action against all Defendants based on the aforementioned federal constitutional challenges. Finally, Counts IX - XV present a variety of state law contract and tort claims against the Detroit Defendants. That same day, BDC filed the instant Motion for Preliminary Injunction requesting that the Court declare the Act and the Ordinance unconstitutional and enjoin the opening of the temporary casinos. Pursuant to the Court's May 25, 1999 Show Cause Order, the Detroit and the State Defendants filed Responses to Plaintiff's Motion for Preliminary Injunction on June 15, 1999, and BDC filed its Reply Briefs on June 22, 1999.[25] In addition, the Detroit and the State Defendants filed separate Motions for Summary Judgment on June 15, 1999 and June 22, 1999, respectively.[26] The parties also filed a Stipulated Order of Facts and Exhibits on June 30, 1999. Under the supervision of the Court, the parties have also engaged in limited mutual discovery, exchanging numerous documents relevant to the issues in this case. At the direction of the Court, the parties have produced to the Court voluminous documents under seal upon which claims of privilege have been asserted. These documents were accompanied by annotated privilege logs describing the documents and the claimed privilege. Copies of the logs were served on opposing counsel. The Court has carefully reviewed each and every document upon which a privilege has been asserted. With the exception of those documents expressly indicated by the Court in its in camera hearing with the parties on July 14, 1999, the Court hereby finds that all privileges claimed by both parties have been properly asserted. Thus, the Court has not relied on any of these documents in reaching its decision, and these documents shall remain under seal. III. CONCLUSIONS OF LAW A. Standards Applicable to Motions for Preliminary Injunction In considering a request for a preliminary injunction, the Court must consider and balance the following four factors: (1) the movant's likelihood of success on the merits; (2) whether the movant will suffer irreparable injury in the absence of *657 an injunction; (3) whether an injunction will cause substantial harm to others; and (4) whether an injunction would serve the public interest. G & V Lounge, Inc. v. Michigan Liquor Control Commission, 23 F.3d 1071, 1076 (6th Cir.1994); In re DeLorean Motor Co., 755 F.2d 1223, 1228 (6th Cir.1985). Fed.R.Civ.P. 52 requires the Court to make specific findings as to each factor "unless fewer are dispositive of the issue." Id. B. BDC's Claims Against the Detroit Defendants 1. The Equities Because both sides have asserted that the equities of this case militate in their favor, as an initial matter, the Court wishes to make several comments regarding the parties to this lawsuit and the general equities of the case. Having thoroughly and carefully reviewed the record, it is clear to the Court that the equities in this case favor neither BDC nor the Detroit Defendants. On the one hand, the Court is faced with a Plaintiff who sat on its rights for almost two years before filing the instant lawsuit, while the City and the successful bidders went forward with the casino project, investing millions of dollars and dedicating important government resources. Despite its protestations to the contrary, BDC clearly had the option in 1997, or even in 1998, to follow the lead of Lac Vieux and NewCentury and immediately challenge the constitutionality of the preferences in both the Act and the Ordinance. Having signed a Consent and Release, "rolled-the-dice," and then lost in its bid to gain one of the coveted development agreements, BDC now asks the Court to shut down and restart the selection process on the eve of the opening of the temporary casinos. Furthermore, the Court is not blind to the irony of BDC now claiming First Amendment and equal protection violations, when BDC, in fact, supports casino gaming and promoted what was, in effect, a preference for itself through its support of city ballot Proposal 1. On the other hand, the Detroit Defendants are similarly in no position to claim either the moral or legal high ground. Although the Court expresses no opinion as to whether casino gaming will be the economic boon and panacea for the City that its supporters suggest, the Court finds it deeply troubling, and indeed somewhat reckless, that the City would risk the casino developments — a project showcased as one of the centerpieces of Detroit's rebirth — on an arguably unconstitutional Ordinance and selection process. The record clearly establishes that as early as 1997, the Detroit Defendants were placed on notice of potentially fatal constitutional defects in the selection process by the filing of the Lac Vieux and NewCentury cases. Rather than taking prudent steps to immediately cure these potential constitutional deficiencies, the City made a conscious decision to plow ahead, first codifying the questionable preferences in law and subsequently proceeding with the selection and development process. In essence, the City also "rolled-the-dice," wagering that it would win in the courts. Having now suffered a serious setback with the Sixth Circuit's decision in Lac Vieux, the Court finds it somewhat disingenuous for the City to rely on the doctrine of laches when it had reason to know all along that a grave day of reckoning could well arrive. In sum, there are no "good guys in white hats" in this high-stakes gamble by both sides involving a flawed process and participants who made conscious decisions to pay their money and take their chances. Thus, the Court is left to choose between two rather unappealing and unsatisfactory outcomes: (1) granting relief to a party that the Detroit Defendants somewhat aptly describe as a "disgruntled sore loser" who knew the rules of the game going in; or (2) impliedly sanctioning what may well amount to an unconstitutional selection process. With this background in mind, the Court turns its attention to BDC's *658 likelihood of success on the merits of its constitutional claims. 2. BDC's Likelihood of Success on the Merits As noted above, BDC relies on the Sixth Circuit's recent holding in Lac Vieux subjecting the Ordinance to strict scrutiny to establish the requisite likelihood of success on the merits of its First Amendment, equal protection, and substantive due process challenges to the Ordinance. Faced with the daunting obstacle of satisfying the strict scrutiny standard, the Detroit Defendants concede the unconstitutionality of the Ordinance for the purposes of the instant Motion for Preliminary Injunction, arguing that the Court need not reach the substance of BDC's constitutional challenges in light of a series of threshold defenses: (1) the Consent and Release executed by Don Barden on behalf of BDC prior to entering the selection process; (2) the equitable doctrine of laches; and (3) BDC's alleged inability to establish injury-in-fact. Although resolution of these issues, both independently and collectively, is an extremely close call, in the final analysis, the Court finds that the Consent and Release bars all of BDC's claims against the Detroit Defendants. 3. The Consent and Release As indicated above, the Detroit Defendants assert that the plain language of the Consent and Release executed by Don Barden on behalf of BDC and various other Barden controlled entities on July 25, 1997, and then again on August 1, 1997, bars all claims against the City, the Mayor, the City Council, and the individual Council members. In making this argument, the Detroit Defendants cite paragraph 11 of the Consent and Release, which provides: The Releasor, and his, her or its heirs, executors, administrators, successors and assigns, hereby release the City of Detroit including all departments, agencies and commissions thereof, and their respective principals, agents, consultants, attorneys, advisors, employees, officers and directors (the "Releasees"), and hold each of them harmless from any damages, claims, rights, liabilities, or causes of action, which the Releasor ever had, now has, may have or claim to have, in law or in equity, against any or all of the Releasees, arising out of or directly or indirectly related to the (i) RFP/Q process and the selection and evaluation of Proposals submitted in connection therewith; (ii) release or disclosure of any Information whether intentional or unintentional; and (iii) use, investigation of, or processing of the Information. [Joint Exhibit 36, emphasis added]. Specifically, the Detroit Defendants rely on paragraph 11(i), noting that BDC's constitutional claims against the Detroit Defendants arise out of, and are directly related to, the "RFP/Q process and the selection and evaluation of proposals submitted in connection therewith." Despite the seemingly clear language of paragraph 11(i), BDC enumerates five primary arguments as to why the Consent and Release should not preclude the instant lawsuit against the Detroit Defendants: 1. The Consent and Release was meant to apply only to information-related claims; 2. The Ordinance only authorizes a release as to information related claims; 3. The unconstitutional condition doctrine precludes the Detroit Defendants from requiring a waiver of constitutional rights as a precondition to participating in the RFP/Q process; 4. Even if the Detroit Defendants could legally condition participating in the RFP/Q process on the signing of a release of claims, BDC did not voluntarily, knowingly, and intelligently *659 waive its right to bring constitutional challenges; and 5. The Consent and Release is void for lack of consideration. As set forth in detail below, the Court finds each of BDC's arguments against application of the Consent and Release unavailing. a. The Scope of the Consent and Release As its initial argument against application of the Consent and Release, BDC essentially posits that the Court should interpret the broad release language in paragraph 11(i) in pari materia with the other clauses of the Consent and Release, which deal almost exclusively with concerns emanating from potential liabilities for the disclosure and dissemination of information submitted by applicants in connection with their bid proposals. More specifically, BDC asserts that when read as a whole and in context, the Consent and Release acts only to bar claims relating to the gathering, use, processing, and disclosure of information provided by applicants or third parties as part of the RFP/Q process. In support of this argument, BDC relies on the fact that four of the five whereas clauses and nine of the twelve numbered paragraphs of the Consent and Release address informational concerns, and that the term "information" itself appears seventeen times in the document. In contrast, the language purportedly waiving all claims arising out of the RFP/Q process and the selection of developers does not appear until paragraph 11(i), where BDC asserts that it is "buried," without a separate heading, among two other subparagraphs which also deal with the use and dissemination of information. Finally, BDC argues that paragraph 12 underscores the informational nature of the Consent and Release by providing that "[t]he undersigned Releasor has read and understands this Consent and Release and hereby authorizes the direct and indirect collection of and consents to the use and disclosure of, the Information as described herein." Under well-established law, courts construe releases consistent with general state law contract principles, with the intent of the parties controlling the scope of the release. Taggart v. United States, 880 F.2d 867, 870 (6th Cir.1989) (interpreting Michigan contract law); Wyrembelski v. City of St. Clair Shores, 218 Mich.App. 125, 127, 553 N.W.2d 651, 652 (1996); Gortney v. Norfolk & Western Railway Company, 216 Mich.App. 535, 540, 549 N.W.2d 612, 614 (1996). In determining the intent of the parties, the Court must look to the language of the release itself. "If the language is unambiguous, the meaning of the language is a question of law, and the intent of the parties must be discerned from the words used in the instrument. However, if the scope of a release agreement is ambiguous, the question thus becomes one of determining the intention of the parties." Taggart, 880 F.2d at 870 (internal citations omitted). As neatly summarized by the Michigan Court of Appeals: If the text in the release is unambiguous, we must ascertain the parties' intentions from the plain, ordinary meaning of the language of the release. The fact that the parties dispute the meaning of a release does not, in itself, establish an ambiguity. A contract is ambiguous only if its language is reasonably susceptible to more than one interpretation. If the terms of the release are unambiguous, contradictory inferences become subjective and irrelevant, and the legal effect of the language is a question of law. Gortney, 216 Mich.App. at 540-541, 549 N.W.2d at 614-615 (internal citations and quotations omitted); See also Michigan Chandelier Co. v. Morse, 297 Mich. 41, 49, 297 N.W. 64, 67 (1941) ("The law presumes that the parties understood the import of their contract and that they had the intention which its terms manifest."). *660 Applying the aforementioned principles to the case at hand, the Court finds that the unambiguous language of the Consent and Release belies BDC's argument that the parties intended the document to release only information-related claims. While the Consent and Release as a whole is perhaps poorly structured with respect to the location of the release language, the clear and unequivocal text of paragraph 11 expressly addresses the type of claims that proposers were releasing by participating in the RFP/Q process. More specifically, in paragraph 11(i), BDC agreed to hold the Detroit Defendants harmless from any claims in law or equity arising out of the "RFP/Q process and the selection and evaluation of Proposals submitted in connection therewith."[27] The release of potential claims relating to the use and disclosure of information is then addressed in subparagraphs 11(ii) and 11(iii). Thus, paragraph 11 broadly precludes any claims or causes of action, whether in law or in equity, and then further delineates between the release of claims relating to information and the release of claims relating to the RFP/Q process and the selection and evaluation of proposals submitted in connection therewith.[28] Moreover, if the City only intended a release from liability as to information-related matters, subsection 11(i) would not have been necessary, as subsections 11(ii) and 11(iii) comprehensively release information-related matters. In light of this clear distinction, the Court finds BDC's argument that the Consent and Release applies only to information-related claims without merit.[29] b. The Scope of the Authority Granted by the Ordinance Having found that the scope of the Consent and Release encompasses more than information-related claims, the Court turns to BDC's related argument that by requiring a blanket release of any and all claims, the Mayor exceeded the statutory authority granted by Ordinance § 18-13-4(b)(2), which provides: (a) The mayor or his designee may require information and assurances from a prospective developer to demonstrate to the mayor's satisfaction that the prospective developer is eligible to enter into a development agreement with the city. (b) Without limiting the foregoing, a prospective developer is not eligible to enter into a development agreement with the city if: * * * * * * (2) It does not submit to the city a consent in the form required by the mayor or his designee, for itself and each of its officers, directors and owners, to allow the city to evaluate the personal and professional integrity and the professional capabilities of each individual or any other matters deemed relevant by the mayor or his designee. *661 Further, it shall submit to the city a release in the form required by the mayor or his designee which shall absolve the city, its agents, or employees from liability for seeking information about the prospective developer from third parties. Such release shall also absolve the third parties from liability for providing such information. Detroit City Code § 18-13-4(b)(2) (emphasis added). Relying on this section, BDC argues that the Ordinance only grants the Mayor authority to require a release as to information-related claims. In analyzing this argument, the Court notes that public officials are presumed to have "`properly discharged their official duties'" and, although this is a rebuttable presumption, the burden falls on the party asserting an ultra vires act to show otherwise. Bracy v. Gramley, 520 U.S. 899, 909, 117 S.Ct. 1793, 1799, 138 L.Ed.2d 97 (1997) (quoting United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 1486, 134 L.Ed.2d 687 (1996)); Jones, Rosen, Wegner, & Jones, Rutter Group Practice Guide: Federal Civil Trials & Evidence, ¶¶ 8:4925-8:4956, 8:4975-8:4980 (The Rutter Group 1999). Applying this standard, BDC has failed to set forth sufficient evidence to rebut the presumption that the Mayor acted properly in requiring a release of all claims. While the Ordinance does require the Mayor to include language in a release pertaining to information-related claims, nothing in § 18-13-4(b)(2) — or anywhere else in the Ordinance for that matter — precludes the Mayor from also including broader language to protect the City from other types of claims. Quite the contrary, § 18-13-4(b)(2) on its face expressly authorizes the Mayor to draft a release in the form he deems proper. Moreover, BDC's construction of § 18-13-4(b)(2) ignores the fact that § 18-13-4(a) grants the Mayor broad discretion to require "information and assurances from a prospective developer to demonstrate to the Mayor's satisfaction that the prospective developer is eligible to enter into a development agreement with the city."[30] Given this broad discretion, the Court finds that the Mayor did not exceed his statutory authority by requiring a release as to any claims, whether in law or in equity. C. The Unconstitutional Condition Doctrine BDC next argues that the unconstitutional condition doctrine precludes application of the Consent and Release to constitutional claims. The unconstitutional condition doctrine grows out of the principle that in certain circumstances, the government may not deny a benefit to an individual on a basis that infringes constitutionally protected interests, particularly the right to free expression. The Supreme Court explained the policy rationale underlying the doctrine as follows: For at least a quarter-century, this Court has made clear that even though a person has no `right' to a valuable government benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to `produce a result which [it] could not command directly.' Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460. Such interference with constitutional rights is impermissible. *662 Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972). The leading case in the Sixth Circuit applying the unconstitutional condition doctrine is G & V Lounge, Inc. v. Michigan Liquor Control Commission, 23 F.3d 1071, 1077 (6th Cir.1994), where the Court struck down an attempt by the City of Inkster to condition the granting of a liquor license/entertainment permit on G & V's agreement not to offer adult entertainment at its facility. In reaching this decision, the Sixth Circuit set forth a clear rule that "a state actor cannot constitutionally condition the receipt of a benefit ... on an agreement to refrain from exercising one's constitutional rights, especially one's right to free expression." (citing Perry, 408 U.S. at 597, 92 S.Ct. at 2697-98 and Keyishian v. Board of Regents, 385 U.S. 589, 606, 87 S.Ct. 675, 685, 17 L.Ed.2d 629 (1967)). Arguing by analogy to G & V, BDC asserts that the Detroit Defendants impermissibly conditioned a benefit — participation in the RFP/Q process — on a developer's agreement to sign away its constitutional rights through the Consent and Release. In response, the Detroit Defendants argue that the instant case is governed by a separate and distinct line of cases holding that an individual may release the right to bring constitutional challenges so long as such release is entered into voluntarily and is not the product of misconduct on the part of the City. See Town of Newton v. Rumery, 480 U.S. 386, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987); Burke v. Johnson, 167 F.3d 276 (1999); Cf. Salmeron v. United States, 724 F.2d 1357, 1361(9th Cir.1983) ("A release of claims for violations of civil and constitutional rights must be voluntary, deliberate and informed"). More specifically, the Detroit Defendants contend that as an experienced, sophisticated, and successful businessman, familiar with releases and represented by well-respected and highly competent counsel throughout the RFP/Q process, Mr. Barden made a conscious and informed decision to sign the Consent and Release and move forward with the RFP/Q process. Because the Court finds that the applicability of the unconstitutional condition doctrine to the case at hand presents a close question of law, the Court will explore both the unconstitutional condition and Rumery line of cases in some detail. In Perry, a non-tenured junior college professor, who had vocally criticized policies of the college's Board of Regents, brought suit alleging, inter alia, that the Board's decision not to renew his employment contract was based on public criticism of the school's policies and, thus, infringed his right to freedom of speech. The district court granted summary judgment for the defendants on the grounds that the professor had no contract right to employment. On appeal, the Fifth Circuit reversed, finding that "despite the respondent's lack of tenure, the nonrenewal of his contract would violate the Fourteenth Amendment if it in fact was based on protected free speech."[31]Perry, 408 U.S. at 596, 92 S.Ct. at 2697. Relying on the unconstitutional condition doctrine, the Supreme Court affirmed the Fifth Circuit's decision, noting that "the respondent's lack of a contractual or tenure `right' to reemployment for the 1969-1970 academic year is immaterial to his free speech claim." Id. As noted above, G & V involved a dispute over whether the City of Inkster could condition approval of a liquor license and entertainment permit on G & V's agreement not to offer topless dancing at one of its establishments in Inkster, the Mustang Lounge. In 1979, a previous operator of the Mustang Lounge, Soco Enterprises, Inc. ("Soco"), entered into an agreement with Inkster whereby the city *663 would approve Soco's request for a liquor license/entertainment permit in return for Soco's assurances that it would not permit topless dancing on the premises.[32] Soco operated the lounge until 1983, when ownership of the license/permit was transferred to G & V. Thereafter, G & V provided entertainment in the form of live bands and dancing at the lounge until September 24, 1992, when it informed the city that it intended to offer topless dancing. The city responded by enacting an ordinance authorizing the city council to recommend nonrenewal or revocation of a liquor license/entertainment permit in the event the nature of the entertainment offered by a licensee changes or the licensee fails to comply with any general or specific condition imposed pursuant to the granting of the license. Relying on the newly enacted ordinance, the Inkster city attorney informed G & V that if it violated the terms of the 1979 agreement by offering topless dancing, the lounge risked losing its license/permit. Shortly thereafter — and prior to offering adult entertainment at the lounge — G & V sought a temporary restraining order and preliminary injunction in federal district court, alleging, inter alia, that the conditional restriction on adult entertainment violated the First Amendment. Following a hearing, the district court dismissed the case finding that there was no present case or controversy between the parties because Plaintiff had not yet offered topless dancing, and that as a successor to Soco's 1979 agreement, G & V had waived its First Amendment rights. G & V, 23 F.3d at 1074, 1077. On appeal, the Sixth Circuit reversed, holding that G & V had suffered sufficient injury to establish standing and that the 1979 agreement violated the unconstitutional condition doctrine. In reaching this decision, the Sixth Circuit flatly rejected the district court's finding that G & V had waived its First Amendment rights as the successor to the 1979 agreement, reasoning that "the city's 1979 contract with Soco Enterprises, Inc. constituted an attempt to condition Plaintiff's receipt of a benefit upon Plaintiff's waiver of its right to free expression, contrary to the principles set forth in Perry and Keyishan. As such, the contract is unenforceable." Id. at 1077. As indicated above, however, the unconstitutional condition cases appear at least to some extent to conflict with Rumery and its progeny, which suggest that in some instances a state actor may condition the receipt of a benefit on a party's agreement to release all claims. Rumery arose when Bernard Rumery, an acquaintance of both the alleged perpetrator and the alleged victim in a sexual assault case, contacted the victim to inquire into the details of the case. Following the conversation, the victim informed the police that Rumery was trying to get her to drop the charges. Based on this information, the police arrested Rumery on state witness tampering charges. After Rumery's attorney threatened to sue if the charges were not dropped, the parties signed a written agreement whereby the prosecuting attorney agreed to dismiss the charges in return for Rumery's promise to release any claims he might have against the town, its officials, or the victim. Nonetheless, ten months later Rumery filed a § 1983 action in Federal District Court for the District of New Hampshire, alleging that the town and its officers violated his constitutional rights by falsely arresting, falsely imprisoning, and defaming him. Relying on the release-dismissal agreement, the defendants filed a motion to dismiss, which Rumery opposed on the grounds that such agreements are unenforceable as violative of public policy. The *664 district court rejected Rumery's argument, finding that a "release of claims under section 1983 is valid ... if it results from a decision that is voluntary, deliberate and informed." Rumery, 480 U.S. at 391, 107 S.Ct. at 1191. On appeal, the First Circuit reversed, adopting a per se rule invalidating release-dismissal agreements. Id. After granting certiorari, the Supreme Court rejected the First Circuit's per se rule, finding that while "in some cases these agreements may infringe important interests of the criminal defendant and of society as a whole, we do not believe that the mere possibility of harm to these interests calls for a per se rule." Id. at 392, 107 S.Ct. at 1192. The Supreme Court went on to enforce the release/dismissal agreement, holding that lower courts should evaluate agreements on a case by case basis to determine: (1) whether the agreement was voluntary; (2) whether the agreement was the product of misconduct; and (3) whether the enforcement of the agreement would adversely affect the relevant public interest. Id. at 398, 107 S.Ct. at 1195. The Sixth Circuit elaborated on Rumery in Burke v. Johnson, 167 F.3d 276 (6th Cir.1999), addressing the question of the standard of proof necessary to establish the Rumery voluntariness factor. Like Rumery, Burke involved the viability of an agreement whereby an arrestee, Burke, released all claims against a township, the township police department, and various officers in return for the State dismissing a felonious assault of a police officer charge.[33] The release was never reduced to writing, but was read into the record as part of an oral plea agreement ultimately accepted by the trial judge. As part of the plea colloquy, the trial judge enumerated the constitutional rights that Burke was relinquishing by pleading guilty, but the judge did not enumerate the specific claims that the defendant was foregoing by entering into the release-dismissal agreement.[34] Six months after the plea, Burke filed a § 1983 action, which the District Court dismissed with prejudice on the basis of the release. On appeal, the Sixth Circuit first addressed the question of the standard of proof necessary to establish the Rumery voluntariness factor, finding that a preponderance of the evidence standard applies. In reaching this decision, the panel declined to follow the Third Circuit's application of a "clear and convincing evidence" standard to an oral release agreement in Livingstone v. North Belle Vernon Borough, 91 F.3d 515 (3rd Cir.1996): We decline to adopt the Third Circuit's `clear and convincing evidence' standard for several reasons. First, we find that reading the release/dismissal agreement into the record in the context of a plea hearing as was done in this case, should be viewed as the equivalent of a written agreement since judicial supervision provides due process protection against prosecutorial overreaching and insures voluntariness under all but the most unusual circumstances. Therefore, a release under these circumstances should be governed by the same `preponderance *665 of the evidence' standard applicable in ordinary civil contract actions. * * * * * * More importantly, we are persuaded that a simple `preponderance of evidence' standard of proof is sufficient for determining whether an on-the-record oral agreement relinquishing the right to pursue a civil action was voluntarily made in light of the fact that this lesser standard applies in determining the voluntariness of a criminal defendant's waiver of his constitutional rights. If a preponderance of evidence standard applies when determining if there is a voluntary waiver of a criminal defendant's constitutional rights, we see no reason for application of an elevated standard where lesser rights are implicated. Burke, 167 F.3d at 284-285 (internal citations omitted). The Court then affirmed the District Court's dismissal of Burke's § 1983 action, finding that the release was enforceable under the Rumery factors. Id. at 285-286. Having carefully analyzed and considered both lines of cases, the Court finds the instant case involving a Consent and Release more analogous to the Rumery line of cases than to the Perry or G & V family of cases. More specifically, the policies underlying the unconstitutional condition doctrine — that state actors should not deny benefits in retaliation for an individual's exercise of constitutional rights or directly condition the granting of a benefit on an individual forfeiting the right to engage in protected expression — are not implicated in this case. Unlike Perry, where the state actor was alleged to have denied a benefit in direct retaliation for an individual's exercise of free speech, the record in the instant case contains no evidence whatsoever that the Detroit Defendants imposed the Consent and Release requirement in retaliation for BDC asserting its First Amendment rights, or any other constitutional rights for that matter. Moreover, in contrast to G & V, where the state actor directly conditioned the receipt of a benefit on an agreement to prospectively refrain from engaging in protected expression, the Detroit Defendants in the instant case only conditioned the consideration of BDC's gaming proposal on an agreement to release all claims. Thus, BDC was not required to directly forfeit its First Amendment rights by signing the Consent and Release, but rather released the right to bring suit and challenge the selection process. Viewed in the context of a release of claims, rather than a direct restriction on freedom of expression, the instant case squarely falls within the ambit of Rumery and the well-established principle that individuals are free to release constitutional rights so long as the decision is reached voluntarily, knowingly, and intelligently and is not the product of misconduct.[35] d. The Rumery Factors Applying the Rumery factors to the instant case, the Court finds no grounds for invalidating the Consent and Release. With respect to voluntariness, BDC asserts that in contrast to Rumery, where the parties engaged in negotiations to arrive at a mutually beneficial agreement, the Detroit Defendants presented prospective developers with a purportedly involuntary "take it or leave it" choice: either sign the Consent and Release or forfeit the chance to participate in the RFP/Q process. While the Court agrees that developers were required to sign the Consent and Release as a prerequisite to participating *666 in the RFP/Q process, this choice did not leave BDC without options. More specifically, as opposed to signing the Consent and Release and moving forward with the RFP/Q process, BDC could have immediately brought an action challenging the constitutionality of the preferences.[36] Alternatively, BDC could have signed the release with reservation and then brought suit if the City refused to accept its proposal. Rather than electing one of these alternative courses of action, however, BDC made a conscious decision, after having more than one month to review RFP I with the assistance of competent counsel, to sign the Consent and Release and move forward with the RFP/Q process. In finding that BDC voluntarily executed the Consent and Release, the Court recognizes the difficult choice with which BDC was presented in the Summer of 1997: either immediately file suit against the Detroit Defendants, or sign the Consent and Release and enter into the RFP/Q process. However, as noted by the Supreme Court, the legal system frequently requires parties to make difficult decisions: The criminal process, like the rest of the legal system, is replete with situations requiring the making of difficult judgments as to which course to follow. Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose. Rumery, 480 U.S. at 393-394, 107 S.Ct. at 1192 (citations and quotations omitted) (emphasis added). Thus, the fact that BDC was required to elect between suing now or taking its chances in the selection process, does not by implication mean that BDC signed the Consent and Release involuntarily. Furthermore, the record supports the conclusion that BDC either knew or should have known that the Consent and Release applied to constitutional claims. First and foremost, although the document itself does not expressly state that constitutional claims are being released, the clear language of the Consent and Release speaks to any claims whether in law or equity. Contrary to BDC's assertions, it does not require a leap of logic or fancy footwork to conclude that the phrase "any claims in law or equity" encompasses constitutional challenges. Stated another way, "any claims" means "any claims." Moreover, Mr. Barden is a very experienced, sophisticated, and successful businessman, who was represented by well-respected and competent counsel throughout the RFP/Q process. Both he and his lawyers had more than one month after RFP I was published on June 23, 1997 to pour over the language of the Consent and Release with a fine tooth comb. Finally, the record evidence reveals that Mr. Barden was experienced in bidding on government contracts and licenses which required him and his affiliates to release any claims they might have against the governmental authority. In point of fact, Mr. Barden testified at the June 28, 1999 hearing that he was familiar with the term "release," and that he had signed a release of all claims as part of his successful gaming bid in Indiana.[37] [Hearing Transcript, p. 184]. *667 At a minimum, even if the Court were to accept BDC's argument that the plain language of paragraph 11(i) did not place all prospective developers on notice that the Consent and Release applied to much more than information-related claims, events during the consideration process should have made the broad nature of the release abundantly clear. In the question and answer phase of the RFP/Q process, at least one developer submitted a question to the City directly relating to the scope of the Consent and Release. After first citing Ordinance § 18-13-4(b)(2), this question reads: The consent and release attached as Appendix D to the Request for Proposals/Qualifications is significantly broader than the requirements set forth by the City Council and requires a release of rights which a proposer may have with respect to property interests. Will the Proposer be automatically disqualified for its failure to execute the Consent and Release in the form submitted as Appendix D, but provides the inquiry consents and releases required by City Council Ordinance. [Exhibit Book to Plaintiff's Reply Brief, Tab 7, emphasis added]. On July 21, 1997, Phyllis James, City of Detroit Corporation Counsel, sent a response to all prospective RFP respondents (including BDC), which provides: Section 18-13-4(b)(2) of the Casino Development Competitive Selection Process ordinance allows the Mayor or his designee to prescribe the form of Consent and Release as a condition to entering into a development agreement with the City. A Proposer may be disqualified from the RFP/Q process by failing to adhere to any aspect of the RFP/Q. [Exhibit Book to Plaintiff's Reply Brief, Tab 7]. Thus, as early as July 21, 1997, all prospective developers were placed on notice that the Consent and Release encompassed much more than information-related claims.[38] In sum, the record clearly establishes by a preponderance of the evidence that BDC voluntarily and intelligently signed a Consent and Release that it knew, or should have known, released all claims, including constitutional claims, against the Detroit Defendants arising out the "RFP/Q process and the selection and evaluation of Proposals submitted in connection therewith." With respect to the second Rumery factor, evidence of misconduct, the Court finds that the record is devoid of any evidence suggesting improper conduct on the part of the Detroit Defendants. Although, as the Court has noted, the Consent and Release is certainly not structured in an ideal fashion, and one would hope that the general and broad nature of the release would have been more prominently featured in the body of the document *668 so as to call attention to the City's intended release of all claims, the bottomline inquiry remains the same: Did BDC know, or should it have known, that it was releasing all claims, or did misconduct by any city official or employee deprive BDC of its ability to make a knowing and voluntary release? The Court has already answered the first part of this inquiry: BDC clearly knew or should have known that it was releasing all claims. As to the second part of this inquiry, whether there was any misconduct or deceit by the City intending to mislead BDC and other applicants, the Court finds there is simply no evidence to support this beyond speculative inference from the structure of the Consent and Release itself. More specifically, the full record contains absolutely no evidence whatsoever of any statements, documents, or other correspondence, suggesting that the Detroit Defendants purposefully buried the relevant Consent and Release language in paragraph 11(i), or purposefully attempted to mislead any of the prospective developers as to the rights they were foregoing by signing the Consent and Release. Indeed, Phyllis James unequivocally testified at the June 28, 1999 hearing that there was no intent to hide the relevant release language: THE COURT: Was there any intent to hide the release provision, the general release provision, in the rest of the provisions? MS. JAMES: No. The intent of the release actually is as it's stated in the document on the face of it; it was to protect the City from a plethora of legal claims arising out of the RFP proposal, review and selection process, so that the process was not barred down for years in litigation with the anticipated benefits from the City of Detroit from having gaming. Secondly, we wanted to make sure that there were no issues involved in the distribution of information that might have to be distributed as a result of the RFP process. We were aware of the Ordinance that the local competitive selection process ordinance that had certain provisions in it pertaining to the release. But the Ordinance was somewhat limited in its view of a release and it was our design to have a much broader release and legal effect. [Hearing Transcript, pp. 252-253]. In addition, Mr. Barden conceded at the hearing that no one from the City misled him regarding the scope of the release. [Hearing Transcript, p. 179]. Accordingly, the Court determines that the second Rumery factor is satisfied. Turning to the final Rumery factor, the Court finds that the Detroit Defendants had legitimate and important public policy reasons for requiring a Consent and Release as to all claims that clearly outweigh any relevant adverse public interests. In light of the substantial cost of even participating in the RFP/Q process, and the potential for enormous profits if selected as one of the casino developers — a reward which may stretch into the hundreds of millions of dollars — it was highly likely, if not certain, at the time the City Council promulgated the Ordinance and the City published RFP I, that the RFP/Q process would result in litigation by spurned developers. Given this high probability of litigation and the potential exposure of the City's taxpayers, who would ultimately bear the responsibility of financing any adverse judgment, it was perfectly reasonable for the Detroit Defendants to require a broad release of all claims. In fact, it would have been irresponsible not to require a release. Moreover, through various ballot proposals, the citizens of the City of Detroit a the State of Michigan have resoundingly expressed their desire for casinos in Detroit. Given the clear public sentiment in favor of casino gaming, the City was entitled to take steps to insure that the process did not become bogged down in the courts in perpetuity. In addition, as explained in detail above, the Consent and Release did not leave BDC without options. *669 BDC reached a fork in the road in 1997, and rather than immediately challenging the Ordinance, elected to sign the Consent and Release and move forward with the RFP/Q process. Finally, the Court believes that, absent compelling reasons, courts should not second-guess the policy branches of the government on questions involving what is required to protect the interests of the citizenry. As a general matter, in a democratic system, it is best to leave such questions to the democratically elected representatives of the people, rather than for courts to impose their own view of what is, or is not, in the public interest. e. Consideration Having found that the Consent and Release satisfies the Rumery factors, the Court turns to BDC's final argument that even if the Court finds a voluntary, knowing, and intelligent release of constitutional claims, the Consent and Release is void for lack of consideration. More specifically, BDC argues that the City was already obligated to accept BDC's proposal prior to the execution of the Consent and Release, and that the performance of an existing legal obligation does not constitute adequate consideration. Under Michigan law, as a general rule, courts will not inquire into the adequacy of consideration. Cochran v. Ernst & Young, 758 F.Supp. 1548, 1555 (E.D.Mich.1991); Cleveland-Cliffs Iron Co. v. Chicago & North Western Transp. Co., 581 F.Supp. 1144, 1150 (E.D.Mich. 1984); Moffit v. Sederlund, 145 Mich.App. 1, 378 N.W.2d 491, 497 (1985). It is only when the record establishes that the consideration given was "so grossly inadequate as to shock the conscience" that courts will intervene. Cleveland-Cliffs Iron, supra; Hake v. Youngs, 254 Mich. 545, 236 N.W. 858 (1931). Applying these straightforward legal standards, the Court finds BDC's consideration argument without merit. BDC's assertion that the City was already legally obligated to consider its proposal prior to signing the Consent and Release is simply not correct. In point of fact, the City did not become obligated to review any proposals until the applicant had complied with all of the requirements for submitting a proposal, which included the execution of the Consent and Release. Moreover, BDC did in fact receive valuable consideration for signing the Consent and Release. In return for releasing all claims, BDC gained the right to have its casino proposal reviewed by the City, an opportunity potentially worth hundreds of millions of dollars. Finally the Court notes that BDC expressly acknowledged the adequacy of consideration in the Consent and Release itself, which provides, "[T]he Releasor, in consideration of the City of Detroit's accepting for review a Proposal in which Releasor has an economic interest and other valuable consideration the sufficiency of which is hereby acknowledged, agrees as follows." In sum, the record demonstrates that a highly sophisticated business entity, represented by well-respected and competent counsel, made a rational and informed decision, after being put on notice as to the potential breadth and scope of the claims barred by the Consent and Release and being provided several weeks to parse through the language of the document, to sign an agreement releasing the Detroit Defendants from "any damages, claims, rights, liabilities, or causes of action, which the Releasor ever had, now has, may have, or claim to have, in law or equity." In return for signing this agreement, BDC gained the right to participate in the RFP/Q process and potentially gain a portion of what may become the highly lucrative casino business in Detroit. Having "rolled-the-dice" and lost, BDC cannot now escape the plain language of the Consent and Release and welch on its bet. Accordingly, for all of the aforementioned reasons, the Court finds as a matter of law that the Consent and Release bars all of *670 BDC's claims, including the constitutional claims, against the Detroit Defendants. C. BDC's Claims Against the State Defendants Having found that the Consent and Release precludes all claims against the Detroit Defendants, the Court next addresses the merits of BDC's facial and as applied challenges to the Act. As its initial argument, BDC asserts that M.C.L.A. § 432.206(3) impugns First Amendment, equal protection, and substantive due process rights by granting a tie-breaking preference to developers that championed the drive to bring casino gaming to Detroit. For the following reasons, however, the Court finds that BDC lacks standing to bring constitutional challenges predicated on the § 432.206(3) tie-breaking preference. Under well-established constitutional law, BDC must have standing to assert constitutional challenges to the Act. As cogently explained by the Sixth Circuit, "`In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues. This inquiry involves both constitutional limitations on federal court jurisdiction and prudential limitations on its exercise.'" Lac Vieux, 172 F.3d at 403 (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). Setting aside prudential concerns, constitutional limitations on standing dictate that a claim present an actual case or controversy, which according to the Supreme Court involves three basic elements: Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an injury in fact — an invasion of a legally-protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of.... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) (internal quotations and citations omitted). Returning to the present case, BDC cannot establish an injury resulting from the § 432.206(3) tie-breaking preference because such preference was rendered inoperative by the 1997 amendments to the Act. More specifically, § 432.206(3) provides: In the event that more than three (3) applicants meet the standards for eligibility and suitability provided for in subsections (4) and (5), licenses shall first be issued to those eligible and suitable applicants which submitted any casino gaming proposal for voter approval prior to January 1, 1995, in the city in which the casino will be located and the voters approved the proposal. M.C.L.A. § 432.206(3). While a first glance this section appears to support BDC's claims, a close reading of the Act reveals that § 432.206(2) renders the tie-breaking preference a nullity by mandating that "[a] city shall not certify or submit and have pending before the board more than 3 certified development agreements." M.C.L.A. § 432.206(2). By limiting a city to submitting three certified development agreements at a time, the Act insures that the Board will never have occasion to apply the § 432.206(3) tie-breaking preference, which only comes into play if the Board has before it "more than three (3) applicants." With the preference effectively inoperative, the State Defendants correctly argue that BDC cannot identify any injury proximately related to the tie-breaking preference, an element necessary to establish standing. The Court's interpretation of the statutory language is buttressed by the findings of at least two other federal courts, including *671 binding precedent from the Sixth Circuit, which have each found the § 432.206(3) tie-breaking preference effectively a nullity. More specifically, in Lac Vieux, the Sixth Circuit explained: [T]he amended act appears to render the preference ineffective. If the preference is ineffective, then there can be no injury and no "case or controversy." Although Lac Vieux attempts to rebut the defendants' and the intervenors' contention that the preference is ineffective, we find its argument neither fully developed nor convincing. We therefore hold that because the preference in the amended act is ineffective, Lac Vieux does not have standing to bring an equal protection challenge to the amended act. Lac Vieux, 172 F.3d at 406.[39] Likewise, when given the opportunity to interpret the same language in NewCentury, Judge Edmunds reasoned: Section 432.206(3) contains the allegedly preferential language of which Plaintiffs complain, it requires the Board to issue licenses first to those who submitted a casino gaming proposal for voter approval, if more than three applicants meet the standards for eligibility. Yet, section 432.206(2) does not allow a city to submit more than three development agreements at one time. (Section 432.206(1)(b) requires the license applicant to have entered into a certified development agreement with the city where the casino will be located.) Thus, according to the statutory language, the Board will not be considering more than three applicants at a time. The state preference, as the State Attorney General points out "is effectively inoperative and immaterial." Order Granting Defendants' Motions for Summary Judgment, June 3, 1998, pp. 12-13, (emphasis in original). Accordingly, the Court finds that BDC lacks standing to assert constitutional challenges to the Act predicated on the § 432.206(3) tie-breaking preference. Despite this seemingly impenetrable obstacle to relief, BDC asserts the following two additional theories: (1) that the Act is unconstitutional on its face because the statute expressly incorporates the City's illegal Ordinance preferences; and (2) even if facially valid, the Act is unconstitutional as applied because by proceeding with the licensing process, the State Defendants have ratified unconstitutional actions taken by the Detroit Defendants. For the following reasons, the Court finds both of these novel theories without merit. In making its first argument, BDC essentially asks the Court to view the Act and the Ordinance as one seamless body of law, joined together by § 432.206(1)(b), which provides in pertinent part: A person is eligible to apply for a casino license if all of the following criteria are met ... The applicant entered into a certified development agreement with the city where the local legislative body enacted an ordinance approving casino gaming. M.C.L.A. § 432.206(1)(b). Thus, without citing any relevant supporting law, BDC argues that by requiring prospective licensees to submit certified development agreements as part of the license application process, the Act incorporates the Detroit Ordinance governing the selection of developers with whom the City intends to negotiate development agreements. While this is a creative argument, the statutory language simply does not support BDC's incorporation theory. By its express terms, the Act governs only the state licensing and continuing regulation of casino operators, leaving to the City of Detroit the responsibility for selecting those developers with whom it wished to enter into development agreements. The Act does not directly incorporate the Ordinance or for that matter enumerate any *672 criteria governing the City's selection of developers. Indeed, the Act contains no language whatsoever even suggesting that the Detroit City Council was required to enact an ordinance governing the selection of those developers with whom the City wished to negotiate development agreements.[40] In sum, it was the Detroit City Council that adopted the Ordinance containing the arguably unconstitutional preferences, and the Mayor that selected Atwater, Greektown, and MGM pursuant to the RFP/Q process. Given this clear delineation of authority between the Act and the Ordinance, BDC cannot bootstrap the Ordinance preferences into the Act, particularly when the State took measures to cure any potential constitutional infirmities in its Act through the 1997 amendments to the statute as originally enacted. See Hartford Fire Insurance Co. v. Lawrence, Dykes, Goodenberger, Bower, & Clancy, 740 F.2d 1362, 1366 (6th Cir.1984) ("state legislatures are presumed by federal courts to have acted constitutionally in making laws.") (citing McDonald v. Board of Election Commissioners, 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739 (1969)). As its third and final argument, BDC contends that even if the Court finds the Act facially valid, the State Defendants have unconstitutionally applied the statute by ratifying the Detroit Defendants' illegal selection process. More specifically, BDC asserts that having delegated authority to the City to select developers, the State Defendants cannot blithely sit back and enforce the preferential treatment mandated by the Ordinance by proceeding with the licensing process for Atwater, Greektown, and MGM. In asserting its as applied challenge, however, BDC fails to recognize that under well-established law, local ordinances — like state statutes — are entitled to a strong presumption of constitutionality. With regard to the presumption of constitutionality, the rule applicable to ordinances of a city government is the same as that applied to statutes passed by the legislature. A statute will be presumed to be constitutional by the courts unless the contrary clearly appears; and in case of doubt every possible presumption not clearly inconsistent with the language and the subject matter is to be made in favor of the constitutionality of legislation. Cady v. City of Detroit, 289 Mich. 499, 505, 286 N.W. 805, 807 (1939). Given this presumption of constitutionality, the Board was perfectly justified to proceed with the licensing process, particularly in light of the fact that no court has, as yet, declared the Ordinance unconstitutional. Although the Sixth Circuit did reverse and remand Lac Vieux's First Amendment and equal protection challenges to the Ordinance on April 12, 1999, these claims remain pending and unresolved in the United States District Court for the Western District of Michigan. Thus, at the present time, the State Defendants correctly argue that the Board was justified in presuming the constitutionality of the Ordinance and proceeding with the investigation of the selected developers' license applications.[41] *673 Finally, even assuming that the Board had reason to believe that the Ordinance was unconstitutional, BDC cites no legal authority whatsoever that purports to endow the Board with the power to declare a local Ordinance unconstitutional. To the contrary, the Board is under an express statutory obligation to review all license applicants that satisfy the selection criteria set forth in the Act. The board shall issue a casino license to a person who applies for a license, who pays the nonrefundable application fee required under section 5(5) and a $25,000 license fee for the first year of obligation, and who the board determines is eligible and suitable to receive a casino license under this act and the rules promulgated by the board. M.C.L.A. § 432.206(1). Given this mandate, it would have likely been a violation of the law for the Board not to proceed with the investigation of Atwater, Greektown, and MGM's license applications.[42] Accordingly, the Court finds BDC's as applied challenge to the Act unavailing. D. The Defendants' Motions for Summary Judgment As indicated above, the Detroit and the State Defendants filed separate motions for summary judgment on June 15, 1999 and June 22, 1999, respectively. Because the Court has found, for the reasons set forth above, that the Consent and Release bars all claims as matter of law, the Court finds that the Detroit Defendants are entitled to summary judgment as to all of BDC's claims.[43] Likewise, because BDC has failed to assert a valid challenge to the Act, the State Defendants are also entitled to summary judgment as a matter of law. IV. CONCLUSION For all of the aforementioned reasons: IT IS HEREBY ORDERED that BDC's Motion for Preliminary Injunction is DENIED. IT IS FURTHER ORDERED that the Detroit Defendants' Motion for Summary Judgment is GRANTED. IT IS FURTHER ORDERED that the State Defendants' Motion for Summary Judgment is GRANTED. IT IS FURTHER ORDERED that this case be dismissed, in its entirety, with prejudice. NOTES [1] Detroit Entertainment, L.L.C., is an entity comprised of the Atwater Casino Group and Circus Circus, Inc. For the purposes of this Opinion, the Court refers to this entity as "Atwater." [2] The Court also has before it separate Motions for Summary Judgment filed by the Detroit and the State Defendants on June 15, 1999 and June 22, 1999, respectively. [3] Consistent with the Sixth Circuit's opinion in Lac Vieux, the Detroit Defendants specifically reserved the right to present proofs on whether the Ordinance satisfies the strict scrutiny standard. [4] The Court heard testimony from the following three witnesses at the June 28, 1999 hearing: (1) Don Barden, BDC's Chairman and President; (2) Nelson Westrin, Executive Director of the Michigan Gaming Control Board; and (3) Phyllis James, City of Detroit Corporation Counsel. Detroit Mayor Dennis Archer's testimony was presented by video deposition taken on June 24, 1999. [5] Don Barden also owns a "riverboat" casino in Gary, Indiana known as Majestic Star Riverboat. [6] With respect to the third prong, Detroit voters approved a city-wide ballot initiative in favor of casino gaming on August 2, 1994. This ballot initiative, known as Proposal B, was codified as part of the Detroit City Code as § 15-94 and § 16-94, effective August 19, 1994. At this time, however, casino gaming was still prohibited under Michigan law. [Stipulated Fact 8]. [7] As it appeared on the November 5, 1996 general election ballot, Proposal E made no mention of preferences, providing simply: A Legislative Initiative to Permit Casino Gaming in Qualified Cities The Proposed law would: 1. Permit up to three gaming casinos in any city that meets the following qualifications: has a population of 800,000 or more; is located within 100 miles of any other state or country in which gaming is permitted; and has had casino gaming approved by a majority of the voters in the city. 2. Establish a Gaming Control Board to regulate casino gaming. 3. Impose an 18% state tax on gross gaming revenues. 4. Allocate 55% of tax revenue to the host city for crime prevention and economic development; allocate remaining 45% of tax funds to state for public education. Should the proposed law be adopted? Yes/No. [Joint Exhibit 17]. [8] Subsections (4) and (5) set forth the criteria that will render an applicant ineligible for a casino license and the factors that the Board may consider in determining whether to grant a casino license. These provisions are not at issue in this litigation. [9] Without limiting the Mayor's discretion, the Ordinance directs the Mayor to consider the following seven broad criteria in reviewing proposals: (1) Background and experience; (2) Financial; (3) Concept; (4) Economic development; (5) Infrastructure improvements; (6) Social; and (7) Preference qualification. § 18-13-3(c). [10] Section 18-13-7 provides that "if the mayor does not enter into a development agreement with a prospective developer entitled to a preference pursuant to section 18-13-6 of this chapter, the mayor must state in writing and with particularity the basis upon which he determined that such proposal was not in the best interest of the city." [11] Mr. Barden signed the Consent & Release one (1) time on July 25, 1997 and twenty (20) times on August 1, 1997. [12] The seven developers invited to participate in RFP II were Atwater, BDC, Greektown, MCD Gaming Corp. ("Mirage"), MGM, Trump Motor City Hotel Casino, and Paradise Valley Rio. [13] At the June 28, 1999 hearing, Mr. Barden explained BDC's delay in filing suit as follows: MR. DRIKER: When did you decide to challenge the preference, Mr. Barden? MR. BARDEN: After consultation with my lawyers and after I had tried every other avenue of redress from the time the decision was made on the selection process. I thought that I'd have a fair shake [before] City Council because I know City Council members have publicly stated that they'd like to see local involvement, et cetera, in the process. Even though we were prohibited from communicating with the City Council, which I also thought was unfair, because I couldn't even state my case to them then. [Hearing Transcript, p. 145; See also pp. 198-200]. [14] As part of the RFP/Q process, prospective developers were required to submit detailed proposals linked to one of three proposed sites (the Grand River site, the Washington Boulevard site, and the Greektown site), or an alternative fourth site (the Central Business District site). In March 1998, during the course of negotiating development agreements with the selected developers, the Mayor announced his decision to move the location of the casino complexes to a 58 acre site along the Detroit River bounded by Jefferson Avenue, Atwater Street, Riopelle Street, and Chene Street (the Riverfront site). The details of the decision to move the casinos to the Riverfront site are not pertinent to the federal constitutional claims presently before the Court. [15] The Board commenced the investigative phase of the application process on July 21, 1998. [Stipulated Fact 46]. [16] Proposal I would have amended § 18-13-1 of the Ordinance to provide: In selecting developers of casinos, it is in the best interest of the City to select at least one designated developer who is a Qualified Detroit-Based Developer, it being recognized that such selection would promote and encourage resident ownership, help assure a long term commitment to the City by the owners of the developer, increase the taxes that owners of the developer can be expected to pay to the City, and enhance the likelihood that the profits derived by owners of developers are appropriately reinvested in the City. [Hearing Exhibit 6]. [17] Each of the selected developers has paid a $3.66 million Advance Municipal Services Fee to the City of Detroit. [Stipulated Fact, 47]. In addition, the selected developers have made significant investments in their temporary casinos. For example, John Redmond, Vice Chairman of MGM Grand Detroit, L.L.C., submitted an affidavit to the Court indicating that as of March 31, 1999, MGM had spent in excess of $80 million on its temporary facility, with an expected total cost of more than $206 million. [Redmond Affidavit, ¶ 7]. [18] The Board meeting previously scheduled for July 20, 1999 is now set for July 28, 1999. [19] Among other claims, Lac Vieux's original complaint filed on February 25, 1997 sought to have the Act declared unconstitutional on the grounds that it violated the takings, equal protection, and due process clauses of the federal constitution, and that the Act constituted an unconstitutional delegation of legislative authority to the City. Following the enactment of the amended Act and the Ordinance in June of 1997, Lac Vieux twice amended its Complaint. The first change incorporated challenges to the amended Act and the Ordinance into the case. In the second amended complaint, Lac Vieux dropped certain claims, but added claims that both the Act and the Ordinance violated the First Amendment by awarding preferences to parties "for their political support of a particular side of a controversial issue." Lac Vieux, 172 F.3d at 401-402. [20] With respect to standing to challenge the Ordinance on equal protection grounds, Judge Bell found that Lac Vieux, which did not bid on the Detroit casinos, did not sufficiently allege that it was ready and able to submit a proposal to the City. Lac Vieux, 172 F.3d at 403-404. The District Court did not address Lac Vieux's standing to bring an equal protection challenge against the Amended Act. Id. at 406. [21] In order to satisfy the strict scrutiny test, the government bears the very heavy burden of showing that a regulation is narrowly tailored to serve a compelling state interest. See Lac Vieux, 172 F.3d at 409 (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 382-382, 403, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992)). [22] The Sixth Circuit applied the identical standing analysis to Lac Vieux's First Amendment challenge to the Act. Lac Vieux, 172 F.3d at 408. [23] The named defendants in NewCentury included the City of Detroit, the Mayor, the City Council and its individual members, the Board and its individual members, Atwater, and Greektown. [24] While originally requesting injunctive relief against both the State and the City, at oral argument NewCentury informed the Court that their Motion for Preliminary Injunction was directed at the City of Detroit. [25] With the Court's permission, the Defendants also filed separate Supplemental Briefs. [26] Following the June 28, 1999 hearing, the Court directed the parties to submit post-hearing briefs on the following two issues only: (1) the application of G & V Lounge, Inc. v. Michigan Liquor Control Commission, 23 F.3d 1071 (6th Cir.1994) and Town of Newton v. Rumery, 480 U.S. 386, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987) to the case at hand; and (2) the scope of any possible injunctive relief in this matter. [27] BDC has also argued that the release encompasses only claims related to matters raised in the RFP/Q documents themselves. However, as the release language makes patently clear, the scope is much broader, including in its ambit claims arising out of the "RFP/Q process and the selection and evaluation of Proposals submitted in connection therewith." [28] BDC also unconvincingly argues that because the consent provisions all address informational concerns, if the City wished to distinguish a release of information-related claims from other types of claims, it should not have entitled the document in the conjunctive as a "Consent and Release," but rather in the disjunctive as a "Consent or Release." As noted above, however, subparagraphs 11(i) - 11(iii) make an unambiguous distinction between information-related claims, and other claims arising out of the RFP/Q process. [29] BDC also argues that by its own terms the Consent and Release does not apply to the Mayor and the City Council. Once again, this argument is belied by the clear language of paragraph 11 which broadly precludes all claims against "the City of Detroit including all departments, agencies and commissions thereof, and their respective principals, agents, consultants, attorneys, advisors, employees, officers and directors." [30] As noted above, § 18-13-4(b) provides that nothing in that subsection should limit the discretion afforded the Mayor in § 18-13-4(a). [31] The Fifth Circuit found that factual questions existed as to the actual reason for the Regent's decision, and remanded the case to the District Court for further proceedings. Perry, 408 U.S. at 596, 92 S.Ct. at 2697. [32] It is not possible to discern from the text of the G & V decision whether the agreement also included a release of claims, or whether the Sixth Circuit had occasion to address this rather important aspect of that case. Accordingly, the Court assumes this question was simply not presented to the courts in G & V. [33] The release-dismissal agreement provided: [T]he defendant [Burke], his heirs, and assigns warrant ... that he will release now and forever any of the officers associated with the circumstances surrounding this matter, and specifically, Jackson Township Police Department, Chief Johnson, Officer Quigley, Officer West, Detective Vaughn, Montgomery County, the County Commissioners, the Trustees of Jackson Township, and anyone else, so that this is a complete resolution of all matters between the parties in consideration of the State giving up the important count of felonious assault of a police officer, which is an aggravated felony of the first degree, along with the specification thereto. Burke, 167 F.3d at 278. [34] As part of the plea colloquy, Burke expressly acknowledged that he understood and approved the terms of the plea agreement, which directly beforehand was read into the record by the prosecutor and stipulated to by defense counsel. [35] BDC also cites paragraph 10 of the Consent and Release — which provides that "[t]he City of Detroit is controlled by certain statutes of the United States and State of Michigan and divisions thereof" — for the proposition that the Consent and Release expressly obligates the Detroit Defendants to act constitutionally. BDC fails to recognize, however, that one of the laws of the United States, as set forth in detail above, is that an individual may release the right to bring constitutional claims so long as the decision is reached voluntarily, knowingly, and intelligently and is not the product of misconduct. [36] Presumably this is the decision that Lac Vieux made when confronted with this Hobson's choice. Rather than electing to sign the Consent and Release and gamble on going forward, Lac Vieux opted to immediately challenge the Act and the Ordinance. BDC elected the other avenue. [37] Upon questioning from the Court at the June 28, 1999 hearing, Mr. Barden at first could not recall signing a similar release as part of his Indiana proposal, but then corrected his testimony after being show a copy of a Release from the Indiana Gaming Commission by defense counsel, which provides: RELEASE OF ALL CLAIMS The undersigned has filed with the Indiana Gaming Commission ("Commission") certain forms and documents in connection with a written request for licensing by the Commission ("Application"). In consideration of the assurance by the Commission that no vote on said Application will be taken except after a deliberate, intensive, and thorough investigation of the undersigned, including but not limited to background, associates, and finances, the undersigned does for myself, my heirs, executors, administrators, successors and assigns, hereby release, remise, and forever discharge the State of Indiana, the Commission, its members, agents, and employees, from any and all manner of actions, causes of actions, suits, debts, judgments, executions, claims and demands whatsoever, known or unknown, in law or equity, which the undersigned ever had, now has, may have, or claim to have against any or all of said entities or individuals arising out of or by reason of the processing or investigation of or other action relating to the Application. [Hearing Transcript, pp. 184-185; Hearing Exhibit 4]. [38] The record does not specify which prospective developer submitted the question relating to the scope of the release. As noted above, however, the City sent the question and the answer to all prospective casino respondents, and it is undisputed that BDC received both the question and the answer. In point of fact, BDC submitted a copy of the question and the answer as part of the Exhibit Book to its Reply Brief to Response of Detroit Defendants. [39] As noted above, the Sixth Circuit applied the same standing analysis to Lac Vieux's First Amendment challenge to the Act. Lac Vieux, 172 F.3d at 408. [40] Indeed, under the terms of the Act, the executive branch of the City could have simply issued a RFP, a course of action that, with the benefit of hindsight, the City Council may well wish it had acquiesced in rather than adopting the Ordinance containing the preferences. [41] The situation would be far different if the State Defendants had proceeded with the licensing process after a federal court had flatly declared the Ordinance unconstitutional. In Lac Vieux, however, the Detroit Defendants retain the right on remand to attempt to satisfy the strict scrutiny standard. Further, unlike the Detroit Defendants who enacted the Ordinance and bear the responsibility for insuring its constitutionality in the first instance — and were placed on notice early on about potential constitutional defects in the Ordinance — the State Defendants are under a legal obligation to presume the Ordinance's constitutionality and to proceed with its licensing responsibilities. [42] At the June 28, 1999 hearing, Nelson Westrin confirmed that the Board does not have discretionary authority to consider the propriety of the City's selection process: THE COURT: Let me ask you this. Does the Gaming Board consider issues outside of the qualifications of the particular people involved in the Development Agreement? By that I mean, for example, there is, obviously, the pending lawsuit here. It is the Sixth Circuit decision in the Lac Vieux case, which has called into question the statute, the selection process the City of Detroit used. Is that something that the Gaming Board considers in making determinations as to whether or not to issue a license? THE WITNESS: No. We're required to administer, implement, and enforce the law as written. We don't consider those types of things outside the background investigation. THE COURT: So with respect to that yours is a nondiscretionary function? THE WITNESS: Correct. [Hearing Transcript, p. 233]. [43] Although the June 28, 1999 hearing focused on evidentiary and legal issues surrounding the federal constitutional claims in Counts I - VI of BDC's Complaint, and the applicability of the Consent and Release to those claims, it is clear for the reasons set forth above that the Consent and Release operates to bar all of BDC's claims.

215 Ga. 195 (1959) 109 S.E.2d 689 COOPER MOTOR LINES, INC. v. B. C. TRUCK LINES, INC. et al. 20513. Supreme Court of Georgia. Argued June 9, 1959. Decided July 8, 1959. Fisher, Phillips & Allen, John Bacheller, Jr., for plaintiff in error. Wilson, Branch & Barwick, John W. Wilcox, Jr., Poole, Pearce & Hall, John S. Patton, Weekes & Candler, contra. *197 HEAD, Justice. 1. "A party not aggrieved by the judgment of the trial court is without legal right to except thereto, since he has no just cause of complaint." Georgia Music Operators Assn. v. Fulton County, 184 Ga. 348, 350 (191 S. E. 117); Lamar v. Lamar, 118 Ga. 684 (45 S. E. 498). 2. The plaintiff in error does not assign error on that part of the order of the trial judge declaring certain rights of the parties in relation to their various contracts. The only assignments of error are on the failure of the judge to construe a contract between the plaintiff in error and the labor organization represented by two of the defendants, and on the refusal to grant the interlocutory injunction prayed by the petitioner. The plaintiff in error in the trial court did not seek an injunction or the construction of its contract, by any pleadings, prayers, or evidence. Its rights under its contract are in no way prejudiced by the judgment, which refused to construe such contract. It therefore has no right to bring the present writ of error to this court. White v. Haslett, 49 Ga. 262; Hudson v. Hudson, 84 Ga. 611 (10 S. E. 1098); Braswell v. Equitable Mortgage Co., 110 Ga. 30 (35 S. E. 322); Penland v. Jackson, 157 Ga. 569 (122 S. E. 44); Bryan v. Rowland, 166 Ga. 719 (144 S. E. 275); First National Bank of Rome v. Yancey, 207 Ga. 437 (62 S. E. 2d 179). Writ of error dismissed. All the Justices concur.

75 F.Supp.2d 1350 (1999) COASTAL CARTING LTD., INC., Plaintiff, v. BROWARD COUNTY, FLORIDA, et al., Defendants. No. 96-7175-C.V. United States District Court, S.D. Florida. May 5, 1999. *1351 Conrad & Scherer, P.A., Albert L. Frevola, Jr., Dominic L. Brandy, Ft. Lauderdale, FL, for Resource Recovery Board and Broward County. Broward County Attorney's Office, Edward Dion, County Attorney, Noel M. Pfeffer, Deputy County Attorney, Ft. Lauderdale, FL, Co-Counsel for Broward County. Valerie Settles, Coral Gables, FL, Co-Counsel for Resource Recovery Board. Johnson, Anselmo, Murdoch, Burke & George, P.A., E. Bruce Johnson, Christine Duignan, Ft. Lauderdale, FL, for Cities of Coconut Creek, Cooper City, Coral Springs, Hillsboro Beach, Lauderdale-By-The-Sea, Lazy Lake, Lighthouse Point, Margate, North Lauderdale, Pembroke Park, Plantation, Sea Ranch Lakes, Sunrise, Tamarac, Wilton Manors, and the Town of Davie, Deeyield Beach. Dennis E. Lyles, City Attorney, Michael J. Pawelczyk, Asst. City Attorney, Ft. Lauderdale, FL, for City of Fort Lauderdale. Daniel L. Abbott, City Attorney, Tamie Alvarez, Richard T. Kilgore, Sr. Asst. City Attorney, Hollywood, FL, for City of Hollywood. Fertig and Gramling, Merryl S. Haber, Darlene Lidondici, Ft. Lauderdale, FL, for City of Lauderdale Lakes. Haliczer, Pettis & White, Eugene K. Pettis, Ft. Lauderdale, FL, for City of Lauderhill. Weiss, Serota, Helfman, Pastoriza & Guides, P.A., Jamie Alan Cole, Doug Gonzalez, *1352 Ft. Lauderdale, FL, for City of Miramar. Rogers, Morris & Ziegler, Romney C. Rogers, Vincent Andreano, Ft. Lauderdale, FL, for City of Oakland Park. ORDER GONZALEZ, District Judge. THIS CAUSE has come before the Court upon Plaintiff Coastal Carting's Motion for Summary Judgment. The Court has considered the record and the oral argument of able counsel. Coastal Carting, a solid waste hauler, has brought this action pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. § 2201 and § 2202, against Broward County; twenty-three municipalities in Broward County; and the Resource Recovery Board of Broward Solid Waste Disposal District( collectively the Defendants) alleging that Broward County Ordinances 87-3 and 87-4 are unconstitutional and unenforceable. BACKGROUND: This case is about garbage and the disposal thereof. The Defendants, like other local governments, are and have been faced with the major problem of safe solid waste disposal. Broward County's solution to the solid waste disposal problem was the adoption of Ordinances 87-3 and 87-4, creating the Broward Solid Waste Disposal District. The Broward Solid Waste Disposal District was established to provide for the disposal of solid waste collected in the unincorperated areas of Broward County and within the contract communities. In accordance with Florida Statutes 125.01(5) and the Interlocal Agreement, the Broward Solid Waste Disposal District is a special district including twenty-three municipalities and the unincorporated area of Broward County. The Resource Recovery Board is the governing body of the Disposal District and has the duties of establishing tipping fees and other charges. The twenty-four governmental entities entered into an Interlocal Agreement. Broward, Fla., Interlocal Agreement Art. 5 (1987). The ordinances define the Interlocal Agreement as the agreement between the County and the contract communities wherein each of the participating entities shall enact local licensing and other ordinances requiring that waste collected within Broward County, be disposed of at favored facilities. Specifically, the Interlocal Agreement provides for the passage of a "flow control ordinance for the purpose of ensuring that the Resource Recovery Facility receives an adequate quantity of solid waste from the solid waste generated within its jurisdiction." The ordinances also dictate that the contract communities will "pay for such services as provided in the Interlocal Agreement." Broward, Fla., Ordinances 87-3 and 87-4 (March 10, 1987). Additionally, the ordinances provide for enhanced "tipping fees, user charges and service charges," and restrict the flow of Broward waste to two named facilities in Broward County.[1] The effect of the ordinances are such that if a hauler attempts to take waste out *1353 of the County, the hauler will face severe fines and penalties. STANDARD: The Plaintiff has filed a Motion for Summary Judgment asking the Court to declare Broward County Ordinances 87-3 and 87-4 unconstitutional under the Commerce Clause of the Constitution of the United States. U.S. Const. Art. I, § 8, cl. 3. The Court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The stringent burden of establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court should not grant summary judgment unless it is clear that a trial is unnecessary, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and any doubts in this regard should be resolved against the moving party, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The movant "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. To discharge this burden, the movant must point out to the Court that there is an absence of evidence to support the nonmoving party's case. Id. at 325, 106 S.Ct. 2548. After the movant has met its burden under Rule 56(c), the burden of production shifts and the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). According to the plain language of Fed. R.Civ.P. 56(e), the non-moving party "may not rest upon the mere allegations or denials of the adverse party's pleadings," but instead must come forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. Essentially, so long as the non-moving party has had an ample opportunity to conduct discovery, it must come forward with affirmative evidence to support its claim. Anderson, 477 U.S. at 257, 106 S.Ct. 2505. "A mere `scintilla' of evidence supporting the opposing party's position will not suffice; there must be a sufficient showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990). If the evidence advanced by the non-moving party "is merely colorable, or is not significantly probative, then summary judgment may be granted." Anderson, 477 U.S. 242, 249-50, 106 S.Ct. 2505. DISCUSSION: As noted, the question presented is whether Broward County Ordinances 87-3 and 87-4 are constitutionally permissible in light of the Commerce Clause of the Federal Constitution. The Commerce Clause provides that "[t]he Congress shall have Power ... [t]o regulate Commerce ... among the several States." U.S. Const. Art. I, § 8, cl. 3. Though phrased as a grant of regulatory power to Congress, the Clause has long been recognized as a self-executing limitation *1354 on the power of the states to enact laws imposing burdens on such commerce. See, e.g., Wyoming v. Oklahoma, 502 U.S. 437, 453, 112 S.Ct. 789, 800, 117 L.Ed.2d 1 (1992). For years Courts have mulled over defining the appropriate scope of the Commerce Clause. Particularly in the area of waste disposal cases, the courts have struggled to create a standard for evaluating ordinances that affect the flow of waste in interstate commerce. The general consensus is that the Commerce Clause presumes a national market free from local legislation that discriminates in favor of local interests. See Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, 504 U.S. 353, 112 S.Ct. 2019, 119 L.Ed.2d 139. The Supreme Court has held that, "[t]he central rationale for the rule against discrimination is to prohibit state or municipal laws whose object is local economic protectionism, laws that would excite those jealousies and retaliatory measures the Constitution was designed to protect." C & A Carbone, Inc. v. Town of Clarkstown, N.Y., 511 U.S. 383, 389, 114 S.Ct. 1677, 1682, 128 L.Ed.2d 399(1994). With that in mind, this Court now evaluates the constitutionality of Broward County Ordinances 87-3 and 87-4. Coastal maintains that the relevant ordinances violate the Commerce Clause by erecting barriers against the free and unregulated movement of solid waste in interstate commerce by: (1) creating a monopolistic tyranny that prohibits Broward County waste to be transported anywhere outside that County; (2) requiring excessive tipping fees to dump such waste in Broward County; (3) by charging different rates for garbage collected just outside Broward County but dumped at the same Broward County sites; and (4) by sanctioning and fining Coastal for hauling solid waste outside of Broward County. The Defendants argue that the purpose of the ordinances is to provide for the safe disposal of solid waste. Defendants further contend that the ordinances do not have any impact on interstate commerce. More specifically, Defendants argue that because Broward County is located at the extreme southern end of the Florida peninsula, the ordinances do not affect interstate commerce since — absent the ordinances — the waste would still remain in Florida as it would be economically unfeasible to transport the waste out of state. The court finds that Defendants' reasoning is flawed. Broward County's geographic location does not nullify the impact that the ordinances have on interstate commerce. Furthermore, even though the Defendants allege that their intentions are to dispose of solid waste in a safe manner, good intentions are no substitute for constitutional law. The legislative purposes are irrelevant if the ordinances have the effect of burdening interstate commerce. The ordinances in this case clearly limit the flow of waste in interstate commerce and place Broward County in a position of economic isolation in violation of the Commerce Clause. The body of waste disposal case law being vast and varied, this Court will focus solely on those cases that the Court deems most relevant and controlling.[2] *1355 In Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, the petitioner challenged a Michigan law that prohibited private landfill operators from accepting solid waste originating outside the county where the disposal facilities were located. Fort Gratiot, 112 S.Ct. at 2021. The fact that the law treated waste generated in other Michigan counties no differently from out-of-state waste did not save the law. The Court found that the Michigan law restricted the flow of waste through interstate commerce and held the law unconstitutional. Id. at 2028. The Gratiot Defendant argued that the restriction was intrastate and only affected the county. The Court, in response, held that "a State (or one of its political subdivisions) may not avoid the Commerce Clause's strictures by curtailing the movement of articles of commerce through subdivisions of the State, rather than through the State itself." Id. The standard for reviewing the constitutionality of a flow control is set forth in City of Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 2535-36, 57 L.Ed.2d 475. Applying that standard, a Court first determines whether the statute discriminates on its face by giving economic protection to in-state entities at the expense of out-of-state entities. In other words, the Court first decides whether the law is per se invalid. Discrimination against interstate commerce is per se invalid, save in a narrow class of cases in which the municipality can demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate local interest. Maine v. Taylor, 477 U.S. 131, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986). A statute not per se invalid, is then reviewed by applying the Pike balancing test. Pike v. Bruce Church, Inc. 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970). Under Pike, a court must determine whether an ordinance imposes a burden on interstate commerce that is clearly excessive in relation to the local benefits. The effect of the ordinance is considered only if the ordinance is facially valid. Defendants here argue that even if Broward County Ordinances 87-3 and 87-4 are unconstitutional in light of the Commerce Clause, the ordinances should still stand because their effect on interstate commerce is insignificant. They further contend that the ordinances are the least restrictive means available to achieve the goal of safe waste disposal also fails. Defendants' positions are strikingly similar to those of the Defendants' in C. & A. Carbone, Inc. v. Town of Clarkstown, N.Y., 511 U.S. 383, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994). In Carbone, the town enacted a flow control ordinance requiring that all solid waste generated in the town be processed at certain designated facilities. Id. at 1680. Pursuant to an agreement with the town, a private builder had constructed a waste facility. Id. In exchange, the builder was entitled to charge enhanced tipping fees at the designated facility thus guaranteeing the builder a certain amount of revenue. Id. The town argued that the ordinance did not discriminate against out-of-state businesses, but simply required that all non-hazardous waste within the town be deposited at a particular location regardless of who collected the waste. Id. Justice Kennedy, writing for the majority, declared the ordinance facially discriminatory as an economic protectionist measure. Id. at 1682. The Carbone Court reasoned that the article of commerce was not the solid *1356 waste, but rather the processing and disposing of the waste. Id. The ordinance, therefore, had a discriminatory effect on interstate commerce by restricting the processing and disposal of waste. Id. at 1683. The ordinance, by requiring that the waste be processed at a favored local facility, prevented out-of-town or out-of-state businesses from competing in the local disposal market. Id. The Court was unmoved by the town's argument of local health and safety concerns because the regulation clearly presented a barrier to the free flow of interstate commerce and there were less restrictive means to achieve the same goal. Id. The Carbone Court further declared that the fatal flaw in the ordinance was that it "hoards solid waste, and the demand to get rid of it, for the benefit of the preferred processing facility." Id. at 1683. See Minnesota v. Barber, 136 U.S. 313, 10 S.Ct. 862, 34 L.Ed. 455 (1890), Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1, 49 S.Ct. 1, 73 L.Ed. 147 (1928), South-Central Timber Development, Inc. v. Wunnicke, 467 U.S. 82, 104 S.Ct. 2237, 81 L.Ed.2d 71 (1984). The Defendants here attempt to distinguish Carbone by pointing out that the Carbone out-of-state haulers who disposed of their out of state waste in the town were required to pay a higher tipping fee than the haulers that collected waste within the town. The Broward County ordinances have the opposite effect. Defendants charge intercounty haulers an $80.00 tipping fee for waste collected in Broward County. Alternatively, if a hauler picks up waste outside of Broward County, the hauler can dispose of the waste within Broward County for a low tipping fee of $22.00.[3] The enhanced tipping fee is not the discriminatory element in this case. Rather, it is the fact that Coastal can not take the waste outside of Broward County. In other words, the real problem in Broward County, which is analogous to the problem in Carbone, is that, with respect to the local waste, the ordinance favors two Broward County transfer stations thereby forcing waste haulers to keep the waste in the County while depriving interstate or intercounty interests of access to the local processing market. In essence, Broward County is hoarding the waste, and the demand to get rid of it, for the benefit of the preferred transfer stations. The Supreme Court has struck down several similar local processing requirements.[4] As stated earlier, precedent dictates that actions are within the purview of the Commerce Clause if they burden interstate commerce or impede its free flow. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 31, 57 S.Ct. 615, 621, 81 L.Ed. 893 (1937). Clearly, Ordinances 87-3 and 87-4 impede the free flow of commerce. The restrictions require that Broward County waste remain in Broward County and be processed at the favored facilities. Defendants' contention that the waste will never enter interstate commerce because it is too expensive for waste haulers to ship Broward waste out-of-state is likewise *1357 flawed. A county can not pass an unconstitutional ordinance restricting the flow of waste and then argue the ordinance should stand because — in its opinion — it would be economically unfeasible to ship the waste out-of-state. An ordinance that is unconstitutional on its face is per se invalid and the analysis need proceed no further. For the reasons stated, the Court finds that there is no genuine issue of material fact regarding the constitutionality of Ordinances 87-3 and 87-4. The restrictions imposed by Ordinances 87-3 and 87-4 on waste collection and disposal in Broward County violate the Commerce Clause of the United States Constitution and hence are unconstitutional. Summary judgment, therefore, shall be entered on behalf of the Plaintiff, Coastal Carting and against all Defendants. Accordingly, having reviewed the motion, the record, and being otherwise duly advised, it is hereby: ORDERED AND ADJUDGED that Plaintiff Coastal Carting's Motion for Summary Judgment is GRANTED. This Court retains jurisdiction to determine damages, fees and costs. Plaintiff shall file an appropriate form of Final Judgment with the Court within twenty (20) days of the date of this Order. NOTES [1] The flow control ordinance reads in pertinent part: 3.1 The County shall cause to be constructed, operated, maintained and repaired a resource recovery system located within Broward County for the purpose of disposal of all solid waste collected in each Contract Community and unincorporated County and delivered to the resource recovery system. 3.3 Each Contract Community and County for the unincorporated area agrees to enact prior to March 31, 1987, a waste flow control ordinance as set forth in Section 403.713, Florida Statutes...directing that all solid waste generated within their respective geographic boundaries be delivered to the resource recovery system transfer or disposal facility or facilities designated in the plan of operations ... Each party agrees to include in any contracts or contract amendments with haulers executed after the date of execution hereof, a provision that all solid waste shall be delivered to the resource recovery system transfer or disposal facility or facilities designated in the plan of operations... [2] For a complete review of Supreme Court waste disposal cases see; Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978); Chemical Waste Management, Inc. v. Hunt, 504 U.S. 334, 112 S.Ct. 2009, 119 L.Ed.2d 121 (1992); Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, 504 U.S. 353, 112 S.Ct. 2019, 119 L.Ed.2d 139 (1992); Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., 511 U.S. 93, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994); C & A Carbone, Inc. v. Town of Clarkstown, N.Y., 511 U.S. 383, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994). [3] The Parties have approximated the amount of the tipping fees. [4] See Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948)(declaring as unconstitutional a statute requiring shrimpers to unload, pack, and stamp their fish before shipping it to another state); Dean Milk Co. v. Madison, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329 (1951)(striking down an ordinance requiring that all milk sold within the city be pasteurized within five miles of the city lines); Pike v. Bruce Church, Inc., supra (declaring an Arizona statute unconstitutional because it required all Arizona-grown cantaloupes to be packaged within the state).

804 F.2d 543 UNITED STATES of America, Plaintiff/Appellee,v.Alejandro FERREIRA-ALAMEDA, Defendant/Appellant. No. 84-5340. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 3, 1986.Decided Nov. 13, 1986. Crossan R. Andersen, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff/appellee. Reemberto Diaz, Diaz & Batista, P.A., Hialeah, Fla., for defendant/appellant. Appeal from the United States District Court for the Central District of California. Before ALARCON, BRUNETTI, and NOONAN, Circuit Judges. BRUNETTI, Circuit Judge: 1 Appellant Alejandro Ferreira-Alameda appeals his conviction, following a court trial on stipulated facts, for conspiracy to distribute and to possess with intent to distribute cocaine. On appeal, Ferreira-Alameda contends that (1) he did not knowingly and voluntarily waive his right to a jury trial or stipulate to the admission of his co-defendants' testimony from a previous trial; and (2) he was denied effective assistance of counsel. 2 We disagree and affirm. I. Background 3 Before trial, appellant agreed with the United States Attorney to waive his right to a jury trial and to stipulate to the record of an earlier trial of his co-defendants. Ferreira-Alameda specifically retained the rights to object to evidence, move for judgment of acquittal, make closing argument, and appeal. The United States Attorney, in turn, agreed to rely only upon the recorded testimony and physical evidence introduced at the trial of appellant's co-defendants. He also agreed to recommend no more than a five-year sentence. 4 On September 14, 1984, Ferreira-Alameda signed stipulations admitting the transcript testimony of eight witnesses and certain physical evidence from the previous trial of his co-defendants. 5 On October 29, 1984, the court found defendant guilty and sentenced him to five years. Ferreira-Alameda timely appealed. II. Analysis A. Waiver of Jury Trial 6 Ferreira-Alameda claims that his written jury trial waiver was not effective because it did not reflect that his waiver was conditional. 7 We review a trial court's ruling on the voluntariness of a guilty plea for clear error. United States v. Read, 778 F.2d 1437, 1440 (9th Cir.1985). 8 The record does not indicate that the agreement between the United States Attorney and appellant made Ferreira-Alameda's waiver conditional. Rather, both parties made certain concessions. Ferreira-Alameda's complaint seems to be that the written jury trial waiver made no mention of the other aspects of the parties' agreement. 9 Federal Rule of Criminal Procedure 23(a) requires that a defendant waive his right to trial by jury "in writing with the approval of the court and the consent of the government." (West Supp.1986). "The general rule is that a showing that the defendant's consent to waive his right to a jury trial was knowing, voluntary and intelligent is a necessary precondition to an effective Rule 23(a) jury trial waiver, one distinct from the requirement that the waiver be written." 8A Moore's Federal Practice p 23.03[c] (2d ed. 1984) (citing United States v. Conforte, 624 F.2d 869, 881-82 (9th Cir.), cert. denied, 449 U.S. 1012, 105 S.Ct. 568, 66 L.Ed.2d 470 (1980)). The district judge fully satisfied this precondition to Ferreira-Alameda's written waiver. 10 The district judge thoroughly explained the nature of a jury trial to Ferreira-Alameda and repeatedly asked appellant if he understood the right he was giving up. Furthermore, the district judge carefully informed appellant that he was giving up the rights to confront and cross-examine witnesses, and to offer evidence; he explained the appellant's maximum possible penalty, and made sure Ferreira-Alameda understood that a jury found his co-defendants guilty on the same evidence he stipulated to. 11 The district court went to great lengths to assure that Ferreira-Alameda's jury trial waiver was knowing, voluntary, and intelligent. Therefore, appellant's claim is meritless. 12 B. Stipulation to Testimony of Co-Defendants 13 Ferreira-Alameda also contends he did not knowingly and voluntarily give up his rights to confront and cross-examine witnesses and to introduce evidence. He claims that neither he nor his attorney knew what appellant's co-defendants had testified to at the previous trial. Therefore, appellant contends, his stipulation to that testimony was not knowing and voluntary. 14 "It is the responsibility of the trial judge when accepting a stipulation or waiver to assure that it is voluntarily made." United States v. Miller, 588 F.2d 1256, 1264 (9th Cir.1978) (citing United States v. Terrack, 515 F.2d 558, 558-60 (9th Cir.1975)), cert. denied, 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636 (1979). The district judge thoroughly informed and questioned appellant to make such a determination. 15 Ferreira-Alameda claims he did not know what his co-defendants testified to. Yet he told the district judge he understood that the evidence stipulated to was the same evidence upon which a jury found his co-defendants guilty. Moreover, Ferreira-Alameda retained and his counsel exercised the right to object to any portion of the stipulated evidence. Thus, appellant's contention that the stipulation was not voluntary is also without merit. C. Ineffective Assistance of Counsel 16 Ferreira-Alameda's final contention is that he was denied effective assistance of counsel because his attorney stipulated to facts he did not know and because he failed to object to any evidence introduced against appellant. 17 Whether a defendant received ineffective assistance of counsel is a question of law reviewed de novo. Weygandt v. Ducharme, 774 F.2d 1491, 1492-93 (9th Cir.1985) (citing Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984)). Review of counsel's performance is highly deferential and there is a strong presumption that counsel's conduct fell within the wide range of reasonable representation. United States v. Hamilton, 792 F.2d 837, 839 (9th Cir.1986) (quoting Strickland, 466 U.S. at 689), 104 S.Ct. at 2065. 18 We recently reiterated the two-part test to evaluate claims of ineffective assistance of counsel. First, the " 'defendant must show that counsel's representation fell below an objective standard of reasonableness.' " Eggleston v. United States, 798 F.2d 374, 376 (9th Cir.1986) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2065). Second, counsel's error must have prejudiced the defendant. Id. (quoting Strickland, 466 U.S. at 692, 104 S.Ct. at 2067). 19 Counsel's stipulation to evidentiary facts does not necessarily demonstrate incompetency of counsel. United States v. Gray, 626 F.2d 102, 106 (9th Cir.1980). Although appellant's trial counsel did not know the precise facts stipulated to, he had knowledge of their implications from reading a government trial memorandum. In addition, counsel retained the right to object to any of the stipulated evidence. Therefore, Ferreira-Alameda has not demonstrated that his counsel acted incompetently. Furthermore, he has failed to show counsel's actions prejudiced him. Mere criticism of a trial tactic is not sufficient to support a charge of ineffective representation. United States v. Murray, 751 F.2d 1528, 1535 (9th Cir.) (quoting Gustave v. United States, 627 F.2d 901, 904 (9th Cir.1980)), cert. denied, --- U.S. ----, 106 S.Ct. 381, 88 L.Ed.2d 335 (1985). 20 Ferreira-Alameda also claims ineffective representation because his counsel failed to object to any evidence at trial. This claim is baseless since counsel made several objections at trial. Furthermore, Ferreira-Alameda has not demonstrated counsel's failure to object prejudiced him. III. Conclusion 21 Ferreira-Alameda has failed to demonstrate that his jury trial waiver and evidentiary stipulation were not knowingly and voluntarily made. He also has not shown that his trial counsel was ineffective or that his counsel's actions prejudiced him. Therefore, we affirm the district court's conviction. 22 AFFIRMED.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-00-00149-CR Juan Perez, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT NO. 0990063, HONORABLE CHARLES F. CAMPBELL, JR., JUDGE PRESIDING A jury found appellant Juan Perez guilty of aggravated sexual assault and aggravated kidnapping. Tex. Penal Code Ann. §§ 22.021(a)(1)(A)(i) & 20.04(a)(4) (West Supp. 2001). The jury assessed punishment at twenty years' confinement in prison and a $10,000 fine for the aggravated sexual assault offense and fifteen years' confinement in prison and a $10,000 fine for the aggravated kidnapping offense. Appellant contends that the evidence is legally and factually insufficient to support the judgment and that the district court erred in overruling his objection to the State's exercise of two peremptory strikes. We will affirm the judgment. Background The complainant testified that she had known appellant for about four or five years and during part of that time they had lived together. About five months before the incident, the complainant told appellant she no longer wanted to be with him and they ceased living together. Afterward, from time to time, appellant would borrow a friend's truck, stop by the Diamond Shamrock station on Riverside where the complainant worked the 4:00 p.m. to 12 midnight shift, and give her a ride home after work. On several occasions, appellant talked with the complainant about getting back together. On September 2, 1998, around 12:30 a.m., the complainant testified that appellant stopped at the Diamond Shamrock and told her he would take her home after work. After the complainant closed the store, she got into the truck expecting appellant would drive her home as he said he would and as he had done several times before. This time, however, rather than taking her home, appellant headed in the opposite direction driving south on IH 35. He told her that he wanted to talk with her. When the complainant realized appellant was not taking her home, she became fearful and asked him to stop the truck and drop her off. When he refused, the complainant opened the passenger-side door and considered jumping out of the truck. As she was hanging out of the truck with the door open and her feet dragging the ground, appellant pulled her back into the truck by grabbing her hair and her Diamond Shamrock work jacket. As he grabbed her, he told her to shut her mouth. He told her he felt like beating her, threatened to cut off her hair with a knife and kill her. Finally, he told her that he would wreck the truck and kill both of them. Appellant drove to a secluded wooded area where he stopped the truck. He had the complainant walk into the woods where he put down a blanket and a pillow that the complainant had given him several days earlier and sexually assaulted the complainant. He cleaned himself and the complainant with the complainant's Diamond Shamrock work jacket. He had the complainant get back in the truck and drove her home. He left his underwear, the pillow and blanket in the woods. When they reached the complainant's apartment, he asked if he could spend the night and again asked her to consider getting back together with him. The complainant told appellant he could not spend the night and to leave her house. After appellant left, the complainant took a shower and rolled up the semen-stained work jacket and put it on a shelf near her washing machine. The complainant did not immediately contact police about the incident because she was afraid of appellant. She was also concerned about her two older sons' reactions upon hearing about the incident. After the alleged sexual assault, the complainant reported two other incidents to police involving appellant before she reported the sexual assault. One week after the incident, the complainant reported the sexual assault to police. Austin Police Officer Jason Bryant investigated the incident and testified that the complainant led him directly to the scene of the alleged offense where he recovered the blanket, pillow and underwear. Karen Scalise, a DNA specialist and hair expert with the Department of Public Safety, testified that there were no semen or blood stains on the blanket, pillow or the underwear. She testified that two hairs found on the underwear did not match appellant's hair. The DNA found in some body tissue attached to the hair, however, was consistent with appellant's genetic profile. Although she agreed that the results from the DNA and microscopic hair tests were odd, she would not speculate or venture an explanation for the results other than to say that appellant's body tissue could have attached to another person's hair shaft. The complainant testified that she did not know what happened to the Diamond Shamrock jacket she wore the night of the incident. The complainant explained that she did not turn it over to police because she was not thinking about evidence when she reported the incident. The complainant's daughter, who was fifteen at the time of the incident, testified that when she and her family moved, she threw away the torn, stained, Diamond Shamrock work jacket her mother had worn the night of the incident. Additionally, the complainant testified that she did not know what happened to the shoes she wore the night of the incident. Discussion Legal and Factual Sufficiency In appellant's first two issues, he contends that the evidence is legally and factually insufficient to support the jury's verdict. Appellant argues that there are many reasonable explanations for the presence of his blanket and underwear at the scene of the alleged assault. Appellant argues that the complainant was angry with him before the alleged assault and she had waited several days after the assault before contacting the police. Finally, appellant contends that the complainant's testimony about the portion of the truck ride during which she claimed her feet were dragging the pavement as the truck was traveling on IH 35 was completely incredible. The standard for reviewing the legal sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the jury's verdict, any rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense charged. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Skillern v. State, 890 S.W.2d 849, 879 (Tex. App.--Austin 1994, pet. ref'd). The standard of review is the same in both direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995); Green v. State, 840 S.W.2d 394, 401 (Tex. Crim. App. 1992). The State may prove its case by circumstantial evidence if it proves all of the elements of the charged offense beyond a reasonable doubt. Easley v. State, 986 S.W.2d 264, 271 (Tex. App.--San Antonio 1998, no pet.) (citing Jackson, 443 U.S. at 319). The sufficiency of the evidence is determined from the cumulative effect of all the evidence; each fact in isolation need not establish the guilt of the accused. Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987). It is important to remember that all the evidence the jury was permitted, properly or improperly, to consider must be taken into account in determining the legal sufficiency of the evidence. Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1994); Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993); Rodriguez v. State, 939 S.W.2d 211, 218 (Tex. App.--Austin 1997, no pet.). The jury is the exclusive judge of the facts proved, the weight to be given the testimony, and the credibility of the witnesses. Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1993); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). The jury is free to accept or reject any or all of the evidence presented by either party. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). The jury maintains the power to draw reasonable inferences from basic facts to ultimate facts. Welch v. State, 993 S.W.2d 690, 693 (Tex. App.--San Antonio 1999, no pet.); Hernandez v. State, 939 S.W.2d 692, 693 (Tex. App.--Fort Worth 1997, pet. ref'd). The reconciliation of evidentiary conflicts is solely within the province of the jury. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). Under the Jackson standard, the reviewing court is not to position itself as a thirteenth juror in assessing the evidence. Rather, it is to position itself as a final due process safeguard insuring only the rationality of the fact finder. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). It is not the reviewing court's duty to disregard, realign, or weigh the evidence. See id. The jury's verdict must stand unless it is found to be irrational or unsupported by more than a "mere modicum" of evidence, with such evidence being viewed under the Jackson light. See id. The legal sufficiency of the evidence is a question of law. McCoy v. State, 932 S.W.2d 720, 724 (Tex. App.--Fort Worth 1996, pet. ref'd) (citing Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991)). A review of the factual sufficiency of the evidence begins with the presumption that the evidence supporting the conviction was legally sufficient. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). The reviewing court asks whether, in conducting a neutral review of all the evidence both for and against the finding, the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by the contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). In a factual sufficiency analysis, it must be remembered that the trier of fact is the sole judge of the weight and credibility of the testimony. Santellan, 939 S.W.2d at 164. Appellate courts should be on guard not to substitute their own judgment in these matters for that of the trier of fact. Id. One principle of a factual sufficiency analysis is deference to the findings of the jury or other fact finder. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Appellate courts should exercise their jurisdiction to review the factual sufficiency of the evidence only to prevent manifestly unjust results; they are not free to reweigh the evidence and set aside a jury verdict merely because the judges believe a different result is more reasonable. Reaves v. State, 970 S.W.2d 111, 115 (Tex. App.--Dallas 1998, no pet.) (citing Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 135). Appellant did not testify at trial. The only explanation suggested for appellant's underwear, blanket and pillow being at the scene of the alleged assault was that appellant and the complainant had been paramours who had previously lived together and appellant left some of his clothes at the complainant's house after he moved out. The jury was not bound to accept that explanation. Additionally, whether the complainant was dragged down IH 35 in precisely the fashion she described was not the central issue in the case. Considering the emotional state the complainant was in at the time appellant was driving her to the secluded wooded area, her description of the dragging does not render all of her testimony about her abduction and sexual assault irrational or unsupported by more than a modicum of evidence. In viewing the evidence in a light most favorable to the jury's verdict, a rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offenses charged. Additionally, the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We hold that the evidence is legally and factually sufficient to support the jury's verdict. Issues one and two are overruled. Batson Objection In his third issue, appellant contends that the district court erred in overruling his objection to the State's exercise of two peremptory strikes. It is well established that a peremptory strike used in a racially discriminatory fashion is prohibited by the Fourteenth Amendment. Batson v. Kentucky, 476 U.S. 79 (1986); Tex. Code Crim. Proc. Ann. art. 35.261 (West 1989). When challenging a peremptory strike as racially motivated, the defendant must initially establish a prima facie case of purposeful discrimination. Harris v. State, 827 S.W.2d 949, 955 (Tex. Crim. App. 1992). If the defendant makes this showing, the State must then rebut the presumption of discrimination with race-neutral explanations for challenging the potential jurors in question. Id. Once the State provides race-neutral explanations, then it is incumbent upon the defendant to show by a preponderance of the evidence that the State was racially motivated in using its peremptory strikes by impeaching or refuting the State's neutral explanations or by showing that they were merely a pretext for discrimination. Tompkins v. State, 774 S.W.2d 195, 202 (Tex. Crim. App. 1987). In reviewing a district court's ruling on a Batson objection, an appellate court applies the "clearly erroneous" standard of review. Tennard v. State, 802 S.W.2d 678, 680 (Tex. Crim. App. 1990). The appellate court reviews the entire record, including voir dire and the Batson hearing and considers the evidence in the light most favorable to the district court's ruling. Cantu v. State, 842 S.W.2d 667, 689 (Tex. Crim. App. 1992); Whitsey v. State, 796 S.W.2d 707, 716 (Tex. Crim. App. 1989). A reversal is mandated only if a review of the voir dire record, the State's explanations, and the defendant's rebuttal and impeachment evidence result in a definite and firm conviction that the challenged peremptory strikes were used in a purposefully discriminatory manner. Williams v. State, 804 S.W.2d 95, 101-02 (Tex. Crim. App. 1991). Before the jury was sworn, appellant objected to the State's exercise of its peremptory strikes against two Hispanic individuals. Tex. Code Crim. Proc. Ann. art. 35.261(a) (West 1989). The district court ruled that appellant established a prima facie case of racial discrimination. Called upon by the court for race-neutral reasons, if any, for the two strikes, the State presented as evidence statewide computerized criminal history reports that showed potential juror six had been convicted of marihuana possession and potential juror thirty-one had been charged with theft by check although the records indicated that the theft charge was dismissed. Regarding juror thirty-one, the State also gave a race-neutral reason to strike her because she appeared to vacillate before responding that she would convict on the testimony of a single witness when her body language indicated that she was in a quandary. Additionally, the State argued that there were other individuals within the strike zone that had Hispanic surnames that the State did not strike because there was no indication any of them had been in trouble with the law. After the State presented race-neutral reasons for striking potential jurors six and thirty-one, it was incumbent upon appellant to rebut the State's explanations to the extent "that it can be rationally inferred that the State engaged in purposeful racial discrimination." Id. Appellant attempted to rebut the State's explanation by arguing that although the two challenged individuals had the same names and one had the same birthday as the two people reflected in the criminal records, the State failed to prove conclusively that potential jurors six and thirty-one were the same individuals as those reflected in the criminal records. The district court reviewed the criminal history records and ruled that "there [were] valid race[-]neutral reasons exigent for the State's peremptory strikes" and overruled appellant's Batson objection. Appellant contends that the district court erred in overruling his Batson objection because the State's explanations were not legitimate explanations for the two challenged strikes since the State failed to link the challenged individuals with the names generated by computerized criminal history checks. Striking a potential juror due to a belief that the individual has had trouble with the law has been found to be a race-neutral explanation for exclusion from a jury. Anderson v. State, 758 S.W.2d 676, 680 (Tex. App.--Fort Worth 1988, pet. ref'd). Additionally, body language and demeanor are race-neutral explanations that have been upheld. Chambers v. State, 724 S.W.2d 440, 442 (Tex. App.--Houston [14th Dist.] 1987, pet. ref'd). Here, the State's explanations were race-neutral. Next, we determine whether appellant presented evidence to rebut the State's explanations or show that they were merely a sham or pretext for discrimination. Williams, 804 S.W.2d at 101; Hermosillo v. State, 903 S.W.2d 60, 66 (Tex. App.--Fort Worth 1995, pet. ref'd) (citing Lewis v. State, 815 S.W.2d 560, 563-64 (Tex. Crim. App. 1991)). If a defendant fails to present evidence rebutting the explanations, a determination that the State's strikes were not racially motivated is not clearly erroneous. Williams, 804 S.W.2d at 101. At the Batson hearing, appellant did not present evidence and only argued that the State failed to prove the challenged potential jurors were the same individuals shown on the criminal history records. Appellant suggested at the hearing that it was the State's responsibility to ask questions of the challenged potential jurors that would establish that they were in fact the individuals referred to in the criminal history records. We disagree. First, we note that the State gave multiple race-neutral explanations for striking potential juror thirty-one. The only race-neutral explanation appellant attempted to rebut during the Batson hearing was past criminal history. Appellant did not address the other bases for striking potential juror thirty-one and therefore did not rebut by a preponderance of the evidence the State's race-neutral explanation for striking that individual. Regarding juror six, the record reflects that the State did not ask him about his criminal history. It was, however, appellant's burden to rebut the State's facially race-neutral explanations. Whitsey, 796 S.W.2d at 713. Appellant did not present any evidence or ask potential juror six any questions to establish that in fact he was not the individual shown on the criminal history report. We conclude appellant did not meet his burden to show by a preponderance of the evidence that his allegations of purposeful discrimination in fact were true. We hold that the district court's overruling of appellant's Batson objection was not clearly erroneous. Appellant's third issue is overruled. The judgment is affirmed. Lee Yeakel, Justice Before Justices Kidd, Yeakel and Jones* Affirmed Filed: February 15, 2001 Do Not Publish * Before J. Woodfin Jones, Justice (former), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 75.003(a)(1) (West 1998). was in a quandary. Additionally, the State argued that there were other individuals within the strike zone that had Hispanic surnames that the State did not strike because there was no indication any of them had been in trouble with the law. After the State presented race-neutral reasons for striking potential jurors six and thirty-one, it was incumbent upon appellant to rebut the State's explanations to the extent "that it can be rationally inferred that the State engaged in purposeful racial discrimination." Id. Appellant attempted to rebut the State's explanation by arguing that although the two challenged individuals had the same names and one had the same birthday as the two people reflected in the criminal records, the State failed to prove conclusively that potential jurors six and thirty-one were the same individuals as those reflected in the criminal records. The district court reviewed the criminal history records and ruled that "there [were] valid race[-]neutral reasons exigent for the State's peremptory strikes" and overruled appellant's Batson objection. Appellant contends that the district court erred in overruling his Batson objection because the State's explanations were not legitimate explanations for the two challenged strikes since the State failed to link the challenged individuals with the names generated by computerized criminal history checks. Striking a potential juror due to a belief that the individual has had trouble with the law has been found to be a race-neutral explanation for exclusion from a jury. Anderson v. State, 758 S.W.2d 676, 680 (Tex. App.--Fort Worth 1988, pet. ref'd). Additionally, body language and demeanor are race-neutral explanations that have been upheld. Chambers v. State, 724 S.W.2d 440, 442 (Tex. App.--Houston [14th Dist.] 1987, pet. ref'd). Here, the State's explanations were race-neutral. Next, we determine whether appellant presented evidence to rebut the State's explanations or show that they were merely a sham or pretext for discrimination. Williams, 804 S.W.2d at 101; Hermosillo v. State, 903 S.W.2d 60, 66 (Tex. App.--Fort Worth 1995, pet. ref'd) (citing Lewis v. State, 815 S.W.2d 560, 563-64 (Tex. Crim. App. 1991)). If a defendant fails to present evidence rebutting the explanations, a determination that the State's strikes were not racially motivated is not clearly erroneous. Williams, 804 S.W.2d at 101. At the Batson hearing, appellant did not present evidence and only argued that the State failed to prove the challenged potential jurors were the same individuals shown on the criminal history records. Appellant suggested at the hearing that it was the State's responsibility to ask questions of the challenged potential jurors that would establish that they were in fact the individuals referred to in the criminal history records. We disagree. First, we note that the State gave multiple race-neutral explanations for striking potential juror thirty-one. The only race-neutral explanation appellant attempted to rebut during the Batson hearing was past criminal history. Appellant did not address the other bases for s

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 95-7307 COLLIS MILLER, JR., Petitioner - Appellant, versus STATE OF SOUTH CAROLINA; ATTORNEY GENERAL OF THE STATE OF SOUTH CAROLINA, Respondents - Appellees. Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, District Judge. (CA-92-2063-3-22) Submitted: December 14, 1995 Decided: January 17, 1996 Before ERVIN, Chief Judge, and WIDENER and WILKINS, Circuit Judges. Dismissed by unpublished per curiam opinion. Collis Miller, Jr., Appellant Pro Se. Donald John Zelenka, Chief Deputy Attorney General, Columbia, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Appellant seeks to appeal the district court's order denying relief on his 28 U.S.C. § 2254 (1988) petition. We have reviewed the record and the district court's opinion accepting the recom- mendation of the magistrate judge and find no reversible error. Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal on the reasoning of the district court. Miller v. South Carolina, No. CA-92-2063-3-22 (D.S.C. July 31, 1995). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 2 

984 So.2d 352 (2007) Jimmy DAO, Appellant v. STATE of Mississippi, Appellee. No. 2006-KA-01170-COA. Court of Appeals of Mississippi. December 11, 2007. Rehearing Denied March 11, 2008. *353 Glenn Sturdivant Swartzfager, Jackson, attorney for appellant. Office of the Attorney General by Deirdre McCrory, attorney for appellee. Before MYERS, P.J., IRVING, BARNES and ROBERTS, JJ. IRVING, J., for the Court. ¶ 1. Jimmy Dao was convicted by a jury of aggravated assault and was sentenced by the Forrest County Circuit Court to serve twenty years in the custody of the Mississippi Department of Corrections. Aggrieved, Dao appeals and asserts (1) that the trial court erred in allowing the State to introduce evidence regarding his alleged gang affiliation, (2) that the trial court erred in allowing the State to question defense witnesses about an unrelated murder, and (3) that there is insufficient evidence to support his conviction.[1] ¶ 2. Finding no reversible error, we affirm. FACTS ¶ 3. Around 10:00 p.m. on June 18, 2003, nine men in two vehicles, a Toyota 4-Runner and a Mercedes, were involved in an altercation after meeting at a stop light on Hardy Street in Hattiesburg, Mississippi. The altercation ended when Dao, a passenger in the Mercedes, fired a shot that struck the open front passenger door of the 4-Runner. A few months after the incident, Dao was arrested and charged with aggravated assault. ¶ 4. At trial, the State presented the testimony of Don Ladner, B.J. Fokakis, and Zachary Fairley.[2] The defense presented the testimony of three of the six occupants of the Mercedes: Craig Murrell, Taun Bui, and Dao. Donald Nguyen, Bao Dang, and Long Nguyen were also in the Mercedes on the night of the incident. Sometime after the incident, Long was murdered.[3] ¶ 5. Murrell testified that they were on Hardy Street when they noticed the 4-Runner in the next lane of traffic, traveling *354 in the same direction. He stated that Dao "flipped [the occupants of the 4-Runner] off," but did not give any explanation for Dao's doing so. At that point, the 4-Runner began to follow the Mercedes. Murrell testified that they had not signaled the occupants of the 4-Runner to follow them. He stated that when the 4-Runner began to do so, Long, the driver of the Mercedes, turned down 21st Street. Murrell further testified that they exited the Mercedes and that one of the occupants of the 4-Runner was already outside of the 4-Runner, holding a bat. The front passenger door of the 4-Runner was open. Murrell testified that the passenger swung the bat at Dao, but Dao dodged it. Murrell also testified that he heard a gunshot but that he did not see who fired the gun because he diverted his attention to a car that was coming from the opposite direction.[4] ¶ 6. On cross-examination, the trial court allowed the State, over an objection by the defense, to question Murrell regarding Long's murder. In support of its position that it should be allowed to question Murrell regarding Long's death, the State pointed out that Murrell was listed as an alibi witness for Donald in that particular murder case. ¶ 7. Bui corroborated Murrell's testimony but added that Dao fired a gun into the open door of the 4-Runner after the passenger from the 4-Runner swung the bat at Dao. Bui also testified that Long had handed the gun to Dao and that no one had exited the 4-Runner at that time. Bui further testified that no one got out of the Mercedes until after the occupants of the 4-Runner had exited. ¶ 8. Immediately following Bui's direct testimony, outside the presence of the jury, the State requested, and was granted, permission to cross-examine Bui regarding his gang affiliation. According to the State, the rationale was twofold: to show that Bui was biased in favor of Dao and to show that Bui had a motive to lie. The defense objected, arguing that the testimony should be excluded under Rule 403 of the Mississippi Rules of Evidence. Specifically, Dao's attorney argued: "I don't believe that portion of the rule applies in this specific case." The trial court allowed the questioning for the limited purpose of showing bias. Thereafter, during cross-examination, the State brought out that Bui, Dao, and Donald were members of the Junior Viet Boys gang at the time of the shooting.[5] The State asked Bui whether gang members were "supposed to always be there for . . . fellow gang members." Bui responded, "Yes, sir." Further, the State asked: "when a fellow gang member gets in any kind of difficulty, it's your honor and your duty to assist him in any way that you can. That's correct; isn't it?" Again, Bui responded, "Yes, sir." ¶ 9. Early in Dao's testimony the defense asked him whether he had ever been in a gang, and he responded that he had. As for the incident at issue, Dao testified that they had "gotten into a conflict with some guys in [a 4-Runner] at a red and green light in front of [The University of Southern Mississippi]." He testified that Fokakis, the person on the passenger side of the 4-Runner, flipped him off and that he responded by returning the gesture. He stated that the 4-Runner began following *355 them, so he flipped Fokakis off again. Dao testified that he suggested that Long turn off on 21st Street, instead of heading to Dao's house, because he did not want them to follow him to his house.[6] Long handed Dao a gun and Dao exited the vehicle as the occupants of the 4-Runner were exiting their vehicle. Dao testified that one of the passengers had a bat in his hand that he swung at Dao when Dao stepped forward. Dao stated, "[T]hat's when I pulled the gun out and fired the gun." ¶ 10. Despite Dao's admission that he fired the gun, he maintained that he did not aim at anyone. He fled the scene on foot. Despite efforts by law enforcement to locate him, Dao was not arrested until August 14, 2003, at which time he provided the police with a written statement concerning the incident. ¶ 11. On cross-examination, the State pointed out that Dao's written statement differed from his trial testimony. In his statement, Dao stated that his assailant, later identified as Fokakis, had gotten back in the vehicle before Dao fired the gun. However, as previously mentioned, Dao testified at trial that Fokakis was standing outside of the vehicle when Dao fired the gun. When pressed to explain this inconsistency, Dao stated that Fokakis was in the vehicle when he fired the gun but that another occupant of the 4-Runner was outside of the vehicle. ¶ 12. During further cross-examination, the State questioned Dao concerning Long as it had during its examination of Murrell. The State also questioned Dao about his membership in the Junior Viet Boys. Dao admitted that he had been a member of the gang but stated that he was no longer a member and that he was not a member at the time of the shooting. ¶ 13. Ladner, the first witness for the State, testified that as they were sitting at a red light, a Mercedes with numerous occupants pulled up next to their vehicle in the next lane of traffic, traveling in the same direction. According to Ladner, the music in the 4-Runner was loud, and they thought the occupants of the Mercedes were "banging their heads to the music [emanating from the 4-Runner]." Ladner also stated that one of the occupants of the Mercedes waved, and they thought they recognized the person, so Fokakis waved back. Further, Ladner stated that one of the occupants of the Mercedes pointed out of the window and motioned for them to pull over. They complied and turned off on 21st Street. Ladner testified that after they turned on 21st Street, Fairley stopped the 4-Runner about fifteen to twenty yards behind the Mercedes. Ladner testified that everyone remained in the 4-Runner. He also testified that a Vietnamese male with somewhat long, blond hair, whom he later identified as Dao, exited the back seat of the Mercedes.[7] Ladner stated that when Fokakis noticed that Dao was armed, he yelled something like, "He's got a gun." As the 4-Runner attempted to leave, Dao fired a single bullet that struck the passenger side door of the 4-Runner. As the 4-Runner sped away, it hit another vehicle that was approaching. Ladner testified that, after the accident, he went to a nearby residence, telephoned the *356 police, and reported the shooting incident.[8] He also testified that he provided a written statement to police, detailing his account of what transpired. On cross-examination, Ladner testified that he, Fokakis, and Fairley all played baseball; however, he stated that they did not have a baseball bat in the vehicle on the night of the incident. ¶ 14. The next witness for the State was Fokakis. His testimony was similar to Ladner's. He testified that when he noticed the occupants in the Mercedes attempting to get them to pull over, he told Fairley to pull over so they could see what the other men wanted. Fokakis stated that the Mercedes was about one hundred feet in front of their vehicle and that "before we could even get pulled up there, they [had] already jumped out of the car." Fokakis also testified that the occupants of the Mercedes began gesturing as if they wanted to fight. According to Fokakis, Dao then lifted his shirt, pulled a gun from under his belt, and fired a single shot through the door of the 4-Runner. Fokakis stated that the Mercedes left the scene before the police arrived and did not return. Fokakis gave police a written statement and later identified Dao as the shooter. ¶ 15. After Fokakis finished his testimony, the State called Fairley to the witness stand. Fairley relayed the same sequence of events as Ladner and Fokakis. Prior to trial, he had also given a written statement and, at some point, had identified Dao as the shooter. ¶ 16. Shane Tucker, the lieutenant in charge of the Hattiesburg Police Department's crime scene unit at the time of the incident, testified that the 4-Runner was taken to a wrecker yard and processed on June 23, 2003, five days after the shooting incident. He stated that he did not find a baseball bat or any type of weapon in the 4-Runner. However, on cross-examination, he stated that he did not know how many individuals had had access to the vehicle between June 18 and June 23. Officer Tucker also stated that he did not know where the items that were found in the 4-Runner were taken, or even if an inventory of the vehicle had been conducted. In addition, Officer Tucker admitted that he did not mention in his report that he had searched the 4-Runner for weapons. ¶ 17. Additional facts, if necessary, will be related during our analysis and discussion of the issues. ANALYSIS AND DISCUSSION OF THE ISSUES 1. Admission of Gang-Affiliation Evidence ¶ 18. "A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses [his] discretion so as to be prejudicial to the accused, [this] Court will not reverse [his] ruling." Jefferson v. State, 818 So.2d 1099, 1104(¶ 6) (Miss.2002) (quoting Hughes v. State, 735 So.2d 238, 270 (¶ 134) (Miss.1999)). ¶ 19. Dao argues that the trial court erred in allowing the State to introduce evidence regarding his affiliation with the Junior Viet Boys because the evidence was irrelevant "in that there was no evidence that the gang, the Junior Viet Boys, had taken an oath to lie for one another, nor was there any evidence that the incident *357 was the result of any gang activity."[9] Dao also argues that the evidence of gang affiliation was inadmissible under Rule 404(b) of the Mississippi Rules of Evidence because the State did not offer any evidence as to any of the permissible exceptions under the rule.[10] Finally, Dao argues that the trial court failed to conduct a balancing test, and that the probative value of the gang-affiliation evidence is substantially outweighed by the danger of unfair prejudice, resulting in the evidence being admitted in violation of Rule 403 of the Mississippi Rules of Evidence.[11] We address each of these issues in turn. (a) Relevance and Applicability of M.R.E. 404(b) ¶ 20. Dao cites Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992) for the proposition that the testimony regarding Dao's and Bui's gang affiliation was irrelevant because the prosecution failed to lay the proper foundation linking gang membership with the shooting. Stated another way, Dao contends that his gang affiliation was irrelevant because the State failed to offer any evidence that the aggravated assault was gang related. We agree that the State did not offer any evidence that the assault was gang related or any evidence as to motive. Therefore, we agree with Dao that the gang-affiliation evidence was inadmissible to prove motive. However, our inquiry does not end here, because even if the evidence was inadmissible to prove motive or one of the exceptions listed in Rule 404(b), that does not mean that it was inadmissible for all purposes, as we make clear later in our discussion of the cases upon which Dao relies. We begin the discussion with Dawson. ¶ 21. In Dawson, a defendant who had been convicted of first degree murder argued that his First Amendment rights were violated during his sentencing proceeding by the introduction of evidence exhibiting his membership in the Aryan Brotherhood. The United States Supreme Court agreed and held that "Dawson's First Amendment rights were violated by the admission of the Aryan Brotherhood evidence . . . because the evidence proved nothing more than Dawson's abstract beliefs." Dawson, 503 U.S. at 167, 112 S.Ct. 1093. However, the Court also concluded that "the Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment." Id. at 165, 112 S.Ct. 1093. As stated, we agree with Dao that there is no evidence that the incident in this case was gang related. Nevertheless, as we will explain later, the gang-affiliation evidence in this case served as proof of more than Dao's abstract beliefs. Therefore, we do not find Dawson applicable. ¶ 22. We find United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984) more analogous to the issue in this *358 case. In Abel, John Abel was convicted of bank robbery. At trial, Kurt Ehle, one of Abel's co-defendants, testified that Abel and Robert Mills, a defense witness, were members of a secret prison gang and that the tenets of the gang required its members to lie for one another. Ehle's testimony was offered by the prosecution to show that Mills was biased in favor of Abel. The district court allowed the testimony. The United States Court of Appeals for the Ninth Circuit reversed the district court and concluded that the testimony was admitted to show that Abel's and Mills's membership in the same gang "might cause Mills to color his testimony," as well as to show that "because Mills belonged to a perjurious organization, he must be lying on the stand." Id. at 48, 105 S.Ct. 465. The United States Supreme Court reversed the Ninth Circuit and held that "the evidence showing Mills'[s] and [Abel's] membership in the prison gang was sufficiently probative of Mills'[s] possible bias towards [Abel] to warrant its admission into evidence." Id. at 49, 105 S.Ct. 465. ¶ 23. At oral argument, Dao's attorney argued that Dawson implicitly overruled Abel. We disagree. The Dawson court acknowledged its holding in Abel by stating: [In Abel], we held that the Government could impeach a defense witness by showing that both the defendant and the witness were members of the Aryan Brotherhood, and that members were sworn to lie on behalf of each other. We held the evidence admissible to show bias, even assuming that membership in the organization was among the associational freedoms protected by the First Amendment. Though Abel did not involve a capital sentencing proceeding, its logic is perfectly applicable to such a proceeding. We therefore conclude that the Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment. Dawson, 503 U.S. at 164-65, 112 S.Ct. 1093. ¶ 24. In Dawson, evidence was offered to show the defendant's beliefs in an abstract way, as the jury was only permitted to hear that Dawson was a member of a prison gang. The evidence was not offered to show that Dawson's crime was connected to his gang membership or to show a witness's bias. As such, the Court concluded that membership alone was not enough to make the evidence admissible. The jury in Abel, on the other hand, was provided with a description of the tenets of the gang of which Abel was a member. Therefore, the prosecution was permitted to show that, based on the tenets of the gang, it was more likely than not that Mills's testimony would be favorable to Abel. ¶ 25. Similarly, in this case, Bui testified on cross-examination by the prosecutor that gang members owe certain allegiances to one another: Q. Now, as a matter of fact, there is [sic] certain allegiances that you're supposed to take when you become a gang member; is that correct? A. Yes, sir. Q. That's true; isn't it? A. Yes, sir. Q. And as a matter of fact, when a fellow gang member gets in any kind of difficulty, it's your honor and your duty to assist him in any way that you can. That's correct; isn't it? A. Yes, sir. *359 ¶ 26. Dao also points us to Hoops v. State, 681 So.2d 521 (Miss.1996). In Hoops, the Mississippi Supreme Court was presented with two questions: (1) whether gang membership or affiliation qualifies as an "act" as contemplated by Rule 404(b) of the Mississippi Rules of Evidence, and (2) whether a defendant's gang membership or affiliation is relevant in the prosecution of the gang member for the crime of aggravated assault. Id. at 529-30. Timothy Hoops was convicted of two counts of aggravated assault. Id. at 539. The State contended that the shooting was gang related and argued that Hoops's gang affiliation was relevant and probative to establish motive. Id. at 529. The court answered the first question in the affirmative, stating, "It would be folly for this Court to hold that affiliation or membership with a street gang such as this one does not constitute a bad act as contemplated by Miss. R. Evid. 404(b)." Id. at 530. The court also answered the second question in the affirmative, finding that the trial court did not err in allowing evidence of Hoops's gang affiliation to prove motive. Id. ¶ 27. We do not find Hoops helpful to Dao's position. Apparently, Dao believes that because the State did not offer any evidence linking his gang affiliation with the assault (thus no proof of motive) it was improper to admit the gang-affiliation evidence. We have already stated that the evidence was admitted to show that Bui was biased, not to show motive for the commission of the crime. Hoops does not stand for the proposition that if motive is lacking, gang-affiliation evidence is inadmissible for all purposes. ¶ 28. Dao next directs our attention to this Court's decision in Burroughs v. State, 767 So.2d 246 (Miss.Ct.App.2000). In Burroughs, William Burroughs was convicted of two counts of aggravated assault and two counts of simple assault after he and two other individuals were involved in an altercation with four college students who were affiliated with a fraternity, the members of which were referred to as the Pikes. At trial, Burroughs admitted to firing a weapon but claimed that he did so only after the Pikes initiated the gunfire. Id. at 248(¶ 5). However, the students denied being in possession of any weapons. Id. Burroughs sought to introduce evidence showing that the students had a motive to lie because their fraternity was on probation at the time of the incident and that being in possession of a firearm would have led to its charter being revoked. Id. at 249(¶ 8). Burroughs also argued that the trial court erred in refusing to allow the defense to bring out that the Pikes held contempt for local young men who were not college attendees, and referred to such persons as "GDIs" which means "g—d—independents." Id. The trial judge ruled that the evidence had no probative value with regard to the material facts of the case, and we found no error in the trial judge's determination: As the State's brief points out, the fact that the Pikes, in general, may have referred to the locals as GDIs is not probative with respect to the feelings of each individual member of the fraternal brotherhood. It was the credibility of the individual victims who were going to testify that was relevant and not the credibility of the Pikes, in general, as a fraternal organization. Id. at 249-50(¶ 11). ¶ 29. Dao contends that "just as the credibility of the college fraternity members in general was not relevant in Burroughs, the street gang affiliations of Bui . . . in general [are] not relevant either." Dao's comparison of membership in college fraternities with membership in violent street gangs is misplaced. We see no such *360 comparison. Gang members are more likely to testify in favor of one another because the failure of a member to uphold the tenets of a gang could subject him to severe penalties, including death. We are not persuaded that the same can be said of college fraternity members. We therefore find Burroughs factually distinguishable from the case currently before us. ¶ 30. Finally, Dao cites Goree v. State, 748 So.2d 829 (Miss.Ct.App.1999). In Goree, Tommy Goree was convicted of the aggravated assault of Dwight Horne. Id. at 830(¶ 1). During the trial, the State, in an effort to prove a motive for the assault, elicited testimony regarding Goree's alleged affiliation with a street gang known as the Black Gangsters Disciples.[12]Id. at 835(¶ 9). Goree appealed and argued, inter alia, "that the testimony elicited by the State on the issue of [his] involvement with . . . the Black Gangsters failed to pass muster under M.R.E. 403. . . ." Id. at 831(¶ 5). In resolving the issue, this Court stated: The indictment charged that Goree had committed an aggravated assault against Horne in what appears, as was noted by the trial court, to have been a senseless act without any clear rationale or meaning. . . . However, the State failed to produce any testimony, except by innuendo, to support its theory that the crime against Horne was in some way correlative to Goree's gang affiliation. At trial the State argued that the evidence of Goree's gang affiliation elicited during the testimony of Johnson was for the purpose of showing that all the persons who arrived at the Pak-A-Sak with Goree were in fact members of the same gang. We recognize that a witness's affiliation with a gang could be relevant, under appropriate circumstances, to establish potential bias, particularly in situations involving crimes committed between rival gang members. However, that is not the case in the matter before us today or at least [is] not the case as is indicated in the record. In addition, we fail to see how being a member of a gang ipso facto challenges that witness's credibility as was also argued by the State at trial. * * * * We are not persuaded that the gang affiliation evidence admitted under 404(b) was supported with adequate corroborating evidence or foundation under the facts and circumstances as was presented in the record. We note that the State did, however, succeed in establishing a strong probability that Goree was in fact an active gang member of the Black Gangsters or at the very least had strong affiliations with them, but that, standing alone, has no connection to the crime. Goree, 748 So.2d at 837-38 (¶¶ 16-18) (emphasis added). ¶ 31. We fail to perceive how Goree benefits Dao. In Goree, evidence of Goree's gang affiliation was admitted to show a motive for the crime without any proof tending to show that the crime was gang related. This Court reversed Goree's conviction because it found the linkage between Goree's gang affiliation and the crime too tenuous. Although we said in dicta that we failed to see how being a member of a gang ipso facto challenges a witness's credibility, we made clear that we were not dealing with a case of bias *361 and that in a proper case a "witness's affiliation with a gang could be relevant . . . to establish potential bias. . . ." Id. at 837(¶ 17). In today's case, unlike in Goree, the issue of the admissibility of gang-affiliation evidence to show bias is presented front and center. It was on this basis that the learned trial judge admitted the evidence of Dao's gang affiliation. This type of evidence is clearly permitted under Rule 616 of Mississippi Rules of Evidence.[13] Additionally, in Smith v. State, 733 So.2d 793, 801(¶ 37) (Miss.1999), the Mississippi Supreme Court held that the State may cross-examine a witness regarding his interest, bias, or prejudice in a case. Therefore, we find that the trial judge did not err in allowing the State to question Bui and Dao regarding their common affiliation with the Junior Viet Boys. The testimony concerning Bui's and Dao's membership in the Junior Viet Boys was probative of Bui's possible bias toward Dao. (b) On-the-Record Balancing ¶ 32. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. . . ." M.R.E. 403. This point was discussed in Hoops where the court held that although evidence may be admissible under Rule 404(b), it must still "clear the hurdle" of Rule 403: To be sure, evidence admissible under Rule 404(b) is also subject to the prejudice test of Rule 403; that is, even though the Circuit Court considered the evidence at issue admissible under Rule 404(b), it was still required by Rule 403 to consider whether its probative value on the issues of motive, opportunity and intent was substantially outweighed by the danger of unfair prejudice. In this sense Rule 403 is an ultimate filter through which all otherwise admissible evidence must pass. Hoops, 681 So.2d at 530-31 (quoting Watts v. State, 635 So.2d 1364, 1368 (Miss.1984)). The Hoops court also held that prior to admitting gang-affiliation testimony, "a trial judge should administer the balancing test of Rule 403 under the Mississippi Rules of Evidence." Id. at 530. ¶ 33. Dao is correct that the trial judge never said that he found the evidence more probative than prejudicial. However, the trial judge heard arguments from both parties regarding the admissibility of the evidence prior to reaching the conclusion that it should be admitted for the limited purpose of showing bias. ¶ 34. In Hoops, the Mississippi Supreme Court upheld a trial judge's decision to allow gang affiliation testimony for the purpose of showing motive after the trial judge heard arguments from both sides. Id. at 531. The court held that "while the trial judge failed to use the `magic words' that he did not find the danger of unfair prejudice to substantially outweigh the probative value of this evidence, he implicitly made that determination." Id. "He heard arguments from both sides as to why the evidence was or was not substantially and unfairly prejudicial, and he made his ruling." Id. Thus, in light of Hoops, we find the trial judge's implicit determination sufficient. (c) Limiting Instruction ¶ 35. Dao argues that the trial court erred in failing to instruct the jury that it was permitted to use the gang evidence only "to make determinations of credibility of those witnesses." In Brown *362 v. State, 890 So.2d 901, 913(¶ 36) (Miss. 2004), the Mississippi Supreme Court abandoned the requirement that trial judges issue a sua sponte limiting instruction when evidence is admitted for a limited purpose: The burden should properly be upon the trial counsel to request a limiting instruction. This was our rule before Smith, in accord with Rule 105 of the Mississippi Rules of Evidence. The rule provides in pertinent part that "when evidence which is admissible . . . for one purpose but not admissible . . . for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly." Miss. R. Evid. 105 (emphasis added). We struggled in Smith to require judges to issue the sua sponte ruling, since that would contradict "a rule so clear" as M.R.E. 105. 656 So.2d at 100. Today we abandon Smith's requirement that a judge issue a sua sponte limiting instruction and return to the clear language of Rule 105. The rule clearly places the burden of requesting a Rule 404(b) limiting instruction upon counsel. The rule is controlling, and to the extent that Smith and its progeny contradict that plain language they are overruled. Dao did not request a limiting instruction. Therefore, this issue is procedurally barred, as it was not initially raised at the trial court level. Field v. State, 856 So.2d 492, 493(¶ 5) (Miss.Ct.App.2003) (citing Gardner v. State, 531 So.2d 805, 808-9 (Miss.1988)). 2. Admission of Evidence Regarding Long Nguyen's Murder ¶ 36. Dao argues that he was prejudiced by the State's questions regarding the murder of Long. The testimony regarding Long's murder, which occurred at Dao's mother's home, was clearly improper and should not have been presented to the jury. The only logical reason for the State to offer such testimony was to prejudice Dao in the eyes of the jury. Testimony that one of the occupants of the Mercedes on the night of the shooting had later been killed in the home of Dao's mother and that another occupant of the Mercedes had been accused in his murder had no place in the trial of this case. Nevertheless, there is overwhelming evidence, including Dao's own testimony, that when he fired the bullet into the door of the 4-Runner, he was not acting in self-defense. In support of our finding on this point, we set forth the exchange between the prosecutor and Dao during the prosecutor's cross-examination: Q. Regardless of what happened or who caused it, the truth of the matter is at the time that you fired that pistol, by your own statement Mr. Fokakis had closed the door to that vehicle — A. No, sir. Q. — and was no longer a threat to you. A. His door was still open. Q. But you said he got in the SUV. A. Yes, sir, but I did not say he closed the door. Q. Oh, okay. So, in other words, he had retreated from your position. He had gone and got [sic] in the SUV and you didn't even give him a chance to even close the door before you fired. A. Yes, sir. Q. You didn't fire at this mysterious person that you're now claiming might be on the other side of the car. You're firing at Billy Fokakis because he was in that seat; wasn't he? A. Yes, sir. *363 Q. And at the time you fired at him, at that moment you had no fear from Billy Fokakis at all, did you? A. Yes, I did. Q. He was in his own seat. What was he going to do to you? A. I don't know. He could have jumped back out. Q. He could have, so you shot at him. A. Not at him, sir. Therefore, we find that the admission of the evidence regarding Long's murder was harmless error. 3. Sufficiency of the Evidence ¶ 37. In his final assignment of error, Dao argues that the evidence was insufficient to sustain his conviction. The centerpiece of his argument is that the State's evidence proved that he did not possess the required intent to commit aggravated assault. He argues that Officer Tucker's testimony concerning the trajectory and point of impact of the projectile with the 4-Runner proves that Dao was at the rear of the 4-Runner, or that the door to the 4-Runner was open when the shot was fired. He notes that all of the individuals who testified at trial agreed that he was in front of the 4-Runner when the shot was fired and argues that this evidence "leads to only one inescapable conclusion: that the door of the Toyota was open when the shot was fired and that Fokakis, the only victim alleged in the indictment, was not in the car when the shot was fired." Dao further argues that "[b]ecause Fokakis was not in the Toyota at the time [the shot was fired], the State did not prove that [Dao] possessed the required intent to attempt to injure Fokakis or anyone else for that matter."[14] We are unable to discern how Dao's and Fokakis's respective locations, as established by various witnesses, sheds light on the crucial issue: whether Dao attempted to cause serious bodily injury to Fokakis. This is especially true in light of Dao's testimony that Fokakis was seated in the 4-Runner when Dao fired the shot at the 4-Runner. ¶ 38. In Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005), the Mississippi Supreme Court held: Should the facts and inferences considered in a challenge to the sufficiency of the evidence "point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty," the proper remedy is for the appellate court to reverse and render. Edwards v. State, 469 So.2d 68, 70 (Miss.1985) (citing May v. State, 460 So.2d 778, 781 (Miss.1984)); see also Dycus v. State, 875 So.2d 140, 164 (Miss. 2004). However, if a review of the evidence reveals that it is of such quality and weight that, "having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense," the evidence will be deemed to have been sufficient. Edwards, 469 So.2d at 70; see also Gibby v. State, 744 So.2d 244, 245 (Miss.1999). Considering the evidence in the light most favorable to the verdict, we cannot conclude that reasonable jurors could not have found beyond a reasonable doubt that Dao was guilty of aggravated assault. Dao admitted *364 on cross-examination that Fokakis was seated in the 4-Runner when he fired the shot. Even if this Court were to believe that Fokakis was at some point wielding a baseball bat and that, at that point in time, Dao was afraid of being struck by the bat, Dao's own testimony reveals that Fokakis was not posing a threat when Dao fired the pistol. This issue is without merit. ¶ 39. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY. KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. NOTES [1] Dao also argues that the trial court erred in admitting the gang-affiliation evidence in violation of Rule 608(b) of the Mississippi Rules of Evidence which provides that "[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility . . . may not be proved by extrinsic evidence[,]" except in certain limited circumstances within the discretion of the trial judge. Because we find nothing in any of the trial judge's rulings on the gang-affiliation evidence that implicates this rule, we find no merit to this issue and will not address it further. [2] Ladner and Fokakis were passengers in the 4-Runner, which was driven by Fairley. [3] Long's body was found in Dao's mother's bed. He had died of a gunshot wound to the head. Donald Nguyen and an accomplice were charged with Long's murder. Dao testified that his mother and Long were involved in a romantic relationship. [4] At this point, both vehicles immediately fled the scene, although the 4-Runner traveled only a short distance before crashing into an oncoming vehicle. One of the occupants of the 4-Runner then called the police. [5] On redirect, Bui testified that he was no longer an "active" member of the Junior Viet Boys. Further, he stated that he had been inactive for about a year and a half. [6] Dao testified that when the incident occurred they were en route to his home, but when he noticed the 4-Runner following them he decided not to go to his house because he had been shot at on three prior occasions, one of which occurred outside of his home. [7] Prior to trial, Ladner had identified Dao from a lineup; however, he stated at that time that he was only eighty percent positive that Dao was the shooter. [8] Ladner stated that he went to the residence after attempting to call the police from his cellular telephone, which kept "cutting out." [9] Although the State argued that the evidence was admissible to show motive, the trial court determined that the evidence was admissible to show bias on the part of Bui. [10] Rule 404(b) states: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." [11] Rule 403 states: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." [12] The trial court allowed the testimony under Rule 404(b) of the Mississippi Rules of Evidence. Id. at 838(¶ 17). [13] Rule 616 of the Mississippi Rules of Evidence reads: "For the purpose of attacking the credibility of a witness, evidence of bias, prejudice, or interest of the witness for against any party to the case is admissible." [14] Mississippi Code Annotated section 97-3-7(2)(a) (Rev.2006) provides: "A person is guilty of aggravated assault if he attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life."

108 F.3d 136 79 A.F.T.R.2d 97-1322, 97-1 USTC P 50,263 UNITED STATES of America, Plaintiff-Appellant,v.Carole F. LIBRIZZI, Defendant-Appellee. No. 95-2550. United States Court of Appeals,Seventh Circuit. Argued Sept. 13, 1996.Decided March 5, 1997. Thomas P. Schneider, Office of U.S. Atty., Milwaukee, WI, Gary R. Allen, William S. Estabrook (argued), Marion E. Erickson, Department of Justice, Tax Division, Appellate Section, John A. Marrella, Washington, DC, for plaintiff-appellant. William A. Jennaro, Thomas J. Lonzo, Pamela A. Johnson (argued), Cook & Franke, Milwaukee, WI, for defendant-appellee. Before RIPPLE, DIANE P. WOOD and EVANS, Circuit Judges. DIANE P. WOOD, Circuit Judge. 1 This case presents a narrow question about the scope of a valid federal tax lien on property the taxpayer held in joint tenancy, when the lien attaches (and is recorded) prior to the taxpayer's death, but the Internal Revenue Service forecloses on the lien some two years later. Mrs. Carole Librizzi, an innocent spouse, argues that the Government may recover no more than one-half the value of the property at the time of her husband's death, while the United States asserts that once the lien attached to the property, it may recover one-half the amount the property fetches at the foreclosure sale. Although the district court ruled for Mrs. Librizzi, we conclude that the United States has the better of the argument, and we therefore reverse. 2 The underlying facts are undisputed. In 1975, Salvadore Librizzi (the taxpayer) and his wife Carole acquired real property located at 307 East Carlisle Avenue, Whitefish Bay, Wisconsin, which they held under Wisconsin law as joint tenants with a right of survivorship. A decade later, in 1985 and 1986, the Secretary of the Treasury made a number of tax assessments totaling $1,468,312.72 against Mr. Librizzi relating to wagering activities and associated interest and penalties. When Mr. Librizzi did not pay the amounts due, a federal tax lien arose pursuant to 26 U.S.C. § 6321, and attached to all property belonging to him. On September 26, 1986, and on December 15, 1989, the IRS filed Notices of Federal Tax Lien for Mr. Librizzi's assessed liabilities with the Register of Deeds, Milwaukee County, Wisconsin. Mr. Librizzi died on June 19, 1990, without having paid his taxes. 3 Upon her husband's death, Mrs. Librizzi took full title to the Carlisle Avenue property. Two years later, on October 6, 1992, the United States filed a suit for foreclosure of its liens under 26 U.S.C. § 7403 in the U.S. District Court for the Eastern District of Wisconsin. In that suit, Mrs. Librizzi conceded that the federal tax lien attached to Mr. Librizzi's one-half interest in the property and that when he died she acquired the property subject to that lien. She argued, however, that the Government's interest was limited to one-half of the estimated fair market value of the property at the time of Mr. Librizzi's death (that is, one-half of $152,500, or $76,250). This was an attractive position for her to take, because the property had appreciated in value during the time between his death and the suit: as of the time of suit, it was estimated to be worth some $173,100. The Government took the position that it was entitled to one-half the fair market value at the time of foreclosure, which would have yielded about $86,550--still considerably less than the amount due for the delinquent taxes. As noted above, the district court, relying on provisions of Wisconsin law we discuss below, granted summary judgment for Mrs. Librizzi, and the United States has appealed. 4 When dealing with tax liens under 26 U.S.C. § 6321, it has been settled for years that "state law controls in determining the nature of the legal interest which the taxpayer had in the property." United States v. National Bank of Commerce, 472 U.S. 713, 722, 105 S.Ct. 2919, 2925, 86 L.Ed.2d 565 (1985) (citations and internal quotation marks omitted). See also United States v. Rodgers, 461 U.S. 677, 683, 103 S.Ct. 2132, 2137, 76 L.Ed.2d 236 (1983). The federal tax lien attaches to whatever rights or interests the taxpayer has under state law. National Bank of Commerce, 472 U.S. at 722, 105 S.Ct. at 2925; Rodgers, 461 U.S. at 683, 103 S.Ct. at 2137. As the Wisconsin Supreme Court put it: 5 ... the I.R.C. does not create any property rights, but merely attaches federally defined consequences to rights which are created under state law. Once state law has been used to determine the nature and existence of a property interest, further state law is inoperative, and the tax consequences thenceforth are dictated by federal law. 6 Elfelt v. Cooper, 168 Wis.2d 1008, 485 N.W.2d 56, 61 (1992) (citations omitted). Furthermore, the U.S. Supreme Court noted in Rodgers that "once a lien has attached to an interest in property, the lien cannot be extinguished (assuming proper filing and the like) simply by a transfer or conveyance of the interest." 461 U.S. at 691 n. 16, 103 S.Ct. at 2141 n. 16. 7 A federal tax lien attaches at the time the tax assessment is made, and it continues until the liability has been satisfied or it becomes unenforceable due to the lapse of time. 26 U.S.C. § 6322. See also Jersey State Bank v. United States, 926 F.2d 621, 622-23 (7th Cir.1991); J.D. Court, Inc. v. United States, 712 F.2d 258, 261 & n. 7 (7th Cir.1983). In this case, it is undisputed that the tax lien attached to Mr. Librizzi's undivided one-half interest in the Carlisle Avenue property in 1985 and 1986, at the time the assessments were made. Mrs. Librizzi argues, however, that the character of the lien changed at the time of Mr. Librizzi's death, when under the Wisconsin law of joint tenancy, Mrs. Librizzi became the sole owner of the property. Wis. Stat. Ann. § 700.17(2)(a). At that point, she claims, the lien changed from an encumbrance on the interest in the property to an I.O.U. for the value of Mr. Librizzi's interest in the property on the date of his death. She relies principally on language in the Third Circuit's decision in United States v. Avila, 88 F.3d 229 (3d Cir.1996), but also on the Wisconsin Supreme Court's early decision in Musa v. Segelke & Kohlhaus Co., 224 Wis. 432, 272 N.W. 657 (1937), to support this position. 8 In Musa, the Wisconsin Supreme Court considered the effect of a judgment lien on property held in joint tenancy, after the joint tenant who was the judgment debtor died. The judgment lien there had been docketed, but not executed, on the date of the debtor's death. The supreme court decided that "the lien of the judgment in question could attach only to such interest or estate as Adam Musa [the debtor] actually and effectively had in the premises." Id., 272 N.W. at 658. Because his interest was only that of a joint tenant, it was limited by the right of survivorship. Upon his death, when the property passed to the other joint tenant, the judgment lien itself was extinguished: there was no more property of the debtor on which the lien could operate. Mrs. Librizzi does not take her argument as far as Musa might suggest, as she does not contend that the tax liens vanished when Mr. Librizzi died. She does say, however, that Musa means that the lien attached only to the interest Mr. Librizzi had while alive, and that this interest was finally determined as of the moment of his death. 9 Later legislation and court decisions in Wisconsin indicate that the Musa rule does not have the consequences Mrs. Librizzi claims for it. Section 700.24 of the Wisconsin Statutes addresses the effect of a joint tenant's death on certain liens (including, we note, state tax liens attached pursuant to Wisconsin law): 10 A real estate mortgage, a security interest under ch. 409, or a lien under s. 71.91(5)(b), s. 72.86(2), 1985 stats., ch. 49 or 779 on or against the interest of a joint tenant does not defeat the right of survivorship in the event of the death of such joint tenant, but the surviving joint tenant or tenants take the interest such deceased joint tenant could have transferred prior to death subject to such mortgage, security interest or statutory lien. 11 Mr. Librizzi could have transferred his undivided one-half interest to Mrs. Librizzi before his death, by taking steps to sever the joint tenancy and then to convey his interest to her. In that case, the federal tax lien would have continued to encumber his one-half interest in her hands. See, e.g., United States v. Bess, 357 U.S. 51, 57, 78 S.Ct. 1054, 1058, 2 L.Ed.2d 1135 (1958) ("The transfer of property subsequent to the attachment of the lien does not affect the lien[.]"). The effect of § 700.24 is to make it clear that the same result follows even if he did not go through those steps during his lifetime. When the undivided one-half interest passed to Mrs. Librizzi by operation of law, it came encumbered with the federal tax lien. 12 Taking another approach, Mrs. Librizzi points to Avila, in which the Third Circuit held that the Government could recover on a tax lien imposed on a husband's one-half interest in a joint tenancy, even though the property had later been transferred to his wife (first for a payment of $100, and later in a divorce settlement). There, as here, the district court had held that the Government could recover only the amount that the lien was worth at the time the debtor transferred his interest to his wife. Citing the Ninth Circuit's decision in Han v. United States, 944 F.2d 526 (9th Cir.1991), the court reversed, holding that "because the lien is unaffected by sale, we see no basis for fixing the amount of the lien at the time of sale." Avila, 88 F.3d at 233 (internal quotations omitted). The lien continued to attach to the debtor's entire former interest in the property, limited only by the amount of the debt it secured and a third party's right to equitable subrogation (a complication not present in Mrs. Librizzi's case). 13 So far, Avila provides more support for the Government's position than the reverse, but Mrs. Librizzi relies on one additional part of the Avila decision to support her claim for a limitation on value. Similar to the Wisconsin court in Musa, the Third Circuit stated that if the debtor predeceased his wife, then the lien would be extinguished. Id. at 236. This conclusion resulted from the court's analysis of New Jersey law, which did not include anything like Wis. Stat. Ann. § 700.24. As we hinted earlier, we think the "extinguishment" argument for purposes of the present case proves either too much or too little. If Mr. Librizzi's death truly extinguished the lien, then the Government would be entitled to nothing, not to the value of the debtor's interest at the time of his death. The state statute rules out this possibility, however. In a later case construing both the statute and Musa, the Wisconsin Supreme Court recognized that the rule for judgment liens is different from the rule for the types of liens mentioned in § 700.24. See Northern State Bank v. Toal, 69 Wis.2d 50, 230 N.W.2d 153, 156 (1975) (judgment liens must be executed before the debtor's death in order to sever the joint tenancy and avoid being extinguished by the spouse's right of survivorship). Liens covered by the statute are unlike unexecuted judgment liens because they remain in force against the surviving joint tenant. See John E. Talsky, Comment, Concurrent Ownership: Joint Tenancy & Tenancy In Common Under Chapter 700, 55 Marq. L.Rev. 321, 345 (1972) (noting that under Wis. Stat. Ann. § 700.24, tax liens imposed under Wis. Stat. Ann. § 71.91 remain attached to the property even after the debtor spouse's death). 14 Finally, nothing in Musa or Avila supports the rather odd notion that the lien survived Mr. Librizzi's death, but became frozen in value as of the date of his death. The Government notes that such a rule might be unwelcome to an innocent spouse if the value of the property had declined after the date of death, since in that event she would be required to pay more than one-half the fair market value at sale. But we do not need to explore this possibility further, other than to note that the rule we adopt is not systematically biased either for or against the taxpayer. Under Wisconsin law, the tax lien ran against Mr. Librizzi's undivided one-half interest. If the Government had enforced its lien during his lifetime, it could have compelled a severance of the property and Mrs. Librizzi would have received only her one-half interest (plus an additional uncontested $21,719.25 which she paid to retire the balance of the mortgage). Wisconsin law gives her no more interest in the estate she received through the joint tenancy rule of survivorship than she would have had if Mr. Librizzi had lived. 15 We therefore REVERSE the judgment below and REMAND for further proceedings consistent with this opinion. 16 EVANS, Circuit Judge, dissenting. 17 My colleagues find Ms. Librizzi's contention that the federal tax lien extends only to the value of the property at the time of her husband's death to be an "odd notion." If it is odd, it is not the first, nor will it be the last, odd notion to grow out of what a legislature has done. 18 As the court correctly notes, we must look to Wisconsin law to evaluate Ms. Librizzi's claim. There we find that joint tenancy is different from other types of co-ownership, and survivorship is a concept with considerable force, as Musa v. Segelke & Kohlhaus Co., 224 Wis. 432, 272 N.W. 657 (Wis.1937) illustrates. If Musa were all Wisconsin had to say on the subject, we would have to conclude that the IRS lien was extinguished altogether upon Mr. Librizzi's death. The result in Musa is part of the court's recognition of the special nature of a joint tenancy, in which upon the death of one joint tenant the survivor becomes the "sole and absolute owner of the property, and there consequently exists no longer any interest or property right whatsoever in the deceased joint tenant or his estate." 224 Wis. at 436, 272 N.W. 657. Musa also tells us that in the absence of a severance of the joint tenancy, "there remains no interest or property right in a deceased joint tenant or his estate upon his death...." Id. Joint tenancy then presents a unique situation--one in which the usual rule that a lien follows the property does not hold true under the common law. 19 However, as my colleagues also point out, Musa is not the last word in Wisconsin law. Section 700.24, Wisconsin Statutes, enacted some 8 years after Musa, provides that some liens are not extinguished upon the death of a joint-tenant/debtor. State tax liens are among those which are not extinguished, and for that reason Ms. Librizzi does not argue that the federal tax lien is extinguished. But what is the lien attached to? 20 On this point, I acknowledge that the statute is not as clear as a bell. But if it is read in light of Wisconsin joint tenancy law, it seems to me that Ms. Librizzi should win this case. 21 To back up a moment, there is a difference between a transfer of an interest in a joint tenancy either by sale or through court order upon a divorce and the transfer of ownership which occurs through survivorship upon the death of a joint tenant. See, e.g., Eloff v. Riesch, 14 Wis.2d 519, 111 N.W.2d 578 (1961); Wozniak v. Wozniak, 121 Wis.2d 330, 359 N.W.2d 147 (1984). The former severs the joint tenancy and consequently eliminates survivorship; the transfer of interest is like the sale of any other property. In that case, the seller receives the value as of the moment of the sale and the buyer receives the property subject to any lien which may exist on the property. If Mr. Librizzi had found a buyer for his interest in the property, that incredibly foolish fellow would have taken title subject to a huge federal tax lien. The lien would follow the property and become the problem of the buyer, and the value of Mr. Librizzi's interest would never be more than it was at the moment of the sale. In contrast, in the transfer of ownership through joint tenancy, absent a statute such as § 700.24, the lien is extinguished, and the survivor takes all. In short, obtaining property through survivorship is different from buying it. 22 Section 700.24 both affirms the right of survivorship and somewhat limits it. The surviving tenant takes "the interest such deceased joint tenant could have transferred prior to death subject to such ... statutory lien." Notably, the statute does not say simply that the surviving tenant takes the interest of such deceased joint tenant subject to the lien. It is the interest the deceased "could have transferred prior to death." It does not seem to me to be unduly odd to say that "prior to death" was put in the statute for a reason, and the reason is to limit the reach of the lien in the case of a transfer of ownership through survivorship. The lien attaches to the value of the interest in the property "prior to death"; that value is, after all, what could have been transferred. Reading the statute this way is consistent, I believe, with the often repeated statement regarding joint tenancy that after death neither the deceased nor his estate has any interest whatsoever in the property. 23 Under this reading of the statute the IRS's interest in the property is worth less when the ownership is transferred under survivorship than it would have been if, while still alive, Mr. Librizzi transferred his interest to Ms. Librizzi and severed the joint tenancy. The statute, I think, tries to strike a balance between the rights of survivors and the rights of lien holders, sustaining the lien but putting a limit on the damage it can inflict on a survivor. For these reasons, I would find in favor of the innocent widow Librizzi and affirm the judgment of the district court.

753 F.2d 1081 Culverv.C.I.R. 84-7150 United States Court of Appeals,Ninth Circuit. 1/22/85 1 U.S.T.C. AFFIRMED

805 F.2d 1041 *1**U.S.v.Rojas-Gonzales 86-3093 United States Court of Appeals,Eleventh Circuit. 11/5/86 1 M.D.Fla. AFFIRMED * Fed.R.App.P. 34(a); 11th Cir.R. 23 ** Local Rule: 25 case

307 F.Supp.2d 364 (2004) Maurice L. CARON, Sr. and Dorothy D. Caron, Plaintiffs, v. CITY OF PAWTUCKET, Margaret A. Bubis, Rocco P. Gesualdi, Jr. and Susan M. Gesualdi, Defendants. Fannie Bernard, et al., Plaintiffs, v. City of Pawtucket, et al., Defendants. Nos. 01-464S, 00-579S. United States District Court, D. Rhode Island. February 27, 2004. *365 George M. Prescott, Esq., Lincoln, RI, for Plaintiffs Maurice & Dorothy Caron. Stephen R. White, Esq., Warwick, RI, for Plaintiffs Fannie Bernard, Ruth Hyder, Dorothy Leo, Anna Maccarone, Jennie Bozek, Amy Ferrali, Gretchen Caldwell, Mary Burns, Giselle Maney, Ana Machado, Rita D'Angeloi, Whitmarsh, Ms., Iva Seaton, and Arlington Assisted Living Center, Inc. Marc DeSisto, Esq., Providence, RI, for Defendant City of Pawtucket. Stephen R. White, Esq., Warwick, RI, for Defendants Margaret A. Bubis, Rocco P. Gesualdi, Jr. and Susan M. Gesualdi. Frank J. Milo, Jr., Esq., City Solicitor's Office, Pawtucket, RI, Marc DeSisto, Esq., Providence, RI, for Defendant City of Pawtucket. James R. Baum, Esq., Joseph R. Gaeta, Esq., Attorney General's Office, Providence, RI, for Defendant State of Rhode Island. DECISION AND ORDER SMITH, District Judge. These cases[1] are the fruit of a bitter and protracted conflict involving the fate of a de facto retirement home in Pawtucket, Rhode Island. Plaintiffs Maurice L. Caron and Dorothy D. Caron, respectively in their ninetieth and eightieth decade of life, have owned property abutting the retirement home since 1941 and, over the years, have doggedly objected to its allegedly unauthorized operation. Plaintiffs Fannie Bernard and twelve others ("the Bernard Plaintiffs") are residents and owners of the retirement home and have persevered in seeking to obtain the necessary zoning certifications and approvals from the City of Pawtucket ("City") to run the retirement home. *366 In spite of this Court's best efforts to assist the parties in resolving their many grievances,[2] both sets of Plaintiffs press their claims against the City and others, alleging for the most part various violations of Rhode Island state law. The only federal cause of action in either case (and, thus, the only basis for this Court's subject matter jurisdiction)[3] is the Bernard Plaintiffs' claim that the City violated their rights under the Fair Housing Act, 42 U.S.C. § 3601, et seq. Now before the Court are motions for summary judgment by the Defendants in the respective actions. This Court grants summary judgment as to the Bernard Plaintiffs' Fair Housing Act claim, and dismisses without prejudice the claims in the Caron Action for want of supplemental jurisdiction, pursuant to 28 U.S.C. § 1367(c)(3). I. Facts and Procedure Common to Both Actions In 1990, Rocco and Susan Gesualdi ("the Gesualdis")[4] purchased property at 362 Daggett Avenue in Pawtucket, Rhode Island, which had been used as a convalescent home for the elderly since at least 1963.[5] After the purchase, the Gesualdis applied for a certificate of zoning compliance for a seventeen-bed nursing facility from the Pawtucket Director of Zoning and Code Enforcement ("the Director"), arguing that the facility was exempt from applicable zoning ordinances based on a Rhode Island statute then in existence. See R.I. Gen. Laws § 45-24-22 (1990) (repealed 1994). The Director issued the requested certificate. The Carons, who reside on a property neighboring 362 Daggett Avenue and who contend that the Gesualdis illegally operated 362 Daggett Avenue as a convalescent home, appealed the decision to the Pawtucket Zoning Board of Appeals ("the Board"). The Board affirmed the Director's decision. The Carons again appealed the decision to the Superior Court, which remanded the case to the Board for additional evidence. At the rehearing in 1991, the Board revoked the certificate of zoning compliance, finding that the retirement home was not exempt from applicable zoning ordinances. In 1993, the Gesualdis again sought a certificate of zoning compliance from the Director, this time claiming that a denial would constitute a violation of the Fair Housing Act. The Director issued the certificate on this basis. The Carons appealed the Director's decision to the Board, and the Board revoked the certificate. The Gesualdis appealed the Board's decision to the Superior Court, but while that appeal was pending, they sought a "recognition" from the Director that an eight-bed convalescent facility was a "legal non-conforming use" of the property. The Director issued this "recognition," which was confirmed by the Board, and which was *367 then appealed by the Carons to the Superior Court. The Superior Court consolidated the appeals of the Gesualdis and the Carons, and issued a decision in 1996 denying the certification. The Gesualdis then filed a Petition for Writ of Certiorari with the Rhode Island Supreme Court seeking review of the denial. The writ was granted and the matter was scheduled for oral argument. During the pendency of the petition, the Gesualdis filed an emergency petition with the Supreme Court seeking a stay of the Superior Court's order pending review by the Supreme Court, and in 1996 the Supreme Court granted the stay. In 1998, while the petition was still pending, the Gesualdis sold their interest in the convalescent home to Margaret Bubis and Darlington Assisted Living Centers. Since Bubis now had an interest in the retirement home, she was added as a party petitioner to the Supreme Court action. However, at some point thereafter, the Gesualdis and Bubis withdrew their petition to the Supreme Court. Once that occurred, the Supreme Court affirmed the Superior Court judgment and lifted the stay. While the petition was pending, Bubis attempted to obtain a certificate of zoning compliance from the City, arguing that the home was exempt from zoning laws as a "community residence" under a zoning ordinance enacted by Pawtucket after the Gesualdis had last sought the certificate. The Director initially granted Bubis the certificate, but the Board subsequently revoked the certificate and issued a written decision to that effect. No appeal was taken from this decision. The City then issued a "cease and desist" notice to Bubis on September 27, 2000, ordering her to discontinue operating the home as a convalescent facility, and the facility ceased operation on or about November 30, 2000. In the Caron Action (filed in state court and then removed here), the Carons bring claims against the Gesualdis, Bubis, the City, and assorted City officials, for alleged harms resulting from the operation of an illegal facility (as against the Gesualdis and Bubis), and for infringing upon the Carons' constitutional rights (as against the City and its officials, pursuant to 42 U.S.C. § 1983, which formed the basis for Defendants' removal here). The City's first step was to file a motion for summary judgment on the Carons' section 1983 claims. Before the Court ruled on that motion (or contemporaneously with the Court's decision), the Carons amended their complaint to replace their section 1983 claim with a claim for negligence (on a nuisance theory) under state law, and also dismissed the individual municipal officials from the case. The Court then granted the City's motion for summary judgment on the Carons' section 1983 claims. Defendants City, Gesualdis, and Bubis now move for summary judgment on the remaining negligence claims. In the Bernard Action, which was filed here, the underlying facts are essentially identical, other than that the owners and residents of the retirement home sue the City and several of its officers for alleged violations of the Fair Housing Act based on the City's denial of the necessary zoning certificates. II. Summary Judgment Standard Summary judgment is appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). The Court must "view all facts and draw all inferences in the light most favorable to the nonmoving party." Reich v. John Alden Life Ins. Co., 126 F.3d 1, 6 (1st Cir.1997) (citing Continental *368 Cas. Co. v. Canadian Universal Ins. Co., 924 F.2d 370, 373 (1st Cir.1991)). III. Analysis A. The Bernard Plaintiffs' Fair Housing Act Claim Since this Court's subject matter jurisdiction over both actions depends on the viability of the Fair Housing Act claim, it is sensible to analyze that claim first. The Fair Housing Act (Title VIII of the Civil Rights Act of 1968), 42 U.S.C. § 3601, et seq. ("FHA"), prohibits a broad spectrum of discriminatory housing practices ranging from a discriminatory refusal to rent or sell on the basis of race to discrimination in the terms and conditions of housing. Schmidt v. Boston Housing Authority, 505 F.Supp. 988, 993-94 (D.Mass.1981). In 1988, Congress extended the FHA's coverage by defining the term "discrimination" to include (A) a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person ... [and] (B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling[.] 42 U.S.C. § 3604(f)(3)(A) and (B). The Bernard Plaintiffs claim that the City has made their home unavailable to them "because of a handicap of-(B) a person residing in or intending to reside in [a] dwelling," in violation of 42 U.S.C. § 3604(f)(1)(B), and has interfered with the rights granted to them by the FHA. They seek a declaratory judgment that the City's refusal to issue a certificate of zoning compliance for the retirement home for up to 16 people constitutes discrimination under the FHA, and a preliminary injunction preventing the City from enforcing its cease and desist order. As an initial matter, this Court finds that the Bernard Plaintiffs have not submitted any evidence to establish that they are "handicapped" within the meaning of the FHA. Undoubtedly, they are all elderly, but "[t]he mere fact that a person is elderly does not constitute a handicap" under the FHA. Chiara v. Dizoglio, 81 F.Supp.2d 242, 246 (D.Mass.2000), aff'd, 6 Fed.Appx. 20, 2001 WL 288613 (1st Cir.2001). The Bernard Plaintiffs have submitted eleven identical, five-paragraph affidavits, none of which asserts any alleged handicap other than being "an older person." See Bernard Action Complaint, Exs. 1-6, 9-13, ¶ 5. Even assuming, however, that the Bernard Plaintiffs could survive summary judgment on the issue of identifying any "handicapped" individuals living in the retirement home, they nevertheless fail to proffer any genuine issue of material fact as to the other elements of their FHA claim. "To prove a violation of the [FHA], appellants can show either discriminatory intent or disparate impact." Macone v. Town of Wakefield, 277 F.3d 1, 5 (1st Cir.2002). It is not clear from the Bernard Plaintiffs' moving papers whether they advance only one or both possible FHA theories, so the Court will address them both. A plaintiff can show discriminatory intent by either direct or indirect evidence. Kormoczy v. Secretary, United States Dep't of Hous. & Urban Dev., 53 F.3d 821, 823 (7th Cir.1995). The Bernard Plaintiffs' evidence, which is limited to that which they attached to their Complaint, may be condensed to the following statements: The discriminatory housing practice is the denial by the City ... of a current Certificate of Zoning Compliance and the issuance by the City of an Order to Cease and Desist the operations of a *369 state license [sic] Residential Care/Assisted Living Facility for 16 elderly and handicapped female residents.... Because there is a Rhode Island Superior Court Order dated August 1, 1995 and a history of multiple appeals previously taken to the Zoning Board of Appeals of the City of Pawtucket, as well as to and from the Providence Superior Court, all of which declined to recognize the FHA, further municipal or state appeals were and are fruitless because each state forum improperly refused to recognize the applicability of the FHA to the facts of this situation. Bernard Pl. Mem. Opp. Summ. Judg., at 5. None of this is direct evidence of the City's discriminatory intent to deprive the Bernard Plaintiffs of their rights under the FHA. Nor is it indirect evidence of discriminatory intent. It may be true that the Director and Board reversed their positions with greater frequency than was wise, and that "procedural abnormalities can provide a basis for finding discriminatory intent." Macone, 277 F.3d at 6. Yet the record is bereft of any evidence demonstrating that these reversals were motivated by any animus toward disabled persons, and the Board's lack of a uniform position with respect to the zoning status of the retirement home is more readily attributable to its own confusion and the tenacity and perseverance of the appellants than anything else. Furthermore, the cease and desist notice issued by the City is nothing more than a wholly appropriate and legal method of enforcing the City's zoning decisions. There is no direct or circumstantial evidence of discriminatory intent by the City against the Bernard Plaintiffs. "[W]hen a plaintiff offers no direct evidence of discrimination, his claim of discrimination under the FHA is to be examined under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), established in Title VII cases." Neithamer v. Brenneman Property Services, Inc., 81 F.Supp.2d 1, 3-4 (D.D.C.1999) (collecting cases from various circuit courts of appeal stating the same). To make this showing, a plaintiff must demonstrate, inter alia, that he was "rejected under circumstances which give rise to an inference of unlawful discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); see Macone, 277 F.3d at 7 ("Another route to establishing a prima facie case of racial discrimination under the [FHA] is to show that appellee's actions `actually or predictably [result] in ... discrimination.'") (citation omitted). Here, too, Plaintiffs fail to meet their burden. Unlike in the `discriminatory intent' analysis, the Court now looks "only at the effect of the Board's actions, not its motivations." Id. That the decision of the City to deny the certificate took some time to coalesce is irrelevant unless the Bernard Plaintiffs can show that the City's actions impacted them in a discriminatory manner. They have not done this. They have not presented any information about Pawtucket's historical treatment, in the context of zoning, of convalescent homes, or of how the City's treatment of their home was a significant and discriminatory departure from that practice. The FHA "imposes no affirmative obligation on municipalities to approve all proposed ... housing projects." Id. at 8 (emphasis in original). There is no evidence that other convalescent homes would be denied the necessary zoning certifications in Pawtucket as a result of either the Board's ultimate decision to revoke the certification for the Bernard Plaintiffs' home or the City's cease and desist order enforcing that decision. The Bernard Plaintiffs have therefore failed to offer sufficient evidence to establish a prima facie case of discriminatory *370 impact under the FHA, and summary judgment is granted as to that claim. B. Jurisdiction Over The Caron Action The claims in the Caron Action are rooted exclusively in Rhode Island state law. This jurisdictional hiccup calls to the Court's attention the question of whether dismissal under 28 U.S.C. § 1367(c) is proper: (c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a)[6] if — . . . . . (3) the district court has dismissed all claims over which it has original jurisdiction[.] 28 U.S.C § 1367(c)(3). Whether to "retain or to relinquish" jurisdiction over claims supplemental to a defunct federal claim is a decision committed to the trial court's discretion. See Serapion v. Martinez, 119 F.3d 982, 993 (1st Cir.1997). This Court sees no reason to retain the supplemental claims in the Caron Action. Those claims involve the Rhode Island Tort Claims Act and sundry theories of common law negligence that, by themselves, have no business in federal court. Therefore, pursuant to 28 U.S.C. § 1367(c)(3), the Caron Action is dismissed without prejudice to refiling, should the Carons wish it, in state court. IV. Conclusion For the foregoing reasons, the motion for summary judgment in the Bernard Action is GRANTED, and the Caron Action is DISMISSED without prejudice for lack of supplemental jurisdiction under 28 U.S.C. § 1367(c)(3). IT IS SO ORDERED. NOTES [1] On February 27, 2003, these actions were consolidated pursuant to Fed.R.Civ.P. 42(a). For convenience, they are referred to herein as the "Caron Action" and the "Bernard Action." [2] The Court recognizes that it has had this matter under advisement for somewhat longer than is its general practice. However, part of the reason for the delay is attributable to the considerable time and effort devoted by the Court to mediating the parties' dispute. For reasons that generally remain a mystery, the once agreed-to resolution disintegrated, leaving this Court with the unpleasant but necessary task of putting an end to the argument. Unfortunately, this writer is doubtful that the resolution here will end the acrimony that characterizes the parties' relationship. [3] The Court has subject matter jurisdiction over these cases pursuant to 28 U.S.C. §§ 1331 and 1367. [4] The Gesualdis are Defendants in the Caron Action and Plaintiffs in the Bernard Action. [5] The "Autumn Years Retirement Center" has been open for decades, despite the City's repeated refusals to issue the necessary zoning certificates sanctioning its operation. [6] Subsection (a) is the general provision calling for supplemental jurisdiction over claims that are so related to claims over which the court has original jurisdiction as to form part of the same case or controversy. See 28 U.S.C. § 1367(a).

42 N.W.2d 216 (1950) FERDERER v. NORTHERN PAC. RY. CO. No. 7102. Supreme Court of North Dakota. April 6, 1950. *218 E. T. Conmy and E. T. Conmy, Jr., Fargo, for appellant. Murray & Murray, Bismarck, for respondent. NUESSLE, Chief Justice. This action was brought by the plaintiff to recover damages from the defendant Railway Company on account of negligence on the part of the defendant in the damming and diversion of the Cannonball River and in the construction and maintenance of the diversion channel, dikes, and embankments erected and used in such damming and diversion. The case was tried to a jury. The jury was directed to answer a special interrogatory and to return a general verdict. The interrogatory was answered in the negative and a verdict not inconsistent with it was returned for the plaintiff. Judgment was entered on the verdict. The defendant having laid a foundation therefor moved for judgment notwithstanding the verdict. The motion was denied, whereupon the defendant perfected the instant appeal from the judgment. The record discloses the following facts: In March, 1943, plaintiff was a tenant in possession of a farm in the valley of the Cannonball River, a tributary of the Missouri. He lived there with his family. The valley, of varying width, descends from west to east through a rough terrain. The channel of the river is tortuous. To the northwest of the plaintiff's farm it curves to the south, thence easterly through the farm south of his buildings, thence north again east of the buildings, thus forming a loop. In 1909 the defendant built a line of railroad up the valley. The grade for the roadbed was raised above the valley floor about four feet. It crossed the Cannonball northeast of the plaintiff's buildings and passing about 1,000 feet north of the buildings again crossed the river northwest of them. Both of these crossings were over fills in the channel. Therefore, it became necessary to change the course of the river. Accordingly, the defendant cut a new channel north of and parallel with its roadbed across the peninsula formed by the loop. To divert the stream into the channel thus cut an earthen dam was constructed 200 feet north of the west crossing of the river. About 200 feet west of this crossing there was a depression or draw parallel with the channel. The grade was built through and over this draw and two cement culverts each 36 inches in diameter were laid under the grade to take care of such water as might run down the draw from the north. Likewise, under the fill in the channel on the east side of the loop two cement culverts each 30 inches in diameter were laid to convey back into the stream such water as might accumulate in the abandoned portion of the channel. Thus under the same head of water the 36 inch culverts had more than two-fifths greater capacity than the 30 inch. The diversion channel was 75 feet wide at the bottom and ten feet in depth with a uniform grade down *219 from west to east. It was straight and approximately 4200 feet long. What was done with the earth that was excavated does not appear. The length of the original abandoned channel forming the loop was approximately 7800 feet. The dam across the river at the point of diversion was substantially built according to proper engineering standards. It was riprapped on its upstream side and a roadway passed over it. In February, 1943, the weather turned warm. The snow melted and the Cannonball ran bank full. Then abruptly the temperature fell and the river froze over. With the cold weather the flow decreased and ice ten to fourteen inches thick was left in the river bed and hanging on the banks. On March 14, a storm began. This lasted for nearly four days, with high winds and a heavy fall of wet snow that drifted greatly. On March 22, the temperature rose and the snow melted rapidly. All the streams were in flood. On the 25th the river was running more than bank full. An ice gorge formed a mile and a quarter below the plaintiff's farm. The water backed up in the valley immediately above the gorge so that it was nearly a mile in width. Upstream from the diversion dam and railway embankment the valley was flooded and became an ice filled lake several hundred acres in extent. Water poured through the culverts west of the dam. Water also flowed in through ravines from the south. Thus the land within the loop flooded. It rose so high that it submerged the plaintiff's barnyard. On the morning of the 25th, Carl Haff, one of the plaintiff's neighbors, came to the bank across the river south of the buildings. The plaintiff was away but his wife and children were at home. Haff shouted to the family that the situation was dangerous and that they should leave. At that time the water had not reached the house but the barnyard was submerged and he could see cattle standing in the water with only their heads visible. That afternoon the family walked from the house to the railroad track, thence along the track to the east side of the loop. There they were met by Haff who took them to his home where they remained that night. The next morning they returned to the farm walking in on the track. In the afternoon Haff and several neighbors again came. They drove in with a team of horses pulling a trailer on the track from the east side of the loop to a point north of the buildings, and then on some high ground to the buildings. They found that some of the plaintiff's cattle and hogs, and the poultry, in the barnyard were drowned. They removed those that were still alive. Some they transported in the trailer, others they drove out. They also took the family out. At some time during the night of the 26th the railroad grade west of the dam was washed out as was the fill in the channel there and the west one-half or two-thirds of the diversion dam. The fill in the channel on the east side of the loop also was washed out, together with 320 feet of the railroad grade. And the water had risen so high that it reached and flooded the plaintiff's house. The facts set forth above are undisputed. The defendant called as witnesses the section foreman and several members of his crew whose duty it was to patrol and look after that portion of its roadbed and track with which we are here concerned. These witnesses testified that on the morning of March 25th they patrolled the track as usual. At that time the water west of the loop and north of the track was nearly up to the top of the grade. It was spouting through the 36 inch culverts under such pressure that it kicked the water below back some 20 to 40 feet. Some of these witnesses also testified that the water was spouting through the 30 inch culverts under the fill on the east side of the loop in the same manner. There is no direct denial of this latter testimony. These witnesses testified that the water was higher on the north side of the track than it was on the south side, but it does not appear whether this was the case only on the west side of the loop or at any or all other points along the diversion channel. On the other hand, the defendant's witness, Haff, testified that on the afternoon of the 25th at the east crossing of the river the water was a foot higher south of the track than it was north of the track and that on the 26th it was two feet *220 higher south than it was north of the track. Manifestly, if Haff was right, the water could not have been spouting through the culverts there. On the morning of the 26th the section crew again patrolled the track and at that time found that the water west of the loop was five feet higher on the north than on the south side and was creeping between the ties over the grade west of the dam but that the dam, the fill, and the grade were still intact. Defendant's division engineer testified that about two months after the flood he, with a number of assistants, surveyors, and others, using instruments made measurements of the diversion channel and of that portion of the abandoned channel south of the railroad track. His testimony is that the narrowest part of the abandoned channel was 70 feet wide and 10 feet deep and that the diversion channel was straight, 10 feet deep and 75 feet wide, with a uniform grade down from west to east. There is no testimony, however, as to the grade of the latter or as to the difference in elevation, though it must have been appreciable, between the bottom of the diversion channel at the point of diversion and the bottom of that channel where it joined the original channel on the east. Neither does it appear whether the bottom of the diversion channel at the points of its beginning and ending was of the same elevation as the bottom of the original channel of the river at those points. The elevation of the top of the fill over the channel on the west side of the loop was not shown, nor was that of the top of the fill over the channel on the east side of the loop. The plaintiff testified that the diversion channel was 70 feet wide and 10 feet deep and that the abandoned channel was 350 feet in width from top bank to top bank. But it is uncertain as to what he meant by "top bank to top bank". His son-in-law was also called as a witness for the plaintiff. His testimony was in accord with that of the plaintiff as to the width of the abandoned channel but not as to the width or depth of the diversion channel in that he said it was 15 feet wide and 8 feet deep. Neither of these witnesses had ever measured either of the channels and gave only their estimates as to the widths and depths thereof. Both of them testified that the culverts on both sides of the loop were filled with dirt and debris in the fall and winter of 1942-43. This was denied by the foreman and other members of the section crew. The defendant's engineer further testified that using instruments to determine the height of the flood from marks and scars on the trees and from water marks and debris on the banks the water on the south side of the loop had been some nine inches higher than it was across the channel on the north side and that on the west side of the loop the water had been over three feet higher than on the south side. Whether he meant east side or south side is not made clear. There is no evidence in the record showing the width of the valley at either end of the loop or as to the extent or elevation of the flood plain—that is the part of the floor of the valley subject to overflow in times of ordinary flood—nor does it appear how wide the valley was, measured from north to south across the portion occupied by the plaintiff's buildings. Nor are there any profiles in evidence showing the relative elevations of the bed of the river; the artificial channel; the dam; the railroad grade; or of the floor of the valley. It is undisputed, however, that the plaintiff's barn was about 200 feet north of the abandoned channel and that the house and other buildings were on somewhat higher ground about 200 feet further from the channel. The elevation of the barn and other buildings above the bed of the channel is not shown. Neither does it appear whether there was a series of rises from the north bank of the original channel to the high ground north of the diversion channel or whether there was a general uniform slope. Nor does it appear how far it was from the diversion channel to the north side of the valley. Numerous witnesses were called by the defendant who testified as to the character and severity of the storm which began on March 14, and to the extent of the flood *221 that followed after the snow had melted. These witnesses testified that never before had they seen so great a flood. Some had lived near and observed the river thereabouts for 40 years or more. One of them testified that there had been other floods but the water in the instant flood was two to four feet higher than any other he had known of. The foundation under his house had been undermined by this flood—something that had never before happened. Whether this was before or after the 26th does not appear. He lived down the valley from the plaintiff. Another of the defendant's witnesses testified that he owned land up the valley just above the track west of the diversion dam and that the instant flood had inundated several hundred acres there belonging to him and the marks on the trees indicated the water had been ten or twelve feet higher than ever before. There is no question but that the plaintiff suffered serious damage by reason of the flood. The greater part of this damage was incurred prior to March 26th and before the grade, the fills, and a portion of the diversion dam were washed away. The damage incurred after the 26th was relatively small. The allegations of the plaintiff's complaint on which he predicates his claim of negligence are to say the least, nebulous and most inartificially drawn. In paragraph three thereof he alleges: "* * * that prior to the construction of said railroad, the natural course of the Cannon Ball River on said land and adjacent thereto, was a loop to the south; that the said defendant in its construction of its said road changed the course of said Cannon Ball River by shutting off the flow of the waters of the Cannon Ball River in said loop to the south and digging a new ditch and causing said River to flow north of its said railroad, thereby causing the Cannon Ball River to continue to flow north of the railroad instead of going under the road and going into said loop and going under the road again where said loop turns to the north under said railroad; that the defendant in the construction of the new course of the Cannon Ball River as aforesaid, and in preventing the waters to follow its natural course around said loop did negligently and carelessly construct the same, among other things in this: that in the first place the defendant should not have changed the course of said Cannon Ball River; that it should have permitted said Cannon Ball River to flow in its natural course; Second, that in its attempt to blockade the flow of the waters of the Cannon Ball River in its natural course through said loop as aforementioned the defendant did the work in a careless and negligent manner; that it constructed and maintained an inadequate levy and dam across said Cannon Ball River at both places where the natural bed stream goes under the railroad tracks at said place through said loop as aforementioned; that said levy and dam was not long enough nor high enough, neither was it constructed of adequate material, nor was it wide enough; neither did it have the proper foundations; that such is true with reference to both levy and dam at both ends of said loop where the river bed goes under the railroad in going through the loop and comes out the loop; that the defendant negligently and carelessly constructed and built the new bed of the Cannon Ball River north of said railroad in and adjacent to said land; that at the time it dug and constructed said river bed, it did not dig the ditches deep enough or wide enough to take the normal flow of water; that it carelessly and negligently maintained same; that among other things, it permitted its banks to cave in to the bottom of the artificial bed and permitted silt of the river bed to fill up said ditch; that such negligent construction of said new river bed and blockading the waters from its natural flow as aforementioned did at all times place the surrounding land, including the above described land, in great jeopardy and peril from being flooded with waters from the Cannon Ball River." And in paragraph four he further alleges: "That on or about the 26th day of March, 1943, the River in said artificial river bed, so constructed by the defendant as aforesaid, plugged up and that said defective levy and dam in the west end of said loop as aforementioned, gave away *222 thereby permitting the waters of the Cannon Ball River to flow in a torrent flood through the old river bed and up against the levy built by the defendant across the east end of the loop as aforementioned, which caused the waters of the Cannon Ball River to rise and flood the plaintiff's premises with approximately twelve (12) feet of water, or more, * * * that in addition thereto, the defendant carelessly and negligently did permit said dam and levy on the west end of said loop to become deteriorated and defective and failed to properly maintain and keep same up; that the defendant carelessly and negligently permitted said artificial river bed to become defective; that the defendant's carelessness and negligence as aforesaid continued up to the time of said flood aforementioned; that by reason of the foregoing premises, the plaintiff has suffered damages * * *." The defendant answering denied any negligence and alleged that the channel diversion, dikes, and embankments, were designed and constructed pursuant to proper engineering standards to take care of all normal waters and all flood waters reasonably foreseeable; that such channel, dikes, and embankments were properly cared for and maintained and had carried off all the waters of the river for a period of over 30 years; that the flood was unprecedented and unforeseeable; that the waters did not reach greater heights than they would have reached had the river remained in its natural state and regardless of the channel change the same flood and damage would have occurred. The defendant predicates this appeal on the grounds that the evidence is not sufficient either to warrant the answer returned to the special interrogatory or to support the verdict; that the court erred in denying defendant's motions for directed verdict and for judgment notwithstanding the verdict, and in numerous rulings on matters of law during the course of the trial; that the court erred in his instructions to the jury; and that counsel for the plaintiff resorted to improper and prejudicial practices during the trial of the case and in argument to the jury. There is no question but that the plaintiff suffered serious damage by reason of the high waters in the Cannonball on March 25th and 26th, 1943. The vital question of fact is as to whether this damage was incurred as a proximate effect of negligence on the part of the defendant in the construction and maintenance of the diversion channel and of the dikes, and embankments on which its track was laid. The defendant's contentions as to that question are, as stated in its motions for directed verdict and for judgment notwithstanding the verdict, that "There is no testimony showing any negligence on the part of the defendant proximately causing the plaintiff's loss; secondly, the undisputed testimony shows that regardless of the channel change the same flooding and damage would have occurred; third, the undisputed testimony shows that the flood here involved was of such unprecedented occurrence that it could not have been foreseen by men of ordinary experience and prudence." The Cannonball River was non-navigable. The defendant had bought and owned the land on which the artificial channel, the dikes and embankments were constructed. It had the right to dam and divert the river. Bigelow v. Draper, 6 N.D. 152, 69 N.W. 570; 56 Am.Jur. 504. But in doing so it was bound to see to it that no injury should result therefrom and in that behalf to make such provisions as were necessary to take care of, not only the normal flow of the river, but also of any flood that men of ordinary experience and prudence could have foreseen. Eikland v. Casey, 9 Cir., 266 F. 821, 12 A.L.R. 179 and note; Willson v. Boise City, 20 Idaho 133, 117 P. 115, 36 L.R.A.,N.S., 1158; Garrett v. Beers, 97 Kan. 255, 155 P. 2, L.R.A.1916F, 1289; Anderson v. Rucker Bros., 107 Wash. 595, 183 P. 70, 186 P. 293, 8 A.L.R. 544; 67 C.J. 706 et seq.; 56 Am.Jur. 505 et seq. And this duty was a continuing one. State ex rel. Trimble v. Minneapolis etc., Ry. Co., 28 N.D. 621, 150 N.W. 463; Soules v. Northern Pac. R. Co., 34 N.D. 7, 157 N.W. 823, L.R.A.1917A, 501; Missouri Pac. Ry. Co. v. Nichols, 170 Ark. 1194, 279 S.W. 354; Schwank v. Platte County, *223 152 Neb. 273, 40 N.W.2d 863; 67 C.J. 706 et seq., and cases cited. When the case was submitted the court at the request of the defendant directed the jury in addition to returning a general verdict to answer the special interrogatory: "Was the flood that occurred on or about March 26th, 1943, in the valley of the Cannon Ball River in the vicinity of and on the land occupied by the plaintiff an extraordinary and unprecedented flood?" In Soules v. Northern Pacific Railway Company, supra, this court held as stated in the syllabus, that [34 N.D. 7, 157 N.W. 824] "Extraordinary or unprecedented floods are floods which are of such unusual occurrence that they could not have been foreseen by men of ordinary experience and prudence." And the court in its instructions to the jury in the instant case so charged. The defendant herein contends that it did so construct the diversion dam, channel, and other works as to take care of the normal flow of the river and of any ordinary flood, and that the flood here under consideration was so extraordinary and unprecedented, that it could not have been anticipated and on this account alone the damage resulted. Relying on this as a defense the burden under the facts as shown was on the defendant to establish it by evidence satisfactory to the jury. Soules v. Northern Pacific Ry. Co., supra; Reichert v. Northern Pacific Ry. Co., 39 N.D. 114, 167 N.W. 127, 129; Southern Railway Co. v. Neal, 146 Va. 229, 135 S.E. 703; 67 C.J. 709. Thus viewing the evidence can it be said that the defendant has sustained that burden? And in this connection it must be borne in mind that the jury having answered the special interrogatory and returned a verdict not inconsistent with that answer favorable to the plaintiff all reasonable intendments insofar as the evidence is concerned must be resolved in his favor. Schnoor v. Meinecke, 76 N.D. ___, 40 N.W.2d 803, Bormann v. Beckman, 73 N.D. 720, 19 N.W.2d 455. The undisputed testimony is that the waters of this flood were greater in volume and rose higher than in any that had ever before occurred within the recollection or knowledge of any of the witnesses, some of whom had lived in the vicinity and had observed and known the Cannonball River for 40 or more years. And the published report of the United States Weather Bureau offered by the defendant and received in evidence tends to corroborate this testimony. But this report also shows that floods on the Cannonball and other streams tributary to the Missouri River in this area were not unusual, particularly at the time of the spring run-off, and ice jams or gorges were often formed. And one of the defendant's witnesses testified that a few years prior to the instant flood there was another almost as great as this one. In passing upon the question of whether a flood is extraordinary and unprecedented it is proper and necessary to consider the topography of the area traversed and drained by the flooded stream; the climatic conditions ordinarily prevailing there; whether the stream is subject to ice jams during the spring run-off; the character of tributary streams as to their volume and velocity; the laws of hydraulics known to the ordinary man; the extent of the drainage area; the existence or non-existence of conditions tending to retard the flow of the water therein; and whether there have been other floods and the frequency and magnitude thereof. If all the attendant conditions and circumstances are such that men of ordinary experience and prudence reasonably could have foreseen that a flood such as did occur might occur, it would not be extraordinary and unprecedented within the meaning of those terms as they were defined in the instructions to the jury. The question is one of fact, to be determined as any other question of fact. In the instant case the evidence is such that reasonable men might differ as to the answer to be made to the special interrogatory. Therefore, we cannot say that the jury's determination was not warranted by the evidence. It does not follow as a matter of course that because the jury found the flood was not extraordinary and unprecedented on that account alone the defendant is liable *224 for any damage the plaintiff may have suffered. In order that the plaintiff recover it is necessary that the defendant be found to have been negligent and that such negligence was the proximate cause of the damage. We have set out a lengthy summation of the evidence. The diversion channel was 4200 feet in length. The jury could properly find from the evidence that the difference between the level of the water at the west end of the diversion channel and of the level at the east end was seven feet, and consequently, that the diversion channel was not capable of carrying off the waters of the river at the stage the flood had reached on the 25th and 26th. This finding would amount to a finding of negligence in the construction and maintenance of the diversion channel. We have quoted the allegations of the plaintiff's complaint on which he predicated his charges of negligence. Considered in the light most favorable to the plaintiff we think that a charge of negligence may be spelled out of these allegations, not only on account of the construction and maintenance of the diversion channel as above set forth, but also on account of the construction and maintenance of the dikes and embankments erected by the defendant. The proofs disclose that under the fill and embankment at the east crossing of the river there were two cement culverts each 30 inches in diameter and under the fill and embankment where the latter crossed the depression west of the river there were two cement culverts each 36 inches in diameter. It is true that the complaint makes no mention of any of these culverts and for that reason the defendant objected to the admission of any testimony respecting them. This objection was properly overruled and the testimony was received. The defendant itself must have construed the complaint as charging negligence not only in the construction of the diversion channel, but also in the construction and maintenance of the dikes and embankments. For in its answer defendant alleged that the channel, the dikes, and the embankments were constructed and maintained in a proper manner and that there was no negligence on account of their construction or maintenance. And it made no demand for a bill of particulars. On the trial the defendant itself introduced evidence as to the number of culverts, and as to their size, location and condition. Finally the court in its instructions to the jury charged that the negligence complained of by the plaintiff was on account of the construction and maintenance of an insufficient channel, dam, and embankments. There is no question but that the abandoned channel and the whole of the valley south of the railroad were filled with water to such an extent that the barnyard of the plaintiff was inundated. There is some evidence that water from melting snow flowed into this valley through ravines from the south. And defendant's witnesses testified that water from the flood plain west of the loop spouted through the 36 inch culverts in tremendous volume. Simple arithmetic demonstrates that the water that poured into the basin through the 36 inch culverts was two-fifths more than the 30 inch culverts down stream under the fill on the east side of the loop would carry. However, it is immaterial whence the water came. The 30 inch culverts, evidently put under the fill for the purpose of draining the basin, were insufficient and the jury on that account was warranted in finding that the defendant was negligent in the construction of the embankment. Summarized, the evidence warranted the jury in finding: That the defendant built a railroad up in the valley. The grade or embankment for the roadbed built four feet above the valley floor, made two crossings of the river over fills in the channel about 4200 feet apart. It laid two 36 inch culverts under the embankment 200 feet west of the upper fill and two 30 inch culverts under the lower fill. To take care of the water that the river in its natural state would have carried, defendant erected a diversion dike or dam in the channel about 200 feet above the upper fill and cut an artificial channel parallel with the roadbed across to the original channel just below *225 the lower fill. All of this was done as one project and undertaking. The diversion channel was incapable of carrying the waters of the stream in ordinary flood time. As a result water accumulated in the flood plain west of the loop above the dike and railway embankment. On account of this accumulation water spouted through the 36 inch culverts. It was augmented by that which came from the melting snow from south of the loop. The 30 inch culverts could not carry away the water thus accumulated. The basin filled. The plaintiff's barnyard was inundated. His livestock and poultry were drowned. His seed and feed were destroyed. His machinery was floated away or was damaged. All of this happened before the flood had reached its crest and before the dam and embankment west of the loop gave way. The total of the loss and damage thus suffered by the plaintiff was greater than the amount of the verdict returned by the jury. The jury also could well find, as in effect it did find, that the water would not have reached the height that it did and effected the damage shown had there been no negligence in the construction and maintenance of the diversion channel and of the dikes and embankments. The defendant predicates error on certain rulings on matters of evidence. It contends that evidence as to the culverts was inadmissible since it was not responsive to any issue made by the pleadings. What we have already said as to the matter of the culverts disposes of this particular assignment. Defendant also contends that the court erred in overruling objections to the admission of testimony of the plaintiff's witnesses as to the depth and width of the original channel and of the diversion channel. The reason assigned for the objections was that no foundation had been laid for the admission of this testimony, since the witnesses had made no measurements and could give only their estimates. They, however, testified that they knew the channels, had often observed them and that they could estimate their width and depth. Their answers purported to give these estimates. The evidence was admissible. Its weight and worth was for the jury. Defendant assigns error on account of misconduct of counsel for the plaintiff during the course of the trial. The grounds for this assignment are that in the cross-examination of defendant's witnesses the insinuating character of counsel's questions and his exclamations when the witnesses answered them were intended to and did prejudice the jury. There was ground for defendant's taking exception to the conduct of counsel. But although it was improper we are unable to say that it was so prejudicial as to warrant the granting of a new trial. In the course of his argument counsel for the plaintiff told the jury that the special interrogatory was submitted to the jury for the purpose of misleading them. Counsel for the defendant objected to this statement and moved for a continuance because of it. The court sustained the objection and stated that the argument was improper. He also admonished the jury to disregard the statement but denied the motion to continue. There was no error in so doing. Thereafter, counsel for the plaintiff commented not only on the facts on which the answer to the interrogatory would be based but also as to the legal effect of that answer, saying that if it were in the affirmative the plaintiff "would be left out in the cold." Defendant objected to this statement insisting that plaintiff had no right to argue as to the effect of the answer and moved that a mistrial be declared and the case continued over. The function of the jury was to answer the interrogatory according as they might find the facts to be regardless of its effect. Plaintiff concedes that it is reversible error to comment on the effect of their special findings when the jury is required to return a special verdict pursuant to the provisions of Section 28-1502, RC 1943. See Morrison v. Lee, 13 N.D. 591, 102 N.W. 223. But he insists that this rule does not apply to special interrogatories submitted pursuant to the provisions of Section 28-1503, RC 1943. This latter section provides that the general verdict which the jury in such case is also required to return must be consistent with the answer to the special interrogatory and *226 if it is not the answer controls. In such case it is proper for the court to instruct the jury that the general verdict must be consistent with the special finding. See Acton v. Fargo & Moorehead Street Ry. Co., 20 N.D. 434, 129 N.W. 225. On the other hand, when the case is submitted for a special verdict under Section 28-1502 no general verdict is returned. While there is this distinction between special interrogatories and special verdicts, nevertheless, it is improper to argue to the jury as to the effect of the answer to a special interrogatory. This is a matter of law with which the jury has no concern. The object of the law providing for the submission of special interrogatories is the same as that for the submission of a case for a special verdict—that is, as said in Morrison v. Lee, supra [13 N.D. 591, 102 N.W. 224], "To secure fair and impartial answers to the questions submitted, `free from bias or prejudice in favor of either party or in favor of a particular result'." In the instant case the defendant moved the court to declare a mistrial and continue the case. The court did not grant this motion. The trial judge heard the argument and was able to observe the effect, if any, upon the jury. Under the circumstances we cannot say there was error in not granting the motion. Error is also assigned on account of certain portions of the instructions given by the court. Defendant complains that the court charged the jury that if after considering all of the evidence they should find the defendant was negligent in and about the construction and maintenance of the diversion channel, dikes, and embankments they should return a verdict for the plaintiff but that they were not told in said instruction that before they could so return their verdict they must also find that this negligence was the proximate cause of the damage that resulted. An examination of the whole charge, however, discloses that the court did in two instances elsewhere charge the jury that before they could return a verdict for the plaintiff they must find the negligence of the defendant was the proximate cause of the damage. While these latter portions of the instructions did not immediately follow the portion of which the defendant complains, reading the charge as a whole and considering all the parts thereof, the jury, as reasonable men, could arrive at no other conclusion than that before they could return a verdict for the plaintiff on account of defendant's negligence they must also find that such negligence was the proximate cause of the damage suffered by the plaintiff. Since this is so, there is no ground for the defendant's contention. See State v. Kerns, 50 N.D. 927, 198 N.W. 698, where we held "Though an instruction standing alone may be insufficient or erroneous, it must be considered in connection with the remainder of the charge; and if the whole charge taken together correctly advises the jury as to the law the error, if any, is thereby cured." See also McGregor v. Great Northern Railway Co., 31 N.D. 471, 154 N.W. 261; Ann.Cas.1917E, 141; Soules v. Northern Pacific Railway Co., supra; Munster v. Stoddard, 44 N.D. 105, 170 N.W. 871; Ramage v. Trepanier, 69 N.D. 19, 283 N.W. 471. There are other portions of the instructions which the defendant challenges. However, examined in the light of the view we have taken of the instant case they are without merit and deserve no consideration here. Judgment affirmed. NUESSLE, C. J., and GRIMSON, CHRISTIANSON and MORRIS, JJ., concur. BURKE, Judge (dissenting). I cannot agree that the evidence in this case is sufficient to sustain a finding by the jury that the flooding of plaintiff's land and the resultant damage were proximately caused by any act or omission on the part of the defendant. On the contrary I am satisfied that the evidence affirmatively demonstrates that plaintiff's land would have been flooded in the spring of 1943, had the defendant never interfered to divert the Cannonball River from a part of its natural course. As has been stated in the opinion prepared by Chief Justice NUESSLE, the defendant *227 had built a railroad grade, east and west, across a loop in the natural course of the Cannonball River and had short-circuited the river by building an artificial channel across the loop north of the railroad grade. Plaintiffs buildings were south of the grade and adjacent to the natural, but no longer used, course of the stream. Two culverts, thirty-six inches in diameter, were installed in the grade at a point some two hundred feet west of the west end of the loop and two culverts, thirty inches in diameter, were installed in the grade at the bottom of the old channel at the east end of the loop. If I believed that the evidence justified a conclusion that the flooding of plaintiff's land had been caused either by the inadequacy of these culverts or their difference in capacity, I would unhesitatingly agree with the majority in this case. As I view the record, however, the evidence, most favorable to the plaintiff, will permit no more than a conclusion that the inadequacy of the culverts at most augmented the flood upon plaintiff's land to a small degree. It was established by uncontroverted proof, confirmed by the record of the U. S. Weather Bureau, that the Cannonball River in the latter part of March 1943, reached flood stages higher than in any other years within the recollection of the witnesses. It was also established that the riparian lands along the Cannonball, immediately above and immediately below the plaintiff's land, were flooded to depths never previously attained within the memories of the owners of the lands. If the river had been permitted to run its natural course, the flood waters above plaintiff's land would of necessity have traversed the old channel adjacent to plaintiff's buildings. For a time the railroad grade partially protected plaintiff's land from these flood waters. His land, however, was gradually flooded on the 25th and 26th of March by water which poured through the culverts at the west end of the railroad grade and according to most witnesses through the culverts at the east end also. One witness, however, whom the jury could have believed, testified that on the afternoon of the 25th of March, the water at the east end of the loop was one foot higher on the south side of the railroad grade than it was on the north side and that on the afternoon of the 26th of March the water was two feet higher on the south side. It is clear to me therefore, that even under the testimony most favorable to the plaintiff, the degree of flooding which can be attributed to the inadequacy of the culverts at the east end of the loop is no more than that which would have resulted from the difference in elevation between the waters on the south and north sides of the grade. This was at most two feet. Since plaintiff's barns were flooded to a depth of ten or twelve feet, it is apparent that the bulk of his damage could not have been caused by inadequate culverts. It is also clear that plaintiff's damage was not caused by the lack of capacity of the artificial channel through which the river had been diverted. Greater capacity in this channel would have resulted in raising the level of the water on the north side of the culverts at the east end of the loop, and in blocking to a greater extent the egress of flood waters from plaintiff's land. I think the judgment of the district court should be reversed.

816 F.2d 614 John Wesley GAY, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee. No. 86-8769Non-Argument Calendar. United States Court of Appeals,Eleventh Circuit. May 12, 1987. Joe D. Whitley, U.S. Atty., Louis Sands, Asst. U.S. Atty., Macon, Ga., for respondent-appellee. Appeal from the United States District Court for the Middle District of Georgia. Before HILL, KRAVITCH and EDMONDSON, Circuit Judges. PER CURIAM: 1 John Wesley Gay was convicted by a jury on one count of a three count indictment for robbing a federally insured bank in violation of 18 U.S.C. 2113(d). He subsequently filed a pro se Sec. 2255 motion, alleging, inter alia, that a government witness, Timothy Peglar, was induced through police harassment to give perjured testimony, and that Gay's counsel was ineffective. Gay claimed his counsel was inadequate because, among other things, he did not investigate Peglar's reason for testifying or the extent of Peglar's criminal record. This Sec. 2255 motion was denied on the merits, and the denial was affirmed on appeal. United States v. Gay, 767 F.2d 936 (11th Cir.1985) (unpublished opinion). 2 Gay then filed a second Sec. 2255 motion, alleging that the prosecution failed to disclose to his counsel that Peglar had a state criminal charge pending against him at the time of Gay's arrest, that this charge was dismissed in exchange for Peglar's testimony at trial. 3 The government moved to dismiss Gay's second motion as successive under Rule 9(b), rules foll. Sec. 2255 or, alternatively, because Gay's allegations were conclusory and without factual basis. Gay responded, explaining that he failed to allege these grounds in his prior Sec. 2255 motion because of his "lack of legal knowledge" and "limited legal perceptions." He also argued he was entitled to an evidentiary hearing on his claims. 4 The district court found that Gay's failure to raise these grounds in his prior motion constituted an abuse, and denied the motion. In doing so, the court pointed out that Gay's most recent allegations were "remarkably similar to those supporting his claim of ineffective assistance of counsel in his first petition," and found that Gay failed to account adequately for his reasons for omitting these grounds in his first motion. The court ruled that Gay's stated excuse, his lack of legal knowledge, was not a legitimate reason for the omission. The judge explained: 5 [T]he pleadings, briefs and motions filed with this petition, the first section 2255 motion, as well as his numerous motions for appeal and mandamus from the Eleventh Circuit demonstrate that while Mr. Gay is proceeding pro se, he has the ability to understand the legal significance of the facts and circumstances of his case and some appreciation of the legal concept of abuse of the motion remedy. The court notes that Mr. Gay is no stranger to the courthouse. 6 Petitioner has advanced no legitimate reasons for his failure to assert arguably successive grounds in his first motion. See e.g., Sanders v. United States, 373 U.S. at 15-17, [83 S.Ct. 1068, 1077-78, 10 L.Ed.2d 148 (1963) ]; Funchess v. Wainwright, 788 F.2d 1443 (11th Cir.1986); Humphrey v. United States, 766 F.2d 1522 (11th Cir.1985). Nor has Mr. Gay shown that his petition is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence. On the contrary, petitioner's statement of facts indicates that he possessed all the relevant facts about Timothy Peglar before his trial and well in advance of his first section 2255 motion. 7 Gay then filed a motion for reconsideration, alleging for the first time that he had not brought the present claims regarding Peglar in his initial Sec. 2255 motion because he did not discover the information until that action was on appeal to this court. He alleged that he raised the issue in that appeal, but this court refused to address it as it was improperly raised for the first time on appeal. The district court denied Gay's motion for reconsideration without further explanation. DISCUSSION 8 Gay argues on appeal that he did not learn of the new facts until after his first Sec. 2255 motion was on appeal to this court and that his lack of legal knowledge should constitute "cause and excusable omission" because he never intentionally withheld a "perceived issue based upon known facts." 9 The government argues that Gay did not meet his burden of showing that his current motion was not an abuse of the rules governing Sec. 2255. Gay's proffered excuse to the district court was that he was not a trained attorney and, the government asserts, the district court was not told that Gay was factually ignorant of the new ground until after its ruling. 10 When a defendant presents new grounds for relief in a later Sec. 2255 motion, the district court must address those grounds "unless the movant's failure to prosecute these grounds earlier constitutes an abuse of the motion remedy." Humphrey v. United States, 766 F.2d 1522, 1524 (11th Cir.1985) citing Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). The government must plead abuse, and then "the burden shifts to the movant to show that his failure to assert the new grounds in an earlier motion does not comprise an abuse." Id. The movant must prove by a preponderance of the evidence that he was ignorant of facts necessary to support the new ground when the prior motion was filed, or that he had not realized that those facts provided the basis for Sec. 2255 relief. See Booker v. Wainwright, 764 F.2d 1371, 1376-77 (11th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 339, 88 L.Ed.2d 324 (1985).1 If, however, the movant intentionally withheld a claim from the previous petition, or was inexcusably neglectful, the motion may be dismissed. Haley v. Estelle, 632 F.2d 1273, 1375 (5th Cir.1980) (citations omitted). 11 Here, we hold that the government properly pled abuse of the Sec. 2255 process, and that Gay failed to show that he was not abusing the writ. First, we agree with the district court that Gay's first argument, that his lack of legal knowledge prevented him from asserting these claims earlier, is untenable. By his own admission, Gay knew that these facts stated a claim for Sec. 2255 relief. Additionally, assuming that the claims in Gay's motion for rehearing were properly before the district court, his contention that his successive claims are based on newly discovered facts is also suspect. Gay failed to allege that his claims were premised on "new" facts until his motion for reconsideration, and provided no support for his assertion that he was unaware of these facts when filing the first motion.2 Further, as the district court found, these "new" facts bear a striking resemblance to the facts he asserted in his previous petition. All of the "new" allegations relate to Peglar's credibility, an issue explored at length in Gay's first petition.3 The district court did not err in finding that Gay failed to prove by a preponderance of the evidence that he was ignorant of the facts necessary to support the new grounds when he filed his previous motion. See Sanders v. United States, 83 S.Ct. at 1078-79. The judgment of the district court dismissing his petition is therefore AFFIRMED. 1 Although Booker analyzes abuse of a writ of habeas corpus, the principles developed in habeas cases also apply to Sec. 2255 motions. See Sanders v. United States, 83 S.Ct. at 1078 2 For example, in the statement of facts to the district court supporting his second motion, Gay maintained that, in 1980, his Aunt (who he claims was also Peglar's grandmother) called Gay's sister and told her that Peglar had been arrested by the City of Griffin, Georgia's police department for attempting to sell a car without proof of legal title. In his petition for rehearing, Gay claimed that this is the charge that was dismissed pursuant to an alleged agreement to have Peglar testify against him. Gay never explained why it took four years for his sister to convey this information to him 3 We note in passing that the district court could have made short shrift of Gay's Brady claims on the merits, had they been reached. In Gay's prior unsuccessful Sec. 2255 motion, the district court made a specific finding that "Peglar's testimony simply was not crucial to the prosecution." Although res judicata does not operate in the Sec. 2255 arena, see Sanders v. United States, 83 S.Ct. at 1075-77, Gay has alleged no new facts which affect the district court's finding that Peglar's testimony was not crucial to Gay's conviction. See United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 3381-84, 87 L.Ed.2d 481 (1985) (prosecutor's failure to disclose exculpatory evidence in response to a defense request amounts to constitutional error only if there is a reasonable probability that such evidence would have affected the outcome of trial). Moreover, this finding was buttressed by our conclusion, in evaluating Gay's original Sec. 2255 motion, that: Even in the absence of all evidence that could be affected by counsel's alleged errors, there is more than sufficient evidence to support the jury's verdict of guilty beyond a reasonable doubt. Gay v. United States, No. 83-194-2 MAC at 7-8 (M.D.Ga. July 19, 1984); see Strickland v. Washington [466 U.S. 668], 104 S.Ct. 2052, 2064-69 [80 L.Ed.2d 674] (1984). These alleged errors included counsel's failure to investigate Peglar's police record, and failure to adequately cross-examine him. Thus, on the merits, this second attack on Peglar's credibility serves no purpose.

751 F.Supp. 2 (1990) John BALDWIN, Plaintiff, v. HARRIS CORPORATION, Defendant. Civ.A. No. 87-3479 JHP. United States District Court, District of Columbia. October 11, 1990. *3 Patrick M. Regan, Lisa R. Riggs, Koonz, McKenney, Johnson & Regan, Washington, D.C., for plaintiff. James P. Murphy, Ellen R. Hornstein, Squire, Sanders & Dempsey, Washington, D.C., for defendant. MEMORANDUM OPINION JOHN H. PRATT, District Judge. On October 23, 1985, plaintiff John Baldwin was injured while using a paper cutter manufactured by the defendant, Harris Corporation. Plaintiff, on December 23, 1987, brought this diversity case against Harris alleging negligent product design, strict liability, and failure to adequately warn. Currently before the Court is defendant's renewed motion for summary judgment.[1] We find that plaintiff's injury was not a result of a defective product design, but rather was caused by plaintiff's employer's negligence in allowing the machine to be operated without its protective safety device. And we hold that plaintiff was well aware that the protective device was not functioning and assumed the risk of operating the machine in its dangerous condition. We further find that defendant supplied adequate warnings on the machine. Therefore, we grant defendant's summary judgment motion for all claims. BACKGROUND The accident that forms the basis for this suit occurred while the plaintiff was employed as a "press operator" for Todd-Allen Printing Company, a commercial printer. Plaintiff's duties included the operation of a Seybold Saber Model CKB paper cutter, which was manufactured by the defendant. The machine was sold to a predecessor company of Todd-Allen in 1955. *4 This machine cuts large thick stacks of paper via a consecutive two-step process. First a clamp descends to hold the paper in place. Then, a knife is lowered to cut the paper. It was the plaintiff's practice to operate the machine using the hand controls. These controls are located on either side of the machine and bring down first the clamp and then the knife. However, it is also possible to operate the clamp with a foot treadle; pressing the foot treadle brings the clamp down. Although the plaintiff had never used the treadle, he was aware that by depressing the treadle, the clamp would descend. The foot treadle was equipped with a safety latch to prevent accidental operation of the foot treadle. The cutter was designed so that the safety latch would have to be removed each time the foot treadle was used. However, the safety latch on the cutter located at Todd-Allen had been disengaged ever since the plaintiff had been working at the company, a period of approximately one year. The plaintiff was aware of the fact that the safety latch was not working at the time of the accident. The paper cutter in question had a warning label on it. The relevant parts of the warnings stated "DO NOT DEACTIVATE ANY SAFETY DEVICE.... USE CAUTION WHEN USING THE CLAMP FOOT TREADLE." When the accident occurred, plaintiff was carrying a heavy stack of paper to the cutter. He lurched forward to lift the paper onto the table of the cutter. As he lurched, his right foot accidentally hit the foot treadle, which caused the clamp to come down on his right hand, which was holding the paper and which was underneath the knife and the clamp. Plaintiff now claims that his hand was permanently injured in this accident. DISCUSSION Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." Fed.R.Civ.P. 56(c). The Supreme Court has clarified the standard of the rule, stating: [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial. In such a situation, there can be no "genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). I. Defective and Negligent Design Claims We find that plaintiff's claims of negligent design and strict liability must fail because plaintiff's injury was not caused by any defect or lack of reasonable care in the design of the product. If the product been used as designed, plaintiff would not have been injured. To make out a claim of strict liability for a defective product, plaintiff would have to prove that the paper cutter in question was sold "in a defective condition unreasonably dangerous to the user" and that the defective product caused physical harm to the user. Restatement (Second) of Torts § 402A (1965) (cited in Payne v. Soft Sheen Products, Inc., 486 A.2d 712, 720 (D.C. 1985)). To make out a charge of negligent design, plaintiff would have to prove that the manufacturer failed to exercise reasonable care in its design. Hull v. Eaton Corp., 825 F.2d 448, 453 (D.C.Cir.1987). The product defendant shipped was not "in a defective condition unreasonably dangerous," nor was it negligently designed, since both parties agree that if the product had been in the condition in which it was designed, i.e. had the safety latch been in *5 place, the accident would not have taken place. To prevail on both claims, plaintiff would have to prove that defendant's defective or negligent product design caused plaintiff's injury. In this case, the manufacturer supplied a safety device to prevent exactly the type of injury that occurred in this unfortunate accident. If the product had been used as designed, and if the accompanying warnings had been heeded, the injury would not have occurred. Plaintiff's injury was not the result of a defective or negligently designed product, but was caused by the negligent maintenance of the plaintiff's employer, who allowed the machine to be operated without the safety latch in place. Whether the employer's negligence is a superceding cause, absolving the manufacturer of liability, depends on the determination of whether it was foreseeable to the manufacturer that people would disregard the clear instructions on the machine and disengage the safety latch. See Payne v. Soft Sheen, 486 A.2d at 726 ("negligence by an intervening actor will not relieve the manufacturer of liability if the negligence could reasonably have been anticipated under both negligence and strict liability theories of recovery"). Plaintiff has introduced no evidence that the manufacturer should have foreseen that a purchaser of the product would disregard the clear warning on the machine and disengage the safety latch, nor has he introduced evidence that the manufacturer was aware that the paper cutter was being operated without a functional safety latch. In this case, as in Hanlon v. Cyril Bath Co., 541 F.2d 343 (3d Cir.1975), the injured party's employer "removed a safeguard against accidental activation that had been incorporated in the original structural design and would have been adequate to prevent this accident." Id. at 346. To hold the manufacturer liable for such an act of the employer would be requiring the manufacturer to be an insurer of its products. Since the injury would not have occurred had the product been used as designed, and the employer's negligence was not reasonably foreseeable by the manufacturer, plaintiff's claims of negligent and defective product design must fail. Defendant's summary judgment motion on these counts will therefore be granted. II. Assumption of the Risk Even if we did not grant the summary judgment based on plaintiff's failure to prove causation, we would find that the plaintiff assumed the risk of operating this machine knowing of its dangerous qualities. Assumption of the risk is a complete bar to recovery for negligence and strict liability against a manufacturer. See, e.g., Sinai v. Polinger Co., 498 A.2d 520, 524 (D.C.1985) (negligence); Young v. Up-Right Scaffolds, Inc., 637 F.2d 810, 815 (D.C.Cir.1980) (strict liability). Assumption of the risk relieves the defendant of any duty he owed to the plaintiff because in such a case the plaintiff comprehended the danger and voluntarily decided to risk that danger. See Sinai v. Polinger Co., 498 A.2d at 524. The elements of assumption of the risk are: "actual knowledge and comprehension of a danger caused by the defendant's negligence and the plaintiff's voluntary exposure to that known danger." Morrison v. MacNamara, 407 A.2d 555, 567 (D.C.1979). In plaintiff's deposition he testified that he was aware that the treadle latch was not operating and that it had not been operating since the time he had been working at Todd-Allen, a period of approximately one year. (Plaintiff's Depo. at 22-24). To determine whether the plaintiff assumed the risk, the court must analyze "the plaintiff's age, intelligence, and experience." Morrison v. MacNamara, 407 A.2d at 567. Here, plaintiff was an experienced paper cutter, having approximately five years of experience in the field. (Plaintiff's Depo. at 6-8). Plaintiff further testified he had operated the paper cutter in question at least once a day during the year he had been employed at Todd-Allen. Id. at 20. The plaintiff in this case continued to operate the paper cutter despite his knowledge that the safety latch on the foot treadle was not working. This knowledge, *6 coupled with his experience as a paper cutter, establishes as a matter of law that he assumed the risk that an injury would occur if he used the machine in its negligently maintained condition. III. The Failure to Warn Claims Plaintiff's failure to warn alleges claims which sound in strict liability and in negligence, and are evaluated under the same standard under District of Columbia law. See Payne v. Soft Sheen, 486 A.2d at 721. Under both standards, if a manufacturer's product "could result in foreseeable harm [the manufacturer] has a duty to give a warning which adequately advises the user of attendant risks and which provides specific directions for safe use." Id. (citations and quotations omitted) (emphasis in the original). See also Young v. Up-Right Scaffolds, 637 F.2d at 814 (a manufacturer is liable for failure to warn "only if it was reasonably foreseeable that the product, as labelled, would cause injury"). Plaintiff's injury on this machine was not a foreseeable harm when it left defendant's place of manufacture, since the injury could not have occurred with the safety latch in place. Further, the warning on the machine specifically stated, "DO NOT DEACTIVATE ANY SAFETY DEVICE." Someone had disengaged the safety latch in express contradiction to this warning. It would be patently unfair to require the manufacturer to equip every machine with a warning of what the consequences will be if warnings already in place are not followed. This is just another way of saying it can not be held to be foreseeable that someone would disregard the clear, express warning on a machine. Plaintiff's claim of failure to warn in support of his allegations of negligence and strict liability is without merit. For all of the foregoing reasons, defendant's renewed motion for summary judgment is granted. An order consistent with this opinion has been entered this day. NOTES [1] Two previous motions by defendant for summary judgment were denied without prejudice on September 1, 1988 and May 24, 1989, respectively, to permit completion of discovery.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-6046-17T1 SHELLEY FREYDONT, Plaintiff-Respondent, v. RICHARD M. LENCHNER, Defendant-Appellant. ___________________________ Argued September 23, 2019 – Decided October 2, 2019 Before Judges Fasciale and Moynihan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1384-04. William John Heimbuch argued the cause for appellant (Heimbuch & Solimano, PC, attorneys; William John Heimbuch, on the brief). Jacqueline M. Dugan argued the cause for respondent (November & Nunnink, LLC, attorneys; Jacqueline M. Dugan, on the brief). PER CURIAM  In this post-divorce matrimonial case, defendant Richard M. Lenchner appeals from a July 19, 2018 order denying his motion to suspend or modify his alimony obligation to plaintiff Shelley Freydont. Judge Avis Bishop-Thompson conducted oral argument, at which she swore in the parties. After argument, the judge denied the motion, entered the order, and rendered an oral opinion. We affirm. The parties were married for approximately nineteen years and have two children together. The children are now adults and emancipated. In October 2004, and as part of the final divorce judgment, the parties entered into a property settlement agreement (PSA), which required defendant to pay plaintiff $35,000 in alimony annually. The parties negotiated that amount in consideration of defendant's $140,000 salary. The PSA stated defendant "shall only be permitted to seek a reduction in his alimony obligation based upon an involuntary change in his job status." In 2013, the parties entered into a consent order (CO), which increased defendant's annual alimony obligation by $4,000. The CO's practical effect eliminated yearly reviews of defendant's income, which plaintiff certified had been a struggle. Importantly, the CO did not obviate defendant's obligation under the PSA to demonstrate, as a precondition to a downward modification of A-6046-17T1 2 his alimony obligation, an "involuntary change in his job status." Since entering into the CO, defendant filed three motions seeking to suspend his alimony obligation. Defendant filed his first motion in February 2017, certifying that his then employer terminated his position in August 2016. Plaintiff certified that defendant obtained a new job earning $150,000 while his motion was pending. Plaintiff asserted defendant neglected to disclose his new employment. The judge found that defendant failed to demonstrate changed circumstances and denied the motion. Defendant did not seek reconsideration or interlocutory review of the order denying the first motion. In October 2017, defendant filed his second motion. Defendant certified that although he accepted a new position – earning $150,000 – his new employer terminated him in June 2017. The judge who heard the second motion questioned whether the termination was involuntary. And, before denying the motion, that judge gave defendant the opportunity to "confirm the nature of the termination[.]" According to that judge, "[d]efendant opted not to address the [c]ourt's concern." He then found that defendant failed to show that the termination was involuntary and denied defendant's motion. Like the first A-6046-17T1 3 motion, defendant did not seek reconsideration or interlocutory review of the order. In May 2018, defendant filed his third motion, which led to the order under review. Defendant provided no further explanation about whether his previous employment termination was involuntary. Plaintiff – who at the time was sixty- eight-years old – opposed the motion by emphasizing the PSA's language. She maintained that the PSA required defendant to show his job status was involuntary. Plaintiff also pointed out that defendant's income in 2015 was $251,165, which was substantially more than the $160,000 threshold income that the parties used when entering into the CO. Assuming defendant could show that the termination was involuntary, plaintiff contended that he did not look for replacement work in good faith. At oral argument, Judge Bishop-Thompson questioned defendant's counsel about his employment termination. Counsel responded that defendant "had a contentious relationship with the owner." Notwithstanding whether the termination was involuntary, the judge emphasized that defendant had an obligation to find work. The judge also questioned defendant's good faith efforts to find work. After examining defendant's log of his efforts, the judge found that defendant sought employment only when he made a motion to reduce his A-6046-17T1 4 alimony obligation. She concluded that defendant had not established changed circumstances and denied the motion. On appeal, defendant argues that the judge misapplied the law. He also asserts that the judge abused her discretion by not finding changed circumstances warranting relief or a full plenary hearing. As to the misapplication of the law, defendant contends the judge failed to apply N.J.S.A. 2A:34-23(k), specifically (k)(9) – addressing the possibility of a temporary remedy pending continuing employment investigations. Alimony "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. A showing of "changed circumstances" is required to modify an alimony obligation. Lepis v. Lepis, 83 N.J. 139, 146 (1980). "Whether an alimony obligation should be modified based upon a claim of changed circumstances rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). Each individual motion for modification is fact-sensitive, and "the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters." Ibid. (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)). We will not disturb the trial court's decision on alimony unless we A-6046-17T1 5  conclude that the trial court clearly abused its discretion, failed to consider all of the controlling legal principles, or must otherwise be well satisfied that the findings were mistaken or that the determination could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole. [Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996).] Although N.J.S.A. 2A:34-23(k) became effective on September 10, 2014, its application to provisions of pre-existing orders and agreements – like the PSA – is guided by the bill adopting the alimony amendments. The bill adds a provision that declares the new law non-retroactive with respect to certain prior judicial orders and alimony agreements. See Spangenberg v. Kolakowski, 442 N.J. Super. 529, 538 (App. Div. 2015). The bill states: This act shall take effect immediately and shall not be construed either to modify the duration of alimony ordered or agreed upon or other specifically bargained for contractual provisions that have been incorporated into: a. a final judgment of divorce or dissolution; b. a final order that has concluded post-judgment litigation; or c. any enforceable written agreement between the parties. [L. 2014, c. 42, § 2.] A-6046-17T1 6 "This additional statement signals the legislative recognition of the need to uphold prior agreements executed or final orders filed before adoption of the statutory amendments." Spangenberg, 442 N.J. Super. at 538. That is exactly what the judge did here. The parties incorporated the PSA language – which contains bargained for contractual provisions – into the final judgment of divorce. The parties agreed that defendant could only seek alimony modification if he could make a prima facie showing of an "involuntary change in his job status." Two judges concluded that defendant failed to make a prima facie showing. The first judge explicitly gave defendant time to "confirm the nature of the termination[,]" but "[d]efendant opted not to address the [c]ourt's concern." Judge Bishop-Thompson specifically remarked that the voluntariness issue remained unresolved, even though the earlier judge found that "[d]efendant's [r]eply [c]ertification was unclear whether [d]efendant's [employment] termination . . . was voluntary or involuntary." Our Supreme Court recognized that "[p]arties to a divorce action may enter into voluntary agreements governing the . . . terms . . . of alimony[.]" Quinn v. Quinn, 225 N.J. 34, 48 (2016). "Agreements between separated spouses executed voluntarily and understandingly for the purpose of settling the A-6046-17T1 7 issue of [alimony and child support] are specifically enforceable, but only to the extent that they are just and equitable." Ibid. (citation omitted) (alteration in original). Here, defendant has not argued that the PSA is unjust or inequitable. Rather, he contends that his termination was involuntary, and that he has shown changed circumstances. We have no reason to disturb the findings that defendant failed to address whether his termination was involuntary. Thus, he was unable to meet the condition imposed by the PSA. Nevertheless, the judge found that defendant did not demonstrate changed circumstances. And the judge questioned whether defendant acted in good faith to find replacement work. We decline to disturb this finding, and conclude that the judge did not abuse her discretion by not conducting a full plenary hearing. If warranted, defendant is always free to make another motion to modify his alimony obligation. Affirmed. A-6046-17T1 8 

827 F.2d 770 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.James Robert KIMSEY, Plaintiff-Appellant,v.G. E. MARTINEZ; Barbara Moore, Nurse; Ford, Nurse,Defendants-Appellees. No. 87-3589 United States Court of Appeals, Sixth Circuit. August 27, 1987. ORDER 1 Before RALPH B. GUY, JR., and BOGGS, Circuit Judges, and SUHRHEINRICH, District Judge.* 2 This matter is before the court upon consideration of the appellant's response to this court's order directing him to show cause why appeal number 87-3589 should not be dismissed for lack of jurisdiction. 3 It appears from the record that the judgment in civil action number C86-7179 was entered April 24, 1987, and that a notice of appeal was filed on April 28, 1987 (appeal number 87-3419). A second notice of appeal filed June 17, 1987 (appeal number 87-3589) was 22 days late. Fed. R. App. P. 4(a) and 26(a). 4 Appellant's response to this court's order advises that the notice of appeal filed June 17, 1987, was not intended to be filed in civil action C86-7179. Although civil action C86-7179 was mentioned in the body of the document, civil action C86-7483 was the only number placed at the top of the document by the style of the case. 5 It is ORDERED that appeal number 87-3589 be dismissed. The dismissal of appeal number 87-3589 does not affect the pendency of appeal number 87-3419. * The Honorable Richard F. Suhrheinrich, U.S. District Judge for the Eastern District of Michigan, sitting by designation

163 B.R. 734 (1993) In re TAYLORCRAFT AVIATION CORP., Debtor. Charles A. SZYBIST, Esq., Trustee, Plaintiff, v. AIRCRAFT ACQUISITION CORPORATION, Alex A. Mervis, Darus H. Zehrbach, John Polychron, East Kent Capital, Inc., Taylorcraft Aircraft Co., Capital Resource Group, Inc., Drizos Investment Capital Markets, Inc., Leander Research Manufacturing and Distributing, Inc. and Starman Brothers Auctions, Inc., Defendants. Bankruptcy No. 5-86-00741. Adv. No. 5-91-0130. United States Bankruptcy Court, M.D. Pennsylvania. October 28, 1993. *735 Charles A. Szybist, Trustee, Williamsport, PA, pro se. John H. Doran, Wilkes-Barre, PA, for plaintiff Charles A. Szybist. Robert V. Campedel, Pittsburgh, PA, for Taylorcraft Aircraft Co., East Kent Capital, Inc., and John Polychron. L. Paul Alvestad, Tacoma, WA, for Leander Research Mfg. and Distributing, Inc. David L. Buelt, Omaha, NE, for Starman Bros. Auctions, Inc. Sam A. Eidy, Toledo, OH, for Darus A. Zehrbach. Carl R. Schiffman, Pittsburgh, PA, for Alex A. Mervis. Herve Gouraige, Newark, NJ, for Drizos Inv. Capital Markets, Inc. OPINION AND ORDER JOHN J. THOMAS, Bankruptcy Judge. Before the Court are two (2) pre-trial Motions namely, a Motion for Reconsideration of an Order of this Court dated May 19, 1993, filed by Leander Research Manufacturing and Distributing, Inc. (hereinafter "Leander") and Starman Brothers Auctions, Inc. (hereinafter "Starman") and a Motion to Dismiss filed by Capital Resource Group, Inc. (hereinafter "Capital"). For the reasons provided herein, we grant both Motions. On or about December 11, 1986, Taylorcraft Aviation Corp. (hereinafter "Debtor") filed a Chapter Eleven Bankruptcy Petition. Thereafter on July 24, 1989, the case was converted to one under Chapter Seven. The Plaintiff, Charles A. Szybist, Esquire, (hereinafter "Plaintiff"), was appointed Trustee on July 25, 1989. On or about September 25, 1989, the Plaintiff noticed creditors and parties in interest of his intention to sell the assets of the Debtor at a private sale to Leander unless objections were made to the sale or higher bids were presented. The notice established that a private auction and the entertainment of higher bids would occur on October 30, 1989. In response to that notice certain bids were received and in some cases withdrawn on or before October 29, 1989. Thereafter, based upon certain events, namely a telephone call from Alex A. Mervis (hereinafter "Mervis"), an employee of Drizos, the Trustee cancelled the sale for October 30, 1989. Thereafter, he rescheduled the sale for November 15, 1989 at which time the assets of the Debtor were sold to Aircraft Acquisition Corporation (hereinafter "AAC") for the sum of One Hundred Sixty-Five Thousand Dollars ($165,000.00). The Trustee filed an Adversary Complaint on October 21, 1991 against AAC, Mervis, Darus H. Zehrbach (hereinafter "Zehrbach"), John Polychron (hereinafter "Polychron"), East Kent Capital, Inc. (hereinafter "East Kent"), and Taylorcraft Aircraft Co., alleging that the above-named Defendants entered into collusive bidding agreements in an effort to control the bids and purchase the assets for far less than the fair market value of those assets thereby depriving the estate of their proper value. This action was commenced under the dictates of 11 U.S.C. § 363(n) which, in its entirety, provides as follows: The trustee may avoid a sale under this section if the sale price was controlled by an agreement among potential bidders at such sale, or may recover from a party to *736 such agreement any amount by which the value of the property sold exceeds the price at which such sale was consummated, and may recover any costs, attorneys' fees, or expenses incurred in avoiding such sale or recovering such amount. In addition to any recovery under the preceding sentence, the court may grant judgment for punitive damages in favor of the estate and against any such party that entered into such an agreement in willful disregard of this subsection. On November 18, 1992, the Defendants, Polychron, East Kent and Taylorcraft Aircraft Co., filed a Motion for Leave to Amend the Caption and Add as Third Party Defendants, Leander and Starman. That Motion was approved by Order of this Court dated November 23, 1992. The Third Party Complaint was filed on November 30, 1992. Leander and Starman answered the Third Party Complaint by denying most of the allegations of the Complaint and each answer indicated that the Third Party Complaint failed to state a claim upon which relief could be granted. On May 14, 1993, the Plaintiff filed a Motion for Leave to Amend Complaint to Add Leander and Starman as original Defendants and for Permission to Amend Complaint Pursuant to Rules 15 and 20 of the Federal Rules of Civil Procedure. That Motion was granted by an Order of this Court dated May 19, 1993. On May 25, 1993, the Plaintiff filed his Amended Complaint. On June 1, 1993, Leander and Starman filed a Joint Motion for Reconsideration of the Court's May 19, 1993 Order adding Leander and Starman as original Defendants. Additionally, on September 20, 1993, Capital filed a Motion to Dismiss. Both of these Motions raise the same legal arguments as to why the original Complaint should be dismissed and therefore will be handled jointly in this memorandum. Leander and Starman allege that they were added as original Defendants because of a transaction which occurred almost four (4) years prior to the amendment and therefore the applicable statute of limitations expired with respect to those two Defendants. Additionally, their Motion cites the Doctrine of Waiver and Laches therefore estopping the Trustee from bringing the action against them. Likewise, Capital indicates that the applicable statute of limitations for this type of action in Pennsylvania is two (2) years and that the Trustee's claim was brought against Capital nearly three (3) years and seven (7) months after the sale and therefore it is time barred. All parties agree that if the Bankruptcy Code or a federal statute of limitations does not speak to the specific cause of action, then the Court is to look to the applicable state statute of limitations. Additionally, Capital argues that Rule 9024 of the Bankruptcy Rules of Procedure and Rule 60(b) of the Federal Rules of Civil Procedure apply and that under these Rules this matter is also time barred. As to all of these arguments, the Trustee responds that under Federal Rule of Civil Procedure 15(c) the filing of the Amended Complaint is permitted because of the "Doctrine of Relation Back" which permits the addition of new parties outside the limitations period because the amendment relates back to the date of the original pleading. Before proceeding to the substance of these arguments, the Court notes that while the Motion filed by Leander and Starman is for a Motion for Reconsideration the Court will also treat it as a Motion to Dismiss. We take this approach because it is the function of the Motion, not the caption which dictates which Rules apply. Turner v. Evers, 726 F.2d 112, 114 (3rd Cir.1984). The arguments raised in the Motion for Reconsideration in most respects parrot those raised by Capital in its Motion to Dismiss. This Court is not anxious to rule on any Motion purely on procedural grounds and will usually look to make determinations on the merits. For that reason and because of other reasons quoted above, this Court will also treat Leander and Starman's Motion as a Motion to Dismiss. Both the Motion for Reconsideration and the Motion to Dismiss argue that under Rule 60(b) of the Federal Rules of Civil Procedure, made applicable to Bankruptcy procedures by Rule 9024, the time period in which the Trustee should have filed his Complaint *737 ran. The applicable section of Rule 60(b) that the Defendants rely on reads, in pertinent part, as follows: (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the Court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; Capital's Motion is also based upon Federal Rule of Civil Procedure 12(b)(6). The Motion argues that the Complaint failed to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6) as made applicable to Bankruptcy proceedings by Bankruptcy Rule 7012. We find much guidance when confronted with a 12(b)(6) Motion in 2A Moore's Federal Practice ¶ 12.07[2.-5] at page 12-63 et seq. wherein we find the following: Failure To State a Claim Upon Which Relief Can Be Granted. A motion to dismiss for failure to state a claim upon which relief can be granted performs substantially the same function as the old common-law demurrer. A dismissal under this provision is on the merits and is accorded res judicata effect. For this reason, dismissal under subdivision (b)(6) is generally disfavored by the courts. The burden of demonstrating that no claim has been stated is upon the movant. In determining the motion, the court must presume all factual allegations of the complaint to be true and all reasonable inferences are made in favor of the non-moving party. However, legal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness. Generally, the allegations of a complaint are to be liberally construed. This is especially true when the complaint is made pro se. After thus construing the complaint, the court should deny a motion to dismiss for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief". In Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 the Supreme Court stated: When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test. Moreover, it is well established that, in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader. In making this determination, the likelihood that plaintiff will prevail is immaterial, as is the fact that the requested relief is inappropriate, or the legal theories have been miscategorized. The court may not consider any material other than the pleadings in determining a motion under subdivision (b)(6) unless it converts the motion into a motion for summary judgment under Rule 56.... [Citations omitted.] A Motion to Dismiss under Rule 12(b)(6) is a proper vehicle to bring a defense of the running of a statute of limitation to the Court's attention. 2A Moore's Federal Practice ¶ 12.10 at page 12-117 et seq. Capital argues that the limitation period has run under Federal Rule of Civil Procedure 60(b) and more particularly, that Rule 60(b)(3) is applicable to claims brought pursuant to Section 363(n). This Court agrees. This Court, however, does not agree that the one (1) year limitation period provided for in Rule 60 is the actual statute of limitations that this Court should look to in making the instant determination. In its argument and more particularly the case cited by Capital, the Courts have determined that the Orders confirming the sales were either procured *738 through a fraud or one of the other prerequisites contemplated by Rule 60. Those cases do not hold that the statute of limitations for bringing an action under Section 363(n) is one (1) year and this Court finds that this argument is totally without merit. In the defense to the Motion for Reconsideration and particularly at page 3 of the Plaintiff's Brief in Opposition, the Plaintiff indicates that he agrees with Defendants in their statement of the general rule on the statute of limitations. As proposed by Leander and Starman, when there is no statute of limitations contained in the federal law or the Bankruptcy Code, the statute of limitations under state law namely, 42 Pa.C.S.A. § 5524(7) is applicable. The answer filed by the Plaintiff to the Motion to Dismiss at paragraph 16, however, denies that the Pennsylvania two (2) year statute of limitations for fraud is applicable to this claim. The Court will treat these inconsistent answers as a denial that Pennsylvania statute of limitations applies. 2 Moore's Federal Practice ¶ 3.08[2] at page 3-43, provides that "In actions where a federally-created right is being enforced but there is no controlling federal statute of limitations, a federal court will ordinarily `borrow' the most closely analogous state statute of limitations of the state where the district court is held, including its borrowing statute. [Footnotes omitted.] There is no federal statute of limitations and consequently, we look to Pennsylvania law particularly 42 Pa.C.S.A. § 5524(7) and determine that the appropriate statute of limitations for fraudulent or otherwise tortious conduct must be brought within two (2) years. See In re Truco, Inc., 110 B.R. 150 (Bkrtcy.M.D.Pa.1989), In re Shields, 148 B.R. 783 (Bkrtcy.E.D.Pa.1993). While this Court acknowledges that a Trustee's attempt to void an Order under Section 363(n) is subject to the time limitations imposed in Rule 60 (see In re Intl Nutronics, Inc., 3 F.3d 306 (9th Cir. (Cal.))), the Trustee, in this case, is not seeking to avoid an Order approving the sale as in the In re Intl Nutronics, Inc. case supra. and Matter of Met-L-Wood Corp., 861 F.2d 1012 (7th Cir.1988); cases cited by Capital. Here the sale was not approved by the Court and the prayer of the Trustee requests that judgment be entered against the Defendants determining that the fair market value of the property sold at the time of sale was Four Hundred Thousand Dollars ($400,000.00) and further requests damages in the sum of Two Hundred Thirty-Five Thousand Dollars ($235,000.00) representing the difference between the fair market value of the property sold and the amount previous paid by the Defendants to the Plaintiff. Also, requests for punitive damages in the amount of One Hundred Thousand Dollars ($100,000.00) and for attorneys' fees and costs were made. Consequently, the Court determines that the applicable statute of limitations is the two (2) years as provided in 42 Pa.C.S.A. § 5524(7). This brings the Court to the determination of the defense raised by the Trustee namely that Rule 15(c) of the Federal Rules of Civil Procedure dictates that the Amended Complaint "relates back" to the time of the original filing of the Complaint on October 21, 1991. Rule 15(c) in pertinent part provides as follows: Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when (1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the *739 action would have been brought against the party. The Trustee argues that under the Doctrine of Relation Back as embodied in Federal Rule of Civil Procedure 15(c) he can add additional parties outside the limitations period and have that amendment of the pleadings relate back to the date of the original pleading provided all the conditions of Rule 15(c) were met. In support, he cites Cahill v. Carroll, 695 F.Supp. 836 (E.D.Pa.1988). Additionally, he argues that neither Leander nor Starman have shown that they will be unduly prejudiced by the proposed amendment; that he has acted in good faith; that he amended the original complaint in a timely manner; that Defendants have had ample time to gather facts and evidence to be presented at trial; and that they were put on notice that the Plaintiff was going to assert claims against them as evidenced by their being the subject of an investigation by the Federal Bureau of Investigation which led to criminal charges against some of the original Defendants. Leander and Starman respond that the requirements of Rule 15(c) have not been met and in support, they cite the case of Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986). The parties argue that just because they were approached by the F.B.I. did not put them on reasonable notice that they would be potentially brought into a lawsuit concerning the facts alleged in the Complaint. Additionally, they argue that this not a case of mistaken identity and that the Plaintiff knew nearly four (4) years prior to the amendment that Leander and Starman had submitted bids and had received money for transferring their rights to bid at the exclusive sale. Capital echoes these arguments and states that even though the original Complaint was filed within the applicable limitations period, the Trustee's claim against Capital was brought nearly three (3) years and seven (7) months after the sale of the assets and one (1) year and nine (9) months after the original Complaint was filed and therefore is time barred. Capital further argues that this is not a situation where it appears that the Plaintiff has made a mistake concerning the identity of the proper party. Here, the Plaintiff knew the identity of the parties and at all times was aware of the operative facts involving the allegations of the underlying Complaint but failed to add the new Defendants within the time permitted by the Federal Rules of Civil Procedure, the Bankruptcy Rules of Procedure and the statute of limitations. The parties direct our attention to the Supreme Court case of Schiavone v. Fortune, supra., which provides Id. at 29, 106 S.Ct. at 2384 the following: "Relation back is dependent upon four factors, all of which must be satisfied: (1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period." There is no question after review of the briefs and supporting documents that number 1 above has been met. Additionally, this Court has determined that bringing in Capital as an original Defendant and changing the status of the third party defendants to original defendants would not cause them prejudice in maintaining their defense. Thirdly, there is no suggestion that there was a mistake in identity as contemplated by number 3 above. But here, the Trustee is attempting to add entirely new and unrelated parties with no relation or identity to the original defendants after the statute of limitations has run. Like the Schiavone Court, supra., this Court also does not have a "choice between a `liberal' approach toward Rule 15(c), on the one hand, and a `technical' interpretation of the Rule on the other hand. The choice, instead, is between recognizing or ignoring what the Rule provides in plain language. We accept the Rule as meaning what it says." Schiavone, supra at p. 30, 106 S.Ct. at p. 2384. The Schiavone Court also directs our attention to the Advisory Committee's 1966 Note on Rule 15(c) and at page *740 30 and 31 quoting the Advisory Committee's Note on Fed.Rule Civ.Proc. 15, 28 U.S.C.App., p. 551; 39 F.R.D. 83, we find the following: The Note specifically states that the Rule's phrase "within the period provided by law for commencing the action" means "within the applicable limitations period": "An amendment changing the party against whom a claim is asserted relates back if the amendment satisfies the usual condition of Rule 15(c) of `arising out of the conduct ... set forth ... in the original pleading,' and if, within the applicable limitations period, the party brought in by amendment, first, received such notice of the institution of the action—the notice need not be formal — that he would not be prejudiced in defending the action, and, second, knew or should have known that the action would have been brought against him initially had there not been a mistake concerning the identity of the proper party" (emphasis supplied). The Court further indicates that the lynch pin is notice within the limitation period. This Court simply cannot make the leap that the Trustee request of us to find that because some of the parties to be added after the limitation periods were contacted during an F.B.I. investigation concerning the underlying facts of the alleged bid rigging, that they were on notice that they would be subject to a civil lawsuit at any time in the future. Finally, the Trustee's Brief indicates that the reason he did not add certain of the Defendants to the original Complaint during the limitation period was because he did not have information available to him which permitted him to discover that these parties may have engaged in the alleged fraud or bid rigging. While the Court sympathizes with the Trustee's position; error, mistake, or lack of knowledge does not toll the running of the statute of limitations in those actions based upon fraud. More is required, for instance, an effort to cover up the fraud so that the injured party cannot uncover the fraud. See Schwartz v. Pierucci, 60 B.R. 397 (Bkrtcy.E.D.Pa.1986), In re Truco, Inc., 110 B.R. 150 (Bkrtcy.M.D.Pa.1989), Walck v. American Stock Exchange, Inc., 565 F.Supp. 1051 (E.D.Pa.1981) affirmed 687 F.2d 778 (3rd Cir.1982), United National Insurance Company v. J.H. France Refractories Co., 417 Pa.Super. 614, 612 A.2d 1371 (1992). Consequently, based upon the foregoing, the Court will grant the Motion to Dismiss filed by Capital. The Court further hereby grants the Motion for Reconsideration filed by the third party Defendants, Leander and Starman and vacates the Order of May 19, 1993, adding Leander and Starman as original Defendants.

535 U.S. 1034 GILMOREv.GENERAL ELECTRIC CO. ET AL. No. 01-1074. Supreme Court of the United States. April 29, 2002. 1 C. A. 6th Cir. Certiorari denied. Reported below: 20 Fed. Appx. 492.

68 F.3d 1222 95 Cal. Daily Op. Serv. 8451, 95 Daily JournalD.A.R. 14,576UNITED STATES of America, Plaintiff-Appellee,v.Raniel Bonifacio AMPARO, Defendant-Appellant. No. 94-10542. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 14, 1995.Decided Oct. 31, 1995. Kristine K. Smith, Assistant Federal Public Defender, Reno, Nevada, for defendant-appellant. Robert A. Bork, Assistant United States Attorney, Reno, Nevada, for plaintiff-appellee. Appeal from the United States District Court for the District of Nevada. Before: FLETCHER, POOLE, and O'SCANNLAIN, Circuit Judges. FLETCHER, Circuit Judge: 1 Defendant Raniel Bonifacio Amparo appeals from his jury convictions on federal firearms charges. On appeal he argues that the district court erred by instructing the jury that as a matter of law possession of an unregistered sawed-off shotgun is a crime of violence under 18 U.S.C. Sec. 924(c)(3)(B). We affirm. I. FACTS AND PRIOR PROCEEDINGS 2 An undercover ATF agent arrested Amparo after feigning purchase of a sawed-off shotgun from him. At the time of his arrest, Amparo was carrying a loaded pistol. The shotgun was disassembled but operable when assembled. 3 Amparo was indicted on two counts. Count I charged Amparo with possession of an unregistered firearm (the disassembled sawed-off shotgun) in violation of 26 U.S.C. Sec. 5861(d). Count II charged Amparo with carrying a firearm (the loaded pistol) in relation to a crime of violence in violation of 18 U.S.C. Sec. 924(c)(1). 4 At trial, the district court gave the jury the following instructions with respect to Count II: 5 In order to prove the offense charged in Count Two of the Indictment, the government must prove the following essential elements beyond a reasonable doubt: 6 One: the defendant committed the crime of possession of a sawed-off shotgun as charged in Count One of the Indictment, and 7 Two: during and in relation to the commission of that crime, the defendant knowingly used or carried a firearm. 8 Over the defendant's objection, the district court determined as a matter of law that possession of an unregistered sawed-off shotgun is a crime of violence under 18 U.S.C. Sec. 924(c)(3)(B). The trial judge instructed the jury: 9 The term "crime of violence" means an offense that is a felony and has as one of its essential elements the use, attempted use, or threatened use of physical force against the person or property of another, or an offense that by its very nature involves a substantial risk that such physical force may be used in committing the offense. 10 The offense alleged in Count One of the Indictment, Possession of a Sawed-Off Shotgun, is a crime of violence. 11 The jury found Amparo guilty on both counts. Amparo was sentenced to thirty-seven months on Count I and a consecutive sentence of sixty months on Count II. This timely appeal followed. II. JURISDICTION 12 The district court had jurisdiction under 18 U.S.C. Sec. 3231. This court has jurisdiction over the district court's final judgment pursuant to 28 U.S.C. Sec. 1291. III. STANDARD OF REVIEW 13 "[W]hether a jury instruction misstated elements of a statutory crime is a question of law and is reviewed de novo." United States v. Spillone, 879 F.2d 514, 525 (9th Cir.1989), cert. denied, 498 U.S. 864, 111 S.Ct. 173, 112 L.Ed.2d 137 (1990); see also United States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992). Whether a jury instruction violated due process is also reviewed de novo. United States v. Warren, 25 F.3d 890, 897 (9th Cir.1994). IV. DISCUSSION 14 The defendant argues on appeal that the district court erred by instructing the jury as a matter of law that possession of an unregistered sawed-off shotgun is a "crime of violence" under 18 U.S.C. Sec. 924(c)(3)(B). The defendant asserts that whether this offense is a "crime of violence" is a question of fact for the jury to decide, and not a question of law for the judge. To the contrary this circuit has adopted a categorical approach to determining which offenses are included under section 924(c) as "crimes of violence" obviating the need for fact finding by the jury. The jury must find the facts underlying the charged offense--possession of an unregistered sawed-off shotgun in this case--but the court determines whether that category of offense is a crime of violence. 15 The U.S. Constitution regulates the division of labor between judge and jury. The Sixth Amendment guarantees "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...." The U.S. Supreme Court recently declared, "[t]he Constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged." United States v. Gaudin, --- U.S. ----, ----, 115 S.Ct. 2310, 2320, 132 L.Ed.2d 444 (1995); see also Sullivan v. Louisiana, --- U.S. ----, 113 S.Ct. 2078, 2080, 124 L.Ed.2d 182 (1993); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). While the jury is the arbiter of the facts, the judge is the arbiter of the law: "the judge must be permitted to instruct the jury on the law and to insist that the jury follow his instructions." Gaudin, --- U.S. at ----, 115 S.Ct. at 2315 (citing Sparf & Hansen v. United States, 156 U.S. 51, 105-06, 15 S.Ct. 273, 294-95, 39 L.Ed. 343 (1895)). However, the jury has a constitutional responsibility "not merely to determine the facts, but to apply the law to those facts and draw the ultimate conclusion of guilt or innocence." Id. --- U.S. ----, 115 S.Ct. at 2316. 16 Count II of the indictment charged Amparo under 18 U.S.C. Sec. 924(c)(1), which states: 17 Whoever, during and in relation to any crime of violence ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence ... be sentenced to imprisonment for five years.... 18 For the purposes of this section, 18 U.S.C. Sec. 924(c)(3) defines "crime of violence" as follows: 19 "crime of violence" means an offense that is a felony and(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or 20 (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 21 The defendant concedes that whether an offense is a crime of violence under subsection (A) is a matter of law: the court may settle it by simply examining the elements of the predicate offense. However, the defendant argues that subsection (B), which focuses on the "nature" of the offense, requires the jury to examine the circumstances of the defendant's crime to determine whether violence played a part. The defendant claims that because the sawed-off shotgun was disassembled and unloaded at the time of sale, the jury could have concluded there was no potential for violence and found him not guilty under Count II. Unfortunately for the defendant, his argument defies this circuit's categorical approach. 22 For the purposes of sentencing enhancements, this circuit has held that possession of an unregistered sawed-off shotgun is categorically a "crime of violence." United States v. Dunn, 946 F.2d 615, 620-21 (9th Cir.1991) (interpreting 18 U.S.C. Sec. 16(b)); United States v. Hayes, 7 F.3d 144, 145 (9th Cir.1993) (interpreting U.S.S.G. Sec. 4B1.2(1)), cert. denied, --- U.S. ----, 114 S.Ct. 1403, 128 L.Ed.2d 76 (1994). The defendant seeks to distinguish these cases on policy grounds: this court used a categorical approach in those cases to avoid "ad hoc mini-trials regarding an individual's prior convictions" during sentencing hearings. United States v. Sherbondy, 865 F.2d 996, 1008 (9th Cir.1988). Amparo argues that because this policy is absent where the "crime of violence" charge is a substantive offense tried concurrently with the predicate offense, the categorical approach is inappropriate. 23 Amparo is correct that one justification for the categorical approach--the practical difficulties inherent in relitigating a prior conviction for purposes of enhancement--is not present in a section 924(c) case. However, this does not preclude a categorical approach to section 924(c). 24 In prior cases, this circuit has taken a categorical approach to section 924(c)(3)(B). In United States v. Springfield, 829 F.2d 860, 862-63 (9th Cir.1987), this court concluded that involuntary manslaughter is categorically a crime of violence under subsection (B) because by its nature it carries the risk of physical force. Similarly, this court ruled that conspiracy to rob is a subsection (B) crime and categorically is a crime of violence in United States v. Mendez, 992 F.2d 1488, 1490 (9th Cir.) ("This categorical approach is in contrast to the circumstantial or case-by-case method that requires the district court to inquire into the facts of the particular case."), cert. denied sub nom. Chavez v. United States, --- U.S. ----, 114 S.Ct. 262, 126 L.Ed.2d 214 (1993). 25 The legislative history to section 924(c) indicates that Congress intended a categorical approach to the "crime of violence" language in subsection (3)(B). The Senate Report stated: 26 The term means an offense ... that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or any felony that, by its nature, involves the substantial risk that physical force against another person or property may be used in the course of its commission. The former category would include a threatened or attempted simple assault or battery on another person; offenses such as burglary in violation of a State law and the Assimilative Crimes Act would be included in the latter category inasmuch as such an offense would involve the substantial risk of physical force against another person or against the property. 27 Senate Comm. on Judiciary, Comprehensive Crime Control Act of 1983, S.Rep. No. 98-225, 98th Cong., 2d Sess. 307 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3486-87. 28 Moreover, two other circuits have held that whether an offense is a crime of violence is a question of law. In United States v. Weston, 960 F.2d 212 (1st Cir.1992), the First Circuit held that threatening physical retaliation for information given to law enforcement officials is categorically a crime of violence. The court reasoned that the matter "did not implicate the weighing of testimony, the assessment of credibility, the use of external facts, or the like." Id. at 217. In United States v. Aragon, 983 F.2d 1306 (4th Cir.1993), the Fourth Circuit held that for the purposes of 18 U.S.C. Sec. 16(b)--a statute identical to section 924(c)(3)(B)--attempting to help a prisoner escape is categorically a crime of violence. The court reasoned that when the statute refers to an offense that "by its nature" involves a substantial risk of force, it "directs the court to look to the generic nature of an offense...." Id. at 1312. 29 Ours would be a closer case were it not for the uniform holdings under other statutes and in other contexts that mere possession of an unregistered firearm is a crime of violence. That determination having been made, application of a categorical approach to section 924(c)(3)(B) is required by our cases. 30 Contrary to the defendant's arguments, our holding today violates neither Gaudin nor this circuit's recent decision in United States v. Medjuck, 48 F.3d 1107 (9th Cir.1995). In Gaudin, the U.S. Supreme Court affirmed the long-standing rule that juries have the constitutional duty to decide mixed questions of law and fact, --- U.S. at ----, 115 S.Ct. at 2314, and held that whether a matter is material is such a mixed question. Id. at 2320. Here, whether possession of a sawed-off shotgun is a crime of violence is a matter of law once the jury has determined the factual predicate that the defendant possessed an unregistered sawed-off shotgun. In Medjuck, we held that whether a vessel is within the jurisdiction of the United States--an element of a maritime drug statute--required a factual determination as to whether there was a nexus between the United States and the defendants. The court erroneously made that determination as a matter of law. It should have instructed that the jury must find nexus in order for the court to have jurisdiction. V. CONCLUSION 31 The district court properly instructed the jury that possession of an unregistered sawed-off shotgun is as a matter of law a "crime of violence" under 18 U.S.C. Sec. 924(c)(3)(B). The district court's instructions were consistent with the language of the statute, the intent of Congress, and this circuit's categorical approach. We affirm. 32 AFFIRMED.

658 F.3d 813 (2011) Shirley L. PHELPS-ROPER; Megan Phelps-Roper, Plaintiffs-Appellees, v. CITY OF MANCHESTER, MISSOURI, Defendant-Appellant. *814 United States of America, Amicus on Behalf of Appellant, Christina Wells; Thomas Jefferson Center for the Protection of Free Expression, Amici on Behalf of Appellees. No. 10-3197. United States Court of Appeals, Eighth Circuit. Submitted: June 15, 2011. Filed: October 5, 2011. *815 Evan Reid, argued, Lewis & Rice, Patrick R. Gunn, Gunn & Gunn, Neal Frederick Perryman, on the brief, St. Louis, MO, for appellant. Sarang Vijay Damle, argued, US DOJ Civil Division, Washington D.C., for the amicus brief of the United States in support of appellant. Anthony E. Rothert, Grant R. Doty, American Civil Liberties Union, St. Louis, MO, for appellees. Michael Gross, St. Louis, MO, on the amicus brief of Professor Christina Wells in support of appellee. Bruce David Brown, Washington, D.C., John Joshua Wheeler, Charlottesville, VA, on the amicus brief of Thomas Jefferson Center for the Protection of Free Expression in support of appellee. Before MURPHY and SMITH, Circuit Judges, and READE,[1] District Judge. PER CURIAM. Shirley and Megan Phelps-Roper brought this First Amendment challenge to a Manchester, Missouri ordinance that regulates protests near funerals. On cross motions for summary judgment, the district court[2] considered the ordinance as originally adopted and as twice amended. It ruled in favor of the Phelps-Ropers, awarding them nominal damages and enjoining enforcement of the ordinance. The City of Manchester appeals, arguing that the Phelps-Ropers lack standing to challenge the ordinance, that the Phelps-Ropers' challenges to earlier versions of the ordinance are moot, and that the ordinance is a constitutionally valid content neutral time, place, or manner regulation. The Phelps-Ropers respond that Manchester's ordinance is unconstitutional under our court's prior decision in Phelps-Roper v. Nixon, 545 F.3d 685 (8th Cir.2008). The Phelps-Ropers are members of the Westboro Baptist Church (WBC), which believes that God is punishing America for tolerating homosexuality. WBC expresses its views by protesting at funerals, including those of American soldiers. Its members hold signs with messages such as "Thank God for Dead Soldiers" and "God Hates You" at protests staged near funerals. Snyder v. Phelps, ___ U.S. ___, 131 S.Ct. 1207, 1213, 179 L.Ed.2d 172 (2011). In 2007 Manchester adopted an ordinance in § 210.264 of its municipal code regulating protests at funerals in response to the WBC's activities. The ordinance was amended twice, and its final form prohibits "picketing or other protest activities... within three hundred (300) feet of any residence, cemetery, funeral home, church, synagogue, or other establishment during or within one (1) hour before or one (1) hour after the conducting of any actual funeral or burial service at that place." Manchester's ordinance now closely resembles a similar statute that the Sixth Circuit upheld over First Amendment challenges in Phelps-Roper v. Strickland, 539 F.3d 356, 373 (6th Cir.2008). After the Phelps-Ropers challenged the constitutionality of the Manchester ordinance, the district court concluded that they had standing to bring their claims and that their challenges to earlier versions *816 of the ordinance were not moot. The court decided that the second and third versions of the ordinance were content based, but that even if they were content neutral, they would have still violated the First Amendment. The district court concluded that each version violated the First Amendment, permanently enjoined enforcement of the ordinance, and awarded nominal damages to the Phelps-Ropers. Manchester challenges all of these decisions in its appeal. We agree that the Phelps-Ropers had standing to challenge the ordinance. Manchester's ordinance specifically targets the Phelps-Ropers' conduct, Minn. Citizens Concerned for Life v. Fed. Election Comm'n, 113 F.3d 129, 131 (8th Cir.1997), and Manchester did not disavow intentions to enforce it. See St. Paul Area Chamber of Commerce v. Gaertner, 439 F.3d 481, 486 (8th Cir.2006). The Phelps-Ropers thus have "some reason in fearing prosecution" under the ordinance. Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 302, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). Their challenges to the two earlier versions of the ordinance are moot, however, because Manchester amended the ordinance in response to related judicial decisions. See, e.g., Strickland, 539 F.3d at 373. It cannot therefore reasonably be concluded that Manchester might now reinstate provisions in conflict with those precedents. See Epp v. Kerrey, 964 F.2d 754, 755 (8th Cir.1992). Moreover, the Phelps-Ropers could challenge any unlikely reinstatement. Id. The only justiciable question before the court at this time is whether Manchester's current ordinance violates the First Amendment. The district court concluded that the ordinance was a content based regulation. Whether an ordinance is content based is determined by examining the plain meaning of its text. Nixon, 545 F.3d at 691. Manchester's ordinance prohibits "picketing" and "other protest activities," which it defines as conduct "disruptive or undertaken to disrupt or disturb a funeral or burial service." The ordinance does not favor some topics or viewpoints over others and it "appl[ies] equally to all demonstrators, regardless of viewpoint." Hill v. Colorado, 530 U.S. 703, 719, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (citation omitted). It is not a "regulation of speech" but rather "a regulation of the places where some speech may occur." Id. That a court may need to conduct a "cursory examination" of a speaker's words to determine if she engaged in picketing or other protests regulated by Manchester's ordinance does not transform this otherwise neutral ordinance into a content based regulation. Id. at 721-22, 120 S.Ct. 2480. The district court thus erred in concluding that the ordinance was a content based regulation. See id. at 719-22, 120 S.Ct. 2480. The district court alternatively held that the ordinance could not survive because it was not "narrowly tailored to serve a significant governmental interest." Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). Relying on Nixon, 545 F.3d at 692, and Olmer v. City of Lincoln, 192 F.3d 1176, 1182 (8th Cir. 1999), the district court concluded that Manchester had no significant interest "in protecting funeral attendees from unwanted communication." It reasoned that Olmer had "unequivocally refused to recognize the government's significant interest in protecting unwilling listeners outside the residential context." Nixon had in fact concluded that "`the home is different,' and, in our view, unique" and therefore "other locations, even churches, [could not] claim the same level of constitutionally protected privacy." 545 F.3d at 692 (quoting Olmer, 192 F.3d at 1182.) We recognize that the Sixth *817 Circuit came to a different conclusion in Strickland, 539 F.3d at 362-66, in upholding an ordinance closely resembling the one at issue here, but we agree that the district court was required to follow our precedent in Nixon. Accordingly, we affirm the judgment of the district court. MURPHY, Circuit Judge, concurring in the judgment. While I concur in the judgment, I write separately because this case might be analyzed differently but for our decision in Phelps-Roper v. Nixon, 545 F.3d 685 (8th Cir.2008). There, a panel of our court analyzed a quite different funeral protest statute and concluded that Phelps-Roper was "likely to prove any interest the state has in protecting funeral mourners from unwanted speech is outweighed by the First Amendment right to free speech." Id. at 692. Relying on Olmer v. City of Lincoln, 192 F.3d 1176, 1182 (8th Cir. 1999), the panel reasoned that "the government has no compelling interest in protecting an individual from unwanted speech outside of the residential context." 545 F.3d at 692. The Manchester funeral protest statute in this case is significantly different from that in Nixon and in fact quite like that in Phelps-Roper v. Strickland, 539 F.3d 356 (6th Cir.2008). In Strickland, the Sixth Circuit determined that the government had "an important interest in the protection of funeral attendees, because a deceased's survivors have a privacy right `in the character and memory of the deceased.'" Id. at 366. It reasoned that individuals "mourning the loss of a loved one share a privacy right similar to individuals in their homes or individuals entering a medical facility." Id. at 364-65. That is because "mourners cannot easily avoid unwanted protests without sacrificing their right to partake in the funeral or burial service." Id. at 366. Whether the City of Manchester has a significant interest in regulating protests near funerals is important in dealing with the First Amendment rights asserted by the Phelps-Ropers. The First Amendment right to free speech "includes the right to attempt to persuade others to change their views, and may not be curtailed simply because the speaker's message may be offensive to his audience." Hill v. Colorado, 530 U.S. 703, 716, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). The government has no general interest in protecting listeners from unwelcome speech at all places and times, id., but the First Amendment right to free speech is not absolute. It has long been recognized that "[t]o enforce freedom of speech in disregard of the rights of others would be harsh and arbitrary in itself." Kovacs v. Cooper, 336 U.S. 77, 88, 69 S.Ct. 448, 93 L.Ed. 513 (1949). Speech "is not equally permissible in all places and at all times." Frisby v. Schultz, 487 U.S. 474, 479, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) (citation omitted). As the Supreme Court explained in Hill: States and municipalities plainly have a substantial interest in controlling the activity around certain public and private places. For example, we have recognized the special governmental interests surrounding schools, courthouses, polling places, and private homes. 530 U.S. at 728, 120 S.Ct. 2480 (citations omitted). In National Archives & Records Administration v. Favish, 541 U.S. 157, 167-68, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004), the Court considered the social and cultural significance of funerals and burial rites. While upholding a law allowing families to prevent release under the Freedom of Information Act of "photographs showing the condition of [their loved one's] body at the *818 scene of death," id. at 160, 124 S.Ct. 1570, the Court explained: Family members have a personal stake in honoring and mourning their dead and objecting to unwarranted public exploitation that, by intruding upon their own grief, tends to degrade the rites and respect they seek to accord to the deceased person who was once their own. Id. at 168, 124 S.Ct. 1570. The Court emphasized that by preventing release of photographs, the government was protecting the "privacy of the living" and the privilege of surviving family members "to protect their feelings, and to prevent a violation of their own rights in the character and memory of the deceased." Id. at 168-69, 124 S.Ct. 1570 (quotation omitted). The Supreme Court found a significant governmental interest in protecting the rights of citizens in their homes from unwanted communication, Frisby, 487 U.S. at 485, 108 S.Ct. 2495, and later extended that interest to protect patients entering medical facilities. Hill, 530 U.S. at 716, 120 S.Ct. 2480. Frisby and Hill are useful guideposts, establishing that the government's interest in protecting captive audiences will have "special force" in the home, see Hill, 530 U.S. at 717, 120 S.Ct. 2480, but that it is not limited to the residential context. Id. In Snyder v. Phelps, ___ U.S. ___, 131 S.Ct. 1207, 1218, 179 L.Ed.2d 172 (2011), the Court suggested there are likely other locations outside of the home and health facilities where the government can permissibly regulate First Amendment activities. In Synder, the Court was asked to consider whether the First Amendment shielded Westboro Baptist Church funeral protesters from liability for certain tort claims. Id. at 1213. It decided that those protestors could not be held liable under a tort theory because they had been peacefully expressing issues of public concern without violating any law regulating protests at funerals. Id. at 1220. The funeral attendees in Synder were not captive to unwanted communication because the main area used by the protestors was approximately 1000 feet from the site of the funeral, the attendees could see no more than the tops of the picket signs, and the picketing did not interfere with the funeral. Id. at 1218-20. The Court indicated, however, that protesters' "choice of where and when to conduct [their] picketing is not beyond the Government's regulatory reach—it is `subject to reasonable time, place, or manner restrictions'...." Id. at 1218 (citation omitted). I respectfully suggest that Synder provides the proper method of analysis for deciding whether the Manchester ordinance is constitutional. Was the Phelps-Ropers' choice of where and when to conduct their picketing beyond Manchester's regulatory reach? Did the ordinance place unreasonable time, place, or manner restrictions on the Phelps-Ropers' picketing activities? Should funeral attendees be required to "undertake Herculean efforts to escape the cacophony of political protests"? Hill, 530 U.S. at 716, 120 S.Ct. 2480 (citation omitted). The "vulnerable physical and emotional conditions," id. at 729, 120 S.Ct. 2480, are the same, if not greater, for funeral attendees than for a patient seeking medical treatment. Manchester's ordinance reflected its significant interest in protecting funeral attendees because survivors have a right to honor "the character and memory of the deceased." Strickland, 539 F.3d at 366. To conclude otherwise would leave funeral attendees "practically helpless to escape ... interference with [their] privacy," Kovacs, 336 U.S. at 87, 69 S.Ct. 448, at a moment when they "have a personal stake in honoring and mourning their *819 dead." Nat'l Archives & Records Admin., 541 U.S. at 168, 124 S.Ct. 1570. NOTES [1] The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa, sitting by designation. [2] The Honorable Catherine D. Perry, Chief Judge, United States District Court for the Eastern District of Missouri.

99 F.3d 296 96 Cal. Daily Op. Serv. 7831, 96 Daily JournalD.A.R. 12,975DIAMOND HOTEL CO., LTD., Plaintiff-Appellee,v.Elizabeth Blanco MATSUNAGA, Defendant-Appellant. No. 95-15312. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 6, 1996.Decided Oct. 25, 1996. Frank Lee Nelson, Law Office of John T. Lizama, Saipan, CM, for plaintiff-appellee. Douglas F. Cushnie, Robert W. Jones, Law Offices of Douglas F. Cushnie, Saipan, CM, for defendant-appellant. Appeal from the Supreme Court of the Commonwealth of the Northern Mariana Islands, Dela Cruz, Atalig, and King, Judges, Presiding. CNMI S.Ct. No. SC-93-00023. Before: FLETCHER, D.W. NELSON and CANBY, Circuit Judges. CANBY, Circuit Judge: 1 Elizabeth Blanco Matsunaga appeals the decision of the Supreme Court of the Commonwealth of the Northern Mariana Islands ("CNMI" or "Commonwealth"). She argues that a provision of a lease agreement that violates Article XII, § 1, of the Commonwealth Constitution renders the entire lease void ab initio. We dismiss for lack of jurisdiction. I. 2 Matsunaga's brother, Manases B. Matsunaga, owned real property in Saipan. He leased the property to Diamond Hotel for a term of 55 years. Paragraph 21 of the lease provided that Diamond Hotel would have the option to extend the lease for an additional 35 years if the law of the Commonwealth should be changed so as to permit a person not of Northern Mariana Islands descent to hold a leasehold term for longer than 55 years. Paragraph 34 of the lease provides that if any provision of the agreement is held invalid, that provision should be severed from the agreement. After Manases Matsunaga died, Elizabeth Matsunaga succeeded him to all rights in and title to the leased premises. 3 Diamond Hotel filed a complaint against Elizabeth Matsunaga for declaratory judgment that the option to extend the lease term does not violate Article XII of the Commonwealth Constitution. Under Article XII, § 1, "The acquisition of permanent and long-term interests in real property within the Commonwealth shall be restricted to persons of Northern Mariana descent." Under Article XII, § 3, "The term permanent and long-term interests in real property used in Section 1 includes freehold interests and leasehold interests of more than fifty-five years including renewal rights.... Any land transaction in violation of this provision shall be void." Article XII, § 6, provides that "[a]ny transaction made in violation of Section 1 shall be void ab initio." 4 The Superior Court ruled that paragraph 21 of the lease agreement constitutes a renewal right to extend the lease term beyond the allowed 55 years. It held that because Diamond Hotel is not a person of Northern Mariana Islands descent, the lease agreement violates Article XII. The Commonwealth Supreme Court reversed and remanded, holding that although paragraph 21 is a renewal right which violates Article XII, paragraph 21 is severable from the rest of the lease agreement. Matsunaga appeals. II. 5 Matsunaga claims that this court has jurisdiction over this appeal under 48 U.S.C. § 1824(a) (1994) (formerly 48 U.S.C. § 1694(c)) and section 403 of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America ("Covenant"), P.L. 94-241, 90 Stat. 263, reprinted as amended, 48 U.S.C. 1801 note (1994) (formerly 48 U.S.C. § 1681). Under these provisions, this court has jurisdiction over appeals from the Supreme Court of the Northern Mariana Islands in "all cases involving the Constitution, treaties, or laws of the United States." 48 U.S.C. § 1824(a) (1996); Covenant, section 403. 6 Matsunaga argues that we have jurisdiction because the Commonwealth Supreme Court's decision violates section 805(a) of the Covenant, a treaty of the United States. This section authorizes restrictions on alienation of land to persons not of Northern Mariana Islands descent.1 Although the Covenant provides for restrictions on alienation, the Commonwealth Supreme Court based its decision on its interpretation of the portion of the Commonwealth Constitution that implements section 805(a) of the Covenant. Thus, the primary issue in this case involves an interpretation of Article XII of the Commonwealth Constitution. Camacho v. Civil Service Comm'n, 666 F.2d 1257, 1262 (9th Cir.1982). The Covenant is only peripherally involved. Id.; see also Sablan v. Manglona, 938 F.2d 970 (9th Cir.1991) (holding that we lack jurisdiction over an appeal involving Article XII of the CNMI Constitution, even though Article XII was authorized by section 805 of the Covenant). III. 7 Matsunaga also argues that this court has jurisdiction because the CNMI Supreme Court's opinion is untenable. Ferreira v. Borja, 1 F.3d 960, 962 (9th Cir.1993). This court has jurisdiction only over those untenable decisions of local law that violate or frustrate an appellant's federal rights. Castro v. Hotel Nikko, 96 F.3d 1259 (1996). Federal rights are not implicated here. As we previously pointed out, the Covenant is only peripherally involved. Nor are federal constitutional rights involved. Matsunaga's argument that Article 12 of the Commonwealth Constitution violates the Fourteenth Amendment of the United States Constitution has been resolved and is not an issue here. See Wabol v. Villacrusis, 958 F.2d 1450, 1462 (9th Cir.1990), cert. denied, 506 U.S. 1027, 113 S.Ct. 675, 121 L.Ed.2d 598 (1992), (holding that Article XII of the Commonwealth Constitution does not violate the equal protection clause of the United States Constitution). IV. 8 We DISMISS the appeal for lack of a genuine federal issue. 9 APPEAL DISMISSED. 1 The text of Section 805(a) of the Covenant reads: Except as otherwise provided in this Article, and notwithstanding the other provisions of this Covenant, or those provisions of the Constitution, treaties or laws of the United States applicable to the Northern Mariana Islands, the Government of the Northern Mariana Islands, in view of the importance of the ownership of land for the culture and traditions of the people of the Northern Mariana Islands, and in order to protect them against exploitation and to promote their economic advancement and self-sufficiency: (a) will until twenty-five years after the termination of the Trusteeship Agreement, and may thereafter, regulate the alienation of permanent and long-term interests in real property so as to restrict the acquisition of such interests to persons of Northern Mariana Islands descent....

53 B.R. 789 (1985) In re BON TON RESTAURANT AND PASTRY SHOP, INC., Debtor. No. 85B1755. United States Bankruptcy Court, N.D. Illinois, E.D. October 10, 1985. *790 Robert R. Benjamin & Associates, Ltd., Chicago, for debtor. Cory Lipoff, Nachman, Munitz & Sweig, Ltd., Joel Greenblatt, Foss, Schuman, Drake & Barnard, Chicago, for movant/landlord. MEMORANDUM AND ORDER ROBERT L. EISEN, Chief Judge. This matter was heard upon the motion of the debtor in possession, Bon Ton Restaurant and Pastry Shop, Inc. ("Bon Ton" or "debtor"), for authority to assume its unexpired lease of nonresidential real property under section 365(a) of the Bankruptcy Code. In opposition, the successor-lessor, Bernard A. Heerey ("Heerey" or "lessor") contends that a number of defaults exist under the lease which must be cured as a condition to assumption pursuant to section 365(b)(1) of the Code. For the reasons set forth below, the court, having carefully considered the pleadings, memoranda, exhibits, and oral argument, determines that Bon Ton has satisfied the requirements of section 365(b)(1) and may therefore assume the unexpired lease. BACKGROUND On February 8, 1985, Bon Ton filed its voluntary petition for relief under Chapter 11 of the Bankruptcy Code, and has continued to operate its business and manage its property as a debtor in possession. The lease in question was executed on April 6, 1981 for rental of the premises at 1151-53 North State Street, Chicago, Illinois, including storage space in the basement. The entire building in which Bon Ton operates its restaurant and pastry shop consists of four commercial units and twenty-four rental units. Heerey acquired title to the building in May, 1983, and is the successor-lessor of the premises, the lease term for which expires April 30, 1988. On March 11, 1985, Heerey presented his motion to compel the debtor to correct certain unsafe and hazardous conditions as outlined in a report submitted by the lessor's former insurance carrier pursuant to inspections conducted in June and December of 1983 and April of 1984. The seven conditions enumerated in Heerey's motion consist of: (1) accumulation of grease in *791 the breaker box panel; (2) the absence of filters in the hood over the cooking area; (3) the inadequacy of the existing fire extinguishing system in the hood area;[1] (4) the absence of fire extinguishers in the kitchen area; (5) the fact that electric lights in the kitchen area were not encased; (6) the fact that the kitchen floor was in disrepair; and (7) the fact that the air conditioner was not in safe operating condition. Heerey claims that numerous demands were made upon the debtor to remedy these conditions, culminating in Heerey's declaration on January 21, 1985 that the lease was in default by reason thereof and his demand for possession of the premises. According to Heerey, Bon Ton represented on January 24, 1985, that it would correct these conditions and cure other defaults under the lease. Shortly thereafter, Bon Ton filed its Chapter 11 petition. In response, Bon Ton affirmatively stated that its agent had inspected the premises from time to time and found the breaker-box panel free of grease accumulations, that an Ansul-type extinguishing system as well as fire extinguishers were in place on the premises, that the electric lights in the kitchen area were encased, that the kitchen floor was in repair, and that the air conditioner was in safe operating condition. The debtor denied that it was in default of any of the lease's terms, affirmatively stating that it was also in full compliance with all municipal code requirements. On March 29, 1985, and within 60 days of the commencement of this case, Bon Ton filed its motion to assume the unexpired lease, stating that monthly rental payments were current and that all additional obligations, where required, were satisfied or otherwise set-off. A hearing thereon was held April 4, 1985. On that date, Heerey requested time to respond to Bon Ton's motion and was given until May 15, 1985. At the April 4th hearing, Bon Ton requested that its motion to assume be heard within the next sixty days, or before June 8, 1985, whereupon the court directed the parties to comply with a pretrial order by June 5th, set a status hearing for June 6th, and set the hearing on assumption for June 7, 1985.[2] In his response, Heerey incorporated his prior motion to compel correction of safety hazards and claimed six existing defaults as of the time of Bon Ton's application to assume the lease: (1) failure to pay increased insurance costs resulting from the cancellation on January 1, 1985 of lessor's fire, extended coverage and public liability insurance policy due to the aforementioned alleged hazardous conditions; (2) failure to reimburse the lessor for the costs of rodding the common sewer line necessitated by overflowing of grease from debtor's grease trap; (3) failure to pay water rents in the sum of $100.00 per month since April, 1983; (4) failure to pay the remaining $1,000 installment of debtor's security deposit; (5) failure to obtain and maintain the necessary plate glass insurance and property damage and public liability insurance; and (6) failure to keep the demised premises in a safe condition and in good repair. In conjunction with the latter default, Heerey recited the existence of numerous additional unsafe and hazardous conditions described in detail in a report dated March 22, 1985 and prepared by a senior fire scientist engaged by the lessor.[3] *792 Pursuant to section 365(b)(1)(A) of the Code, Heerey contends that Bon Ton must cure all defaults,[4] both monetary and non-monetary, under the lease prior to court approval of assumption. In addition, Heerey states that Bon Ton must provide adequate assurance of future performance under the lease pursuant to section 365(b)(1)(C). Heerey particularly wants adequate assurance that Bon Ton will keep the premises in a clean, healthy and safe condition in the future but, paradoxically, objects to Bon Ton's assumption on the grounds that the debtor has not and cannot comply with section 365(b)(1). At the hearing and in its memoranda, Bon Ton maintained that the only default was the failure to pay one month's rent and believed it could cure or provide adequate assurance of cure of monies in default. The other defaults are vigorously contested by Bon Ton, its position being that the current condition of the premises falls within the permissible guidelines set forth in the lease. However, if a default is found to exist, Bon Ton stands ready, willing, and able to provide adequate assurance of cure or compensation under section 365(b)(1) upon assumption. At the conclusion of the June 7th hearing, the court determined that certain threshold legal questions surrounding the assumption of the lease should be decided on briefs, thereby avoiding the necessity for an evidentiary hearing since the only remaining issues appeared to involve the net amount due the lessor at the time of assumption and the debtor's ability to perform. The court pointed out at the hearing on June 7th that the existence of breaches which are not cause for termination of the lease are not pertinent to whether or not the debtor has a right to assume or reject the lease. Thereupon, the court took the following issues under advisement with respect to assumption of the lease: (a) whether the costs of rodding the common sewer line are the responsibility of the lessor or Bon Ton under the terms of the lease; (b) whether the lessor's increased insurance premiums pass through to the debtor under the terms of the lease; (c) whether the lessor's attorneys' fees and costs constitute a pecuniary loss to be borne by the debtor in assuming the lease; and (d) whether the debtor must cure non-monetary defaults as a condition precedent to assumption of the lease. DISCUSSION Section 365(a) of the Bankruptcy Code[5] in conjunction with section 365(b)(1) provides a debtor in possession with the absolute right to assume an unexpired lease and to cure any defaults, subject to the court's approval. In re Lionel Corp., 29 B.R. 694, 696 (Bankr.S.D.N.Y.1983). The aim of the statutory authority to assume a lease is to assist in the debtor's reorganization effort. H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 348 (1977); reprinted *793 in U.S.Code Cong. & Admin.News 5787, 5963, 6304 (1978); S.Rep. No. 95-989, 95th Cong., 2nd Sess. 59 (1978) reprinted in U.S.Code Cong. & Admin.News 5787, 5845 (1978). If the lease is not in default, the debtor is entitled as a matter of course to the necessary court approval, In re Sapolin Paints, Inc., 20 B.R. 497, 508 (Bankr. E.D.N.Y.1982), to assume an unexpired lease which appears to be in the best interests of the estate, In re Lionel Corp., 29 B.R. at 696, and under which the debtor is able to perform. In re Coast Trading Co., Inc., 26 B.R. 737, 741 (Bankr.D.Ore.1982). The requirement of court approval in the form of an express order, e.g., Matter of Whitcomb & Keller Mortg. Co., Inc., 715 F.2d 375, 380 (7th Cir.1983), furthers the policy underlying the Bankruptcy Code "of maximizing the value of the estate for the benefit of all creditors, while preserving certain rights of parties to contracts with the debtor." In re Kelly Lyn Franchise Co., Inc., 26 B.R. 441, 445 (Bankr.M.D. Tenn.1983). If there has been a default, section 365(b)(1) provides that a debtor in possession may not assume an unexpired lease under section 365 unless, at the time of assumption, the debtor in possession: (A) cures, or provides adequate assurance that the trustee will promptly cure, such default; (B) compensates, or provides adequate assurance that the trustee will promptly compensate, a party other than the debtor to such contract or lease, for any actual pecuniary loss to such party resulting from such default; and (C) provides adequate assurance of future performance under such contract or lease. 11 U.S.C. § 365(b)(1)(West 1984). This subsection applies to both pre-petition and post-petition defaults, In re Berkshire Chemical Haulers, Inc., 20 B.R. 454, 457 (Bankr.D.Mass.1982); Matter of Luce Industries, Inc., 8 B.R. 100, 104 (Bankr.S.D. N.Y.1980). Section 365(b)(1) is intended to provide protection to the non-debtor lessor to insure that he receives the full benefit of his bargain in the event of assumption. In re Lafayette Radio Electronics Corp., 7 B.R. 189, 191 (Bankr.E.D.N.Y.1980). If no default exists, section 365(b)(1) is inapplicable in which case assumption of an unexpired lease may be ordered without regard to the cure, compensation and adequate assurance requirements. In re Harry C. Partridge, Jr. & Sons, Inc., 43 B.R. 669, 671 (Bankr.S.D.N.Y.1984). Therefore, the initial determination to be made is whether any defaults exist under the unexpired lease which Bon Ton seeks to assume. Responsibility for Rodding Common Sewer Line Heerey contends that Bon Ton is in default under the lease since it has not paid Heerey the sum of $4,387.36, representing the cost of rodding the sewer line which is common to the entire building. The rodding, according to Heerey, was necessitated by an overflow of grease from the debtor's grease trap. The relevant paragraphs of the lease are: 37. Lessee, at his own cost and expense during the term of the Lease, shall maintain the demised premises in attractive appearance and good condition, making such repairs, improvements and alterations of a non-structural nature so as to insure the aforementioned conditions. For the interpretation of this intention, this shall include all components of the demised premises and the facilities and utilities which service same. Upon termination of the Lease by lapse of time or otherwise, Lessee shall turn over possession to the Lessor in good condition, and except for normal wear and tear, shall repair all points of attachment effected by Lessee's trade fixtures when removed. 39. Lessor shall not be liable for any damage occasioned by breaks or ruptures of steam lines, plumbing, water, gas, electric, sewer, air ducts, overflow or the like, etc. in about and/or around, above and/or below the demised premises and/or the property of which it forms a part, contiguous and/or nearby properties, including tenants and/or occupants *794 of same. Common areas and arterial systems shall be given ordinary and reasonable care by Lessor. Heerey argues that Bon Ton expressly contracted under paragraph 37 of the lease to maintain and repair the sewer line servicing the demised premises. On the other hand, Heerey states that under paragraph 39, the lessor is only obligated to use ordinary and reasonable care with respect to the common sewer line but is not obligated to maintain and repair such common arterial systems. The lessor further contends that the costs incurred in this regard resulted from Bon Ton's use and occupancy of the premises and therefore those costs pass through to the debtor under paragraph 42 of the lease. Paragraph 42 provides: 42. Lessee covenants and agrees that it will at all times keep the Lessor and its property harmless from any and all loss, liability, claims, suits, costs, expenses and damages, whether real or alleged, resulting from or caused in whole or in part by the Lessee's use and/or occupancy of the demised premises. This indemnification and protection shall be all inclusive, whether imposed by law, statute, ordinance, regulation or common law, custom or otherwise . . . whether in effect now or as may be enacted by legislative action, regulatory body and/or judicial decree. To further enable the Lessee to comply with and implement the provisions of this Lease, Lessee will obtain, carry and maintain at its own expense at all times during this Lease or any extensions thereof, insurance and/or bonds of indemnification covering the Lessor and itself as follows: a. Owners, Landlords & Tenants Public Liability and Property Damage insurance in amounts not less than $250,000 for one person/$500,000 for one occurrence for bodily injury, and $50,000 for Property Damage; b. Workmen's Compensation insurance in the form and amount prescribed by the State of Illinois with limits not less than $500,000; c. Dram Shop Insurance covering the aspects, responsibilities and hazards imposed by the Illinois Liquor Control Acts as now in effect or as may be amended or enacted from time to time hereafter in amounts not less than: 1. $250,000 for Bodily Injury to One Person. 2. $750,000 for Bodily Injury for one occurrence; 3. $750,000 for Loss of Means of Support; 4. $250,000 for Property Damage. The above noted policies of insurance shall be deposited with the Lessor prior to their commencement date, and shall contain an endorsement providing that the Lessor is to be notified not less than ten (10) days prior to any cancellation by the insurance carrier. This shall not apply to the Lessor being named as a co-insured for the Workmen's Compensation insurance. The Dram Shop Insurance shall not be required unless the Lessee gives thirty (30) days notice prior to applying for a liquor license. Failure to comply with the above insurance requirements shall be a breach of such seriousness and consequence that the Lessor may take such action as it shall deem in its best interest including the obtaining of insurance and/or closing the premises, the cost of any and all expenses in connection with such action shall be borne by Lessee and shall be due and payable to the Lessor upon rendition of bill for same as so much additional rental. The aforementioned insurance and/or bonds of indemnity shall be in standard or better companies which shall be acceptable to the Lessor as shall the form, endorsements and should inflation and reasonable circumstances warrant Lessor may request an increase in the amounts of the limits originally specified. Lessee further agrees to pay as so much additional rent upon presentation of a statement therefor, any additional or supplemental premium which the Lessor's insurance carriers might demand *795 for Lessor's general liability and/or multi-purpose insurance by virtue of the Lessee's operations if such be related to the sale of alcoholic beverages only. In reply, Bon Ton states that a reading of paragraph 37 of the lease in conjunction with paragraph 39 resolves any ambiguity and leads to the interpretation that Bon Ton agreed to repair and maintain any facilities and utilities only as they relate to the leased premises, whereas Heerey agreed to maintain them to the extent they constitute common areas and arterial systems. In construing a lease, the principal function of a court is to give effect to the parties' intention as expressed in the document's language when read as a whole. Continental Casualty Co. v. Polk Bros., 120 Ill.App.3d 395, 398, 457 N.E.2d 1271, 1274 (1st Dist.1983). Where the language of the lease is clear and unambiguous, there is no need for judicial interpretation. Hoffman v. Clark St. Roadhouse, 79 Ill.App.3d 41, 43, 398 N.E.2d 238, 239 (1st Dist.1979). However, it is well established that where there is any doubt or uncertainty as to the meaning of the language used in a lease it should be construed most strongly against the lessor and in favor of the lessee. In re National Sugar Refining Co., 21 B.R. 196, 198 (Bankr.S.D.N.Y.1982); J.B. Stein & Co. v. Sandberg, 95 Ill.App.3d 19, 22, 419 N.E.2d 652, 655 (2d Dist.1981). In particular, where a lessor has drafted the lease, a court will not impose by judicial construction a responsibility upon the lessee unless the circumstances and the lease itself clearly indicate that the lessee intended to assume such a responsibility. Windsor at Seven Oaks v. Kelly, 113 Ill.App.3d 978, 980, 448 N.E.2d 251, 253 (3d Dist.1983). Reading paragraph 37 in conjunction with paragraph 39, Bon Ton has covenanted to maintain the sewer line as it services or is contiguous to the premises, whereas Heerey has, within the plainly understood language of paragraph 39, covenanted to give ordinary and reasonable care to common arterial systems. The court concludes that rodding the common sewer line which services the entire building is the type of ordinary and reasonable care for which the lessor has agreed to be responsible. If, however, Bon Ton did not in fact clean its grease trap, thereby necessitating the rodding which would not otherwise have been required, it breached its covenant to keep the premises in good condition. Therefore, an evidentiary hearing on this factual question will be required to determine whether Bon Ton must reimburse Heerey for this expense. Nevertheless, this is not an impediment to Bon Ton's assuming the lease since the court is satisfied the debtor will be able to effect a prompt cure of this default in conformity with section 365(b)(1)(A) and has provided adequate assurance thereof. However, Bon Ton's liability, if any, does not arise under paragraph 42 of the lease, as Heerey contends. Paragraph 42 contains an indemnification clause which, if an ambiguity exists necessitating construction of the language to give effect to the intention of the parties, will be strictly construed. Tatar v. Maxon Construction Co., Inc., 3 Ill.App.3d 352, 277 N.E.2d 715 (4th Dist.1972); Baillon v. S.S. Kresge Co., 4 Ill.App.3d 82, 277 N.E.2d 719 (4th Dist. 1972). Moreover, the court cannot consider this clause in isolation to defeat the intent of the parties that is found to be expressed when viewing paragraph 42 as a whole. Stein v. Yarnall-Todd Chevrolet, Inc., 41 Ill.2d 32, 39, 241 N.E.2d 439, 443 (1968). As the court in Stein noted: Particular expressions will not control where the whole tenor or purpose of the instrument forbids a literal interpretation of the specific words. Id. The dominating expression of intent under paragraph 42 contemplates the debtor's maintenance of public liability and property damage insurance, workmen's compensation insurance, and dram shop insurance covering any liability which may arise out of debtor's contemplated use of the premises as a restaurant. This language requiring Bon Ton to obtain liability insurance is more restrictive *796 than the agreement to indemnify the lessor for any costs or expenses from its use or occupancy of the premises. Therefore, the incongruous words relating to general indemnification will not supercede the dominant expression of intent to indemnify to the extent of the specified liability policies. See Stein v. Yarnall-Todd, 41 Ill.2d at 39, 241 N.E.2d at 443. It cannot be stated that the indemnity clause when considered in the context of paragraph 42 in its entirety, as it should, shows an intent that any expense occasioned by debtor's performance under the lease was to be included therein. The court will not construe paragraph 42 so as to enlarge or extend Bon Ton's responsibility thereunder. Responsibility for Increased Insurance Premiums Heerey further maintains that Bon Ton is in default under paragraph 42 of the lease, set forth above, for failure to pay increased insurance premiums of approximately $26,000 for the premises. As previously stated, the lessor's insurance carrier inspected the premises in June and December of 1983 and outlined the existence of seven dangerous and hazardous conditions. Heerey states that while Bon Ton has cleaned the grease in the breaker box panel and partially fixed certain tripping hazards with respect to the kitchen floor, all of these conditions have not been eliminated. As a result thereof, the lessor's insurance policy was cancelled and replacement coverage was obtained by the lessor at a substantially higher premium payment. Heerey contends that under paragraph 42 of the lease, Bon Ton must reimburse Heerey, at the time of assumption, for the increased insurance costs resulting from Bon Ton's use and occupancy of the premises. According to Heerey, the language of paragraph 42 is unambiguous and the parties intended its scope to be sufficiently broad so as to encompass any situation where a lessee's use and occupancy results either in increased insurance costs or any additional costs and expenses. Heerey further urges that the last sentence of paragraph 42 discussing the sale of alcoholic beverages does not limit the broad protection provided under the initial section to indemnify the lessor for any costs arising out of the debtor's use and occupancy. Bon Ton replies that the lessor may assess insurance premiums against the debtor under the lease only in limited circumstances. First of all, paragraph 4[6] mentions insurance in the context of misuse of the premises. However, this covenant is inapplicable, according to Bon Ton, because no allegations have been made that the debtor misused the premises; moreover, the language is clear that the parties did not intend any pass through of insurance under paragraph 4. Secondly, paragraph 28[7] provides for a pass through of insurance premiums only when there is an increase occasioned by a change in cooking procedures which do not comply with legal regulations. Finally, Bon Ton contends that there is a pass through of insurance premiums under paragraph 42 only where an increase is related to the lessee's sale of alcoholic beverages. Contrary to Heerey's interpretation, Bon Ton maintains that paragraph 42 is merely a general exculpatory clause to hold the lessor harmless *797 through the maintenance of the specified insurance policies and should not be given an all-encompassing and general interpretation. According to Bon Ton, the intent thereunder was merely for the debtor to hold Heerey harmless from personal injury and property damage claims arising out of Bon Ton's use and occupancy of the demised premises. Moreover, Bon Ton argues that, taking paragraph 42 as a whole, the last sentence thereof with respect to the sale of alcoholic beverages demonstrates that the parties clearly contemplated the issue of pass through of insurance premiums and chose to limit them in this manner. As noted above, the court must give effect to the parties' intention as expressed in the lease's language when read as a whole, In re Maxwell, 30 B.R. 982, 986 (Bankr.N.D.Ill.1983), and where any ambiguity exists, the lease should be construed most strongly against the lessor who drafted the lease. With respect to the issue of increased insurance premiums, the lessor is relying upon an interpretation of a single clause in paragraph 42 of the lease. However, the first sentence must be read in light of the entire paragraph 42 as must every paragraph be read in light of the entire lease agreement. Dasenbrock v. Interstate Restaurant Corp., 7 Ill.App.3d 295, 299, 287 N.E.2d 151, 154 (5th Dist. 1972). As further noted above, the language requiring Bon Ton to maintain public liability and property damage insurance, workmen's compensation insurance, and dram shop insurance for the purpose of indemnifying the lessor is more restrictive than the general all-inclusive indemnification language and therefore is controlling on the paragraph's intent. Paragraph 42 in its entirety discloses a covenant by Bon Ton to indemnify the lessor for any property damage or personal injury arising out of its use and occupancy to the extent of the requisite insurance policies. Moreover, the explicit language of the last sentence, whereby Bon Ton agrees to reimburse the lessor for any additional premium the lessor's insurance carriers might demand by virtue of the lessee's operation if related to the sale of alcoholic beverages only, is controlling on the question of the paragraph's intent regarding increased insurance premiums. Clearly the issue of increased insurance premiums was contemplated by the parties both in paragraph 42 and in paragraph 28 and was limited by the parties to the lessee's sale of alcoholic beverages and to any change by the lessee in existing cooking operations. Further support for the court's holding is found in paragraph 4 of the lease which states that Bon Ton covenants not to use the premises for any purpose which will increase the rate of insurance thereon.[8] Thus, paragraph 4 demonstrates again that the parties contemplated the situation where the lessor's insurance premiums on the premises may increase through debtor's use and occupancy yet chose to agree that such a situation would be in the nature of a condition subsequent, constituting a breach of the lease, but imposed no covenant upon the debtor to be performed, i.e., to reimburse the lessor for the increased premiums. Had the parties to the lease intended to pass through all increases in the lessor's insurance premiums for any reason whatsoever, a scrivener's pen was not wanting. Such an interpretation appears to be outside the scope of paragraph 42, particularly when read in conjunction with paragraphs 4 and 28. Again, the court will not impose by judicial construction a duty on the lessee to indemnify the lessor against any costs, even those outside its control,[9] which the *798 lease does not clearly reflect that the debtor intended to assume. Payment of Attorneys' Fees In Conjunction with Curing Defaults Heerey contends that because certain defaults under the lease existed at the time Bon Ton filed its application to assume the lease, Heerey incurred fees and expenses under paragraph 15 in enforcing the lease provisions through his opposition to the motion to assume. Paragraph 15 of the lease provides: Lessee shall pay upon demand all Lessor's costs, charges and expenses, including fees of attorneys, agents and others retained by Lessor, incurred in enforcing any of the obligations of Lessee under the lease or in any litigation, negotiation or transaction in which Lessor shall, without Lessor's fault, become involved through or on account of this lease. This broad provision of the lease is enforceable under Illinois law, according to Heerey, and is part of the burden to be assumed by the debtor. Heerey maintains that Bon Ton cannot unilaterally modify the lease to eliminate an obligation to pay attorneys' fees. Heerey further urges that these attorneys' fees must be paid as part of the curing of defaults at the time of Bon Ton's assumption of the lease. Bon Ton's position is that attorneys' fees under paragraph 15 are only recoverable if the lessor should be sued on account of the lease through no fault of his own or if a default in an obligation exists and the fees incurred are directly attributable to enforcement of that particular obligation. Bon Ton argues that the bulk, if not all, of the attorneys' fees have been incurred herein as a result of unnecessary and unwarranted actions by the lessor and not as a result of a breach of lease obligations, other than nonpayment of one month's rent, to be enforced. Therefore, according to Bon Ton, the attorneys' fees in issue have been incurred through lessor's own "fault" under paragraph 15 by his attempts to enforce nonexistent obligations upon Bon Ton. Moreover, Bon Ton contends that the lessor's actions were unnecessary because section 365(b)(1) of the Code requiring the debtor to cure defaults or provide adequate assurance of a cure protects the lessor and alleviates any need for the lessor to enforce the lease obligations. Bon Ton further argues that it would contravene public policy to require it to pay the lessor's attorneys' fees because a lessor could deliberately incur attorneys' fees and create a default against the debtor which would not be based upon a breach of a covenant of the lease. Finally, Bon Ton states that if the lessor is entitled to attorneys' fees, the court must determine whether Heerey's broad interpretation of paragraph 15 leaving Bon Ton vulnerable to unlimited liability for attorneys' fees would constitute a penalty, and whether such fees are reasonable. The determination to be made by the court at this juncture is not whether lessor's attorneys performed services justifying the fees sought but whether Bon Ton should pay the bill, "rather than the client these attorneys have well served." See Quaker Oats Company v. Burnett, 289 F.Supp. 283, 288 (D.Ct.E.D.Tenn.1968). Heerey relies on In re Bullock, 17 B.R. 438 (Bankr.9th Cir.1982) in which the court awarded attorneys' fees to the lessor under section 365(b)(1)(A) and (B) upon the trustee's assumption of the lease as part of curing the debtor's default, consisting of three months' post-petition rent, and as compensation for the lessor's actual pecuniary loss. The lease therein required the lessee to pay reasonable attorneys' fees if the lessor should employ an attorney by reason of the lessee's default. The court *799 stated that the purpose of an attorney's fee clause in a lease is to indemnify the lessor against legal expenses incurred by reason of the other party's default which is the same purpose of section 365(b)(1)(B), i.e., to indemnify the other party to the assumed lease against loss. Id. at 439. Nevertheless, the court went on to state such a clause does not give the lessor "a blank check upon the estate of the debtor for attorney's fees." Id. It is clear that if there has been a default, an award of attorneys' fees under paragraph 15 of the lease is proper under Illinois law. Schipper & Block v. Carson Pirie Scott & Co., 5 Ill.App.3d 209, 283 N.E.2d 81 (3d Dist.1972). Bon Ton states that its only default under the lease is a failure to pay one month's rent whereas Heerey claims six defaults to be in existence as of the time Bon Ton filed its motion to assume the lease. Even if the only default was the failure to pay one month's rent, it appears that the lessor's court appearances and motions were not entirely unnecessary or unwarranted as Bon Ton contends. Therefore, Heerey is entitled to attorneys' fees under paragraph 15 of the lease. Notwithstanding, a lease provision for attorneys' fees such as paragraph 15 does not convey an absolute right to recover such fees and the court in Bullock did not so hold. In re J.W. Mays, Inc., 30 B.R. 769, 771 n. 3 (Bankr.S.D.N.Y.1983). Rather, where a contract between a debtor and a third party provides for an award of attorneys' fees, the court is obligated to determine the reasonable value of such services. In re Tech Hifi, Inc., 49 B.R. 876, 881 (Bankr.D.Mass.1985). The lessor herein can recover under paragraph 15 only such sums as he necessarily expended on account of Bon Ton's default or defaults. Moreover, a lessor must take reasonable measures under Illinois law to mitigate damages recoverable against a defaulting lessee. Ill.Rev.Stat.ch. 110, § 9-213.1 (S.H.A.1983). The court observes that the total amount of fees awarded in Bullock was approximately $2,000. Under the facts presented in the case sub judice and the reasonable inferences therefrom, it was unnecessary for Heerey to expend or become liable for a portion of the professional services of its counsel in enforcing Bon Ton's obligations under the lease. Under section 365(b)(1)(B), Bon Ton is required to pay only reasonable attorneys' fees, as determined upon application, expended by the lessor's attorneys in connection with the specific defaults found under the lease. The court is satisfied that Bon Ton has the ability to promptly compensate the lessor under section 365(b)(1)(B) for reasonable attorneys' fees incurred. Therefore, Bon Ton's assumption of the lease is not impaired. Cure of Non-Monetary Defaults at Time of Assumption Heerey emphatically contends that Bon Ton is in default under the subject lease for failing to make all repairs, improvements, and alterations necessary to ensure that the premises are in a safe, attractive, and healthy condition under paragraph 37, set forth above with respect to the sewer rodding costs, and paragraphs 32 and 6 which provide: 32. Lessee agrees that the basement under the store is part of the demised premises and further agrees to maintain this area in a clean and sightly condition. 6. Lessee shall keep the Premises and appurtenances thereto in a clean, sightly and healthy condition, and in good repair, all according to the statutes and ordinances in such cases made and provided, and the directions of public officers thereunto duly authorized, all at his own expense, and shall yield the same back to Lessor upon the termination of this lease, whether such termination shall occur by expiration of the term, or in any other manner whatsoever, in the same condition of cleanliness, repair and sightliness as at the date of the execution hereof, loss by fire and reasonable wear and tear excepted. Lessee shall make all necessary repairs and renewals upon Premises and replace broken globes, glass and fixtures with material of the *800 same size and quality as that broken and shall insure all glass in windows and doors of the Premises at his own expense. If, however, the Premises shall not thus be kept in good repair and in a clean, sightly and healthy condition by Lessee, as aforesaid, Lessor may enter the same himself or by his agents, servants or employes [sic], without such entering, causing or constituting a termination of the lease or an interference with the possession of the Premises by Lessee, and Lessor may replace the same in the same condition of repair, sightliness, healthiness and cleanliness as existed at the date of execution hereof, and Lessee agrees to pay Lessor, in addition to the rent hereby reserved, the expenses of Lessor in thus replacing the Premises in that condition. Lessee shall not cause or permit any waste, misuse or neglect of the water, or of the water, gas or electric fixtures. The unsafe and hazardous conditions alleged by the lessor, set forth earlier in this memorandum, have to do with the adequacy of the existing extinguishing and ventilation systems as well as related conditions in the cooking area and the kitchen, all reported to be fire hazards. According to Heerey, the existence of these conditions is a default that must be cured at the time of assumption. Heerey argues that if Bon Ton is permitted to assume the lease without curing these defaults, the court will, in essence, be modifying Bon Ton's contractual relationship with the lessor. Moreover, Heerey states that in order to assume, Bon Ton must provide adequate assurance that it will continue to keep the premises in a clean, healthy and safe condition in the future. Heerey further refers to paragraph 28, set forth in footnote 7 above, and paragraph 27 which reads: 27. Lessee herewith agrees and covenants that he will comply with any and all Federal, State and Municipal laws, statutes, ordinances and regulations of the respective, bodies as now in existence or enacted and/or created from time to time. Further the Lessee agrees to hold harmless and indemnify the Lessor from any and all breaches of this provision arising out of Lessee's business, including the costs of Lessor defending itself in any situation which may arise as a result thereof. The lessor states that several violations of the Chicago Municipal Code with respect to the fire suppression system in the cooking hood and related ventilation systems existed on the premises at the time the lease was entered into and these violations continue to exist at the present time. Therefore, according to Heerey, it is Bon Ton's responsibility under paragraph 27 of the lease to modify these systems to comply with the requirements of applicable law before the lease is assumed or to provide adequate assurance that these alleged defaults will be cured. On September 6, 1985, Heerey presented his motion for reimbursement of his costs incurred in correcting the existing ventilation system. Inspections by the lessor's consulting engineer were conducted on July 29, 1985 and August 22, 1985 and the report in connection therewith set forth three violations of the Chicago Municipal Code: (1) the existence of inadequate clearances between the exposed surfaces of heat-producing appliances and any combustible material; (2) the existence of inadequate hood and duct thickness; and (3) the absence of a fusible link-operated damper or other means of bypassing the exhaust fan. Because Heerey has engaged the construction work to be performed in correcting these code violations, Heerey contends that Bon Ton must reimburse him as a pre-condition to assumption. Bon Ton maintains that the current condition of the premises and the cooking and ventilation systems comply with the terms of the lease and those regulations required by present law, whereas the lessor has been using standards based upon insurance company specifications for these conditions, and therefore, Bon Ton is not in default under the lease. With respect to the municipal code violations which Heerey *801 has undertaken to correct, Bon Ton replies that, upon inquiry, its president was informed on September 9, 1985 by a City of Chicago fire inspector that there were no pending complaints for violations of the Chicago Municipal Code. Bon Ton reiterates that its only default is its failure to pay one month's rent which it can promptly cure or provide adequate assurance thereof. If, however, a default is found to exist, Bon Ton states its assumption of the lease is not impaired since it is presently able to provide adequate assurance of both a prompt cure and of future performance under the lease. As discussed above, if the lease is in default and such default is in respect to some lease provision other than one relating to insolvency or the commencement of a Chapter 11 case, section 365(b)(1) requires that before the lease may be assumed the default be cured or adequate assurance given of its cure, the lessor be compensated for any pecuniary loss resulting from such default, and the debtor in possession provide adequate assurance of future performance under the lease. In re Sapolin Paints, Inc., 20 B.R. 497, 499-500 (Bankr.E.D.N.Y.1982). The language of section 365(b)(1) does not distinguish between monetary and non-monetary defaults. Therefore, the court must initially determine whether defaults exist under the lease with respect to keeping the premises in good repair and relating to compliance with all legal regulations.[10] This court has previously had occasion to construe paragraph 37 of the lease in the context of this case, noting that Bon Ton is required thereunder to maintain the premises in an attractive appearance and good condition, making such repairs, improvements and alterations of a non-structural nature in connection therewith. In re Bon Ton Restaurant and Pastry Shop, Inc., No. 85 B 1755, Memorandum and Order (Bankr.N.D.Ill. July 18, 1985). Similarly, paragraph 6 of the lease contains a general covenant to repair which, under Illinois law, merely binds the tenant to make ordinary repairs reasonably required to keep the premises in proper condition, thereby preserving the status quo. Baxter v. Illinois Police Federation, 63 Ill.App.3d 819, 821, 380 N.E.2d 832, 834 (1st Dist.1978). Such a clause does not require a lessee to make radical changes of a permanent, substantial or unusual character. Bogan v. Postlewait, 130 Ill.App.2d 729, 731, 265 N.E.2d 195, 197 (4th Dist.1970). The classification of repairs as structural or substantial depends in particular on the foreseeability of the deficiency, since it has been thought unfair to hold a lessee liable for substantial permanent improvements not within the contemplation of the parties when the lease was executed. Koenigshofer v. Shumate, 68 Ill.App.2d 474, 477, 216 N.E.2d 195, 196 (1st Dist.1966); Kaufman v. Shoe Corp. of America, 24 Ill.App.2d 431, 436, 164 N.E.2d 617, 621 (3d Dist. 1960). In order to shift onto the lessee a burden which would naturally fall on the lessor, the warrant for the change must be plainly discoverable in the lease. Hardy v. Montgomery Ward & Co., 131 Ill.App.2d 1038, 1041-42, 267 N.E.2d 748, 751 (5th Dist.1971). The court concludes that under paragraphs 6 and 37 of the lease Bon Ton must promptly cure those fire hazards which in fact exist on the premises and which do not require replacement of existing equipment or changes of a structural nature. Specifically, Bon Ton must dispose of any accumulation of grease in the breaker box panel and behind the stoves, install fire extinguishers in the kitchen area, encase electric lights in the kitchen, ensure the kitchen floor is in a state of repair, ensure the air conditioner is in safe operating condition, dispose of any combustible material near the cooking area or behind the freezers, clear emergency exits of clutter and ensure the exit signs over the main exit are lighted, *802 and correct any running of water from the kitchen to the basement. The pleadings reflect that some, if not all, of these conditions have been remedied. Moreover, the record is replete with promises by the debtor to perform according to the terms of the lease so that the court finds Bon Ton has provided adequate assurance of a prompt cure of these conditions. With respect to compliance with all legal regulations, the lessor seizes upon the language in paragraphs 6, 27, and 28 to hold Bon Ton liable for the costs of replacing the cooking and ventilation systems recently alleged to be in violation of the Chicago Municipal Code. The record reflects that the conditions of which the lessor now complains existed at the time the lease was signed. Moreover, with the exception of the alleged non-compliance of the ventilation and related systems with the Chicago Municipal Code, the premises were, at the commencement of the lease term, in an adequate state of repair to meet all reasonable needs and requirements of the debtor/lessee. The court interprets these paragraphs of the lease to require that if city authorities had forbidden debtor's use of the premises until these corrections of the cooking and ventilation systems were made, the debtor would have had the responsibility of making such changes if it desired to continue using the premises. However, the debtor has not been ordered to cease operations until such changes were made, nor has the lessor been subjected to any penalty because of the debtor's alleged violation of these laws. The debtor has been able to make such use of the premises as it desired without strict compliance with such laws and ordinances. The expense incurred has not been occasioned by Bon Ton's violations of the laws and ordinances, and would have been required even if the property had stood unleased during the term of this lease. See Puget Inv. Co. v. Wenck, 221 P.2d 459 (S.Ct.Wash.1950). Rather than construing the covenant in paragraphs 27 and 28 as an affirmative obligation to repair, alter or improve, this court concludes that its intent is only to place upon the lessee rather than the lessor the responsibility for making any repairs, alterations or improvements which the lessee finds necessary to enjoy the use of the premises, to indemnify the lessor for expenses directly resulting from unlawful use, and to provide the lessor with a basis to require the lessee to cease any unlawful activity which may occasion expense for the lessor or damage to the reversion apart from the use or condition of the premises at the time the lease was executed. Id. at 466. Further, the court notes that under paragraph 6, Bon Ton covenanted to keep the premises in good repair according to applicable statutes and ordinances and to yield back the premises in the same condition of repair and sightliness as of the date of execution. A reasonable interpretation is that Bon Ton has not covenanted to install updated equipment to replace what was obsolete when it took possession but to keep the premises and equipment in as good repair as when the lease was executed. The debtor should not be required to absorb the cost of creating something new. Kaufman v. Shoe Corp. of America, 24 Ill.App.2d 431 at 437, 164 N.E.2d 617 at 621. The court further finds with respect to the issue of compliance with all legal regulations that Heerey is equitably estopped from claiming any breaches in connection therewith to be defaults to be cured at the time of assumption. Paragraph 41 of the lease provides in relevant part: 41. Anything to the contrary notwithstanding, except as herein provided, it is understood and agreed that in the event that the Lessee shall breach, violate and/or default in any of the terms of the Lease except for the payment of monies as herein provided, and matter relating to insurance, that within fifteen (15) days of the sending of notice as herein provided, the Lessee shall correct and/or rectify any such defaults. * * * * * * *803 Although the record reflects that the alleged breaches of which the lessor now complains existed at the time the lease was executed, the failure of the lessor to give the Bon Ton the requisite notice that its cooking and ventilation systems did not comply with the Chicago Municipal Code during the course of the lease and prior to Bon Ton's decision to assume prevents any breach from becoming a default to be cured at the time of assumption. In re Sapolin Paints, Inc., 5 B.R. 412, 419 (Bankr.E.D.N.Y.1980); In re Lafayette Radio Electronics Corp., 7 B.R. 189, 193 (Bankr.E.D.N.Y.1980). The debtor had no knowledge, or means of knowledge, of these particular violations at the time of entering into the lease or during the term thereof since neither party has ever been cited for these violations. It was only subsequent to the present assumption proceeding that the lessor had an expert come onto the premises for the purpose of finding these code violations. Bon Ton detrimentally relied on the lessor's silence since it may not have decided to assume the lease as in the best interests of the estate if such assumption would entail expending substantial sums. If the lessor intended to claim these particular defaults under the lease, it was incumbent on him to serve timely notice on Bon Ton. The court concludes that Heerey has the responsibility under the lease and under the doctrine of equitable estopel to bear the costs incurred in replacing the present cooking and ventilation system in order to comply with the Chicago Municipal Code. Finally, the court must construe the requirements of section 365(b)(1)(C) under the facts and circumstances of this case. Heerey has urged total inability on Bon Ton's part to assume the lease by satisfying section 365(b)(1). In particular, Heerey has opposed assumption on the grounds that he has not been adequately assured of future performance under the lease pursuant to section 365(b)(1)(C). With respect to the concept of adequate assurance of future performance, the court in Matter of Luce Industries, Inc., 8 B.R. 100 (Bankr.S. D.N.Y.1980) observed: Section 365(B)(1) attempts to strike a balance between two sometimes competing interests, the right of the contracting nondebtor to get the performance it bargained for and the right of the debtor's creditors to get the benefit of the debtor's bargain . . . Nowhere is the tension between these interests, and the difficulty in striking the balance, more apparent than in trying to determine whether there is the requisite adequate assurance of future performance. Id. at 107 (citations omitted). The phrase "adequate assurance of future performance," adopted from section 2-609(1) of the Uniform Commercial Code, is to be given a practical, pragmatic construction based upon the facts and circumstances of each case. Matter of U.L. Radio Corp., 19 B.R. 537, 542 (Bankr.S.D.N. Y.1982). Although no single solution will satisfy every case, the required assurance will fall considerably short of an absolute guarantee of performance. Matter of Luce Industries, Inc., 8 B.R. at 107. As further stated by the court in Luce: It is a basic presumption in our system of law that parties to a contract will proceed in good faith in fulfilling their contractual obligations. . . . Every single detail need not be hammered out and amplified as it seems [the lessor] desires. . . . Further if necessary, [the lessor] is free to return to this court and seek additional relief, which if instituted by an order to show cause, would receive attention on an expedited basis. Id. at 108. What the Code requires is that the lessor be given the performance for which he has contracted. In re Sapolin Paints, Inc., 5 B.R. at 420. It is not intended that a non-debtor party should acquire greater rights in a case under the Code than he has outside the Code. Report of the Commission on Bankruptcy Laws of the United States, H.R.Doc. No. 93-137, 93d Cong., 1st Sess. Pt. II 156-57 (1973); Matter of National Shoes, Inc., 20 B.R. 55, 59 (Bankr.S. D.N.Y.1982). A Lessor cannot insist that *804 bankruptcy law gives him what the lease itself does not, i.e., assurance that the lessee will not bring about any condition which entitles the lessor to prematurely terminate the lease. In re Sapolin Paints, Inc., 5 B.R. at 420. Therefore, the court will not give the lessor herein a guaranty of future performance nor greater rights than it had pre-petition. Heerey demands that which its lease with Bon Ton does not provide. As long as Heerey has a right to terminate the lease upon default, a right which will in no way be diminished by assumption, he would seem to have all that he has bargained for, which is all the Code intended to provide. Id. Moreover, swift relief from the court should the debtor fail to perform is the best assurance of all. In re Hub of Military Circle, Inc., 13 B.R. 288 (Bankr.E.D.Va.1981). Considering all the facts of the proposed assumption, there is present here adequate assurance of future performance of the terms of the lease. Bon Ton has shown both willingness and ability to undertake performance of the lease and to thereby succeed in providing Heerey with the benefit of his bargain. Based on the apparent viability of debtor's business, the debtor's prospects for reorganization, and the length of the lease term remaining, see In re Hub of Military Circle, Inc., 13 B.R. 288 at 461, it appears reasonably certain that the lessor will receive complete performance under the terms of the lease since the debtor appears capable of continued full performance. The court is cognizant of the fact that a debtor in possession assumes a contract or unexpired lease subject to its terms and conditions; it cannot accept in part and reject in part. In re TSW Stores of Nanuet, Inc., 34 B.R. 299, 304 (Bankr.S.D.N.Y. 1983). If a debtor wishes to have the benefits of its unexpired lease, it must also accept the burdens. In re Berkshire Chemical Haulers, Inc., 20 B.R. 454, 456-57 (Bankr.D.Mass.1982). Although the bankruptcy court has the equitable power to modify lease provisions if doing so would benefit the estate and not significantly prejudice the lessor, a debtor cannot utilize section 365 to relieve itself of conditions which are clearly fixed by the contracting parties as an essential part of their bargain and which do not contravene overriding federal policy. Matter of Easthampton Sand & Gravel Co., Inc., 25 B.R. 193 (Bankr.E.D.N.Y.1982). However, the facts of this case lead the court to conclude that the lessor herein, by invoking the provisions of the Bankruptcy Code, seeks to terminate a valuable property interest upon any default, however minor, without affording the lessee an opportunity to cure. See In re Belize Airways, Ltd., 5 B.R. 152, 154 (Bankr.S.D.Fla.1980). See also Matter of Goldblatt Bros, Inc., 766 F.2d 1136 (7th Cir.1985) (debtor's nonuse of second floor of premises under partial percentage rent lease did not necessarily constitute a material breach and therefore was not a default requiring cure and compensation under section 365(b)(1) since debtor was in substantial compliance with the terms of the lease). As the court in Matter of National Shoes, Inc., 20 B.R. 51 (Bankr.S.D.N.Y.1982) observed with respect to section 365(b)(1): While it is true that the debtor does have the obligation to cure prepetition defaults by prompt payment or by giving assurances of prompt payment, and to provide adequate assurance for future performance as to its lease, Section 365 goes only that far. The debtor's enterprise at the site will not be disrupted and its Chapter 11 impaired because the landlord would like another tenant, or more from the debtor than the lease provides. Id. at 53. The court is satisfied that Bon Ton has met the conditions of section 365(b)(1). Bon Ton is willing and able to promptly effect a cure of any existing defaults, and has provided the requisite adequate assurances in connection therewith. Further, other than attorneys' fees incurred, the debtor's defaults do not of and by themselves establish actual pecuniary loss requiring section 365(b)(1)(B) compensation. The court concludes that the only defaults *805 that Bon Ton must cure as a condition to assumption, in addition to any rent payments due, are the costs of rodding the sewer line, if established to be Bon Ton's responsibility after an evidentiary hearing, the reimbursement of reasonable attorneys' fees, and the correction of the necessary fire hazards enumerated by the court. The court further concludes upon examination of the lease that Bon Ton must also cure the remaining defaults alleged by Heerey if they have not already been cured,[11] i.e., failure to pay water rents since April, 1983, failure to pay remaining $1,000 installment of debtor's security deposit, and failure to obtain plate glass insurance.[12] The court believes that the costs Bon Ton will have to bear in curing defaults are relatively minor, and therefore its assurances of prompt cure are adequate. Upon cure, the parties would return to their pre-petition stance with no further lessor remedies for conduct prior to the date of assumption. Allied Technology, Inc. v. R.B. Brunemann & Sons, 25 B.R. 484, 500 (Bankr.S.D.Ohio 1982). In ruling on the question of assumption of an unexpired lease, the court must be reasonably satisfied that if the debtor is not going to cure a default immediately, it ill be able to do so within a period of time deemed to be prompt which varies according to the circumstances of a particular case. In re Berkshire Chemical Haulers, Inc., 20 B.R. 454, 459 (Bankr.D.Mass.1982). See In re Lawrence, 11 B.R. 44 (Bankr.N. D.Ga.1981) (ten months); In re Belize Airways Limited, 6 B.R. 157 (Bankr.S.D.Fla. 1980) (fifteen days); In re A.R. Dameron & Associates, Inc., 3 B.R. 450 (Bankr.N.D. Ga.1980) (at the time of or before assumption). The court holds that debtor's cure of these defaults within ninety days would constitute a prompt cure. The court concludes that Bon Ton's assumption of the unexpired lease is in the best interests of creditors and the estate. The court is mindful of the fact that court approval of assumption on behalf of a debtor/lessee must give due regard to the interests of the lessor. However, the court finds that the lessor herein is not prejudiced by assumption since it is being made whole by the curing of the defaults found by the court and by the adequate assurances given pursuant to section 365(b)(1). IT IS HEREBY ORDERED that Bon Ton may assume the unexpired lease. IT IS FURTHER ORDERED that Bon Ton has ninety days from the date of this order to cure all defaults hereunder as well as a similar ninety day period after final determination of the question of sewer rodding costs and reasonable attorneys' fees. IT IS FURTHER ORDERED that Heerey shall have sixty days within which to present its application for attorneys' fees for court approval. An evidentiary hearing with respect to the sewer rodding costs will be held on November 19, 1985 at 10:30 a.m. NOTES [1] This court has previously ruled, pursuant to Heerey's motion to compel Bon Ton to replace the present extinguishing system or discontinue operations, that the installation of a replacement sprinkler system was the responsibility of the lessor under Illinois law and the terms of the lease. In re Bon Ton Restaurant and Pastry Shop, Inc., Memorandum and Order, 55 B.R. 43 (Bankr.N.D.Ill.1985). [2] This court has already ruled that on April 4, 1985, the court granted Bon Ton an indefinite extension of time to assume its unexpired lease pending resolution of the issues in the present Memorandum and Order. In so ruling, the court concluded that the lease was not deemed rejected pursuant to section 365(d)(4) of the Code as urged by the lessor in a related motion. In re Bon Ton Restaurant and Pastry Shop, Inc., Memorandum and Order, 52 B.R. 850 (Bankr. N.D.Ill.1985). [3] These conditions include: (1) the existence of numerous extension cords connecting electrical equipment where permanent wiring ought to be installed; (2) the fact that wood framing is in contact with the exhaust hood which could result in ignition; (3) the fact that the ceiling is cracked and in disrepair, thereby exposing wood framing near the cooking area; (4) the existence of combustible material surrounding the warming table which uses a manually controlled single gas burner; (5) the inadequacy of the small unmounted fire extinguisher; (6) the fact that the overhead electric light should be encased with a plastic cover and in its present state is a possible ignition source; (7) the fact that the floor is uneven and in disrepair; (8) the existence of clutter near the emergency exits and the fact that the main exit signs are not lighted; (9) the need for replacement of the flexible gas line running to the stove; (10) the existence of substantial grease build-up behind the stoves which is extremely combustible; (11) the existence of water running from the kitchen to the basement increasing the possibility of electrical short circuits; and (12) the accumulation of potentially combustible paper debris behind the freezers. [4] According to Heerey, the aggregate sum of the existing monetary defaults, at the time of his response filed May 22, 1985, was $37,598.24. [5] 11 U.S.C. § 365(a) provides in relevant part: . . . [T]he trustee, subject to the court's approval, may assume or reject any executory contract or unexpired lease of the debtor. Section 1107(a) of the Code vests the rights, powers and duties of a Chapter 11 trustee in the debtor in possession. Therefore, references in section 365 as to what the trustee may do apply equally to a debtor in possession. [6] Paragraph 4 provides in relevant part: 4. . . . Lessee will not allow the Premises to be used for any purpose that will increase the rate of insurance thereon nor for any purpose other than hereinbefore specified. . . . Lessee will not use or allow the use of the Premises for any purpose whatsoever that will injure the reputation of the Premises or of the building of which they are a part. [7] Paragraph 28 provides: 28. Lessee agrees and covenants to comply with all regulations of cooking and ventilating systems as present law requires and in the event that such standards and/or devices are inadequate in accordance with the existing laws, they shall be changed and modified at Lessee's expense. Further, in the event that Lessee shall change existing cooking operations, Lessee shall pay any increase in the premium for such insurance due to lessee's failure to comply with all appropriate regulations, and it shall be the obligation of Lessee to pay as so much additional rent the increase upon rendition of statement therefor from the Lessor. [8] The court would interpret "any purpose" under this provision of the lease to be equivalent to an unauthorized, unlawful or perilous use of the premises. It would be anomalous to hold that the contemplated use being made by the lessee and to which the parties had agreed the premises could be put would thereafter constitute a breach of the same agreement. See Mark Steel Corporation v. Eimco Corporation, 548 P.2d 892 (S.Ct.Utah 1976). [9] The court observes that increases in insurance premiums due to the cancellation of insurance by the lessor's former insurance carrier while the lessee was in conformity with the terms of the lessee would be such a situation outside the lessee's control. See In re Bon Ton Restaurant and Pastry Shop, Inc., No. 85 B 1755, Memorandum and Order (Bankr.N.D.Ill. July 18, 1985). See also Hagopian v. Brandon, 116 N.Y.S.2d 799 (1952) (tenant not liable for increased insurance premium where use of premises was permitted by the landlord and was in conformity with the terms of the lease). [10] Bon Ton has alleged that Heerey's reliance on paragraph 32 of the lease is misplaced since Bon Ton does not have present possession of the entire basement. Heerey has made no reply to this statement. Notwithstanding, paragraph 32 is not dispositive or germane to the issues herein and is therefore not discussed. [11] Heerey has indicated that certain of the defaults which existed at the time of Bon Ton's application to assume have been cured. [12] The court determined in its order of July 18, 1985 that Bon Ton does carry and maintain public liability and property damage insurance as paragraph 42 of the lease requires.

328 F.2d 132 UNITED STATES of Americav.Anne Russelle HORTON, also known as Toni Manning; RonaldCharles Edgar.Ronald Charles Edgar, Appellant. No. 14447. United States Court of Appeals Third Circuit. Argued Dec. 10, 1963.Decided Feb. 20, 1964. Jacob J. Kilimnik, Philadelphia, Pa., for appellant. Thomas F. Gilson, Asst. U.S. Atty., Philadelphia, Pa. (Drew J. T. O'Keefe, U.S. Atty., Philadelphia, Pa., on the brief), for appellee. Before BIGGS, Chief Judge, and McLAUGHLIN and HASTIE, Circuit Judges. HASTIE, Circuit Judge. 1 The appellant Edgar has been convicted and has received separate sentences upon two counts of an indictment. The first count charged him and Anne Horton with conspiring to violate the requirement of section 2424 of Title 18, U.S. Code, that a person who harbors an alien woman for the purpose of prostitution shall file with the Commissioner of Immigration a statement showing the circumstances of the alien's entry into the country and the place where she is kept. The other count charged the substantive offense of unlawfully transporting a girl less than 18 years old from New Jersey to Pennsylvania for the purpose of prostitution in violation of section 2423 of Title 18. 2 The case was tried to a jury. Edgar moved for acquittal on the conspiracy count at the conclusion of the evidence for the prosecution and again when he rested his own case without submitting any additional evidence. The denial of these motions is challenged on this appeal. 3 In determining the sufficiency of the evidence to go to the jury it must be kept in mind that the only conspiracy charged was a scheme to avoid or withhold the registration of an alien prostitute as required by section 2424. That section does not prohibit indulgence or commercial involvement in prostitution. It merely imposes a requirement of registration upon one who harbors an alien prostitute. Thus, the government had to associate the appellant with a scheme to avoid or withhold such registration. 4 There is no evidence that Edgar harbored the prostitute, Carmen Duckett. Indeed, the government conceded at the argument of this appeal that the evidence did not establish a situation in which Edgar was obligated to register the prostitute. Anne Horton alone was shown to be the harborer, required as such to file a statement with the Commissioner of Immigration. Therefore, it was necessary in some way to associate Edgar with an undertaking to accomplish or facilitate Horton's avoidance of the obligation which section 2424 imposed upon her. But the only thing proved was Edgar's involvement in the commercial debauchment of the alien girl. It was not shown that Edgar did anything to encourage Horton to withhold registration or to conceal that omission. It does not appear that he was even aware that Horton had not filed a statement or that she was obligated to do so. The significance of this failure of proof may be made clearer by an illustration given by Judge Learned Hand many years ago: 5 'While one may, for instance, be guilty of running past a traffic light of whose existence one is ignorant, one cannot be guilty of conspiring to run past such a light, for one cannot agree to run past a light unless one supposes that there is a light to run past.' United States v. Crimmins, 2d Cir. 1941, 123 F.2d 271, 273. 6 Since there was no evidence of Edgar's association with a purpose to further or accomplish the definitive objective of the alleged conspiracy, his motion for acquittal on that count should have been granted, and such acquittal must now be ordered. Cf. United States v. Rappaport, 3d Cir. 1961, 292 F.2d 261. 7 In support of the substantive count, charging interstate transportation of a juvenile prostitute, there was ample evidence that Edgar induced Carmen Duckett to travel from New Jersey to Philadelphia for purposes of prostitution. However, on this appeal it is urged that the trial court committed reversible error in various trial rulings. The only contention which requires discussion is that all of Carmen Duckett's testimony and the testimony of certain police officers should have been excluded because this testimony was the product of an unreasonable search of Anne Horton's apartment. 8 The 'search' which appellant attacks was made by two local police officers in plain clothes. The evidence shows that police officers, acting upon a tip from an undisclosed source concerning the use of the Horton apartment for prostitution, had maintained a watch outside of the building for several hours daily over a period of five days. The apartment in question was on the second floor of a building containing at least three other apartments. About noon on the day in question the two officers observed Jerome Weiss emerging from the building. Why they believed that he was coming from the Horton apartment does not appear. In any event, they questioned him and he told them that he had gone to the apartment merely to pick up a suit. They then proposed that he go back to the apartment with them to verify his story. There is no evidence that he expressed any objection to this. When the three men arrived at the apartment door, Weiss knocked, identified himself to Anne Horton through the door and requested admission. When she opened the door the three men stepped inside and the officers immediately identified themselves as policemen. 9 Apparently the door opened directly into a room where the other occupants of the apartment were assembled. Carmen Duckett was there, dressed only in transparent panties and a transparent brassiere. A second woman was dressed only in a transparent negligee. Edgar also was present. The officers' testimony to which objection was made was a description of the scene thus observed as they entered the apartment. In addition, this discovery of Carmen Duckett led to her subsequent admissions that she was a prostitute and that Edgar had induced her to engage in prostitution and to travel from New Jersey to Philadelphia for that purpose. Therefore, objection was made to all of her testimony. 10 The appellant contends that the police officers' observation of two undressed women, one of them the alien involved in this case, in the Horton apartment occurred during and as a result of an unreasonable search. Search necessarily involves a seeking out. An unreasonable search of a residence occurs when an unwarranted intrusion upon privacy is employed in seeking out something therein. Unwarranted intrusion may occur in the obtaining of entry, or in conduct after entry, or in both. 11 In this case, the not very detailed testimony concerning the events in question indicated that Weiss and the accompanying policy officers were admitted from a public hallway through a door opening into the room where the occupants, including two all but naked women, were present. One the door was opened and the officers stepped inside, the scene which they later described, over objection that they were making an illegal search, was immediately before them. In these circumstances, the illegality in the conduct of the officers must be found solely in the manner of gaining admittance. For if their presence was lawful, the observation of what was then and there immediately apparent could not in itself be a wrong. Ellison v. United States, 1953, 93 U.S.App.D.C. 1, 206 F.2d 476; Paper v. United States, 4th Cir. 1931, 53 F.2d 184; Gizzo v. State, 1954, 160 Tex.Cr.R. 593, 272 S.W.2d 898; State v. Magnano, 1922, 97 Conn. 543, 117 A. 550. 12 The evidence shows without contradiction that the police officers came to the Horton apartment to make inquiry. There is no evidence that their purpose was to search the premises and they did not do so. Although they suspected that this was a brothel, their visit at the time in question was occasioned by Weiss' dubious account of what he had been doing there, and their immediate purpose was to verify or discredit his story. For this reason the many cases which turn upon some question as to the propriety of searching a house without a warrant are not helpful here. The visit of the officers was attended by no purpose which required a warrant. 13 But even though a search was not intended, the method of obtaining entry is challenged as improper. True, only Weiss identified himself in asking Horton to open the door. He did not volunteer the additional information that police officers accompanied him. But the police were with him on a mission directly concerning Weiss and his recent visit to the apartment, and they identified themselves as soon as the door was opened. In these circumstances, we think the policemen standing inside the door and observing the persons within plain view inside were not trespassers. Cf. Ellison v. United States,supra. The legitimacy of the police mission to verify Weiss' account of the visit he had just made to the apartment justified the use of Weiss, the individual primarily interested and involved, to induce Horton to open the door. In all the circumstances, the conduct of the police did not fall within that area of official overreaching or 'dirty business' which is the concern of courts when they exclude evidence obtained by unwarranted intrusion upon the privacy of a residence. Cf. On Lee v. United States, 1952, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (sanctioning a much more objectionable stratagem of introducing a concealed microphone into a house upon the person of a visitor for electronic eavesdropping); Leahy v. United States, 9th Cir. 1959, 272 F.2d 487 (officers gaining admittance by pretending to be tax assessors); Jones v. United States, 1962, 113 U.S.App.D.C. 14, 304 F.2d 381 (officers using janitor as a front to gain admittance). 14 It is also relevant that all of these events occurred a few minutes before noon, at a normal time for a business visitor to request admittance to a residence. It has become part of the accepted routine of the urban householder's life that his or her domestic activities are frequently interrupted by business callers, some less welcome than others. Charitable solicitors, salesmen, poll or census takers, process servers, policemen and public inspectors of various kinds, arrive without notice to inquire, solicit, deliver or investigate as the case may be. If such calls at times become annoying, they do not on that account involve illegal entry. The householder may refuse admittance, but if he opens the door the visitor who is permitted to cross the threshold upon a lawful mission is in no sense a trespasser or wrongdoer, particularly when he properly identifies himself as he enters and does not push on beyond the entrance area where strangers on legitimate business missions are normally received. 15 Courts have been properly critical of the police officer who, once the outer door is opened, presses on into a residence to search for something, even though the householder who has opened the door to him does not overtly protest. Johnson v. United States, 1948, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; Williams v. United States, D.C.Cir. 1959, 263 F.2d 487; Honig v. United States, 8th Cir. 1953, 208 F.2d 916. Such intrusion is normally objectionable and the householder's failure to protest is likely to impart submission to authority rather than consent. Moreover, as a matter of public policy, officers are and should be discouraged from searching premises without a warrant. There is no similar policy against official visitation for purposes of inquiry not attended by search. Therefore, we think a different view is proper when the business visitor, whether policeman or private person, merely steps within the door that has been opened to state whatever his lawful business may require. The householder often says in retrospect: 'If I had known who was at the door and what he wanted I would not have let him in'. But this attitude after the event does not make the permitted presence of the visitor within the entrance area where business conversations are normally conducted an unlawful intrusion. 16 We see no reason to discourage policemen from obtaining access, without trespass, to this entrance area to make proper inquiries, whether concerning suspected wrongdoing or for other official business. Such discouragement would be the only purpose served by excluding from evidence in subsequent litigation testimony based upon the observation of that which was in plain view, once the outer door of a residence was opened to the visitor. 17 Other points have been argued by the appellant, but none of them discloses reversible error. 18 Edgar's conviction on the conspiracy count will be reversed. His conviction and sentence for violation of section 2423 will be affirmed.

388 So.2d 296 (1980) Charles D. DEARING, Appellant, v. The STATE of Florida, Appellee. No. 78-2222. District Court of Appeal of Florida, Third District. September 16, 1980. Rehearing Denied October 13, 1980. *297 Bennett H. Brummer, Public Defender, Stanley M. Newmark, Sp. Asst. Public Defender, for appellant. Jim Smith, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for appellee. Before BARKDULL, HENDRY and SCHWARTZ, JJ. SCHWARTZ, Judge. The defendant below appeals from a conviction and sentence entered upon the revocation of a previously imposed term of probation. We affirm. On July 13, 1976, after a jury had found him guilty of possession of an explosive without a permit, the trial judge placed Dearing on five years probation with a special condition that he serve six months in the county jail. He posted a supersedeas bond and was released pending his appeal, which resulted in an affirmance of his conviction on August 9, 1977. Dearing v. State, 348 So.2d 1233 (Fla. 3d DCA 1977). Subsequently, however, Dearing pled guilty to a marijuana conspiracy charge in the federal District Court for the Western District of Texas and began serving a sentence for that offense. The federal charge formed the only basis for the revocation of his probation in the lower court. On this appeal, Dearing first contends that the evidence was insufficient to demonstrate that he had in fact violated a term of his probation. It is, of course, conceded that probation may be revoked *298 solely on the basis of a conviction for criminal conduct which occurred during the probationary term. E.g., Franklin v. State, 356 So.2d 1352 (Fla. 2d DCA 1978); Thomas v. State, 350 So.2d 568 (Fla. 3d DCA 1977). Dearing contends, however, that there was no such showing below. We disagree. The Texas federal indictment alleged a conspiracy continuing between 1975 and November 14, 1977. One of the overt acts in furtherance of the conspiracy of which Dearing was specifically accused was "[t]hat on or about June 2, 1977 [subsequent to his being placed on probation], ... Dearing attempted to fly a quantity of marijuana from the Republic of Mexico into the United States."[1] By pleading guilty to this charge, the defendant admitted and it was therefore conclusively established that he had committed a criminal act after his term of probation had begun. Robinson v. State, 373 So.2d 898 (Fla. 1979); Williams v. United States, 443 F.2d 1151 (5th Cir.1971). This case is therefore entirely distinguishable from Demchak v. State, 351 So.2d 1053 (Fla. 4th DCA 1977), upon which Dearing heavily relies. Compare also, O'Steen v. State, 261 So.2d 208 (Fla. 1st DCA 1972). In Demchak, the defendant had been found guilty only of a conspiracy which, like the one involved here, allegedly spanned a period both before and after he had been placed on probation. In decisive contrast to our situation, however, there was no further specific evidence that the defendant had engaged in any unlawful conduct after the term had commenced. Dearing also claims that the trial judge improperly required him, over his self-incrimination objection, to testify at the revocation hearing that he was indeed the person who had pled guilty to the federal charges. On this point, he relies upon the statement in State v. Heath, 343 So.2d 13, 16 (Fla. 1977), cert. denied, 434 U.S. 893, 98 S.Ct. 269, 54 L.Ed.2d 179 (1977), that, while a probationer must respond to questions dealing with his proper supervision, "the Fifth Amendment privilege against self-incrimination must be applicable to specific conduct and circumstances concerning a separate criminal offense." Again, we reject this contention. The situation to which the supreme court obviously referred in Heath was the one in which, as in Heath and Douglas v. State, 376 So.2d 11 (Fla. 2d DCA 1979), the defendant is charged with violating his probation because of a criminal offense for which he is being or could be independently prosecuted. In such an instance, as the court properly held in Douglas, the probationer is entitled to the privilege which precludes his providing evidence as to that charge against himself. It is well-settled, however, that the privilege no longer exists as to alleged crimes for which the witness could not be subsequently prosecuted, as when he had, as in this case, previously pled guilty and been sentenced for the offense in question. Reina v. United States, 364 U.S. 507, 81 S.Ct. 260, 5 L.Ed.2d 249 (1960); In re Liddy, 506 F.2d 1293, 1300 (D.C. Cir.1974); United States v. Skolek, 474 F.2d 582 (10th Cir.1973). Moreover, the mere fact that one's truthful answers to a particular question would result in a revocation of his probation does not alone implicate the fifth amendment privilege. Heath v. State, supra; Holmes v. State, 311 So.2d 780 (Fla. 3d DCA 1975). Putting the two principles together, it follows that Dearing was correctly required to admit that he had pled guilty to, and thus that he had committed an offense which occurred during his probation. Holdren v. People, 168 Colo. 474, 452 P.2d 28 (1969) squarely so holds. In that case, the defendant had pled nolo to a charge of taking indecent liberties with a child, which took place while he was on probation. In the appeal from an order of revocation, Holdren contends finally that he was denied the privilege against self-incrimination when, over the objection of counsel, *299 the court asked him if he had been drinking and if he had two boys with him. To both questions, Holdren replied `yes.' The privilege against self-incrimination would have been applicable had Holdren been charged with a new crime. Here the issue of guilt upon which the sentence issued had already been determined by his earlier plea. Holdren's testimony, moreover merely corroborates what the probation officer had already told the court. No authority has been cited for the rule which Holdren would have us adopt. We find no error. 452 P.2d at 30. See also, Douglas v. State, supra, at 376 So.2d 13 ("The questions appellant refused to answer involved a separate criminal offense with which appellant, not having been convicted thereof and not having been granted immunity, could have been charged. He retained his right to refuse to answer such questions, and his probation could not be revoked for exercising this right." [e.s.]); Tempo Trucking and Transfer Corp. v. Dickson, 405 F. Supp. 506, 520 (E.D.N.Y. 1975) (no privilege in license revocation proceeding to decline to answer questions concerning prior offense to which defendant had pled guilty, although testimony could result in loss of license); cf. United States v. Hodge and Zweig, 548 F.2d 1347 (9th Cir.1977) (no such privilege as to compelled testimony in response to IRS summons). This court has recently rejected Dearing's final contention that the trial court may not revoke a term of probation for a violation which occurred while the order was validly superseded. Loeb v. State, 387 So.2d 433 (Fla. 3d DCA 1980). Affirmed. NOTES [1] There is no doubt that this conduct constituted a violation of the federal narcotics laws, 21 U.S.C. §§ 952(a), 963, even if it occurred entirely outside the boundaries of the United States. United States v. Brown, 549 F.2d 954 (4th Cir.1977), cert. denied, 430 U.S. 949, 97 S.Ct. 1590, 51 L.Ed.2d 798 (1977); United States v. Vicars, 467 F.2d 452 (5th Cir.1972), cert. denied, 410 U.S. 967, 93 S.Ct. 1451, 35 L.Ed.2d 702 (1973).

Filed 8/27/13 P. v. Atkins CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ---- THE PEOPLE, C070154 Plaintiff and Respondent, (Super. Ct. No. 10F03637) v. GREGORY JAMAR ATKINS, Defendant and Appellant. Defendant Gregory Jamar Atkins molested the daughter and son of friends with whom he lived on and off. An information charged defendant with four counts of oral copulation on a child 10 years of age or younger, attempted sexual intercourse with a child 10 years of age or younger, and three counts of forcible lewd and lascivious acts on a child under the age of 14. (Pen. Code, §§ 288.7, subd. (b), 664/288.7, subd. (a), 288, subd. (b)(1).)1 A jury found defendant guilty on all counts. Sentenced to 45 years to life plus a consecutive term of 19 years in state prison, defendant appeals, requesting this 1 All further statutory references are to the Penal Code unless otherwise indicated. 1 court review the school records of one of his victims to determine the scope of discovery, contending the prosecution committed misconduct, and alleging sentencing error. We shall remand for a reconsideration of consecutive sentences on counts six and seven. In all other respects, the judgment is affirmed. FACTUAL AND PROCEDURAL BACKGROUND The Victims A.D., who was 13 years old at trial, and M.D., age 10 at trial, are the daughter and son, respectively, of L.P. and J.K. The couple also have two other children, ages six and one at trial. Defendant has two children with A.D.’s aunt (the children’s aunt). Defendant lived with A.D. and her family in the past. He had been in A.D.’s life as long as she could remember, and she thought of defendant as her uncle. Molestations of A.D. A.D. testified that defendant touched her in her “private part” with his hand and mouth. Defendant touched her under her clothing. Defendant touched A.D.’s private with his “private.” He tried to put his private into A.D.’s private but was unsuccessful. When he tried to put his private in her private it hurt. On more than one occasion, A.D. saw “something come out of [defendant’s] private.” The molestations began when A.D. was five and living in the New Helvetia apartment complex with her family and defendant. The touching happened “[a] lot” and also took place at the home of the children’s aunt. As a prelude to the molestations, defendant would send A.D.’s brothers outside and call A.D. into a room. On one occasion, the touching took place at the children’s aunt’s home; defendant sent A.D.’s brothers and cousins outside and then called A.D. into her aunt’s room. After A.D. went into the room, defendant started touching her. Defendant removed A.D.’s clothes and touched her private parts with his mouth, holding her down on her aunt’s bed. 2  Defendant also touched A.D. this way when she lived in a house on Twin Road. Although A.D. initially could not recall being touched at a 6th Parkway apartment where she had lived, she recalled an incident after being shown a photograph of the apartment. Defendant touched her with his private while in her room. On another occasion defendant put his penis in A.D.’s mouth. A.D. recalled an incident at the 6th Parkway apartment in which defendant woke her up. After A.D. went to the bathroom, she returned to her room to find defendant standing there. She got into bed, pulling up the covers. Defendant pulled off the covers and began touching her. He removed A.D.’s clothes and put his mouth on her private part before trying to put his private in her private. While living at the New Helvetia apartment, defendant touched A.D. while they were in his room. Defendant also showed A.D. videos of naked people doing “[n]asty stuff.” When defendant touched A.D. he held down her arms to prevent her from moving. After he touched her, defendant gave her money so she would not tell anyone what happened. Defendant told A.D. that if she told anyone about the incidents he would kill her. Molestations of M.D. A.D. saw defendant commit sexual acts with her brother M.D. Once, when A.D. walked into her great-aunt’s house, she saw M.D. kneeling down with his mouth on defendant’s private. M.D. testified that defendant put his privates in M.D.’s mouth. This happened more than once, and M.D. did not say anything because he was scared. Defendant would push M.D.’s head down so M.D. could not get away. M.D. also testified about witnessing defendant with a cover over his privates; A.D. was under the covers with her head “moving up and down.” 3 Discovery A.D. developed a rash on her privates and told her mother. A.D.’s mother asked her if someone was touching her. A.D. told her mother about defendant, and her mother grabbed a knife and went to confront defendant at A.D.’s great-aunt’s house. A day later A.D. spoke with the police. Interviews with Child Abuse Unit The case was later assigned to Detective Carol Mims. After Detective Mims reviewed the police report, she scheduled a special assault forensic evaluation (SAFE) interview for A.D. and M.D. The two children were interviewed on May 24, 2010. A video of the interview was played for the jury. During the SAFE interview, A.D. stated she told her mother about the touching after she developed a rash. Defendant had been touching A.D. since she was five years old. He put his tongue on A.D.’s private parts and told her if she told anyone he would kill her. He also gave A.D. money. A.D. also described incidents at the 6th Parkway apartment, including the incident in which defendant woke her up and molested her after she returned from the bathroom. Defendant put his tongue on her private and held her down to prevent her moving. Something white came out of defendant’s private. In addition, A.D. described an incident at the home of the children’s aunt, when defendant put his tongue in A.D.’s private and then put his private into her private. Defendant had sent her brothers and cousins outside to play before molesting her. He then pulled down A.D.’s pants and put his tongue in her private. He held her down and tried to put his private on A.D.’s private. Defendant then put his tongue back on A.D.’s private. He gave A.D. money and told her he would kill her if she told anyone what happened. During the interview, A.D. also discussed an incident when she was five and living in the New Helvetia apartment. Defendant, who lived with her family, called A.D. 4 into his room and put his tongue on her private. He told her he would kill her if she told anyone. A.D. estimated defendant molested her 19 times while she lived at New Helvetia. Defendant molested her two more times at the children’s aunt’s home, two more times at her old home, and one time at her new home. A.D. described defendant’s molesting M.D. by putting his privates in her brother’s mouth. She also stated defendant showed her videos of naked people. During M.D.’s SAFE interview, a video of which was also shown to the jury, he stated defendant molested him more than once. M.D. described defendant’s waking him up and making him “suck his privates.” Defendant would pull his pants down and stand by M.D.’s bed. He would tell M.D. he would give him money when he was done and then he would push M.D.’s head down onto his private part. M.D. also saw defendant do the same thing to his sister A.D. Medical Examination Dr. Jason Leu examined A.D. after she reported the rash in her vaginal area. A.D. told Leu she had had some vaginal bleeding because defendant “had tried to penetrate her vaginal area.” The molestations began when A.D. was five. Leu’s external examination of A.D. revealed lesions at A.D.’s vaginal opening. A.D.’s urine test showed she had chlamydia; her blood test showed signs of syphilis. A.D. also suffered from a yeast infection. Based on these results and A.D.’s age, Leu concluded she had been sexually abused. Tests for sexually transmitted diseases proved negative for M.D. at his initial examination. A SAFE nurse performed forensic examinations of both children. The results could neither confirm nor negate sexual abuse. A.D. and M.D. were retested for syphilis and chlamydia: A.D. tested positive for both and M.D. tested positive for syphilis. The SAFE nurse explained that the syphilis retest was necessary because of the incubation period of the disease. 5  The nurse testified neither disease could be transferred by sharing clothing or contact with toilets. Syphilis can only be transmitted through sexual contact. In 2010, out of 56 reported cases of syphilis in Sacramento County, only three involved individuals under the age of 19. In July 2010 defendant tested positive for syphilis. Child Sexual Abuse Accommodation Syndrome Dr. Anthony Urquiza, a psychologist, testified regarding child sexual abuse accommodation syndrome. Urquiza testified the syndrome is an educational tool used to help dispel misperceptions about sexual abuse. Five categories characterize the syndrome: secrecy, helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and retraction. Secrecy describes the abuser’s relationship with the victim and the effort to silence the child. Helplessness refers to the child’s vulnerability to the abuser. Entrapment and accommodation refer to the child’s ensnarement in the relationship and the child’s efforts to cope with the experience. Delayed and unconvincing disclosure describes the abused child’s reluctance to report the abuse immediately and tendency to later recant the allegations. Defense Case Defendant testified in his own behalf. He was a childhood friend of A.D. and M.D.’s father. When defendant first moved to Sacramento from Louisiana he renewed their acquaintance. After a time, defendant moved into the New Helvetia apartment with the family. Defendant had little contact with A.D. He lived with the family for approximately six months and then returned to Louisiana. Defendant came back to Sacramento in 2004 and moved in with the children’s great-aunt; he later lived with the children’s aunt in an apartment on Sky Parkway. A.D. and her family subsequently moved into the Sky Parkway apartment. In 2006, after “things [started] getting kind of crazy” at the Sky Parkway apartment, defendant moved briefly to San Francisco. He returned to the apartment later that year. 6  Defendant moved into his own apartment in Spartan Village. A.D. and her family later moved in with defendant for about a year. Nothing inappropriate took place with A.D. or M.D. during this time; he did not see the children very often. Defendant moved to the Sunny Slope apartments. A.D.’s parents moved in with defendant, but A.D. and M.D. did not. In 2008 defendant moved back in with the children’s aunt for a couple of months, then moved to North Sacramento. In 2009 defendant moved in with the children’s great-aunt and became her care provider. Some months later, defendant and the children’s great-aunt moved back to Spartan Village. While living there, defendant occasionally spent the night at A.D.’s family’s home on 6th Parkway. Defendant denied doing anything inappropriate at the Sky Parkway residence or at the Spartan Village apartment. Defendant first learned of the children’s allegations when their mother L.P. came to his apartment, armed with a knife. Defendant went to A.D.’s apartment to respond to the charges. When A.D.’s father J.K. arrived, he told defendant to leave. Defendant left. J.K. later told defendant to return to Louisiana. Defendant refused since he had not done anything wrong. However, defendant changed his mind after some of L.P.’s family members tried to “jump” him. Defendant bought a bus ticket to Louisiana and also visited his brother in Arkansas. Police arrested defendant in Arkansas. After his return to Sacramento, defendant learned of M.D.’s allegations against him. While he lived in California, defendant testified he had a problem with alcohol, and used marijuana and Ecstasy. Although defendant admitted watching pornography, he testified he did it alone. Defendant stated he saw A.D. and M.D. watching pornography in the presence of their parents, who were “passed out.” According to defendant, A.D. and L.P. stole money from him when he passed out in his room. Defendant admitted giving M.D. and A.D. money for ice cream but did not give A.D. money to buy her silence. He did not threaten to kill her. 7  Defendant did not molest A.D. or M.D. However, defendant acknowledged telling a detective that if he molested either child it was “because [he] was drunk and high.” Defendant also testified he “probably” told the detective that if he tested positive for syphilis, he would have to “own up” to what he did. Aftermath An information charged defendant with four counts of oral copulation on a child 10 years of age or younger (counts one, two, five, & eight), attempted sexual intercourse with a child 10 years of age or younger (count three), and three counts of forcible lewd and lascivious acts on a child under the age of 14 (counts four, six, & seven). The information also alleged defendant committed the offenses against two or more victims. (§ 667.61, subd. (e)(5).) Defendant entered a plea of not guilty. The jury found defendant guilty on all counts and found the special allegation true. Count one and the special allegation as to that count were dismissed on the People’s motion because the statute did not exist at the time of the offense. The court sentenced defendant to 45 years to life in state prison plus a consecutive term of 19 years: 15 years to life on counts two, five, and eight, and the middle term of seven years on count three, the middle term of six years on count six, and the middle term of six years on count seven. The court imposed a six-year sentence on count four, which was stayed pursuant to section 654. Defendant filed a timely notice of appeal. DISCUSSION REVIEW OF SCHOOL RECORDS Defendant asks us to independently review A.D.’s school records in order to determine whether there were items the trial court should have disclosed following its in camera review of A.D.’s records. Defendant asks us to determine whether the school records contain information relevant to A.D.’s credibility. We granted defendant’s motion to augment the record with the sealed documents. The People do not oppose the request. 8 Background Prior to trial, defense counsel requested that the trial court review A.D.’s school records in camera for any exculpatory, material, and/or relevant admissible evidence. The trial court found sufficient cause to inspect the school records. The court’s review of the records revealed no records “that should properly be disclosed to the defense.” Discussion Education Code section 49076 limits access to a student’s school records. A review of these records requires either written parental consent or a court order, unless the request qualifies under certain exceptions. (Ibid.) Confidentiality gives way when the requested information facilitates the pursuit of facts and the goal of a fair trial. (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 536.) Confidential files may be disclosed if defense counsel makes a plausible justification for disclosure or a good cause showing of a need for the documents. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1045.) The trial court reviews the confidential documents in camera to determine whether or not disclosure is warranted. (§ 1326, subd. (c).) In turn, we review the confidential records the trial court declined to disclose to determine whether they are material and should have been disclosed. Such evidence is material only if there is a reasonable probability that had the evidence been disclosed, the result of the trial would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. (People v. Martinez (2009) 47 Cal.4th 399, 453-454.) Our review of the confidential records reveals no material evidence that should have been disclosed to the defense. PROSECUTORIAL MISCONDUCT Defendant argues the prosecutor committed misconduct during closing argument. According to defendant, the prosecutor vouched for the credibility of A.D. and M.D. by referring to facts not in evidence. These comments, defendant contends, prejudiced him. 9 Background During closing argument, the prosecutor addressed inconsistencies between A.D.’s and M.D.’s interview testimony and the testimony they gave at trial. The prosecutor referenced comments by defense counsel during opening statements concerning “how children are gonna [sic] react to having to testify.” The prosecutor referenced Dr. Urquiza’s testimony “that the environment kids are in greatly affects their ability to give accounts of what happened to them.” The prosecutor referred to a sexual assault training seminar one of her colleagues attended. Defense counsel objected. After the court overruled the objection, the prosecutor stated: “And before one of the lunch breaks the instructor said to the class, okay, when you all get back from lunch I’m gonna [sic] call on one of you and I’m gonna [sic] ask you about your last sexual experience, who it was with, where it happened, details, foreplay, positions. [¶] Okay. Have a good lunch.” Defense counsel objected and the trial court overruled the objection. The prosecutor continued: “As you can imagine, half the class didn’t even come back, but my colleague did, and he sat there staring at his feet thinking, I cannot do this. [¶] And that’s when he heard the instructor say, you all are sitting there imagining how hard it would be to talk about your last sexual experience. [¶] I’m gonna [sic] assume that was a consentual [sic] one. Now think about talking about it, talking about a sexual experience that was forced on you with a person who forced it upon you sitting 15 feet away from you. [¶] These kids testified to the best of their ability, but their testimony has been filtered by a year and a half of trying to forget.” Discussion A prosecutor’s conduct violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to deny the defendant due process. Prosecutorial conduct that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the 10 use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Samayoa (1997) 15 Cal.4th 795, 841 (Samayoa).) As a general rule, a defendant must object to the prosecutor’s misconduct and request an admonition when the misconduct occurs. (Samayoa, supra, 15 Cal.4th at p. 841.) The defendant’s failure to object or request an admonition is excused if either it would be futile or an admonition would not have cured the harm caused by the misconduct. (People v. Alfaro (2007) 41 Cal.4th 1277, 1328.) A prosecutor commits misconduct by invoking his or her personal prestige or experience in an effort to bolster the case against a defendant. (People v. Riggs (2008) 44 Cal.4th 248, 302.) It is misconduct for a prosecutor to refer to matters not in evidence unless they are matters of common knowledge or drawn from common experience. (People v. Cunningham (2001) 25 Cal.4th 926, 1026.) Moreover, it is improper for the prosecutor to vouch for the veracity of witnesses by reference to facts outside the record. (People v. Williams (1997) 16 Cal.4th 153, 257 (Williams).) Here, the prosecutor referred to a seminar on abuse of children attended by a colleague. The seminar sought to explain the inability of children to recall an incident of abuse by asking participants to recall their consensual sexual encounters. According to defendant, the seminar instructor, the colleague, and the prosecutor herself were all unsworn witnesses whom defendant could not cross-examine about the details of this experiment. The seminar instructor, defendant argues, was impliedly some sort of expert in the field of child abuse, an expert defendant could not cross-examine. In essence, the prosecutor committed misconduct by injecting facts not in evidence into closing argument in an effort to “explain away” inconsistencies in the children’s testimony, thereby bolstering their credibility. The prosecutor’s comments came during closing argument. The trial court instructed the jury that “Nothing that the attorneys say is evidence. In their opening 11 statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence.” (CALCRIM No. 222.) Here, the prosecutor provided the anecdote about a seminar to explain the discrepancies between the children’s testimony during the SAFE interviews and their trial testimony. In the process, the prosecution did not introduce “new evidence” to bolster the children’s credibility, but instead attempted to provide an example of faulty memory that the jurors could either accept or reject. The prosecution enjoys wide latitude to discuss and draw inferences from the evidence at trial; whether those inferences are reasonable is for the jury to decide. (People v. Dennis (1998) 17 Cal.4th 468, 522.) The prosecution’s argument may be vigorous as long as it amounts to a fair comment on the evidence, including reasonable inferences and deductions drawn from that evidence. (Williams, supra, 16 Cal.4th at p. 221.) The seminar anecdote amounted to just such fair comment and did not constitute prosecutorial misconduct. CONSECUTIVE SENTENCES UNDER SECTION 667.6 Defendant argues the consecutive terms imposed on counts six and seven should be reversed because the prosecution failed to plead and prove enhanced sentencing under section 667.6. According to defendant, “The information alleged that [defendant] committed eight separate violations of the Penal Code, but mentioned nothing about sentencing [defendant] to full-term consecutive sentences. [Citation.] Accordingly, the trial court therefore lacked the authority to impose the full consecutive sentences.” The imposition of full-term sentences under section 667.6, defendant argues, constitutes a sentencing enhancement. Background The information charged defendant with attempted sexual intercourse with a child 10 years of age or younger, count three, and three counts of forcible lewd and lascivious acts on a child under the age of 14, counts four, six, and seven. A.D. was the victim 12 named in all four counts. The court sentenced defendant to consecutive terms: the middle term of seven years on count three, the middle term of six years on count six, and the middle term of six years on count seven. Discussion Section 1170.1, subdivision (e) states that all “enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.” Defendant asserts the imposition of full-term consecutive sentences under section 667.6 constitutes a sentencing enhancement. Section 667.6, subdivision (c) states: “In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. A term may be imposed consecutively pursuant to this subdivision if a person is convicted of at least one offense specified in subdivision (e). If the term is imposed consecutively pursuant to this subdivision, it shall be served consecutively to any other term of imprisonment, and shall commence from the time the person otherwise would have been released from imprisonment. The term shall not be included in any determination pursuant to Section 1170.1. Any other term imposed subsequent to that term shall not be merged therein but shall commence at the time the person otherwise would have been released from prison.” Subdivision (d) of section 667.6 states, in pertinent part: “A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions. [¶] In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the 13 defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.” In People v. Reynolds (1984) 154 Cal.App.3d 796, the court determined any sentence imposed under section 667.6, subdivision (c) was in lieu of any enhancement under section 1170.1; therefore, sentencing under section 667.6, subdivision (c) does not require any further pleading or proof. (Reynolds, at p. 810.) The Reynolds court reasoned: “[W]hile the facts giving rise to most enhancements must be charged and found, ‘enhancement arising from consecutive sentences result [sic] from the sentencing judge’s decision to impose them, and not from a charge or finding.’ This clearly should be the case with regard to consecutive sentences imposed pursuant to sections 667.6, subdivisions (c) and (d). Those sections only affect the length of the consecutive sentence (whether it is full or reduced). They do not change the fact that the consecutive sentence is imposed for the underlying crime which has clearly been charged in the complaint and information. There is nothing else to charge or find . . . . [Citation.] [¶] Defendant was specifically charged with the crimes for which the consecutive terms were imposed. No further pleading . . . is required.” (Reynolds, supra, 154 Cal.App.3d at pp. 810-811.) Defendant concedes Reynolds refutes his contention that the court erred in imposing consecutive terms on counts six and seven, but argues Reynolds was wrongly decided. We do not find defendant’s argument against Reynolds’ reasoning persuasive. The trial court properly sentenced defendant on counts six and seven. FULL CONSECUTIVE TERMS ON COUNTS SIX AND SEVEN Finally, defendant argues that in sentencing him to full consecutive terms on counts six and seven, the court failed to make a finding that the two crimes were committed on separate occasions. Since the two counts involve the same victim, defendant argues, the trial court had to make an express finding that the acts occurred on 14 separate occasions. According to defendant, substantial evidence does not support such a showing. Background During sentencing, the prosecution requested the upper term on counts three, six, and seven. The prosecutor argued: “The defendant in this case violated a little girl from the time she was five years old, all of the way up through the time that she was 11 and disclosed the abuse. And did so also to a little boy of nine-years-old. And as has been stated, these children thought of him as an uncle. They trusted him. Their entire family trusted him, and not only did he . . . commit horrible acts against them causing them confusion and mental anguish, but also infected both with sexually transmitted diseases.” The court asked the prosecutor if counts six and seven should have full consecutive sentences, and whether such a sentence was at the court’s discretion or if the Legislature had mandated consecutive terms. The prosecutor stated that counts six and seven “would be consecutive, but the Court has the discretion as far as which triad to impose.” The court repeated that the offenses required consecutive sentences, and defense counsel stated: “I further agree that Counts Six and Seven which are [section] 288[, subdivision] (b)(1) require mandatory consec[utive] by law.” The court imposed a six-year consecutive sentence on count six and an additional six-year consecutive sentence on count seven. Discussion In count six defendant was charged with placing his “mouth on victim’s vagina in [the] bedroom of [the] 6th Parkway apartment” between August 5, 2009, and December 25, 2009. Count seven alleged defendant placed his “penis on victim’s vagina in [the] bedroom of [the] 6th Parkway apartment” between August 5, 2009, and December 25, 2009. Section 667.6, subdivision (d) mandates consecutive sentences “if the crimes involve separate victims or involve the same victim on separate occasions.” Under 15 subdivision (d), “[i]n determining whether crimes against a single victim were committed on separate occasions . . . the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.” The People concede that for the section 667.6 mandatory provision to apply, counts six and seven must have taken place on separate occasions. At trial, the evidence revealed that one time at the 6th Parkway apartment, defendant removed A.D.’s clothes and then put his mouth on her private before trying to put his private in her private. During her SAFE interview, A.D. stated defendant had put his mouth on her private for a long time, then removed his boxers and tried to put his private in her private. The People argue that based on these facts, it was reasonable for the court to determine defendant had the opportunity to reflect between the time he removed his mouth from A.D.’s vagina, stopped to remove his boxers, and then attempted to place his penis into her vagina. We disagree. Here, there is no evidence of any interval between those sexual acts affording defendant a reasonable opportunity for reflection. Defendant did not cease his assaultive behavior and then resume it. (See People v. Corona (1988) 206 Cal.App.3d 13, 18; People v. Pena (1992) 7 Cal.App.4th 1294, 1316.) Since counts six and seven were committed against A.D. on the same occasion, the court in its discretion could impose full-term consecutive sentences under section 667.6, subdivision (c). However, the court did not indicate it was exercising its discretion in sentencing defendant on counts six and seven. In invoking its discretion during sentencing, the court must indicate it is making a discretionary choice and provide and explain its reasoning. (People v. Belmontes (1983) 34 Cal.3d 335, 347.) Therefore, we 16 remand to the trial court to determine whether, in its discretion, full-term consecutive sentences were warranted under section 667.6, subdivision (c). DISPOSITION We remand the matter to the trial court to consider its discretion to impose consecutive sentences on counts six and seven pursuant to section 667.6, subdivision (c). In all other respects, the judgment is affirmed. RAYE , P. J. We concur: MURRAY , J. HOCH , J. 17 

Cite as 2014 Ark. App. 637 ARKANSAS COURT OF APPEALS DIVISION II No. CR-14-279 MICHAEL WEBB, JR. Opinion Delivered November 12, 2014 APPELLANT APPEAL FROM THE DREW V. COUNTY CIRCUIT COURT [NO. CR-2010-162-3A] STATE OF ARKANSAS HONORABLE ROBERT BYNUM APPELLEE GIBSON, JR., JUDGE SUPPLEMENTAL ADDENDUM ORDERED RITA W. GRUBER, Judge Michael Webb, Jr., appeals the circuit court’s revocation of his probation. He raises two points, contending (1) that the court’s finding that he violated terms of his probation by constructively possessing a firearm and drugs was clearly against the preponderance of the evidence, and (2) that his due-process rights were violated because the court considered matters that were not contained in the State’s petition to revoke. The State responds that the court did not err by finding that Webb violated terms of his probation;1 it does not respond to the second point. We remand for supplementation of the addendum to Webb’s brief because it lacks important pages of the 2013 sentencing order. Without these pages, we are unable to confirm that this is indeed a revocation case or to ascertain the underlying offenses. See Ark. Sup. Ct. 1 The State’s argument simply asserts that we should affirm the circuit court’s finding that appellant constructively possessed the drugs and the firearm.  Cite as 2014 Ark. App. 637 R. 4-2(a)(8)(A)(i) (2014) (requiring that the addendum to appellant’s brief include the order from which the appeal is taken). We order Webb to file, within seven calendar days of this opinion, a supplemental addendum providing the relevant pages from the record. Ark. Sup. Ct. R. 4-2(b)(4) (2014). We also encourage review of our rules to ensure that no other deficiencies are present. WALMSLEY and HARRISON, JJ., agree. Timothy R. Leonard, for appellant. Dustin McDaniel, Att’y Gen., by: Nicana C. Sherman, Ass’t Att’y Gen., for appellee. 2 

142 P.3d 125 (2006) 207 Or. App. 435 GORDON v. BOARD OF PAROLE AND POST-PRISON SUPERVISION. OREGON COURT OF APPEALS. August 23, 2006. Case affirmed without opinion.

7 So.3d 1112 (2009) SALMON v. STATE. No. 3D08-1095. District Court of Appeal of Florida, Third District. April 22, 2009. Decision without published opinion. Affirmed.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014). STATE OF MINNESOTA IN COURT OF APPEALS A14-0474 In re the Guardianship and/or Conservatorship of Heidi Anne Vizuete and In re the Marriage of Miriam Rose Vizuete, Respondent, vs. Edison Marcello Vizuete, Appellant. Filed February 2, 2015 Affirmed Reyes, Judge Washington County District Court File Nos. 82PR113715; 82F798003928 Edison Vizuete, St. Paul, Minnesota (pro se appellant) Timothy T. Ryan, Chisago City, Minnesota (for respondent Heidi Vizuete) Eric Bjerva, Guzman Law Firm, Apple Valley, Minnesota (for respondent Miriam Vizuete) Considered and decided by Worke, Presiding Judge; Reyes, Judge; and Crippen, Judge.  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.  UNPUBLISHED OPINION REYES, Judge In this appeal following remand, pro se appellant challenges the district court’s order appointing respondent as the unlimited guardian of the parties’ 20-year-old child and appellant as the limited co-guardian. Appellant argues that the district court erred by (1) misapplying the guardianship statute and appointing a guardian that “reduced” appellant’s parental rights; (2) appointing a guardian without holding an additional evidentiary hearing on remand; (3) granting a motion to transfer venue of related family court proceedings; (4) declining to address appellant’s motion for parenting-time assistance; (5) failing to remove itself for bias; (6) ignoring appellant’s request for the appointment of a guardian ad litem; (7) granting respondent publicly financed legal counsel; and (8) failing to address appellant’s request for attorney fees. We affirm. FACTS I. Background This appeal arises from competing guardianship petitions filed by divorced parents. In 2011, respondent Miriam Vizuete, the mother of the proposed ward, Heidi Vizuete (Heidi), filed a petition for her appointment as Heidi’s guardian. The petition claimed that “[Heidi] has been diagnosed with mild to moderate cognitive disability” and requires a guardian to manage her day-to-day affairs. Heidi is autistic with an IQ in the range of 61-64. At that time, appellant Edison Vizuete, Heidi’s father, also filed a petition seeking his appointment as Heidi’s guardian under the guardianship statute. Appellant later filed an amended petition seeking his appointment as a limited guardian 2 and conservator, asserting that respondent is not qualified to manage Heidi’s estate. Although the parties initially agreed that a guardian was needed, their petitions differ as to the extent of powers and duties that should be granted to the guardian.1 II. The evidentiary hearing Following the filing of the parties’ petitions, the district court held a two-day evidentiary hearing. Heidi’s social worker, who has worked with her since 2001, testified at the hearing that he observed respondent “to be very caring and nurturing” toward Heidi. He stated that appellant “wasn’t really involved until 2008, but since that time he has been very actively involved and wanting to be involved as much as possible.” The social worker testified that, after Heidi turned 18 years old in November of 2011, he was required to work with her directly, or her legal guardian. Even though appellant wanted access to Heidi’s records relating to her participation in county services, appellant needed to get Heidi’s approval. Respondent testified that the same restriction applied to her if she wanted access to Heidi’s records. At the time of the hearing, Heidi was an 18-year-old senior in high school and had been living with respondent her whole life. Pursuant to the divorce decree, the parties were awarded joint legal custody, and respondent was awarded sole physical custody of the minor children with a parenting-time schedule. Heidi testified that respondent helps 1 Specifically, respondent’s petition sought all powers and duties enumerated under the guardianship statute, Minn. Stat. § 524.5-313(c)(1)–(7) (2014), while appellant sought limited powers, only as to Minn. Stat. § 524.5-313(c)(1)–(4) and Minn. Stat. § 524.5- 313(c)(6). Because the law is unchanged from the time the petitions were filed in 2011, we cite to the current version of the statute. See McClelland v. McClelland, 393 N.W.2d 224, 226–27 (Minn. App. 1986). 3 her accomplish domestic tasks that she is unable to do on her own. Heidi does not have a driver’s license and does not go shopping without an adult. Heidi testified that she is able to manage her checking account online with help from respondent. Heidi is in favor of the appointment of respondent as her guardian because she believes respondent looks out for her best interests. Heidi testified that she did not want to see appellant because she could not handle his “anger issues” and because he did not tell her that he also filed a petition to become her guardian. Appellant testified that he continues to pay child support. He testified that an independent person must manage the aspects of Heidi’s finances that she is unable to manage on her own. However, appellant also stated that Heidi’s savings and checking accounts are not substantial and that she is capable of protecting her existing personal property. Heidi’s older sister, M.Z., lived with Heidi and respondent between 2008 and 2010 and for a period of time in 2011. M.Z. testified that she became estranged from appellant in October 2010 after a series of confrontations but has had a consistent relationship with respondent, who has always provided her with care. She has had no indication that respondent has ever financially exploited Heidi and has also indicated that respondent has always acted in favor of Heidi’s best interests. M.Z. testified that respondent has minimal property aside from personal effects and income from a part-time job. Heidi’s other older sister, A.D., provided testimony similar to M.Z.’s at the hearing. She was also supportive of respondent’s appointment as guardian. 4 III. The district court’s initial order On May 21, 2012, the district court appointed respondent as Heidi’s sole, unlimited guardian, and denied appellant’s request to be appointed as guardian and conservator. In its order, the district court found that respondent had custody of Heidi and has been her primary caregiver since 1998. The district court found that Heidi would likely continue to reside at respondent’s home regardless of the outcome of the proceedings. The district court’s findings noted Heidi’s lack of “sufficient understanding or capacity to make or communicate responsible decisions concerning her person,” as well as her deficient understanding of money; her ability to read and write at a middle- school level, her “short-term memory issues;” her disposition to frequently forget and lose items; and the fact that she “is overly trusting, vulnerable to exploitation by others, and requires supervision in order to live safely.” The findings also stated that “Heidi’s demonstrated needs cannot be met with less restrictive means,” and that she “has ongoing educational, medical, vocational, recreational, and other needs that require continuing supervision and assistance from someone with authority to make decisions on her behalf.” Appellant appealed this decision. IV. The appeal On appeal, appellant argued, inter alia, that the district court lacked jurisdiction to interfere with the custody of Heidi while she was a minor, and that the guardianship order reduced his parental rights. In re Guardianship of Vizuete, No. A12-1279, 2013 WL 3368334, at *2 (Minn. App. July 8, 2013), review denied (Sept. 17, 2013) (Vizuete I). 5  This court agreed with appellant. Vizuete I, 2013 WL 3368334 at *3. We determined that the record supported the district court’s conclusion that Heidi is an incapacitated person within the meaning of the guardianship statute, and that the district court “did not abuse . . . [its] discretion in so finding.” Id. at *4. However, we also determined that the record supported a finding that Heidi was still a child within the meaning of chapter 518 and 518A, and that therefore “any modification of [appellant’s] parental rights should have been governed by those chapters.” Id. at *3. In so holding, we noted that the “duly-established custodial arrangement between appellant and respondent is incompatible with the appointment of respondent as the sole guardian.” Id. We explained that while, [w]e do not intend to imply that Minnesota law disallows the appointment of a sole guardianship for a ward over whom parents exercise custodial rights[,] [t]he [Uniform Guardianship and Protective Proceedings Act] cannot be used to completely or substantially abrogate existing custodial rights over the objection of a custodial parent. Id. at *7. We reversed the decision and remanded to the district court “for consideration of the competing guardianship petitions in light of the current custodial arrangement between the parties and the requirements for modification of appellant’s legal custody under chapter 518.” Id. V. On remand After remand, appellant filed a motion for parenting-time assistance on October 30, 2013. Respondent moved to transfer venue of the parties’ family proceedings to 6 Washington County, and appellant opposed the transfer of venue. The Dakota County District Court granted the motion on December 5, 2013.2 The district court found that appellant had not been working in Washington County for several years and that neither party resided in Dakota County. Because the “issues and concerns of the parties, as well as the issue remanded to Washington County are inextricably interwoven,” the district court determined that “the interests of judicial economy justify a change of venue to Washington County.” On December 26, 2013, respondent filed a motion in Washington County District Court to modify her legal custody of Heidi from joint legal custody to sole legal custody. To support her motion, respondent alleged that appellant’s multiple attempts to gain access to Heidi’s medical and educational records caused Heidi stress and anxiety. She also asserted that Heidi does not wish to have contact with appellant. Appellant opposed respondent’s request for modification. VI. The district court’s second order In an order filed on January 21, 2014, the district court addressed respondent’s motion to modify custody and appellant’s pending motion for parenting-time assistance. The district court denied respondent’s motion, finding that respondent failed to establish a prima facie basis to modify custody. The district court determined that allegations 2 The parties’ initial petition for dissolution was filed in Washington County. The matter was transferred to Dakota County on June 30, 2000, following a motion by appellant. The motion was granted because at that time appellant was employed by Washington County in a high-level administrative position. From June of 2000 until 2013, all of the parties’ proceedings related to their family matters were heard in Dakota County. Respondent resides in Washington County. 7 made by respondent did not rise to the level of significant change in circumstances that have caused endangerment to Heidi’s physical or emotional well-being. As a result, the district court ordered that the parties continue to share legal custody of Heidi. With respect to appellant’s motion for parenting-time assistance, the district court denied the motion because it determined that it lacked jurisdiction since the motion was filed after Heidi attained the age of majority. In a separate order filed simultaneously, the district court issued its decision in the guardianship proceedings. The district court noted that, even though its previous guardianship order was reversed and remanded, the court of appeals “did not call into doubt [it’s] findings . . . supporting the basis for the guardianship of [Heidi].” The district court reaffirmed its findings that “clear and convincing evidence . . . demonstrated that [Heidi] is an incapacitated person” and that “no appropriate alternative to guardianship exists that is less restrictive of Heidi’s civil rights and liberties.” The district court explained that, because there was no basis to modify the parties’ current custodial arrangement, it would evaluate the competing guardianship petitions in light of the parties’ respective custodial rights and under the best-interest-of-the-child standard. The district court concluded that it was in Heidi’s best interest to appoint respondent as a guardian with unlimited guardianship powers and appellant as a co- guardian with limited powers “with respect to any major decisions affecting Heidi.” The district court explained that its appointment of respondent as the unlimited guardian and appellant as the limited co-guardian “would not negate either party’s custodial rights and would serve the best interests of Heidi.” This appeal followed. 8  DECISION I. Appointment of guardian Appellant first challenges the district court’s guardian appointments for Heidi, arguing that the appointments effectively “reduced” appellant’s parental rights. Appellant argues that the district court abused its discretion absent a showing that Heidi’s needs are not being met under the current custody arrangement. A district court’s guardian appointment is reviewed for an abuse of discretion. In re Guardianship of Wells, 733 N.W.2d 506, 509 (Minn. App. 2007), review denied (Minn. Sept. 18, 2007). In doing so, the reviewing court shall not interfere with the exercise of this discretion except in the case of clear abuse. In re Guardianship of Kowalski, 478 N.W.2d 790, 792 (Minn. App. 1991), review denied (Minn. Feb. 10, 1992). Under the guardianship statute, “[a] court may appoint a limited or unlimited guardian for a respondent only if it finds by clear and convincing evidence that: (1) the respondent is an incapacitated person [3] and (2) the respondent’s identified needs cannot be met by less restrictive means, including the use of appropriate technological assistance.” Minn. Stat. § 524.5-310(a) (2014). But “the court shall grant to a guardian only those powers necessitated by the ward’s limitations and demonstrated needs and, whenever feasible, make appointive and other orders that will encourage the development 3 “‘Incapacitated person’ means an individual who, for reasons other than being a minor, is impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions, and who has demonstrated deficits in behavior which evidence an inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety, even with appropriate technological assistance.” Minn. Stat. § 524.5-102, subd. 6 (2014). 9 of the ward’s maximum self-reliance and independence.” Minn. Stat. § 524.5-310(c) (2014). “The best interests of the ward should be the decisive factor in making any choice on [her] behalf.” In re Guardianship of Autio, 747 N.W.2d 600, 603 (Minn. App. 2008) (quotation omitted). On remand, the district court incorporated the findings from its initial order. In accordance with our instructions, the court properly analyzed the competing guardianship petitions in light of the current custodial arrangement. The district court also found that Heidi was incapable of independently exercising the following rights and powers: (1) to establish her place of abode within or without the state; (2) to provide for her care, comfort, and maintenance needs; (3) to take reasonable care of her clothing, furniture, vehicles, and personal effects; (4) to give any necessary consent to enable, or to withhold consent for her to receive necessary medical or other professional care, counsel, treatment, or advice; (5) to approve or withhold approval of any contract, except for necessities, which she may make or wish to make; and (6) to apply on her behalf for any assistance, services, or benefits available to her through any unit of government. The district court concluded that it was in Heidi’s best interest to appoint a guardian. Based on the parties’ custodial arrangement and the necessity of a legal guardian for Heidi, the district court appointed respondent as unlimited guardian and appellant as limited, co- guardian of Heidi. The district court appointed guardianship powers that mirror the parties’ custodial rights so as to not negate either party’s rights. Appellant’s rights as a limited, co- guardian “with respect to any major decisions” affecting Heidi are consistent with the 10 rights he continues to enjoy as a parent with joint legal custody. The district court properly considered Heidi’s guardianship in light of the parties’ custodial rights as we directed. Thus, the district court did not abuse its discretion by appointing a guardianship for Heidi that is in her best interest and that does not abrogate either party’s custodial rights under their preexisting and current arrangement. Appellant also challenges the extent of the powers granted to respondent. Appellant asserts in his petition, as he did in his previous appeal, that Heidi is very independent and needs minimal supervision. But the record demonstrates that Heidi does not have the capacity to establish her own residence, has limited ability to complete daily activities on her own, and has limited ability to manage her finances and comprehend medical needs. These needs are all implicated by the powers enumerated in section 524.5-313(c)(1)–(7). The district court did not abuse its discretion by awarding all the powers set forth in the guardianship statute.4 II. Request for second evidentiary hearing on remand Appellant next argues that the district court abused its discretion by failing to hold an additional evidentiary hearing on remand. See Minn. Stat. § 524.5-304(a) (2014) (“Upon receipt of a petition to establish a guardianship, the court shall set a date and time for hearing the petition . . . .”); Minn. Stat. § 524.5-307 (2014) (“The petitioner and respondent may present evidence and subpoena witnesses and documents; examine 4 Appellant also argues that his appointment as limited co-guardian will “preclude” him from being able to file the annual report required by Minn. Stat. § 524.5-316 (2014). However, appellant cites no legal authority and any argument in this regard is premature in this appeal. 11 witnesses, . . . and otherwise participate in the hearing.”). However, the record shows that the district court previously held a two-day evidentiary hearing wherein the parties had the opportunity to present their evidence and examine witnesses. Moreover, the district court’s previous order appointing guardianship included detailed findings of fact based on the evidence and testimony presented at the hearing and this court’s prior opinion did not require the district court to hold an evidentiary hearing on remand. The district court did not err by declining to hold a second evidentiary hearing on remand. III. Respondent’s motion to transfer venue of the parties’ family file from Dakota County to Washington County Appellant argues that the district court abused its discretion by granting respondent’s motion for a change of venue. The district court has the authority to change venue “when the convenience of the parties or the ends of justice would be promoted by the change.” Minn. Stat. § 518.09 (2014). The district court’s decision on a motion for a change of venue in a family law case is reviewed for an abuse of discretion. Toughill v. Toughill, 609 N.W.2d 634, 642 (Minn. App. 2000). The district court did not abuse its discretion by granting respondent’s motion for a change of venue. First, the proceedings that took place in the parties’ family file were relevant to the district court’s review and are consistent with what we directed the district court to consider on remand. Second, the conflicts presented by appellant’s employment with Washington County are no longer at issue as appellant’s employment there ended over eight years ago. Third, neither party resides in Dakota County. For these reasons, 12 the district court did not abuse its discretion by transferring the parties’ family proceedings to Washington County. IV. Appellant’s motion for parenting-time assistance Appellant’s fourth argument appears to challenge the district court’s decision denying his motion for parenting-time assistance. Specifically, appellant seems to argue that the district court erred by applying a different definition of the term “child” to the parenting-time statute than to the statute relating to child custody. Interpretation of a statute presents a question of law, which is reviewed de novo. Swenson v. Nickaboine, 793 N.W.2d 738, 741 (Minn. 2011). Relying on Minn. Stat. § 518.175 (2014), the district court determined that it did not have the authority to address appellant’s motion for parenting-time assistance once Heidi reached the age of majority. The relevant portion of section 518.175, subdivision 1 that the district court cites provides: In all proceedings for dissolution or legal separation subsequent to the commencement of the proceedings and continuing thereafter during the minority of the child, the court shall, upon the request of either parent, grant such parenting time on behalf of the child and a parent as will enable the child and the parent to maintain a child to parent relationship that will be in the best interests of the child. Minn. Stat. § 518.175, subd. 1 (emphasis added). A “minor” is defined as “an individual under the age of 18.” Minn. Stat. § 645.451, subd. 2 (2014); see also Minn. Stat. § 645.45(14) (2014). “Minority” is defined as meaning “with respect to an individual the period of time during which the 13 individual is a minor.”5 Id., subd. 4 (2014). Thus, “during the minority of the child” as used in section 518.175, subdivision 1, does not encompass Heidi once she attained the age of majority, despite the fact that she remains a “child” as defined in Minn. Stat. § 518A.26, subd. 5 (2014). Cf. Rew v. Bergstrom, 845 N.W.2d 764, 782 (Minn. 2014) (interpreting the phrase “minor children” in the context of constitutional challenges to an order for protection, to apply only until the child reaches the age of 18, at which point the child will no longer be a minor). Alternatively, appellant argues that the district court failed to address his motion for parenting-time assistance which was filed before Heidi turned 18 years old. However, appellant filed this document in Washington County as a part of the parties’ guardianship proceeding. At that time, the parties’ family file was still in Dakota County. Thus, the motion appellant relies on was not filed before the proper court. “Although some accommodations may be made for pro se litigants, this court has repeatedly emphasized that pro se litigants are generally held to the same standards as attorneys and must comply with court rules.” Fitzgerald v. Fitzgerald, 629 N.W.2d 115, 119 (Minn. App. 2001). Because the motion was not properly before the Washington County District Court, that district court did not err in not addressing appellant’s motion. 5 Minn. Stat. § 645.451, subd. 1 (2014), provides that “[t]he terms defined . . . shall have the meanings given them for the purpose of any statute or law of this state now in force, for the purposes of any statute or law hereinafter enacted unless a different meaning is specifically attached to the terms or the context clearly requires different meaning.” 14 V. Appellant’s motion to remove the district court judge for bias Appellant argues that the district court erred by failing to recuse itself for bias and prejudice. Whether a district court should recuse itself from a case is discretionary with the district court. Carlson v. Carlson, 390 N.W.2d 780, 785 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986). A reviewing court will not reverse absent a clear abuse of discretion. Id. The record shows that appellant did not timely file his notice to remove the newly assigned judge from the proceedings. Minn. R. Civ. P. 63.03 requires a party to file a notice to remove a judge “within ten days after the party receives notice of which judge . . . is to preside at the trial or hearing, but not later than the commencement of the trial or hearing.” The rule also prohibits a party from filing a notice against a judge “who has presided at a motion or any other proceeding of which the party had notice.” Minn. R. Civ. P. 63.03. The parties received a notice of a review hearing on September 17, 2013, that indicated the matter would be before the judge that appellant later sought to remove. A review hearing took place before that judge on September 27, 2013. On October 29, 2013, a second notice was sent to the parties to inform them that the guardianship proceeding was reassigned to that same judge. Appellant did not file a motion seeking removal of the Washington County District Court judge until December 12, 2013. Thus, appellant’s motion was untimely. Moreover, appellant has not made an affirmative showing of prejudice to overcome the untimeliness of his notice. See Minn. R. Civ. P. 63.03 (“A judge . . . who has presided at a motion or other proceeding . . . may not be removed except upon an 15 affirmative showing of prejudice.”). In his motion, appellant asserted that the judge exhibited bias by: (1) ignoring appellant’s request for the appointment of a guardian ad litem; (2) granting respondent publicly financed representation and not affording the same benefit to appellant; and (3) failing to address appellant’s request for attorney fees. As will be discussed below, these arguments have either been waived or lack merit. Accordingly, appellant did not meet his burden of showing prejudice. VI. Guardian ad litem Appellant argues that the district court erred by failing to appoint a guardian ad litem for Heidi.6 This argument has been waived on appeal because neither party requested the appointment of a guardian ad litem prior to this appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988); In re Conservatorship of Foster, 535 N.W.2d 677, 684 (Minn. App. 1995), aff’d, 547 N.W.2d 81 (Minn. 1996).7 VII. Publicly financed legal counsel for Heidi and respondent, and appellant’s request for attorney fees Appellant argues that the district court was biased and abused its authority by appointing legal counsel for Heidi, who he asserts did not appropriately represent Heidi. He also argues that the district court exhibited bias by qualifying respondent as in forma pauperis (IFP) and by appointing respondent legal counsel given his assertion that she 6 Appellant made this argument in his previous appeal. Because we reversed and remanded for other reasons, we did not address this argument. 7 Appellant argues that his motion filed on September 30, 2011, entitled “Petition for an Injunction Not to Interfere With Parental Rights,” was a request for a guardian ad litem. A review of the document reveals that there is nothing indicating, either in form or in substance, that appellant was requesting the appointment of a guardian ad litem. Moreover, appellant himself characterized this document as a motion for parenting-time assistance. 16 earns over $66,000 per year. Finally, appellant requests that this court grant appellant attorney fees in the amount of $15,000. Because appellant fails to cite any legal authority in support of these arguments, they are waived. See Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (declining to address allegations unsupported by legal analysis or citation). Affirmed. 17 

794 F.2d 679 Ehlersv.Wyrick 85-2448 United States Court of Appeals,Eighth Circuit. 5/8/86 1 W.D.Mo. AFFIRMED

728 N.W.2d 243 (2007) STATE of Minnesota, Respondent, v. Earl WEMBLEY, Appellant. No. A05-245. Supreme Court of Minnesota. March 8, 2007. *244 Marie Wolf, Asst. Public Defender, Office of State Public Defender, for appellant. Mike Hatch, Atty. Gen., St. Paul, Amy Klobuchar, Hennepin County Atty., David C. Brown, Asst. County Atty., for respondent. Heard, considered, and decided by the court en banc. OPINION ANDERSON, G. BARRY, Justice. A jury found Earl Wembley guilty of first-degree criminal sexual conduct. The district court admitted into evidence a videotaped interview of the victim and replayed the videotape for the jury during deliberations without Wembley present. Wembley argues that the replay without his presence constituted reversible error. The court of appeals held that there was no error. State v. Wembley, 712 N.W.2d 783, 789 (Minn.App.2006). We granted Wembley's petition for review and affirm. Appellant Earl Wembley and M.C. lived together for periods between 1989 and 1996, and had two daughters together, one of whom is the victim in this case, K.C. After Wembley and M.C. broke off their relationship, K.C. would periodically visit Wembley at his home. In May 2004, K.C. (then 12 years old) visited Wembley on a day when no one else was present, and K.C. later testified at trial that Wembly sexually assaulted her during that visit. Approximately a month later, M.C. learned what had happened to K.C. and authorities were notified. Detective Kent Nielsen arranged for K.C. to be interviewed by staff at CornerHouse, a child advocacy center that often interviews children who are alleged victims of sexual abuse. CornerHouse interviews children referred from law enforcement or child protection when there is an active investigation occurring. Pursuant to standard practice, law enforcement and a county attorney observed CornerHouse's interview with K.C. on closed-circuit television as it was occurring, and the interview was also videotaped. The state charged Wembley with first-degree criminal sexual conduct, in violation of Minn.Stat. § 609.342, subd. 1(a) (2006). At trial, the state played the videotape of K.C.'s CornerHouse interview after the interview tape had been admitted into evidence. Prior to jury deliberations, counsel for both the state and the defense asked the district court to consider the appropriateness of allowing the jury to take the CornerHouse interview videotape to the jury room with the other exhibits. The state asserted that because the tape was "in the nature of testimony," other courts have required the jury to seek permission of the court and have a court official present during replay. In response, defense counsel asserted that "the tape was received into evidence, and if the Court's not inclined to send it back to the jury room, I would just request that the Court make it clear to [the jury] that it is an exhibit in the case and should they want to see it, it would be available for their review." The court agreed with the state that the tape should not go to the jury room and decided to hear argument from both parties if the jury requested to review the videotape during the course of its deliberations. During deliberations, the jury sent a note to the court requesting permission to review the tape. The record reflects that an "off-the-record" discussion was held, presumably regarding the jury's request. The jury was then brought into the courtroom, and in the presence of counsel and Wembley, the district court granted the *245 jury's request to review the tape with the following instructions: I want you to review the video in open court here. But don't discuss anything until you get back in the jury room. And I'm going to play the entire videotape. And remember, please don't have any discussions about it until you get back and you deliberate in the jury room. * * * [W]e're all going to leave, and then the court deputies will be with you and [the law clerk] while the tape plays. Wembley neither objected to the replay of the tape nor objected to his absence from the courtroom during the replay. After viewing the videotape and returning to deliberations, the jury found Wembley guilty, and the district court sentenced him to 144 months in prison. Wembley's sole issue on appeal is whether the district court committed reversible error by replaying the videotape of the victim's CornerHouse interview for the jury off the record and without the presence of the defendant and the district court. Wembley argues the court's procedure for the replay of the tape violated his right to be present at every stage of the trial. He also argues that videotape interviews of alleged victims are inherently prejudicial, and the district court's procedure for the replay in this case did not adequately protect Wembley from the risk of prejudice. We ordinarily do not decide issues that were not first addressed by the district court and are raised for the first time on appeal. State v. Roby, 463 N.W.2d 506, 508 (Minn.1990). We consider those issues waived. Id. But we may choose to hear an issue for the first time on appeal if the interests of justice require. State v. Basting, 572 N.W.2d 281, 286 (Minn.1997). Here we have more than a simple case of failure to act or attorney inattention; the record reflects that Wembley not only failed to object, but before deliberations began, defense counsel affirmatively requested that the jury have access to the tape in case the jurors wished to review it. Indeed, defense counsel's preference was for the tape to go with the jury into the jury room during deliberations. The record indicates that Wembley had a tactical reason for the jury to review the tape. During closing argument, defense counsel asserted that there was an inconsistency between K.C.'s interview at CornerHouse and her testimony at trial. Referencing that perceived inconsistency, counsel stated to the jury: "That's a pretty big detail, and I think that's something you all should consider when you're assessing the credibility of the children in this case, because she has not been completely consistent when she talks about what happened." Based on this record, we conclude that Wembley waived any right he may have had to challenge the district court's procedure for replaying the tape for the jury or to argue that his presence was required.[1] The interests of justice do not *246 require us to address this issue, where Wembley consented to and actively encouraged the court to allow the jury to see the tape again. Affirmed. NOTES [1] Furthermore, it is not clear that a replay of a videotaped interview of a witness, admitted into evidence, during jury deliberations is a stage of trial that requires the defendant's presence for purposes of Minn. R.Crim. P. 26.03, subd. 1(1). Jury deliberations are conducted without the parties or the district court present, and ordinarily a jury is permitted to take exhibits admitted into evidence to the jury room. Minn. R.Crim. P. 26.03, subd. 19(1). During deliberations, if the jury requests a review of evidence to which it does not already have access, Minn. R.Crim. P. 26.03, subd. 19(2)(1), grants the district court authority to comply with the jury's request. If the court chooses to comply, the court has broad discretion in controlling the jury's review of the evidence in order to minimize prejudice. State v. Kraushaar, 470 N.W.2d 509, 514-15 (Minn.1991). We have stated that it is preferable for district courts to replay potentially prejudicial videotaped interviews admitted into evidence in the courtroom rather than allowing the jury to replay such tapes in the jury room, but we did not address in Kraushaar whether the parties should be present during the replay. Id. at 516. Wembley makes a public policy argument with his claim that video replays are highly prejudicial because such replays are tantamount to allowing a witness to enter the jury room and repeat her testimony. Wembley argues that the prejudicial effect may be minimized by conducting the replay in open court with the parties present and under the supervision of the district court. But these suggestions must be balanced against the broader policy that juries are typically allowed to further consider exhibits in the jury room during deliberations without supervision by the district court. While we do not endorse the procedures used by the district court to replay the video tape, because we conclude that Wembley waived this issue on appeal, we do not decide whether additional safeguards should be mandatory. And as to additional safeguards, we invite suggestions from the Supreme Court Advisory Committee on the Rules of Criminal Procedure.

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-02-00098-CV ______________________________ PINNACLE DATA SERVICES, INC., Appellant V. JOSEPH GILLEN, CHARLES BALDRIDGE, AND MJCM, L.L.C., Appellees On Appeal from the 61st Judicial District Court Harris County, Texas Trial Court No. 2000-59336 Before Morriss, C.J., Ross and Carter, JJ. Opinion by Chief Justice Morriss O P I N I O N In the present case, Pinnacle Data Services, Inc. (PDS) brought suit against Joseph Gillen, Charles Baldridge, and MJCM, L.L.C. (collectively referred to herein as GBM). PDS claimed GBM was guilty of unjust enrichment, member oppression, breach of contract, breach of fiduciary duty, breach of duty of loyalty, and civil conspiracy. PDS also claimed it was entitled to declaratory relief, as well as reformation. GBM filed a combination traditional and no-evidence motion for summary judgment, and the trial court granted the motion, dismissing all claims. On appeal, PDS brings the following points of error: (1) the trial court erred by granting summary judgment with respect to declaratory relief, member oppression, and unjust enrichment; and (2) the trial court erred by granting more relief than GBM requested in its motion for summary judgment In 1997 Max Horton, Morris Horton, Joseph Gillen, and Charles Baldridge formed MJCM, L.L.C. (herein MJCM). The parties agreed that Gillen and Baldridge would each own twenty-five percent of MJCM, and PDS would own the remaining fifty percent. (1) The Regulations were signed by Gillen and Baldridge, individually, and by Max Horton, as president of PDS. The Articles of Organization (Articles) listed the original members as Gillen, Baldridge, and PDS. According to the Regulations and the Articles, MJCM was to be managed by its members. Further, the members agreed to receive payment in the form of profit distributions instead of salaries and bonuses. The distributions were made pursuant to the terms set forth in the Articles and Regulations. However, as MJCM became more profitable, the members began to disagree over how the company should be managed. On August 29, 2000, the members convened for a meeting. At this meeting, Gillen proposed amendments to the Articles that would convert MJCM from member managed to manager managed, and Gillen would be named as manager. The Regulations provide that the Articles can only be amended by an affirmative vote of at least sixty-six and two-thirds percent of the ownership interest, while the Articles allow for their amendment by an affirmative vote of two-thirds of the members. The Regulations also provide that, to the extent the Regulations conflict with the Articles, the Articles control. Gillen and Baldridge voted to institute the proposed changes. After being named manager, Gillen relieved Max and Morris Horton of their duties with MJCM. Gillen also increased the number of employees and began paying himself and Baldridge salaries and bonuses. (2) PDS brought suit, and the trial court granted summary judgment in favor of GBM, and PDS brings this appeal. Before reaching the merits of PDS's appeal, we must determine whether PDS's response to GBM's motion for summary judgment was properly before the trial court and is therefore properly before this Court. GBM filed its motion for summary judgment on December 21, 2001. The trial court set the summary judgment hearing for February 15, 2002. PDS filed its response on February 11, 2002, within seven days of the hearing. Further, PDS sought and obtained permission to file a late supplemental brief to its response. The Texas Rules of Civil Procedure provide: "Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response." Tex. R. Civ. P. 166a(c). The Texas Supreme Court has consistently held that, without evidence in the record indicating that a late-filed summary judgment response was filed with leave of court, it is presumed the trial court did not consider the response, and it cannot be considered on appeal. Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996); Goswami v. Metro. Sav. & Loan Ass'n, 751 S.W.2d 487, 490 n.1 (Tex. 1988); INA of Tex. v. Bryant, 686 S.W.2d 614, 615 (Tex. 1985). A recent San Antonio Court of Appeals opinion applied this test and found the response was not before the trial court and could not be considered on appeal. Neimes v. Ta, 985 S.W.2d 132, 138 (Tex. App.-San Antonio 1998, pet. dism'd by agr.). In Neimes, Ta and Fisher, contended that, because the trial court ruled on objections to the substance of the late-filed response, there was an affirmative indication in the record that the trial court granted leave to file the response. The court, however, reasoned that the appellants were required to make those objections to preserve any potential error for appellate review and that ruling on objections was not enough to show the trial court considered the response. Because Ta and Fisher failed to produce evidence from the record that the trial court granted leave to file a late response, the court did not consider the response on appeal. Id. at 140. Similarly, in the present case, PDS's response was not filed seven days prior to the hearing. See Tex. R. Civ. P. 166a(c). (3) PDS argues the record contains an affirmative indication that the trial court granted leave to file a late response. In support of its argument, PDS relies on the following language contained in the trial court's order granting leave to file a supplemental brief to its response: "It appearing to the Court that no prejudice from said filing will result to Defendants and the Supplemental Brief is pertinent to the issues raised in Defendants' Motion for Summary Judgment and Plaintiff's Response, that said Motion should be GRANTED." That is insufficient. In Neimes, the trial court, ruling on objections to the late response, mentioned the response in the record. Neimes, 985 S.W.2d at 139. However, the appellate court held that Ta and Fisher failed to produce evidence from the record that the trial court affirmatively granted leave to file a late response and took the response into consideration. Id. at 140. Further, the Texas Supreme Court has consistently held that, without evidence in the record indicating that a late-filed response was with leave of the trial court, it is presumed the trial court did not consider the response and it cannot be considered on appeal. Crowder, 919 S.W.2d at 663. We are bound by the controlling statutory and case law. The mere mention of the response in the record, without more, does not overcome the presumption that the trial court did not consider the late response. Accordingly, without a showing in the record that the late-filed response was with leave of the court, this Court will not consider it on appeal. See id. Summary Judgment A summary judgment is reviewed de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). The question on appeal is not whether the summary judgment proof raises a fact issue, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of material fact as to one or more of the essential elements of the plaintiff's cause of action. Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). When reviewing a traditional motion for summary judgment, this Court must adhere to the following standards: (1) the movant has the burden of showing there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed issue of material fact precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant. Limestone Prods. Distribution, Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002). In addition to a traditional motion for summary judgment, a litigant, after adequate time for discovery, may also file a summary judgment motion seeking dismissal of all or part of a lawsuit if there  is  no  evidence  to  support  at  least  one  element  of  an  adverse  party's  claim.  Tex.  R. Civ. P. 166a(i). By filing a no-evidence motion, the burden rests with the nonmovant to present more than a scintilla of evidence raising a genuine issue of material fact. Haas v. George, 71 S.W.3d 904, 911 (Tex. App.-Texarkana 2002, no pet.). A no-evidence motion for summary judgment is equivalent to a pretrial directed verdict, and the same legal sufficiency review applies. Tex. Capital Sec. Mgmt., Inc. v. Sandefer, 80 S.W.3d 260, 264 (Tex. App.-Texarkana 2002, no pet.). Therefore, we consider all the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence and inferences. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). In the present case, GBM filed a combination traditional and no-evidence motion for summary judgment. In its motion, GBM expressly addressed PDS's claims for declaratory relief, unjust enrichment, and member oppression. Declaratory Relief PDS claimed it was entitled to the following declaratory relief: (a) the Regulations control over the Articles with respect to member voting powers and procedures; (b) the Amended Articles adopted on August 29, 2000 are void and of no effect; (c) Pinnacle is a member-managed company; (d) the election of Gillen as manager on August 29, 2000 is void and of no effect; and (e) any amendments to the Articles and Regulations since August 29, 2000 are void. It is undisputed that a determination of whether the Articles or the Regulations control will dispose of each claim for declaratory relief. The dispute arises from a conflict in the voting procedures set forth in the Regulations and the Articles. The Regulations provide in pertinent part: At any meeting of Members, presence of Members entitled to cast at least sixty-six and two-thirds percent of the total votes of all Members entitled to vote at such meeting constitutes a quorum. Action on a matter is approved if the matter receives approval by at least sixty-six and two-thirds percent of the total number of votes entitled to be cast by all Members in the Company entitled to vote at such meeting or such greater number as may be required by law or the Articles for the particular matter under consideration. On the other hand, the Articles provide: Approval of 2/3 of the members is needed for (1) amending the articles of organization or the regulations; (2) changing the status of the Company from one in which management is reserved to the members to one in which management is vested in one or more managers, or vice versa; . . . . Therefore, if the Articles control, Gillen and Baldridge had the authority to amend the Articles and change the management structure of MJCM despite not having PDS's consent. Under the Texas Limited Liability Company Act (TLLCA), the regulations of a limited liability company "may contain any provisions for the regulation and management of the affairs of the limited liability company not inconsistent with law or the articles of organization." Tex. Rev. Civ. Stat. Ann. art. 1528n, § 2.09 (Vernon Supp. 2003) (emphasis added). Further, the first page of the Regulations provides: These Regulations are subject to, and governed by, the Texas Limited Liability Company Act and the Articles [defined as the Articles of Organization]. In the event of a conflict between the provisions of these Regulations and the mandatory provisions of the Act or the provisions of the Articles, the provisions of the Act or the Articles control. It is undisputed that Max Horton, as president of PDS, signed the Regulations, which included the above clause concerning conflict between the Articles and the Regulations. Further, Baldridge signed and filed the Articles with the Secretary of State on March 31, 1997, making them available to the public. Despite the express terms of the TLLCA and the Regulations, PDS asserted several arguments in support of its contention that the Regulations control, none of which are supported by law or evidence. For example, PDS contended that, because the Regulations were signed by all parties, it constituted a contract, and under rules of contract interpretation, the Regulations control over the Articles. PDS cited no statutory or case law in support of this contention, and this Court has found none. In fact, such a holding would be in direct contradiction with the express language of the TLLCA and the Regulations. See Tex. Rev. Civ. Stat. Ann. art. 1528n, § 2.09. PDS also contended it was not given a copy of the Articles until two years after the Regulations were signed, which made the Articles unenforceable. Again, PDS failed to cite authority for its contention. PDS has also failed to produce any evidence that it sought to obtain a copy of the Articles before that time, even though it signed Regulations that were expressly subordinate to the Articles. Further, the Articles were on file with the Secretary of State beginning March 31, 1997, and Max Horton admitted in his deposition that he kept a copy of the Articles in his desk. The terms set forth in the Regulations, Articles, and the TLLCA are not rendered inoperative because PDS failed to exercise diligence in obtaining a copy of the Articles before agreeing to their terms. See Frey v. DeCordova Bend Estates Owners Ass'n, 632 S.W.2d 877, 880 (Tex. App.-Fort Worth 1982), aff'd, 647 S.W.2d 246 (Tex. 1983) (courts will not interfere with corporation's right of internal management provided governing body does not substitute legislation for interpretation, overstep bounds of reason, common sense, or contravene public policy). Therefore, PDS has not raised a genuine issue of fact, and the trial court did not err by granting summary judgment with respect to its claim for declaratory relief. Unjust Enrichment A party may recover under the unjust enrichment theory when one person has obtained a benefit from another by fraud, duress, or the taking of an undue advantage. Pope v. Garrett, 147 Tex. 18, 211 S.W.2d 559, 560, 562 (1948); Austin v. Duval, 735 S.W.2d 647, 649 (Tex. App.-Austin 1987, writ denied). PDS alleges that GBM has been unjustly enriched by excluding PDS from the management of MJCM, maliciously suppressing profit distributions, receiving informal profit distributions by contributing to Gillen's and Baldridge's 401(k) plans, and wasting company funds by paying Gillen's and Baldridge's personal legal fees. The Articles and Regulations control the actions of the members and managers of MJCM. Specifically, the amended Articles provide that MJCM will be managed by a manager, and "except as expressly provided in these Articles of Amendment or as may be required by the Act or other applicable law, no member shall have any right, power or authority to act for or on behalf of [MJCM]." (Emphasis added.) Further, under the amended Regulations, Gillen, as manager, had the authority to: [C]arry out the purposes, business, and objectives of [MJCM], including, but not limited to, the right to enter into and carry out contracts of all kinds; to employ employees, agents, consultants and advisors on behalf of [MJCM]; to lend or borrow money and to issue evidences of indebtedness; to bring and defend actions in law or at equity; to buy, own, manage, sell, lease, mortgage, pledge or otherwise acquire or dispose of [MJCM] property. PDS has failed to set forth any evidence, other than their allegations, that GBM obtained a benefit through fraud, duress, or taking undue advantage of PDS. See Pope, 211 S.W.2d at 560; Zipp Indus., Inc. v. Ranger Ins. Co., 39 S.W.3d 658, 663-67 (Tex. App.-Amarillo 2001, no pet.) (mere allegations are less than scintilla of evidence raising genuine issue of material fact). Therefore, PDS failed to produce even a scintilla of evidence indicating it was entitled to recover under unjust enrichment, and the trial court did not err by granting a no-evidence summary judgment with respect to unjust enrichment. Member Oppression Member oppression has been defined as follows: 1. majority shareholders' conduct that substantially defeats the minority's expectations that, objectively viewed, were both reasonable under the circumstances and central to the minority shareholder's decision to join the venture; or 2. burdensome, harsh, or wrongful conduct; a lack of probity and fair dealing in the company's affairs to the prejudice of some members; or a visible departure from the standards of fair dealing and a violation of fair play on which each shareholder is entitled to rely. Willis v. Bydalek, 997 S.W.2d 798, 801 (Tex. App.-Houston [1st Dist.] 1999, pet. denied) (citing Davis v. Sheerin, 754 S.W.2d 375, 381-82 (Tex. App.-Houston [1st Dist.] 1988, writ denied)). PDS contends GBM committed member oppression by wrongfully withholding profit distributions, firing Max and Morris Horton from MJCM, failing to inform PDS of company actions, and paying for their personal legal fees in this lawsuit with MJCM funds. However, PDS failed to set forth any evidence in support of its claim for member oppression. See Haas, 71 S.W.3d at 911. Therefore, PDS failed to raise a genuine issue of material fact, and the trial court properly granted GBM's no-evidence motion for summary judgment with respect to member oppression. See Tex. R. Civ. P. 166a(i); Grant v. Southwestern Elect. Power Co., 20 S.W.3d 764, 772 (Tex. App.-Texarkana 2000), aff'd in part and rev'd in part on other grounds, 73 S.W.3d 211 (Tex. 2002). Claims Not Addressed in Motion for Summary Judgment PDS contends that summary judgment should not have been granted with respect to its claims for breach of contract, reformation, breach of fiduciary duty, breach of duty of loyalty, and civil conspiracy because GBM did not address such causes of action in its motion for summary judgment. GBM concedes that it did not expressly mention those causes of action in its motion. However, GBM contends PDS waived error by failing to object to the absence of those causes of action, and in the alternative, a trial on the merits would be meaningless because the motion for summary judgment negated all factual bases for those causes of action. Under Texas Rules of Civil Procedure, a motion for summary judgment "shall state the specific grounds therefor," Tex. R. Civ. P. 166a(c), and a no-evidence motion for summary judgment must "state the elements as to which there is no evidence." Tex. R. Civ. P. 166a(i). A motion for summary judgment must expressly present the grounds on which it is made, and it must stand or fall based on the grounds expressly presented in the motion. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 338 (Tex. 1993). Further, a nonmovant is under no duty to object to the movant's failure to include a particular cause of action in its motion. Id.; McKillip v. Employers Fire Ins. Co., 932 S.W.2d 268, 271 (Tex. App.-Texarkana 1996, no writ). Accordingly, PDS did not waive its right to complain on appeal that the trial court granted more relief than was requested. Even though PDS was not required to object, GBM contends that summary judgment was proper because the motion for summary judgment negated all factual bases for those claims. To support its contention, GBM relies on Vogel v. Travelers Insurance Co., 966 S.W.2d 748, 750 (Tex. App.-San Antonio 1998, no pet.). In Vogel, the appellate court ruled that a summary judgment granted on a breach of contract cause of action, not urged in the motion for summary judgment, should be affirmed if the elements urged in the motion and established by summary judgment proof disposed of one or more elements to the breach of contract cause of action. The court reasoned that reversing a summary judgment in that situation would be a meaningless exercise because the questioned recovery was precluded as a matter of law. Id. at 754; see Chale Garza Inv., Inc. v. Madaria, 931 S.W.2d 597, 601 (Tex. App.-San Antonio 1996, no writ). In the present case, GBM contends that, because the Articles control in the event of a conflict with the Regulations, PDS is precluded as a matter of law from recovering on its remaining claims. With respect to PDS's breach of contract cause of action, a determination that the Articles control in the event of a conflict with the Regulations is dispositive. PDS pled that "Gillen and Baldridge   breached   their  contract  (the  Company  Regulation)  with  PDS  by  their  actions on August 29, 2000." We have already found that the Articles control over the Regulations, and Gillen's and Baldridge's actions on August 29, 2000, were clearly authorized by the terms set forth in those documents. Therefore, it would be meaningless for this Court to reverse the summary judgment on PDS's breach of contract cause of action. See Vogel, 966 S.W.2d at 754. On the other hand, this determination does not as a matter of law preclude recovery on PDS's remaining claims. For example, PDS contends it is entitled to reform the Articles so they are consistent with the Regulations. The underlying objective of reformation is to correct a mutual mistake made in preparing a written instrument, so the instrument truly reflects the original agreement of the parties. Brinker v. Wobaco Trust Ltd., 610 S.W.2d 160, 163 (Tex. Civ. App.-Texarkana 1980, writ ref'd n.r.e.). By implication, then, reformation requires two elements: (1) an original agreement, and (2) a mutual mistake made after the original agreement in reducing the original agreement to writing. Cherokee Water Co. v. Forderhause, 741 S.W.2d 377, 379 (Tex. 1987). Accordingly, before this Court, or any other, can pass on the issue of reformation, there must be a determination of whether an agreement was reached prior to the execution of the Regulations and Articles, and if so, whether a mutual mistake was made in reducing that agreement to writing. Because GBM's motion for summary judgment did not address reformation, no evidence was presented to negate the existence of those elements, and PDS was under no duty to establish their presence. Therefore, the trial court erred by granting summary judgment with respect to reformation. GBM also failed to address civil conspiracy in its motion for summary judgment. A civil conspiracy consists of "a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means." Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608, 614 (Tex. 1996). The essential elements are: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as the proximate result. Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983). A determination that the Articles control over the Regulations is not dispositive on a claim to recover under civil conspiracy. GBM failed to produce evidence that would disprove any of those elements as a matter of law. See Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). For the same reasons summary judgment was improper for reformation, the trial court erred by granting summary judgment with respect to conspiracy. In addition to the foregoing, PDS also contended that GBM breached its fiduciary duty and duty of loyalty. With respect to fiduciary duty, an informal relationship may give rise to a fiduciary duty where one person trusts in and relies on another, whether the relation is a moral, social, domestic, or purely personal one. See Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex. 1962); Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256, 261 (1951). But not every relationship involving a high degree of trust and confidence rises to the stature of a fiduciary relationship. Crim Truck & Tractor Co. v. Navistar Int'l Transp. Corp., 823 S.W.2d 591, 594 (Tex. 1992). Accordingly, while a fiduciary or confidential relationship may arise from the circumstances of a particular case, to impose such a relationship in a business transaction, the relationship must exist before, and apart from, the agreement made the basis of the suit. Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 280 (Tex. 1995). It has been well established that the directors of a corporation stand in a fiduciary relationship to the corporation and its stockholders, and they are without authority to act in a matter in which a director's interest is adverse to that of the corporation. Dunagan v. Bushey, 152 Tex. 630, 263 S.W.2d 148, 152 (1953). Further, the duty of loyalty dictates that a corporate officer or director must act in good faith and must not allow his or her personal interest to prevail over the interest of the corporation. Landon v. S & H Mktg. Group, 82 S.W.3d 666, 672 (Tex. App.-Eastland 2002, no pet.). The duty of loyalty requires an extreme measure of candor, unselfishness, and good faith on the part of the officer or director. Int'l Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567, 577 (Tex. 1963); Landon, 82 S.W.3d at 672. GBM contends that, because their actions were justified under the Articles, a claim for breach of fiduciary duty and duty of loyalty would be without merit. The determination that the Articles control over the Regulations fails to negate facts that would, if proven, support these claims and therefore is not dispositive. There was nothing introduced into the record that would warrant a summary judgment, and the trial court erred by granting one with respect to breach of fiduciary duty and duty of loyalty. For the reasons stated, summary judgment is affirmed with respect to declaratory relief, unjust enrichment, member oppression, and breach of contract; the judgment with respect to breach of fiduciary duty, breach of duty of loyalty, civil conspiracy, and reformation is reversed; and those claims are remanded to the trial court for further proceedings. Josh R. Morriss, III Chief Justice Date Submitted: February 19, 2003 Date Decided: March 28, 2003 ON MOTION FOR REHEARING In its motion for rehearing, Pinnacle Data Services, Inc. (PDS) contends the entire case must have been remanded, not just those points that were not addressed in Joseph Gillen's motion for summary judgment. In support of its contention, PDS relies on Uribe v. Houston General Insurance Co., 849 S.W.2d 447, 449-50 (Tex. App.-San Antonio 1993, no writ), and Chessher v. Southwestern Bell Telephone Co., 658 S.W.2d 563 (Tex. 1983). We have reviewed the relevant line of cases dealing with this issue. Our disposition is correct. We note that there has been, in the past, some confusion about whether certain summary judgments are final and appealable and about how they should be handled on appeal. Recent cases have put that confusion to rest. To the extent Uribe and Chessher would require a complete remand of this case, they, and cases of their lineage, have been superseded by subsequent, controlling precedent. Where, as here, a final summary judgment has disposed of a case and included causes of action not addressed in the underlying motion, that judgment is erroneous and must be affirmed as to the causes of action properly adjudged and remanded as to those causes of action not addressed in the underlying motion. Jacobs v. Satterwhite, 65 S.W.3d 653 (Tex. 2001); Bandera Elec. Coop., Inc. v. Gilchrist, 946 S.W.2d 336 (Tex. 1997); Page v. Geller, 941 S.W.2d 101 (Tex. 1997); Kleven v. Tex. Dept. of Criminal Justice-I.D., 69 S.W.3d 341, 344 (Tex. App.-Texarkana 2002, no pet.). We overrule PDS's motion for rehearing. Josh R. Morriss, III Chief Justice Date: April 23, 2003 1. PDS is owned by Max Horton. His brother, Morris Horton, participates in the management of PDS. Apparently, Max and Morris were under the impression that, despite technically not being members of MJCM, they would still have the right to participate in its management. 2. In order to determine the proper salaries to be paid, Gillen hired a third-party compensation consultant to issue a report indicating the appropriate salary to be paid employees holding the positions occupied by Gillen and Baldridge. 3. At best, PDS contends it filed the response so the time and date stamp left by the after hours clock reflects 12:00 a.m. on February 9, but even if its assertion is accurate, the filing would still be late. More importantly, PDS failed to produce evidence contained in the record, and this Court has found none, that a response was filed with the trial court any earlier than February 11. See Tex. R. App. P. 38.1(g); Luckette v. State, 906 S.W.2d 663, 668 (Tex. App.-Amarillo 1995, writ ref'd) (review by court of appeals is limited to confines of appellate record).

112 Ariz. 7 (1975) 536 P.2d 695 FIREMAN'S FUND INSURANCE COMPANY, a corporation, et al., Appellants, v. ARIZONA INSURANCE GUARANTY ASSOCIATION, a non-profit corporation, et al., Appellees. No. 11935-PR. Supreme Court of Arizona, En Banc. June 13, 1975. Rehearing Denied July 14, 1975. Snell & Wilmer by Mark Wilmer, Bruce Norton and Thomas J. Reilly, Phoenix, for appellants. Stockton & Hing by Robert Ong Hing, Phoenix, for appellee Arizona Ins. Guaranty Assn. N. Warner Lee, Former Atty. Gen., Bruce E. Babbitt, Atty. Gen. by Fred W. Stork, III, and Nicholas C. Guttilla, Phoenix, for appellee Arizona Dept. of Ins. HAYS, Justice. We are presented by this petition for review with the singular question of the constitutionality of legislation establishing the Arizona Insurance Guaranty Association. A.R.S. § 20-661 et seq. The opinion of the Court of Appeals, Fireman's Fund Insurance Co. v. Arizona Insurance Guaranty Ass'n, 22 Ariz. App. 453, 528 P.2d 839 (1974) is vacated. The provision of the Arizona Constitution with which we are principally concerned reads as follows: "Section 2. Corporations may be formed under general laws, but shall not be created by special Acts...." Ariz.Const.art. 14, § 2, A.R.S. We note that this provision does not specify the nature of the corporation which shall not be created by special acts; no distinction is made between public corporations and private corporations. The appellees contend that the Arizona Insurance Guaranty Association is a public corporation created to carry out a mandate of the legislature, and hence it does not fall under the constitutional provision. Despite the public good intended by the legislation, the plain, simple language of the constitution compels us to disagree. "Corporation" *8 is defined in article 14, section 1, of the Arizona Constitution and we find nothing there which supports the idea that the constitutional provision does not apply to public corporations. Let us briefly examine the legislative enactment with which we are concerned. The purpose of the Arizona Insurance Guaranty Association was stated as follows in its enabling legislation: "The purpose of this act is to provide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies, and to provide an association to assess the cost of such protection among insurers." (Laws, 1970, ch. 78, § 1) As a condition of authority to transact business in the state of Arizona, all insurers who write fire and casualty insurance must be members of this association. A.R.S. § 20-662. It has a "plan of operation" drawn up by its members. A.R.S. § 20-665. There is a board of directors consisting of from five to nine representatives of the member companies for terms established by the plan of operation subject to the approval of the state insurance director. A.R.S. § 20-663. The board has the power to assess the members separately for the expenses of administration and for the claims resulting from the insolvency of an insurance company. A.R.S. § 20-664. Members of the board are reimbursed also from the assets. A.R.S. § 20-663. The association is empowered to appear in, defend and appeal any action on a claim brought against the association, employ the necessary personnel, borrow necessary funds, sue and be sued, negotiate and become a party to necessary contracts and perform other necessary acts. A.R.S. § 20-664. The plan of operation establishes the procedures whereby all the powers and duties of the association will be performed including handling assets, reimbursing members of the board, filing claims and proof, and a provision for the appeal of any aggrieved member insurer to the state insurance director of any final action by the association. The association is "exempt from payment of all fees and all taxes levied by this state or any of its subdivisions." A.R.S. § 20-671. Immunity from suit is granted to everyone concerned with the business of the association. A.R.S. § 20-673. The state insurance director has a small role to play in the affairs of the association. He approves the directors to insure fair representation and approves the plan of operation. A.R.S. § 20-663, § 20-665. He also notifies the association of the existence of an insolvent insurance company and upon the request of the board, provides the association "with a statement of the net direct written premiums of each member insurer." A.R.S. § 20-666. He may also require that the association notify the insureds of the insolvent insurer and any other interested parties of the insolvency and of their rights to proceed under this statutory provision, and may suspend or revoke the certificate of authority to transact business of a member who refuses to comply. A.R.S. § 20-666. There is no other executive control over the association. Appellees contend that Board of Regents of the University of Arizona v. Sullivan, 45 Ariz. 245, 42 P.2d 619 (1935), supports their position that a public corporation such as the one created here does not fall within the terms of the Arizona Constitution provision dealing with corporations. Art. 14, § 2, supra. In the Board of Regents case, supra, the court said: "The special mandate to the legislature to enact laws for those educational institutions is rather convincing that it was not intended that the legislature should be restricted to the passing of general laws for the incorporation of such institutions, but that it might, as it did, incorporate the same by special act." 45 Ariz. at 256-57, 42 P.2d at 624. *9 There is no provision in the constitution regarding insurance comparable to article 11, section 2, of the Arizona Constitution, which authorizes the legislature to provide for educational institutions by law. Board of Regents, supra, does not support appellees' position. We have held that the insurance industry is affected by the public interest and that the state, by legislation, may regulate and control it. Employers' Liability Assurance Corp. v. Frost, 48 Ariz. 402, 62 P.2d 320 (1936). However, this does not serve as a basis for the creation of a corporation by a special act. It has been carefully pointed out to us that A.R.S. § 20-661 et seq. is a model act which has been enacted into law in some forty states. The Supreme Court of Florida in O'Malley v. Florida Insurance Guaranty Ass'n, 257 So.2d 9 (Fla. 1971) upheld the constitutionality of this law under their constitution. Florida Constitution, art. III, § 11(a)(12), provides: "There shall be no special law or general law of local application pertaining to: * * * * * * "(12) private incorporation or grant of privilege to a private corporation." Obviously the foregoing bears little resemblance to our constitutional provision; hence, we do not feel constrained to give it weight under our law. We of course do not question the authority of the legislature to create boards, commissions, departments, and agencies to carry out public purposes. Our statutes are replete with a variety of governmental agencies with wide differences in their organizational structures and functions. In each instance the agency is "governed and controlled by public officials." Board of Regents, supra. The worthy objectives sought by the legislature can be attained through normal governmental structure and without doing violence to the constitution. Courts are unwilling to declare legislative acts unconstitutional unless it is clearly shown that the fundamental law has been violated. Board of Regents, supra. We hold that the act creating the Arizona Insurance Guaranty Association is unconstitutional. The judgment of the trial court is reversed. CAMERON, C.J., STRUCKMEYER, V.C.J., and LOCKWOOD and HOLOHAN, JJ., concur.

236 F.2d 270 POLARUS STEAMSHIP CO., Inc., as owner of THE T/S POLARUSOIL, Libelant-Appellee,v.THE T/S SANDEFJORD, her engines, boilers, etc., and Viriks Rederi A/S (Haldor Virik, Manager), Respondents-Appellants.VIRIKS REDERI A/S (Haldor Virik, Manager) as owner of THE T/S SANDEFJORD, Cross-Libelant-Appellant,v.THE T/S POLARUSOIL, her engines, boilers, etc., and Polarus Steamship Co., Inc., Cross-Respondent-Appellee. No. 365. No. 366. Docket 24002. Docket 24003. United States Court of Appeals Second Circuit. Argued May 18, 1956. Decided August 20, 1956. Haight, Gardner, Poor & Havens, New York City (MacDonald Deming and Gordon W. Paulsen, New York City, Richard G. Ashworth, New York City, of counsel), for cross-libelant-appellant. Dow & Symmers, New York City (Wilbur E. Dow, Jr. and William A. Wilson, New York City, of counsel), for libelant-appellee. Before MEDINA, LUMBARD and WATERMAN, Circuit Judges. MEDINA, Circuit Judge. 1 At about two o'clock in the morning of July 11, 1951, two tankers, each over four hundred feet long, approaching one another in a fog from opposite directions, collided some forty odd miles at sea in the travelled highway off Barnegat Inlet on the New Jersey coast. The district judge found that one of the vessels, the Sandefjord, was solely to blame, and she appeals. 2 The Polarusoil, which had no radar, was bound for Texas on a southerly course and the Sandefjord was heading north from Philadelphia to New York. Except for the fog, which "was a changing, fluid thing," nothing interfered with navigation, as there was no sea or wind and the current was negligible. 3 The Sandefjord was equipped with navigational radar in good order and had a full speed under the prevailing conditions of about fourteen knots through the water. As the fog closed in, she reduced her speed only two knots. Despite hearing five or six fog signals from the Polarusoil, and observing in the radar a vessel some miles ahead off her port bow, she maintained this excessive speed of twelve knots until she sighted the Polarusoil close aboard, when the Sandefjord ordered her engines in reverse. Her fault is clear and was conceded at the trial. She contends, however, that the Polarusoil was also to blame. 4 The Polarusoil's full speed was about twelve knots, but because of the fog she was proceeding at half speed, or about six knots through the water. The first warning to those aboard the Polarusoil that another vessel was close by was the fog whistle of the Sandefjord two minutes or thereabouts before she was hit. She stopped her engines immediately and, on hearing the second blast, she put her engines full astern. Then for the first time, the oncoming Sandefjord was visible to the Polarusoil. At the time of impact the Polarusoil "was dead in the water or going astern slowly." 5 There were a number of other factors, such as the standby order to the engine room of the Polarusoil and her trim, as well as the failure of those in command of the Sandefjord to make proper use of her radar. Indeed, what happened here demonstrates how radar may, when not properly used, increase the chances of collision. Had successive observations been plotted to determine the course and speed of the Polarusoil, which was plainly visible on the radar screen when about seven miles away, the ships would probably have passed one another in safety. But the master of the Sandefjord made no such calculations; he merely guessed that the Polarusoil was steering a course parallel to the coastline and moving to the left of the Sandefjord. While a matter of conjecture, it seems not unlikely that the Sandefjord would have proceeded more cautiously had she not been equipped with radar, which, under the circumstances, gave a false sense of security. 6 We cannot disturb the finding that the Sandefjord was solely to blame. There was no violation by the Polarusoil of Article 16 of the International Rules, 33 U.S.C.A. § 92, requiring vessels to proceed in foggy weather "at a moderate speed, having careful regard to the existing circumstances and conditions." 7 "Moderate" speed is undoubtedly less than full speed. The Pennland, D.C.S.D.N.Y., 23 F. 551; The State of Alabama, D.C.S.D.N.Y., 17 F. 847. But the term is a relative one, and precisely how much less the statute requires depends on the peculiar circumstances of each case. The Pennsylvania, 19 Wall. 125, 86 U.S. 125, 22 L.Ed. 148; The Bayonne, 2 Cir., 213 F. 216; Quinette v. Bisso, 5 Cir., 136 F. 825, 5 L.R.A.,N.S., 303, certiorari denied 199 U.S. 606, 26 S.Ct. 746, 50 L.Ed. 330; The State of Alabama, supra; see also, Shope, Collision at Sea 341 n. 34 (1903). 8 True it is that there are statements that in congested harbor waters, and at times elsewhere, anything more than bare steerageway in the presence of fog may be too much. The Martello, 153 U.S. 64, 14 S.Ct. 723, 38 L.Ed. 637; The Umbria, 166 U.S. 404, 412, 17 S.Ct. 610, 41 L.Ed. 1053. Even more frequently, the applicable rule has been said to be that no vessel should be operated in a fog at a speed which is so fast that she cannot stop within the distance her helmsman can see ahead. The Chattahoochee, 173 U.S. 540, 548, 19 S.Ct. 491, 43 L.Ed. 801; The Colorado, 91 U.S. 692, 23 L.Ed. 379, quoting with approval, The Batavia, 40 Eng.L. & Eq. 25; The Haven, 2 Cir., 277 F. 957; The City of Norfolk, 4 Cir., 266 F. 641, certiorari denied sub nom. Chesapeake S. S. Co. of Baltimore City v. Hand, 253 U.S. 491, 40 S.Ct. 584, 64 L.Ed. 1028; The Northern Queen, D.C.S.D.N.Y., 117 F. 906; The Albatross, D.C.D.Mass., 273 F. 285; The Fjell, D.C.E.D.Va., 257 F. 478; see also, Marsden, Collisions at Sea 340 (9th ed., Gibb, 1934). 9 But these are not rules of thumb to be applied willy-nilly. They are but glosses upon the basic rule requiring operation at a moderate speed, and, like it, they must be applied according to the particular circumstances of each case. While there was some evidence that the range of visibility here was about a ship's length, some 400-odd feet, or, according to another witness, two ships' lengths, the trial judge very properly held that the distance could not be fixed with any accuracy. The purpose of the statute, spelled out in the "sight rule," is to require generally and not absolutely that a vessel proceed only at such speed that it can stop before striking another vessel which comes into the range of its vision. And here the Polarusoil was "stopped in the water and probably going astern very slowly at the time of the collision." Cf. The Pemaquid, D.C. 255 F. 709, reversed on the facts, 1 Cir., 288 F. 666. 10 There is another feature of this case which is worthy of comment, in view of the congestion of the admiralty docket in the Southern District of New York. At the close of the evidence Judge Walsh dictated his decision and his findings, with some discussion of the evidence. This is good practice, especially in collision cases, where much depends upon a mental picture of the vessels as they approached one another and the conditions of time, fog, wind, current, and so on, in which the signals are given and the various maneuvers take place. Where the authorities cited in the trial briefs are studied during the trial and the evidence followed with some concentration, the trial judge is more likely than not to reach a just and sound result when the case is fresh in his mind and his impressions of the various witnesses are still vivid. Of course, complicated and difficult cases require further study; but in the average run-of-the-mill case, such as the one now before us, delay and the service of further briefs serve little purpose other than to multiply the amount of time and effort expended upon the case. 11 Affirmed.

2005 WY 150 DAVID VEILE, Appellant, v. MICHAEL BRYANT, and BRYANT FUNERAL HOME, INC. Appellees. No. 05-48 Supreme Court of Wyoming. OCTOBER TERM, A.D. 2005. November 28, 2005 Representing Appellant: David Veile, Pro Se. Representing Appellee: Michael Bryant, Pro Se, and Francisco L. Romero, Ft. Collins, Colorado. HILL, C.J., and GOLDEN, KITE, VOIGT, BURKE, JJ. GOLDEN, Justice. [¶1] David Veile appeals from a district court order denying his motion for payment of costs for his appeal in Veile v. Bryant, 2004 WY 107, 97 P.3d 787 (Wyo. 2004). Finding Veile's argument on appeal to be without merit, we affirm the order of the district court and, finding no reasonable cause for this appeal, award sanctions against Veile. ISSUE [¶2] Veile presents this statement of the issue: Should the district court's order denying payment of costs to Appellant Veile be reversed because it violates: A) the Wyoming Supreme Court's Mandate Reversing Judgment?; and/or B) Rule 10.04, Wyoming Rules of Appellate Procedure? Appellee Michael Bryant rephrases the issue as follows: Is Veile entitled to costs on appeal when he is not the prevailing party and did not move for costs in this Court? FACTS [¶3] Veile and Bryant operate competing funeral homes in Worland, Wyoming. In 1996, Veile filed a complaint with the Wyoming State Board of Embalming (Board) against Bryant and Bryant Funeral Home alleging numerous violations of Wyo. Stat. Ann. § 33-16-310 (LexisNexis 2005). After investigation by the Board's investigative committee, the Board closed the case for lack of evidence of any violation by Bryant. In 1998, Veile filed a petition with the Board alleging Bryant had capped, steered and/or solicited funeral business in violation of § 33-16-310, requesting revocation or suspension of Bryant's license, and requesting reimbursement of Veile for the costs incurred in filing the petition. Veile filed the petition pursuant to Wyo. Stat. Ann. § 33-16-311 (LexisNexis 2005), which allows such a petition to be filed by the Attorney General, the county attorney of the county in which the licensee resides, or "by any citizen residing in this state." [¶4] After protracted legal maneuvering, a hearing on Veile's petition was held before the Board in 2002. At the close of Veile's evidence, the Board granted Bryant's motion for a directed verdict finding Veile failed to present sufficient evidence to support his allegations. Veile filed a petition for review with the district court. The district court dismissed the petition for review holding that the hearing before the Board was not a contested case hearing under the Wyoming Administrative Procedure Act. The district court characterized the hearing as an investigation after which the Board found no basis to prosecute Veile's claims. The district court reasoned that because the hearing was not a contested case hearing under the Wyoming Administrative Procedure Act, the court did not have jurisdiction to consider Veile's petition for judicial review. [¶5] Veile appealed the district court's decision to this Court. We reversed the district court's ruling that the hearing before the Board was not a contested case hearing and held that the Court did have jurisdiction to hear Veile's appeal. Veile, ¶ 14, 97 P.3d at 793. In this Court's ruling on the merits of Veile's appeal, though, we upheld in all respects the Board's finding that Veile had presented insufficient evidence to prove his case against Bryant, and we affirmed the Board's decision denying all relief requested by Veile. Id., ¶¶ 16, 26, 97 P.3d at 796, 799. [¶6] On September 30, 2004, this Court issued its "Mandate Reversing Judgment," which provided that "[c]osts are awarded to the prevailing party." On November 3, 2004, Veile filed in district court a "Motion for Order of Payment of Costs Pursuant to Wyoming Supreme Court's Mandate Reversing Judgment," seeking to recover $1,698.80 in costs. On January 3, 2005, the district court issued an order denying Veile's motion for payment of costs. In so ordering, the district court ruled that "Mr. Veile is not the prevailing party in the Supreme Court matter and because of the uniqueness of the Supreme Court's opinion in the matter, Rule 10.04, W.R.A.P., is not applicable . . . ." This appeal followed. STANDARD OF REVIEW [¶7] This Court ordered in its mandate that costs were awarded to the prevailing party. The determination of which party is the prevailing party is a question of law, and our standard of review for questions of law is de novo. See Gray v. Stratton Real Estate, 2001 WY 125, ¶ 5, 36 P.3d 1127, 1128 (Wyo. 2001). DISCUSSION [¶8] Veile contends the district court erred in finding that he was not the prevailing party in Veile, 2004 WY 107, 97 P.3d 787. In support of this contention, Veile argues that he "clearly improved his position by appealing the District Court's Dismissal to this Court." We disagree. [¶9] In considering whether a party should be awarded costs as a prevailing party in litigation, we have defined "prevailing party" according to the following: A party should not be deemed the prevailing party for purposes of taxing costs unless the party improves his or her position by the litigation. * * * To hold otherwise would encourage unnecessary litigation. Schaub v. Wilson, 969 P.2d 552, 561 (Wyo. 1998). Our decision in Veile cannot reasonably be read to have improved Veile's position in any way in his petition against Bryant. [¶10] Veile's position in his litigation against Bryant was that which he presented to the Board: that Bryant had engaged in unlawful funeral practices; that Bryant's license should be revoked or suspended; and that the Board should reimburse Veile for expenses he incurred in pursuing his action before the Board. The Board found against Veile on all of his claims. The district court, on the other hand, took no position on the merits of Veile's claims and instead dismissed Veile's petition for review after finding it did not have jurisdiction to consider the petition. We disagreed with the district court and took jurisdiction of Veile's appeal. We then, however, ruled against Veile on all of his claims and upheld the Board's decision in its entirety. The effect of the district court's decision, had it stood, would have been to leave in place the Board's decision denying Veile all relief he requested. Although we disagreed with the district court's reasoning, the effect of our decision on Veile was the same. We affirmed the Board's finding that Veile had not proven his case against Bryant, and we upheld the Board's decision denying Veile all requested relief. Veile clearly did not improve his position in his litigation against Bryant through his appeal to this Court. [¶11] As a final issue, Bryant claims that there is no reasonable cause for this appeal and this Court should award sanctions pursuant to W.R.A.P. 10.05. "Generally, this Court is reluctant to impose sanctions, but we will make such an award in those rare circumstances where an appellate brief lacks cogent argument, is devoid of pertinent authority to support the claims of error, and/or fails to make adequate references to the record." Gray, ¶ 11, 36 P.3d at 1129-30. In this case the lack of any cogent argument to support the appeal provides the circumstance making sanctions appropriate. [¶12] As explained above, this Court in its Veile decision ruled against Veile on all of his claims of Board error. Veile's interests in his litigation against Bryant were in no way vindicated through his appeal to this Court, and no reasonable argument could be proffered to support his request for payment of costs. We can discern no good faith legal basis for this action, and we do not excuse pro se litigants from the requirement that an appeal be supported by cogent argument. See Welch v. Welch, 2003 WY 168, ¶ 13, 81 P.3d 937, 940 (Wyo. 2003). We therefore certify that there is no reasonable basis for this appeal and that sanctions are appropriate. CONCLUSION [¶13] We agree with the district court that Veile was not a prevailing party entitled to an award of costs following our decision in Veile. We therefore affirm the district court's order denying Veile's motion for payment of costs. Bryant shall submit a statement of costs and attorney's fees associated with responding to this appeal. Upon review, we will award an appropriate amount in the form of sanctions.

845 F.2d 1023 46 Fair Empl.Prac.Cas. 1223 Glass (Sammy L.)v.General Casting Corporation NO. 87-1780 United States Court of Appeals,Seventh Circuit. APR 20, 1988 Appeal From: W.D.Wis., 660 F.Supp. 554 1 REVERSED AND REMANDED.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-6795 JOWARSKI RUSSELL NEDD, Petitioner - Appellant, v. HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent - Appellee. No. 18-7285 JOWARSKI RUSSELL NEDD, Petitioner - Appellant, v. HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent - Appellee. Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., District Judge. (3:16-cv-00948-JAG-RCY) Submitted: May 29, 2019 Decided: June 20, 2019 Before KING, FLOYD, and HARRIS, Circuit Judges. Dismissed by unpublished per curiam opinion. Jowarski Russell Nedd, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: In Appeal No. 18-6795, Jowarski Russell Nedd seeks to appeal the district court’s order dismissing as untimely his 28 U.S.C. § 2254 (2012) petition. * In Appeal No. 18- 7285, Nedd seeks to appeal the district court’s subsequent order denying reconsideration. The orders are not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85. * We remanded for the limited purpose of permitting the district court to determine whether Nedd is entitled to a reopening of the appeal period pursuant to Fed. R. App. P. 4(a)(6). On remand, the district court granted Nedd’s motion to reopen. 3  We have independently reviewed the record and conclude that Nedd has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeals. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 4 

776 F.2d 1055 */**U.S.v.Rawls 85-8082 United States Court of Appeals,Eleventh Circuit. 10/21/85 1 M.D.Ga. AFFIRMED * Fed.R.App.P. 34(a); 11th Cir.R. 23 ** Local Rule: 25 case

641 So.2d 184 (1994) SECURITY MANAGEMENT CORP., Appellant, v. HARTFORD FIRE INSURANCE Company, etc., Appellee. No. 93-2107. District Court of Appeal of Florida, Third District. August 17, 1994. *185 Weil, Lucio, Mandler, Croland & Steele and Lawrence D. Goodman and John C. Hanson, II, Miami, for appellant. Haley, Sinagra & Perez and James T. Haley, Miami, for appellee. Before SCHWARTZ, C.J., and JORGENSON and GODERICH, JJ. JORGENSON, Judge. Security Management Corp. (Security) appeals from an order of final judgment in favor of Hartford Fire Insurance Company (Hartford). We affirm in part, reverse in part, and remand with directions. Security entered into a builders' risk insurance contract with Hartford for the period of July 1, 1985, to July 1, 1986. As to the premium for the policy, Security and Hartford agreed to a retrospective premium formula. This formula provided that Security would be charged a minimum of a $50,000 premium and a maximum of a $150,000 premium for the year of insurance coverage. Essentially, if the value of the covered properties increased or losses were paid, the premium could be adjusted up to the $150,000 maximum. Security paid the $50,000 minimum premium at the inception of the insurance policy. In December of 1985, a fire occurred on the insured property. Security made a claim on Hartford for the policy limits. By draft dated June 6, 1986, Hartford paid the claim notwithstanding the fact that it had cancelled the insurance coverage on February 4, 1986. Hartford subsequently adjusted the premium upwards to $150,000 based upon the retrospective premium formula. After crediting Security with the $50,000 it had already paid, Hartford rendered a statement to Security in the amount of $100,000. Security refused payment alleging it had never agreed to the retrospective premium formula. Hartford then sued Security based on open account, account stated, and services rendered. The trial court entered final judgment in favor of Hartford and found that Security was liable in the amount of $100,000 plus interest. The trial court properly found that Hartford was entitled to increase the insurance policy premium pursuant to the retrospective rating formula. Despite Security's argument to the contrary, its conduct demonstrates that it accepted the terms and conditions of the retrospective rating formula. See James Register Constr. Co. v. Bobby Hancock Acoustics, Inc., 535 So.2d 339 (Fla. 1st DCA 1988) (mutuality of assent may be *186 shown through acts or conduct of the parties); Gateway Cable T.V., Inc. v. Vikoa Constr. Corp., 253 So.2d 461 (Fla. 1st DCA 1971) (same). Security never transmitted any objection to Hartford with respect to the retrospective rating formula. It provided monthly valuation reports to Hartford as required by the insurance policy, made a claim under the policy, and accepted payment of the claim. These facts all demonstrate that Security assented to the entire insurance policy, including the retrospective rating formula endorsement.[1] As Security is legally bound by the retrospective premium endorsement, Hartford is entitled to any increase in premium contemplated by the parties' agreement. Nevertheless, the trial court erred in not taking into account the fact that Hartford cancelled the yearlong policy after only seven months. "As a general rule, an insurer ... upon cancelling a policy must return advance premiums which have been paid and are unearned." George J. Couch et al., Couch on Insurance 2d 34:29 at 884-86 (1985).[2]See also Graves v. Iowa Mut. Ins. Co., 132 So.2d 393 (Fla. 1961); Bradley v. Associates Discount Corp., 58 So.2d 857 (Fla. 1952); Aetna Casualty & Sur. Co. v. Simpson, 128 So.2d 420 (Fla. 1st DCA 1961).[3] No provision in the Hartford insurance policy addresses the issue of the return of unearned premiums. However, this was a one-year insurance contract and the additional $100,000 Hartford demanded was supposed to have represented a full year's premium. Accordingly, we reverse the amount of damages awarded. On remand, Security may litigate the issue of its entitlement to a proration for the last five months of the insurance contract. Affirmed in part; reversed in part; remanded with directions. NOTES [1] Even assuming that Security's conduct did not demonstrate assent to the entire insurance policy, it would still be bound by the terms of the retrospective rating formula. "[A]n insurance broker is the agent of the insured in matters connected with the procurement of insurance." AMI Ins. Agency v. Elie, 394 So.2d 1061, 1062 (Fla. 3d DCA 1981); Liberty Mut. Ins. Co. v. Scalise, 627 So.2d 87, 91 (Fla. 1st DCA 1993). The retrospective rating formula was included in the insurance binder which was prepared and executed by B.R.I. Coverage Corporation, Security's insurance broker and agent. "[B]ecause the broker was the agent of the insured, the insured was bound by the agent's actions." Empire Fire & Marine Ins. Co. v. Koven, 402 So.2d 1352, 1353 (Fla. 4th DCA 1981). [2] See also 30 Fla.Jur.2d Insurance 457 (1981) ("Contracts of insurance on property ... generally provide for ... the return of the unearned portion of the premium paid by the insured."); 45 C.J.S. Insurance 500 (1993) ("Ordinarily, ... the return or tender of the unearned premium to the insured is a condition precedent to cancellation of the policy... ."). [3] Though no similar provision exists for builders' risk insurance, as to health insurance policies section 627.626, Florida Statutes (1985) provides: "In the event of cancellation, the insurer will return promptly the unearned portion of any premium paid." See also 627.848, Florida Statutes (1985) (insurer who cancels an insurance contract which contains a premium finance agreement shall promptly refund any remaining unearned premium for the benefit of the insured).

989 P.2d 230 (1999) The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Steven Owen PENNINGTON, Defendant-Appellant. No. 98CA0506. Colorado Court of Appeals, Div. A. July 8, 1999. Certiorari Denied December 6, 1999. *231 Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Clemmie P. Engle, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee. Robert S. Berger, P.C., Robert S. Berger, Denver, Colorado, for Defendant-Appellant. Opinion by Justice ERICKSON.[*] Defendant, Steve Owen Pennington, appeals from the trial court order denying his Crim. P. 35(c) motion as untimely and lacking justifiable excuse or excusable neglect. We affirm. Defendant pled guilty to possession of burglary tools and was sentenced to 16 years of probation on September 30, 1994. The trial court signed the conditions of probation on October 14, 1994. Shortly thereafter, defendant fled the state. The probation officer filed a probation revocation complaint and defendant was apprehended on the Colorado warrant in Arizona in September 1997. On October 8, 1997, defendant made his first court appearance in Colorado for advisement on the revocation complaint. At that time defendant requested appointment of counsel. The public defender was appointed, and on October 22, 1997, the public defender filed a motion to withdraw claiming that defendant wanted to file a Crim. P. 35(c) motion alleging that he had received ineffective assistance of plea counsel. The court granted the motion, and on October 29, 1997, private counsel was appointed. On December 3, 1997, defendant filed his Crim. P. 35(c) motion alleging ineffective assistance of his 1994 plea counsel. A motion hearing was held at which the prosecutor argued that the Crim. P. 35(c) motion was untimely under § 16-5-402, C.R.S.1998. After argument, the trial court denied the motion, finding that the motion was untimely and that the defendant had failed to establish justifiable excuse or excusable neglect. This appeal followed. I. Defendant first argues that his Crim. P. 35(c) motion was timely. He argues that the period specified in § 16-5-402 began on October 14, 1994, when the trial court signed the conditions of probation, and that he commenced his collateral attack on October 8, 1997, when he requested the assistance of counsel. We disagree. As pertinent here, § 16-5-402 provides that: "[N]o person who has been convicted under a criminal statute ... shall collaterally attack the validity of that conviction unless such attack is commenced within [three years] following the date of said conviction." (emphasis added) For purposes of § 16-5-402 and post-conviction review, "a conviction occurs when the trial court enters judgment and sentence is imposed, if there is no appeal." People v. Hampton, 857 P.2d 441, 444 (Colo.App.1992), aff'd, 876 P.2d 1236 (Colo.1994). Crim. P. 32(c) defines a judgment of conviction as follows: A judgment of conviction shall consist of a recital of the plea, the verdict or findings, the sentence, the finding of the amount of presentence confinement, and costs, if any are assessed against the defendant. Here, the sentence was imposed on September 30, 1994. That is the date of conviction for purposes of § 16-5-402. Furthermore, at the sentencing hearing, the court stated the conditions of probation. Crim. P. 32(c) does not require that the judgment of conviction be signed or that the conditions of probation be executed by the judge before judgment of conviction enters. See Crim. P. 32(c). Hence, defendant would have had to commence his collateral attack before September 30, 1997. Because the date of conviction is September 30, 1994, not October 14, 1994, as defendant argues and because defendant does not *232 contend that he commenced his collateral attack before October 8, 1997, we need not decide when a collateral attack "commences" for purposes of § 16-5-402. II. Defendant contends, however, that even if the motion was untimely, he established justifiable excuse or excusable neglect for the late filing. He argues that the delay was caused by the process of communicating with first appointed counsel, withdrawal of counsel, appointment of private counsel, and preparation of new counsel. Again, we disagree. An untimely collateral attack may be considered if a defendant demonstrates that the failure to seek timely relief was the result of circumstances amounting to justifiable excuse or excusable neglect. Section 16-5-402(2)(d), C.R.S.1998; People v. Merchant, 983 P.2d 108 (Colo.App.1999). Whether the facts and circumstances qualify as justifiable excuse or excusable neglect is a question of fact ordinarily to be resolved by the trial court. See People v. Wiedemer, 852 P.2d 424 (Colo.1993). The relevant factors a trial court should consider in making that determination include: (1) the existence of any impediments preventing a challenge to a prior conviction; (2) whether the defendant had a previous need to make a challenge; (3) whether the defendant knew that a prior conviction was constitutionally infirm or had reason to question its validity; (4) whether there existed other means to prevent use of the convictions; and (5) the effect that the passage of time has had on the government's ability to defend against the challenge. See People v. Wiedemer, supra. Here, the trial court concluded that none of the grounds asserted by defendant established justifiable excuse or excusable neglect to excuse his untimely collateral attack pursuant to § 16-5-402. The trial court noted that defendant did not file his Crim. P. 35(c) motion until a probation revocation complaint was filed. In addition, the grounds asserted in the motion were matters that the defendant was aware of in 1994 when he executed the conditions of probation. Moreover, these were matters of which defendant would have been aware, even if he lacked legal sophistication. Because defendant had knowledge of these grounds in 1994, he could have called them to the attention of previous counsel, or new counsel, or directly to the court. The court's findings show that there were no circumstances preventing defendant from challenging his conviction and that he had reason to question the constitutionality of his conviction. Because the trial court's findings are supported by the record, we uphold the trial court's conclusion that defendant failed to establish justifiable excuse or excusable neglect for the untimely filing of his Crim. P. 35(c) motion. People v. Thomas, 853 P.2d 1147 (Colo.1993)(deference is to be given to the trial court's findings of fact, and when there is record support for them, a reviewing court will not overturn those findings). The order is affirmed. Judge RULAND and Justice KIRSHBAUM concur. NOTES [*] Sitting by assignment of the Chief Justice under provisions of the Colo. Const., art. VI, Sec. 5(3), and § 24-51-1105, C.R.S.1998.

892 F.2d 1043 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Jesse C. HOGAN; and wife, Plaintiffs-Appellants,v.ALLSTATE INSURANCE COMPANY, Defendant-Appellee. No. 89-5301. United States Court of Appeals, Sixth Circuit. Jan. 3, 1990. Before MILBURN and BOGGS, Circuit Judges, and ENGEL,* Senior Circuit Judge. PER CURIAM. 1 Plaintiffs Jesse and Paula Hogan appeal a judgment by the United States District Court for the Eastern District of Tennessee for the defendant Allstate Insurance Co. in this breach of contract action under Tennessee law. On appeal, the Hogans contend that the trial court erred in holding that the auto insurance policy between them and Allstate was void ab initio, and that Allstate had not waived its right to void the policy because of Jesse's misrepresentation in his application for insurance. 2 On February 24, 1988 the Hogans applied for insurance and theft coverage on their car and truck from Allstate through an Allstate agent in Chattanooga. On the driving violations history section of the application form, Jesse reported his DUI conviction in March 1985 but failed to report his reckless driving conviction in April 1986. Upon submitting the application to the agent, the Hogans gave him $263 in cash toward the $1,041.90 yearly premium on both vehicles. The agent immediately submitted the application to Allstate's underwriting department in North Carolina. Approximately three to four hours after the Hogans left the agent's office, their car was stolen. They promptly reported the theft to the police and to Allstate, but the car was never recovered. 3 Unaware of the theft, Allstate's underwriting department in North Carolina processed the Hogans' application. In so doing, the department learned of the unreported reckless driving conviction, which in conjunction with the DUI conviction rendered the Hogans ineligible for coverage by Allstate. On March 15, 1988, still unaware of the theft, the underwriting department sent a letter to the Hogans rejecting their application. The letter also stated that temporary coverage provided while their application was being considered would expire on March 28, 1988, and enclosed a check refunding the difference between the Hogans' initial $263 payment and a premium of $240 for the temporary coverage. 4 Meanwhile, Allstate's claims department in Chattanooga had begun to investigate the Hogans' theft claim. In the course of the investigation, the claims department learned of the unreported reckless driving conviction and sent a letter to the Hogans reserving Allstate's rights. At that time, the claims department was still unaware of the underwriting department's March 15 letter rejecting the Hogans' application but extending limited temporary coverage. Subsequently, in an April 29, 1988 letter to the Hogans, the claims department declared the policy void ab initio because of the misrepresentation and returned the full balance of the Hogans' initial payment. 5 The Hogans subsequently initiated a breach of contract action against Allstate in a Tennessee state court, alleging that Allstate had failed to honor their auto theft claim under their temporary policy. The case was removed to the district court. Following a bench trial, the magistrate concluded that under Tennessee law Allstate was entitled to void the policy ab initio because of Hogan's material misrepresentation in the application. The magistrate also held that the March 15 letter from the underwriting department had not waived Allstate's right to rely on that misrepresentation and that even assuming a waiver, the misrepresentation still voided the insurance policy ab initio. 6 On appeal the Hogans challenge these holdings as contrary to Tennessee law, and argue that the magistrate should have instead awarded them a judgment on their theft claim against Allstate. 7 An insurance company may void an insurance policy on grounds of a misrepresentation in the application if the misrepresentation was made with intent to deceive or increases the risk of loss to the company. Tenn.Code Ann. § 56-7-103. In this case, the magistrate found that Hogan's failure to disclose his reckless driving conviction in his application satisfied the latter criteria. Op. at 8-10. Hogan does not challenge this finding on appeal. Rather, his claim is that in the March 15 letter from its underwriting department, Allstate waived its right to void the policy because of his misrepresentation by instead choosing to cancel the policy and to keep a premium for the period covered. 8 There are two kinds of waiver under Tennessee insurance law. Express waiver is a "voluntary relinquishment by a party of a known right," and "may be proved by express declaration; or by acts and declarations manifesting an intent and purpose not to claim the supposed advantage; or by a course of acts and conduct...." Chattem, Inc. v. Provident Life & Acc. Ins. Co., 676 S.W.2d 953, 955 (Tenn.1984) (quoting Baird v. Fidelity-Phoenix Fire Ins. Co., 178 Tenn. 653, 665, 162 S.W.2d 384 (1942)). An express waiver must be knowing and voluntary. Chattem at 955-56. An implied waiver, which is a form of equitable estoppel, requires that the insured not know and have had no way of knowing the truth as to the facts in question, and have acted in reliance upon the conduct of the insurance company. Chattem at 955. By contrast, reliance is unnecessary to an express waiver. Id. at 956. 9 In the present case, the magistrate found that Allstate's March 15 letter "did not constitute a waiver of its right to rely upon ... [Hogan's] material misrepresentation" in the policy application, presumably in order to void the policy ab initio. Op. at 10-11. This conclusion was based on two findings. First, Allstate's underwriting department did not know of the theft claim when it sent the letter, due to a lack of communication with the claim department. Second, the underwriting department "was endeavoring to comply with the Tennessee law concerning the cancellation of insurance" when it sent the March 15 letter. Op. at 11. The magistrate further held that even assuming arguendo that the letter was a waiver, the policy was still void because of Hogan's misrepresentation. Id. The opinion here cites Lane v. Travelers Indemnity Co., 499 S.W.2d 643 (Tenn.Ct.App.1973). 10 It is evident that the ultimate determination of whether there was an express waiver by the insurer in this case is a mixed question of fact and law. Under the circumstances of this case, we are fully satisfied that the intent of the insurer in the conflicting actions of two of its own departments must be construed against it. Here, with full knowledge of the misrepresentation which entitled it to void the policy entirely, the insurer instead unquestionably elected in the first instance to acknowledge coverage and retain a proportionate part of the premium. The record shows no evidence to explain the claims department's subsequent decision to void the policy because of the misrepresentation other than the department's knowledge that Hogan had already filed a claim. Defendant insurer has shown us no Tennessee law which would permit it to withdraw an express waiver of the right to void under such circumstances and we conclude that it finds no comfort in the decision in Lane, supra. See id. at 648 (insurer who has offered to extend coverage may void policy on the ground of material misrepresentation, but only where the misrepresentation was not discovered until after the offer of extended coverage was made). 11 Accordingly, we find that the magistrate erred in failing to conclude that there was an express waiver of the right to void the policy under the facts before him. The judgment is REVERSED and the case REMANDED to the district court for further proceedings consistent with this opinion. * Honorable Albert J. Engel assumed senior status effective October 1, 1989

874 So.2d 272 (2004) STATE of Louisiana v. Juaquin R. MARTINEZ. No. 04-KA-38. Court of Appeal of Louisiana, Fifth Circuit. April 27, 2004. *274 Paul D. Connick, Jr., District Attorney, 24th Judicial District Court, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee. Holli A. Herrle-Castillo, Harvey, LA, for Defendant/Appellant. Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD. CLARENCE E. McMANUS, Judge. STATEMENT OF THE CASE On May 7, 2003, the Jefferson Parish District Attorney filed a bill of information charging the defendant, Juaquin R. Martinez, with possession of cocaine in violation of LSA-R.S. 40:967(C). The defendant was arraigned on May 16, 2003 and pled not guilty. On October 20, 2003, the defendant's motion to suppress evidence was denied. On that same date, the defendant withdrew his plea of not guilty and tendered a plea of guilty under State v. Crosby, 338 So.2d 584 (La.1976). The trial court subsequently sentenced the defendant to imprisonment at hard labor for two years, suspended the sentence, and placed the defendant on active probation for two years. On October 24, 2003, the defendant filed a motion for appeal that was granted. FACTS The following facts and testimonies were presented at the hearing on the motion to suppress. Detective Daniel Jewell was the arresting officer. He testified that he had been employed by the Jefferson Parish Sheriff's Office narcotics division for approximately two years and that, during his four years with the New Orleans Police Department, he had made hundreds of drug arrests. In regards to this case, Detective Jewell testified that his office had received an anonymous complaint regarding numerous people coming and going from 4120 Trenton Street Apartment No. 3 in Metairie, Louisiana. Based on this information, Detective Jewell and his partner conducted surveillance on the apartment on April 1, 2003. During the 45 minute surveillance, *275 Detective Jewell observed five subjects going to the apartment and staying approximately two to five minutes. He explained that this behavior was consistent with the purchase of narcotics. Detective Jewell then testified that the defendant, Juaquin R. Martinez, was the sixth person to approach the apartment. After the defendant left the apartment, Detective Jewell's partner stayed and continued the surveillance and Detective Jewell followed the defendant who walked about three blocks away to Independence Street. Detective Jewell stated that he never lost sight of the defendant, nor did the defendant approach any other residences. Detective Jewell then stopped the defendant and identified himself as a police officer. Detective Jewell thought the defendant had possibly purchased narcotics from someone in the apartment. The detective questioned the defendant about his ID, what he was doing in the apartment, and whether he knew the people there. The defendant could not give him a good answer and kept looking around. Detective Jewell thought the defendant was about to flee. Detective Jewell testified that the defendant kept sticking his hands in his pockets and his waistband after being told numerous times not to. He also testified that the defendant "could not hold an object in his hand without dropping it." When the detective asked the defendant to produce his identification, Detective Jewell noticed that the defendant was very nervous and sweating profusely, even though it was rather cool. Based on the defendant's attitude and the way he carried himself and knowing from experience that narcotics and weapons went "hand-in-hand", Detective Jewell conducted a pat down for weapons because he was concerned for his safety. Detective Jewell heard a "distinctive crunch of plastic", which he associated with being a cigarette wrapper, when he got to the lower, right part of the defendant's leg around the sock and ankle area. When Detective Jewell touched the wrapper, the defendant bent down and moved the detective's hand away from his ankle. Detective Jewell testified that every time he went near the defendant's ankle, the defendant would move his hands near the ankle. Because of these actions, Detective Jewell was concerned for his safety. Once he was able to actually pat the area around the ankle, Detective Jewell felt a small, rock-like object. He testified that he did not have to manipulate the object to feel it and it was "very distinctive" and he "immediately recognized it." Detective Jewell then lifted the defendant's pant leg and saw the top of the plastic sticking out of his sock. Detective Jewell then seized a small piece of crack cocaine and the defendant was placed under arrest. On cross-examination, Detective Jewell admitted that he did not see any hand-to-hand transactions or drugs change hands during his 45 minutes of surveillance and he did not stop the other five people who left the apartment. The trial court denied the defendant's motion to suppress the evidence finding that the detective had a reasonable suspicion to stop and talk to the defendant and that under the totality of the circumstances, the detective was entitled to conduct the pat-down because he reasonably suspected he was in danger. The defendant now appeals the trial court's denial of the motion to suppress. ASSIGNMENT OF ERROR NUMBER ONE The defendant argues that the trial court erred in denying the motion to suppress *276 the evidence. He contends the officer had no reasonable suspicion to stop him after he left the apartment. He also argues that, even if the officer had reasonable suspicion to stop him, the officer was not justified in patting him down. Further, he asserts that even if the stop and pat-down for weapons were legal, the retrieval of the cellophane wrapper containing the crack rock was not. The Fourth Amendment to the United States Constitution and La. Const. Art. 1, § 5 protect individuals from unreasonable searches and seizures. State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). However, the right of law enforcement officers to stop and question a person where there is reasonable suspicion to believe that the person is committing, has committed or is about to commit a crime was established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See also: State v. Keller, 403 So.2d 693, 696 (La.1981); State v. Duran, 96-602 (La.App. 5 Cir. 3/25/97), 693 So.2d 2, 3, application dismissed, 97-1485 (La.1/9/98), 705 So.2d 1087. The requirements for a valid Terry stop and for any search incident to the stop was codified in LSA-C.Cr.P. art. 215.1, which provides in pertinent part: A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions. B. When a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon. If the law enforcement officer reasonably suspects the person possesses a dangerous weapon, he may search the person. C. If the law enforcement officer finds a dangerous weapon, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person. Investigatory stops require reasonable suspicion of criminal activity. "Reasonable suspicion" is something less than probable cause and is determined under the facts and circumstances of each case by whether the officer had sufficient facts within his knowledge to justify an infringement on the individual's right to be free from governmental interference. State v. Sanders, 97-892 (La.App. 5 Cir. 3/25/98), 717 So.2d 234, writ denied, 98-1163 (La.9/25/98), 724 So.2d 774. The facts upon which an officer bases an investigatory stop should be evaluated in light of the circumstances surrounding the incident. A reviewing court must take into consideration the totality of the circumstances and give deference to the inferences and deductions of a trained police officer that might elude an untrained person. State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048. An officer's experience, his knowledge of recent criminal patterns and his knowledge of an area's frequent incidence of crimes, are factors that may support reasonable suspicion for an investigatory stop. State v. Martin, 99-123 (La.App. 5 Cir. 6/1/99), 738 So.2d 98. Although flight, nervousness, or a startled look at the sight of a police officer is, by itself, insufficient to justify an investigatory stop, this type of conduct may be highly suspicious and, therefore, may be one of the factors leading to a finding of reasonable cause. State v. Belton, 441 So.2d *277 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Furthermore, an anonymous tip corroborated by police surveillance can, under some circumstances, supply enough reliability to support an investigatory stop. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); State v. Morgan, 00-1501 (La.App. 5 Cir. 3/28/01), 783 So.2d 514. In State v. Jernigan, 377 So.2d 1222, 1225 (La.1979), cert. denied, 446 U.S. 958, 100 S.Ct. 2930, 64 L.Ed.2d 816 (1980), the Louisiana Supreme Court held, "[A]n anonymous tip can provide the basis of an investigatory stop. However, the information received from the anonymous tipster must carry enough indicia of reliability, such as specificity of the information and corroboration by independent police work, to justify the stop." When a police officer observes conduct which leads him to reasonably conclude that criminal activity may be afoot and that the persons with whom he is dealing may be armed and dangerous, he is entitled to conduct a carefully limited search to discover weapons that might be used to assault him, in the course of the investigatory stop. Terry v. Ohio, 88 S.Ct. at 1884-1885; State v. Tolliver, 556 So.2d 166, 169 (La.App. 5 Cir.1990). The pat-down is justified under circumstances where a reasonably prudent man would be warranted in the belief that his safety or that of others was in danger. State v. Keller, 403 So.2d 693, 697 (La.1981); State v. Edwards, 630 So.2d 302, 304 (La.App. 5 Cir.1993). See also: State v. Mitchell, 96-999 (La.App. 5 Cir. 3/25/97), 692 So.2d 1251, 1252. If, in the course of a frisk pursuant to LSA-C.Cr.P. art. 215.1(B), an officer feels an object whose contour or mass makes its identity as contraband immediately apparent, the officer may seize it under the "plain feel" exception to the warrant requirement. Minnesota v. Dickerson, 508 U.S. 366, 377, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334, (1993); State v. Broussard, 00-3230 (La.5/24/02), 816 So.2d 1284. In the instant case, the first issue we must address is whether the officer had reasonable suspicion to conduct the investigatory stop. The facts of this case are very similar to a case recently decided by this Court, State v. Washington, 03-1134, pp. 1-5 (La.App. 5 Cir. 2/10/04), 866 So.2d 1058. In State v. Washington, this Court held that there was no reasonable suspicion for the officers to conduct the investigatory stop. In Washington, narcotics detectives testified that they were members of a "take down unit" conducting surveillance at a specific address. Other officers witnessed narcotics transactions from the residence and were in the process of obtaining a search warrant for the residence. During the surveillance, an officer observed a truck approach the front of the residence. Defendant, a passenger, exited the truck, entered the residence briefly, and returned to the truck. The truck was subsequently stopped, and defendant exited the vehicle. As he did so, two pieces of wrapped aluminum foil, which the officer recognized as the packaging for heroin, fell to the ground. In Washington, this Court found that the state did not present evidence to show that the officers had information sufficient to give them reasonable suspicion to stop the truck. Neither officer testified that defendant acted suspiciously or unusually, and defendant's entering a residence and exiting to a waiting vehicle, standing alone, was not enough to provide officers with reasonable suspicion to stop defendant. This Court distinguished this case from State v. Fontaine, 01-1291 (La. App. 4 Cir. *278 3/6/02) 814 So.2d 592 and State v. Smith-Holmes, 01-1810 (La. App. 4 Cir. 3/27/02), 815 So.2d 351, noting that, in those cases, the defendants' actions of briefly entering and exiting the residence under surveillance fit the actions of others who had been found to have drugs or drug paraphernalia on them. In addition, in State v. Rodriguez, 99-914 (La.App. 5 Cir. 1/25/00), 761 So.2d 14, 15-20, writ denied, 00-0599 (La.4/7/00), 759 So.2d 765, this Court found that the officers did not have reasonable suspicion to stop the vehicle in which defendant was riding. In Rodriguez, a federal agent received information from a reliable confidential informant that a specific apartment was involved in the distribution and storage of heroin. The agent also learned that, on a specific date, a large quantity of heroin was to be delivered by one of the residents. The agent provided the information to a detective who set up surveillance. Approximately one hour after the surveillance began, the detective saw two individuals exit the apartment and enter a vehicle located in the parking lot. The officers followed the vehicle, but did not observe any suspicious activity, and ultimately stopped the vehicle. The detective subsequently observed the defendant, the passenger, throw a plastic bag on the ground, which later tested positive for heroin. This Court found that the state did not meet its burden of proving the validity of the warrantless vehicle seizure, noting that the information was so sparse that it was impossible to determine the veracity, basis of knowledge and reliability of the informant and the information given, and that the predictive aspect of the information was so vague that it did not rise to the level of reasonable suspicion. As such, this Court reversed the trial court's denial of the motion to suppress and remanded for further proceedings. In the instant case, we find that the officer did not have reasonable suspicion to conduct the investigatory stop. There was no evidence that Detective Jewell witnessed defendant engage in any criminal activity. Detective Jewell did not see any hand-to-hand transactions, nor did he see any drugs change hands. No one prior to defendant was stopped and found to have drugs or drug paraphernalia on them. Prior arrests for drug offenses had not been made in connection with that location. The police had no prior suspicion of the residence, and there was no evidence that the location of the encounter was in a high drug trafficking area. None of the five subjects who entered and exited the apartment before defendant were known to the police as being narcotics traffickers. In addition, the predictive aspect of the tip was vague. Although the residence was suspected as being used for narcotics transactions, we find that, defendant's presence there, without more, was as equally consistent with innocent behavior as with criminal conduct. We find there was no reasonable suspicion to conduct the investigatory stop. Since the evidence, the rocks of crack cocaine, were obtained as a result of this illegal stop, the trial court erred in denying the motion to suppress. As a result, we reverse the trial court's judgment and grant the defendant's motion to suppress the evidence. Since we have found that the officer had no reasonable suspicion to conduct the stop and we reverse the trial court's judgment on this basis, we will not address whether the pat-down and seizure of the cocaine was legal. ERROR PATENT REVIEW The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; *279 State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent that require corrective action. Accordingly, we reverse the denial of the motion to suppress the evidence and the defendant's conviction and sentence are hereby vacated. REVERSED; CONVICTION AND SENTENCE VACATED.

No. 01-840 IN THE SUPREME COURT OF THE STATE OF MONTANA 2003 MT 259N EDWARD STAMPER, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Respondent. APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, Cause No. CDC-98-163 The Honorable Kenneth R. Neill, Judge presiding. COUNSEL OF RECORD: For Appellant: Edward Stamper, Shelby, Montana (pro se) For Respondent: Mike McGrath, Montana Attorney General, C. Mark Fowler, Assistant Montana Attorney General, Helena, Montana; Brant Light, Cascade County Attorney, Great Falls, Montana Submitted on Briefs: May 23, 2002 Decided: September 24, 2003 Filed: __________________________________________ Clerk Justice James C. Nelson delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating Rules, the following decision shall not be cited as precedent but shall be filed as a public document with the Clerk of the Supreme Court and shall be reported by case title, Supreme Court cause number and result to the State Reporter Publishing Company and to West Group in the quarterly table of noncitable cases issued by this Court. ¶2 Edward Stamper appeals the denial of his Petition for Postconviction Relief by the District Court for the Eighth Judicial District, Cascade County. We affirm. ¶3 We address the following issue on appeal: Whether the District Court erred in dismissing Stamper's Petition for Postconviction Relief without holding an evidentiary hearing. Factual and Procedural Background ¶4 On March 30, 1998, Stamper assaulted a detention officer and another inmate at the Cascade County Regional Detention Center. As a result, the Cascade County Attorney's Office charged Stamper with felony assault and assault on a peace officer, also a felony, on April 6, 1998. Stamper was convicted by a jury on both counts. Thereafter, the District Court sentenced Stamper to concurrent ten-year terms, with five years suspended, in the Montana State Prison. The court also sentenced him to an additional three years for the use of a weapon. However, in response to this Court's decision in State v. Guillaume, 1999 MT 29, 293 Mont. 224, 975 P.2d 312, the District Court amended Stamper's sentence to eliminate 2 the consecutive term for the use of a weapon. ¶5 On October 17, 2000, while his direct appeal was pending, Stamper filed a petition for postconviction relief raising the following grounds for relief: (1) defense counsel's ineffective representation denied Stamper the right to a fair trial; (2) defense counsel ineffectively represented Stamper by failing to investigate possible mitigating circumstances and witnesses, failing to have Stamper's mental health evaluated, and being unprepared for trial; (3) defense counsel prohibited Stamper from calling his own witnesses; (4) defense counsel failed to object during jury selection; and (5) defense counsel failed to object to the jury pool. The District Court stayed Stamper's petition pending resolution of his appeal before this Court. On October 10, 2000, Stamper filed a Motion for Voluntary Dismissal of Appeal and this Court granted the motion the following day. ¶6 On September 10, 2001, the District Court issued its "Order Re Defendant's Petition for Post-conviction Relief" wherein the court concluded that a hearing was not warranted. Thereafter, the court dismissed all of Stamper's claims because they were conclusory. The court also specifically found that two of Stamper's claims were procedurally barred. Stamper appeals the District Court's order. Standard of Review ¶7 We review a district court's denial of a petition for postconviction relief to determine whether that court's findings of fact are clearly erroneous and whether its conclusions of law are correct. State v. Hanson, 1999 MT 226, ¶ 9, 296 Mont. 82, ¶ 9, 988 P.2d 299, ¶ 9 (citation omitted). Discretionary rulings in postconviction relief proceedings, including 3 rulings relating to whether to hold an evidentiary hearing, are reviewed for abuse of discretion. Hanson, ¶ 9. Discussion ¶8 Whether the District Court erred in dismissing Stamper's Petition for Postconviction Relief without holding an evidentiary hearing. ¶9 The District Court determined that a hearing on Stamper's Petition for Postconviction Relief was not warranted because all of Stamper's claims were conclusory and without merit. The court also determined that two of Stamper's claims were barred from consideration pursuant to § 46-21-105(2), MCA, because they could be documented from the record and, thus, should have been raised directly on appeal. ¶10 Stamper argues that the District Court erred by prematurely dismissing his petition for postconviction relief without holding a hearing or making proper findings of fact and conclusions of law. He maintains that he has never been provided with an adequate remedy for review of his ineffective assistance claims, thus he requests that we order the District Court to appoint new counsel to represent him and to hold a hearing on his claims. ¶11 Stamper's ineffective assistance of counsel claims include allegations that his trial counsel was ineffective because counsel failed to investigate the various defenses available to Stamper especially the defense of mental disease or defect. Stamper also contends that trial counsel's failure to object during jury selection was intentional and should be considered as "plain error." In addition, Stamper argues that his appellate counsel was ineffective for 4 failing to raise on appeal Stamper's ineffective assistance claims regarding trial counsel and for advising Stamper to withdraw his appeal and file instead a petition for postconviction relief in the District Court. ¶12 The State argues on the other hand that Stamper's contentions that he is entitled to a hearing are meritless and that Stamper is attempting to cast the Montana postconviction procedure as a broad discovery vehicle that allows probing for facts to establish a claim. The State further argues that Stamper mentions the term "plain error" for the first time on appeal and that Stamper fails to substantiate the application of "plain error" analysis to his claims. ¶13 Under § 46-21-201(1)(a), MCA, a district court may dismiss a postconviction petition as a matter of law for failure to state a claim for relief. Postconviction relief is not available on claims for relief that a petitioner could have raised on direct appeal. Section 46-21- 105(2), MCA. We have consistently applied the procedural bar in § 46-21-105(2), MCA, to foreclose review in postconviction proceedings of issues which a petitioner could have raised on direct appeal. See Gollehon v. State, 1999 MT 210, ¶¶ 50-51, 296 Mont. 6, ¶¶ 50- 51, 986 P.2d 395, ¶¶ 50-51, cert. denied, 529 U.S. 1041, 120 S.Ct. 1539, 146 L.Ed.2d 353 (2000); Mothka v. State (1997), 281 Mont. 175, 177, 931 P.2d 1331, 1333; State v. Baker (1995), 272 Mont. 273, 280-81, 901 P.2d 54, 58-59, cert. denied, 516 U.S. 1125, 116 S.Ct. 940, 133 L.Ed.2d 865 (1996). ¶14 Generally, an alleged failure to object to the introduction of evidence, to the testimony of a witness, or to prosecutorial misconduct at trial, has been deemed record-based and, therefore, appropriate for direct appeal. State v. White, 2001 MT 149, ¶ 15, 306 Mont. 58, 5 ¶ 15, 30 P.3d 340, ¶ 15 (citations omitted). But, when the record does not provide the basis for the challenged acts or omissions of counsel, a defendant claiming ineffective assistance of counsel more appropriately makes his claims in a petition for postconviction relief. State v. Herrman, 2003 MT 149, ¶ 33, 316 Mont. 198, ¶ 33, 70 P.3d 738, ¶ 33 (citation omitted). ¶15 In Herrman, the defendant alleged that his counsel rendered ineffective assistance during voir dire when counsel failed to develop information in the record demonstrating an individual juror's bias and by failing to exercise challenges for cause against those jurors expressing bias. Herrman, ¶ 20. We determined in Herrman that it is a mistake to assume that we can determine from a cold record whether there was a tactical reason for not exercising a challenge. The reasons for counsel's actions or inactions should not be "assumed" but should be the subject of a postconviction evidentiary inquiry. Herrman, ¶ 30. ¶16 Here, Stamper claims that his defense counsel ineffectively represented him because she failed to object to the exclusion of members of the jury panel based on race and she failed to object to the procedure used in selecting the jury pool. Just as we determined in Herrman, we conclude that because none of Stamper's claims regarding his counsel's actions during voir dire can be addressed without considering matters outside the record, Stamper's claims are appropriate for postconviction relief. Therefore, we hold that the District Court erred in determining that these claims are barred pursuant to § 46-21-105(2), MCA. ¶17 The District Court also determined that all of Stamper's claims are conclusory and, therefore, without merit and a hearing was not warranted. As the State noted in its brief on 6 appeal, a Montana postconviction relief proceeding is not a discovery device in which a petitioner, through broad allegations in a verified pleading, may establish the right to an evidentiary hearing. Smith v. State, 2000 MT 327, ¶ 28, 303 Mont. 47, ¶ 28, 15 P.3d 395, ¶ 28, cert. denied, 533 U.S. 917, 121 S.Ct. 2524, 150 L.Ed.2d 696 (2001). A petition for postconviction relief must be accompanied by affidavits, records, or other evidence supporting its allegations. Eiler v. State (1992), 254 Mont. 39, 42, 833 P.2d 1124, 1126-27 (citing § 46-21-104(1)(c), MCA). The petition must also be accompanied by a supporting memorandum, including appropriate arguments and citations and discussion of authorities. Section 46-21-104(2), MCA. ¶18 Accordingly, a postconviction relief petitioner is expected to identify in detail not only the legal theories justifying the relief sought, but also the particular facts against which those theories must be applied--generalized factual allegations will not suffice. In the case sub judice, Stamper contended that his counsel inadequately investigated the mitigating circumstances of mental disease or defect and that his counsel violated his right to due process because she did not have his mental health evaluated. However, Stamper's counsel stated that Stamper never raised this issue with her and she had no knowledge of Stamper's purported suicide attempt. Indeed, Stamper failed to provide the court with any evidence that he raised this issue with counsel or that she was in fact incompetent. While he maintains that he tried to commit suicide, he concedes in his petition that he cannot prove that allegation. ¶19 Stamper also contended that his counsel failed to investigate possible witnesses or that she inadequately interviewed the witnesses that she called. However, nowhere in his 7 postconviction petition does Stamper provide a list of witnesses who should have been called or explain why trial counsel's interviewing techniques may have been inadequate. Stamper further contended that his counsel was unprepared at trial, however, Stamper once again failed to provide the court with any evidence in support of his allegations. In addition, counsel stated that she presented evidence at trial that Stamper justifiably used force against the detention officers. We will not second guess trial tactics and strategy. State v. Schoffner (1991), 248 Mont. 260, 268, 811 P.2d 548, 553 (citations omitted). ¶20 Lastly, Stamper contended that defense counsel failed to object to the exclusion of members of the jury panel based on race and she failed to object to the procedure used in selecting the jury pool. However, Stamper makes no showing and provides no discussion in his petition before the District Court or in his brief on appeal before this Court indicating which members of the jury panel should have been stricken and what supposed error existed in the procedure used in selecting the jury pool. Hence, we hold that the District Court was correct in determining that Stamper's claims are conclusory and without merit. ¶21 Stamper also argued on appeal that we must reverse his conviction and order a new trial based on plain error. The State correctly points out in its brief on appeal that Stamper did not argue plain error in the District Court, thus the District Court had no opportunity to rule on this issue. This Court will not consider issues raised for the first time on appeal. Section 46-20-104(2), MCA; State v. Schmalz, 1998 MT 210, ¶¶ 11-13, 290 Mont. 420, ¶¶ 11-13, 964 P.2d 763, ¶¶ 11-13; Welch v. Welch (1995), 273 Mont. 497, 502, 905 P.2d 132, 136. 8 ¶22 Moreover, Stamper has the burden on appeal to demonstrate why this Court should exercise its extraordinary jurisdiction to review a matter under plain error principles. See State v. Pizzichiello, 1999 MT 123, ¶ 11, 294 Mont. 436, ¶ 11, 983 P.2d 888, ¶ 11. Stamper has failed to make that showing here. Stamper's argument supporting application of the plain error doctrine consists of a single, conclusory sentence. ¶23 Accordingly, we hold that, based on all of the foregoing, the District Court was correct in determining that a hearing on Stamper's Petition for Postconviction Relief was not warranted. ¶24 Affirmed. /S/ JAMES C. NELSON We Concur: /S/ KARLA M. GRAY /S/ PATRICIA COTTER /S/ W. WILLIAM LEAPHART 9 

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD AARON DARNELL GRANT, DOCKET NUMBER Appellant, DC-0752-14-0237-I-1 v. DEPARTMENT OF THE TREASURY, DATE: May 27, 2015 Agency. THIS FINAL ORDER IS NO NPRECEDENTIAL 1 Aaron Darnell Grant, Washington, D.C., pro se. Byron D. Smalley, Esquire, and Robert M. Mirkov, Esquire, Washington, D.C., for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained the appellant’s removal. Generally, we grant petitions such as this one only when: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or 1 A nonprecedential order is one that the Board has determined does not add sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).  2 the erroneous application of the law to the facts of the case; the judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. See Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, and based on the following points and authorities, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. We AFFIRM the initial decision, as MODIFIED by this Final Order. We MODIFY the initial decision to clarify the administrative judge’s analysis that the appellant failed to prove his due process claims, including his argument that, in imposing the removal penalty, the deciding official considered an aggravating Douglas factor—that the appellant’s lack of candor was intentional—which was not specifically alleged in the proposal notice. The initial decision, as modified by the Final Order, is the Board’s final decision in this matter. 5 C.F.R. § 1201.113(b). BACKGROUND ¶2 The appellant was a Criminal Investigator with the Internal Revenue Service. By notice dated December 7, 2012, the agency proposed the appellant’s removal on three charges: (1) being less than candid in a matter of official business (two specifications); (2) failing to follow established procedures (four specifications); and (3) failing to cooperate in an official investigation (one specification). Initial Appeal File (IAF), Tab 12 at 52-55. After conducting a hearing, the administrative judge found that the agency proved all of its charges and specifications by preponderant evidence. IAF, Tab 80, Initial Decision (ID) at 14-28. The administrative judge then considered the appellant’s affirmative defenses, finding that the appellant failed to establish harmful procedural error,  3 denial of due process, retaliation for protected equal employment opportunity (EEO) and/or MSPB activity, or discrimination on the bases of race and/or gender. ID at 28-45. Finally, the administrative judge found nexus between the appellant’s misconduct and the efficiency of the service and that the removal penalty was within the bounds of reasonableness. ID at 45-51. ¶3 In a timely filed petition for review, the appellant contests virtually all of the administrative judge’s findings. Petition for Review (PFR) File, Tab 1. 2 The agency has filed a timely response, to which the appellant has replied. PFR File, Tabs 13, 19. 3 ANALYSIS ¶4 The Board will grant a petition for review when it is shown that the initial decision contains erroneous findings of material fact. 5 C.F.R. § 1201.115(a). To be material, an alleged factual error must be of sufficient weight to warrant an outcome different from that of the initial decision, and the petitioner must explain why the challenged factual determination is incorrect and identify specific evidence in the record that demonstrates the error. Id. The Board will not disturb an administrative judge’s findings when he considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions of credibility. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997); Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987). The Board must give deference to an administrative judge’s credibility determinations 2 Among other matters, the appellant challenges the administrative judge’s determinations as to retaliation for protected EEO activity and/or for filing an MSPB appeal, discrimination on the bases of race and/or gender, and the reasonableness of the penalty. PFR File, Tab 1 at 41-50. We affirm the findings on these issues in the initial decision for the reasons stated therein. 3 Following the close of the record, the appellant filed a number of motions for leave to file new evidence or to brief additional issues. See PFR File, Tabs 7, 14, 21, 25, 27, 29, 34, and 36. Because the appellant has not established that any of this evidence or argument is new and material, or that good cause exists for any his motions, they are all denied.  4 when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing and can overturn such determinations only when it has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). ¶5 As discussed below, our review shows that the administrative judge complied with the requirements of Crosby and Broughton in making detailed findings of fact and credibility determinations. In addition, the administrative judge explicitly relied on the demeanor of witnesses in assessing credibility. See ID at 15, 18 & n.11. We find no sound basis for overturning any of the administrative judge’s credibility determinations and findings of fact. The administrative judge correctly found that the agency proved all of its charges and specifications. The administrative judge correctly found that the agency proved both specifications of its charge that the appellant was less than candid in a matter of official business. ¶6 Lack of candor and falsification are different, although related, forms of misconduct, and the latter is not a necessary element of the former; thus, lack of candor is a more flexible charge that need not require proof of intent to deceive. Ludlum v. Department of Justice, 278 F.3d 1280, 1283-84 (Fed. Cir. 2002). But, intent aside, lack of candor still “necessarily involves a degree of deception.” Id. at 1284. It may involve lying under oath or failing to reply fully and truthfully, such as failing to disclose something that, in the circumstances, should have been disclosed in order to make the given statement accurate and complete. Id. ¶7 Both of the specifications under this charge relate to the appellant’s responses under oath during questioning by agency investigators on April 30, 2010. The first specification related to the appellant’s negative response on that date to the question of whether he had been involved in a car accident in his government-owned vehicle (GOV). IAF, Tab 12 at 52, 218. The agency alleged that this response was less than candid in that, on May 3, 2010, he told investigators under oath that he had been involved in an accident in his GOV. Id.  5 at 52, 223. The second specification related to the appellant’s denial while under oath on April 30 that he had lost his credentials in connection with the car accident involved in the first specification. The agency alleged that this response was less than candid because on May 3, he stated in his affidavit and under oath to agency investigators that he had briefly lost his credentials while addressing the car accident. IAF, Tab 12 at 52, 218, 223. After considering the evidence, the administrative judge concluded that the agency proved both specifications by preponderant evidence. ID at 14-20. ¶8 On review, the appellant asserts that the agency failed to prove either specification. Before addressing the specifics of his contentions in this regard, we note that the appellant effectively conceded on the face of his May 3 affidavit that he had been less than candid on April 30: “I would like to recant some of my answers that I provided to TIGTA 4 Special Agents . . . .” IAF, Tab 12 at 227. The appellant would have had no need on May 3 to “recant” answers provided on April 30 if he had been candid on April 30. ¶9 Regarding the first specification, the appellant alleges that the agency failed to establish that he was involved in a car accident in his GOV, repeatedly describing what happened as a “near miss” rather than an accident. PFR File, Tab 1 at 23-28. This contention contradicts the affidavit the appellant provided agency investigators on May 3: “I got into a fender-bender on the on-ramp from Branch Avenue to Suitland Parkway going towards DC . . . . I was texting on my phone and lost concentration on the road and rear-ended an individual.” IAF, Tab 12 at 228. That statement is unambiguous; the appellant admitted that his vehicle “rear-ended” the vehicle in front of him, meaning that his vehicle made contact with the other vehicle. Regardless of whether there was observable damage to either vehicle in this collision, the appellant admitted that he was in an accident, 4 TIGTA is an abbreviation for the Treasury Inspector General for Tax Admin istration.  6 and his later denial of being in an accident on April 30 lacked candor, as do his assertions about a “near miss” in his petition for review. ¶10 The appellant asserts on review that the agency failed to establish lack of candor when he denied on April 30 that he ever lost his credentials because the agency failed to establish that he ever lost his credentials. PFR File, Tab 1 at 31-32. In his May 3 affidavit, the appellant admitted that he called a coworker from his cell phone and told her that he had lost his credentials. IAF, Tab 12 at 228. The coworker corroborated that the appellant called her and asked her to look for his credentials. Id. at 211. A disinterested third party—a police officer—who was with the coworker at the time of the call overheard her tell the appellant that she was not going to help him look for his credentials and that he needed to report that he had been in an accident. Id. at 221. The agency established that the appellant was less than candid when he denied on April 30 that he had lost his credentials. The administrative judge correctly found that the agency proved all of its specifications that the appellant failed to follow established procedures. ¶11 The agency charged that the appellant failed to follow established procedures when he: (1) failed to report that he was involved in a car accident while driving his GOV; (2) texted while driving a GOV; (3) drove his GOV and was wearing his Service-issued firearm while under the influence of alcohol on January 24, 2009; and (4) drove his GOV after consuming alcohol on March 31, 2010. IAF, Tab 12 at 52-53. On review, the appellant admits that he was guilty of the third specification but contends that the administrative judge erred in finding that the agency proved the other three specifications. PFR File, Tab 1 at 26-35. ¶12 The appellant claims he was not guilty of the first specification—that he failed to follow established procedures when he did not report his auto accident of January 24, 2009—based on his assertion that the agency failed to establish that he was involved in an automobile accident. PFR File, Tab 1 at 32-37. That  7 contention is without merit for the reasons discussed above. There was no dispute that agency policy required the prompt reporting of automobile accidents. See IAF, Tab 12 at 97. It was also undisputed that the appellant did not promptly report the automobile accident in which he was involved on January 24, 2009. ¶13 The appellant claims that he is not guilty of the second specification--violating agency policy when he texted while driving a GOV, resulting in an accident—because the agency did not have a specific agency policy prohibiting texting while driving at the time of the incident in January 2009. PFR File, Tab 1 at 34-36. The agency did not, however, rely on a specific policy prohibiting texting while driving; it relied on a policy that provided: “Each employee to whom a vehicle is issued or assigned is responsible for accident prevention and safe driving of government-owned . . . vehicles.” IAF, Tab 12 at 53, 96. This provision cited inattentiveness and using a cell phone as examples of violating the policy. Id. at 96. In his affidavit of May 3, the appellant admitted that he had violated this policy: “I got into a fender- bender . . . . I was texting on my phone and lost concentration on the road and rear-ended an individual.” Id. at 228. ¶14 The appellant contends that the agency failed to prove the fourth specification—that he violated agency policy when he drove his GOV after consuming alcohol on March 31, 2010—because the agency failed to introduce objective evidence to prove that he was intoxicated under some legal standard when he drove home that night. PFR File, Tab 1 at 37-38. The agency policy did not require such proof; it prohibited agents such as the appellant from consuming intoxicants at any time during the workday, including mealtimes, “when the agent intends to return to duty that day. This includes … any time while operating a GOV or carrying a firearm.” IAF, Tab 12 at 114. The appellant admitted that he drank three or four alcoholic drinks on the evening of March 31, 2010. See IAF, Tab 12 at 44, 229. At the hearing, the appellant initially denied that he was still under the influence of alcohol when he drove his GOV home later that night.  8 Hearing Transcript (HT) (March 19, 2014) at 196-200. 5 He was impeached by evidence of his earlier deposition, wherein he stated that he was “drunk” in the workplace and continued to be “under the influence” when he drove his GOV home at midnight. Id.; ID at 25; IAF, Tab 31 at 444; HT (March 19, 2014) at 200. The agency proved its charge of failing to cooperate in an official investigation. ¶15 The basis for this charge was the appellant’s failure to provide contact information for the individual whom he rear-ended on January 24, 2009. On May 3, 2010, while under oath, the appellant told the TIGTA investigator that he no longer had the contact information. IAF, Tab 12 at 53. On May 14, 2010, the TIGTA agent telephoned the appellant to see if he had located the requested contact information. The appellant informed the agent that he would allow TIGTA to see the information but would not allow TIGTA to keep it and then ended the telephone call. Id. On May 17, 2010, the appellant telephoned the TIGTA agent and asked how providing the requested contact information would help the appellant’s case, and the TIGTA agent advised him that the information was needed as part of the investigation. Id. The appellant never provided TIGTA with the requested contact information. Id. The appellant contends on review that he was not required to provide the other motorist’s contact information to the agency investigators because such a requirement would have violated his Fifth Amendment privilege against self-incrimination. PFR File, Tab 1 at 38-41. 5 Generally, the oral recording made by a court reporter is the official transcript of a hearing. See 5 C.F.R. § 1201.53(a). A written transcript will be accepted as the official hearing record when prepared by the court reporter. 5 C.F.R. § 1201.53(b). Here, the agency obtained the oral recordin g of the hearing and retained a second company to prepare a written transcript. PFR File, Tab 24. Although the recording prepared by the court reporter retained by the Board remains the official hearing record, we cite the written transcript prepared by the second company for convenience. We have verified the accuracy of the portions of the written transcript cited by listen ing to the relevant portions of the oral recording.  9 ¶16 We note that the appellant has not disputed the administrative judge’s findings that he possessed the requested information and failed to provide it to agency investigators. Accordingly, the administrative judge had a proper basis for finding that the agency proved the factual allegations supporting the charge. The only question is whether the appellant was obligated to comply with the agency’s request. ¶17 As the agency points out in its response to the appellant’s petition for review, PFR File, Tab 13 at 30, an employee has a Fifth Amendment privilege not to answer questions posed during an agency administrative investigation only if he reasonably believes that his statements may be used against him in a criminal trial. See Weston v. Department of Housing & Urban Development, 724 F.2d 943, 947-48 (Fed. Cir. 1983); Ashford v. Department of Justice, 6 M.S.P.R. 458, 465 (1981). According to his own account, the appellant did not invoke his privilege against self-incrimination until May 24, 2010, subsequent to the dates cited in the agency’s charge. IAF, Tab 12 at 44. In addition, the appellant has cited no reasons to support a conclusion that he reasonably believed that he might be subject to criminal prosecution if he had complied with the request for the other motorist’s contact information. We therefore find that the appellant was obligated to comply with the investigators’ request for information and his failure to do so constituted failing to cooperate in an official investigation. The appellant has failed to establish that he was denied due process of law. ¶18 A tenured public employee has a constitutional right to minimum due process of law under the Fifth Amendment, i.e., prior notice and an opportunity to respond. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985). When an agency intends to rely on aggravating factors as the basis for the imposition of a penalty, such factors should be included in the advance notice of adverse action so that the employee will have a fair opportunity to respond to those factors before the agency’s deciding official. Lopes v. Department of the Navy, 116 M.S.P.R. 470, ¶ 5 (2011); see Ward v. U.S. Postal Service, 634 F.3d  10 1274, 1280 (Fed. Cir. 2011). Not every failure to list an aggravating factor in the proposal notice rises to the level of a due process violation; a due process violation occurs only when “new and material information” is considered that is “so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under such circumstances.” Bennett v. Department of Justice, 119 M.S.P.R. 685, ¶ 7 (2013) (quoting Ward, 634 F.3d at 1279). The agency did not violate the appellant’s due process rights by failing to advise him how each of the Douglas factors would be applied to the offenses. ¶19 On review, the appellant points out that the proposal notice did not describe how each of the Douglas factors 6 applied to the charged misconduct and contends that this failure denied him due process of law. PFR File, Tab 1 at 7-9. The appellant lays particular emphasis on the fact that the proposal notice did not specifically discuss the fourth or ninth Douglas factors, i.e., his work record and potential for rehabilitation. PFR File, Tab 1 at 5-7, 16. 7 ¶20 The proposal notice did explicitly discuss the first and second Douglas factors, the nature and seriousness of the offense and its relation to the appellant’s duties, position, and responsibilities, and the appellant’s job level and type of employment. IAF, Tab 12 at 54. The Board often has stated that the first factor is the most important in assessing the reasonableness of the penalty. E.g., Brough v. Department of Commerce, 119 M.S.P.R. 118, ¶ 11 (2013); Batts v. Department of the Interior, 102 M.S.P.R. 27, ¶ 11 (2006); Williams v. Government Printing Office, 7 M.S.P.R. 183, 185 (1981). In addition to the first two Douglas factors, the agency’s proposal and decision notices cited several 6 In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board listed 12 non-exclusive factors to be considered in assessing the reasonableness of an agency-imposed penalty. 7 The appellant’s contentions regarding the fourth Douglas factor are discussed below, ¶¶ 24-25.  11 other Douglas factors as “aggravating” in nature: (5) Effect on Future Performance; (6) Consistency with Other Penalties; (8) Clarity of Notice; (9) Potential for Rehabilitation; and (11) Adequacy of Alternative Sanctions. IAF, Tab 12 at 39, 5, 66-67; see Douglas, 5 M.S.P.R. at 305-06. 8 ¶21 Although the proposal notice did not expressly discuss how each of the “aggravating” Douglas factors applied to the appellant’s situation, it did provide him a Guide to Penalty Determinations, which described in general terms how each of the Douglas factors is used in determining a reasonable penalty. See id. at 56, 65-68. The Guide states that factor 5—Effect on Future Performance— includes the effect of the offense upon the employer’s confidence in the employee’s ability to perform assigned duties and loss of trust in the employee’s ability to perform assigned duties in the future. Id. at 66. Such loss of confidence was specifically raised in the proposal notice (“Your failure to meet these standards seriously impairs the Service’s and public’s ability to rely on your veracity, ability to use sound judgment and follow established procedures and directives”). Id. at 54. For factor 9—Potential for Rehabilitation—the Guide states that an employee who admits misconduct and shows remorse displays potential for rehabilitation, while an employee who rationalizes his wrongdoing, fails to take responsibility, or does not show an understanding of why his behavior was wrong is not a good candidate for rehabilitation. Id. at 67. It also states that lying during an investigation may be viewed as a lack of potential for rehabilitation. Id. The application of this Douglas factor to the charged misconduct was self-evident. Although the proposal notice did not specifically discuss Douglas factor 8, Clarity of Notice, the appellant was notified that the agency considered this an aggravating factor, and he made no claim that he was 8 The agency’s listing of factors omits Douglas factor 7, which is the consistency of the penalty with any applicable agency table of penalties. See IAF, Tab 12 at 66; see also Douglas, 5 M.S.P.R. at 305. Accordingly, the factors numbered as 8-12 in Douglas are listed in the agency’s document as factors 7-11. IAF, Tab 12 at 66-67. We use the agency’s numbering of factors.  12 unaware of the need to report auto accidents, to refrain from driving his GOV after consuming alcohol, or to respond fully and truthfully during an agency investigation. ¶22 In sum, although the agency’s proposing official could have discussed with more specificity why he considered Douglas factors 5, 6, 9 8, 9, and 11 to be factors aggravating the penalty to be imposed, and the deciding official could have explained with more specificity why he considered them to be aggravating factors, the appellant was on fair notice of those factors and had a reasonable opportunity to respond to them. That he chose to ignore them in his response to the proposed removal, see IAF, Tab 12 at 42-45, is his own responsibility. We conclude that the agency’s failure to discuss these aggravating factors with more specificity in its proposal notice was not “so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under such circumstances.” Ward, 634 F.3d at 1279. The agency did not violate the appellant’s due process rights by failing to give him notice of workplace performance as an aggravating factor. ¶23 The agency’s December 7, 2012 proposal notice did not state that the agency considered Douglas factor 4—Work Record—as an aggravating factor. See IAF, Tab 12 at 54. On December 21, the proposing official provided the appellant additional materials that the agency stated would be considered and relied on in connection with the proposed removal. Id. at 58. These additional materials concerned the appellant’s alleged failure to comply with his supervisor’s directives to input his time in the agency’s electronic system. Id. at 9 Although listed in both the proposal and decision notices as an aggravating factor, the consistency of the penalty with that imposed on other employees for similar offenses was not specifically discussed in either. See IAF, Tab 12 at 39, 54. The deciding official testified that he considered th is an aggravating factor in that no other employees had been disciplined for all of the misconduct as had the appellant. HT (March 18, 2014) at 251-52. We see no basis for finding that the deciding official’s lim ited consideration of this factor invo lved “new and material information” that could constitute a due process violation.  13 59-61. At the hearing, the deciding official testified that this evidence “could apply” under Douglas factor 4 in that it contained some information about the appellant’s ability to get along with coworkers and some unprofessional conduct with coworkers but “that didn’t really aggravate the penalty in my opinion.” HT (March 18, 2014) at 249-50. The administrative judge found that the deciding official properly considered this information under Douglas factor 4. ID at 50-51. The appellant contends that he was denied due process because the deciding official considered a new aggravating factor not listed in the proposal notice. PFR File, Tab 1 at 5-7. ¶24 This situation presents the converse of the Douglas factors described above, in that the agency listed those factors in the proposal notice but did not describe how they applied with particularity. By contrast, in this allegation of a due process violation, the agency supplied the appellant with the additional material it would be considering but did not identify the Douglas factor(s) to which the new material related. This allegation is also unlike the due process allegations described above in that the appellant did address the reasons why he had not inputted his time into the agency’s electronic system. IAF, Tab 12 at 45. That the appellant was provided with the material in question, was advised that it would be considered in connection with the proposed removal, and not only had the opportunity to respond to it but in fact did so precludes a finding that he was denied due process of law in violation of the Fifth Amendment. The agency’s failure to describe with particularity how it was viewing the additional material was not “so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under such circumstances.” Ward, 634 F.3d at 1279. The agency did not deny the appellant due process of law by considering statements by coworkers. ¶25 The agency’s notice of proposed removal included a list of documents relied upon, including a Report of Investigation (ROI) issued by agency  14 investigators. IAF, Tab 12 at 57, 199-257. This included memoranda documenting interviews with agency employees ND, MJ, and TR. Id. at 206-07, 209-11, 221-22. In his petition for review, the appellant observes that the deciding official testified that he considered statements by two of these coworkers, and argues that the deciding official’s consideration of this “ex parte” information denied him due process. PFR File, Tab 1 at 12-15. The administrative judge adequately addressed this allegation when he observed that the investigative memoranda in question were contained in the ROI “and the agency expressly notified the appellant that the ROI was part of the ‘Material Relied On’ for its proposal . . . . Thus, the appellant’s suggestion that he was unaware that the agency could be relying on these documents is contradicted by the plain language in the proposal notice.” ID at 37. The agency did not violate the appellant’s due process rights by failing to give him notice that he was being charged with intentional falsification. ¶26 The essence of the appellant’s complaint in this regard is that, by charging him with lack of candor, the agency did not put him on notice that he was being charged with intentional falsification, but both the deciding official and the administrative judge nevertheless determined that his lack of candor was intentional. PFR File, Tab 1 at 12. The proposal notice stated that a special agent who is deemed Giglio-impaired 10 impeaches that agent’s credibility as a witness, severely hampering the agency’s mission, and that his misconduct “seriously impairs the Service’s and public’s ability to rely on your veracity.” IAF, Tab 12 at 54. This gave the appellant fair notice that all aspects of his 10 Under Giglio v. United States, 405 U.S. 150 (1972), investigative agencies must, as early as possible in a case, turn over any potential impeachment evidence concerning the agents involved in the case to prosecutors, who then exercise their d iscretion regarding whether the impeachment evidence must be turned over to the defense. Solis v. Department of Justice, 117 M.S.P.R. 458, ¶ 4 n.1 (2012). A “Giglio-impaired” agent is one against whom there is potential impeachment evidence that would render the agent’s testimony of marginal value in a case. I d.  15 veracity and credibility were at issue, including whether his lack of candor had been intentional. ¶27 As discussed above, a lack of candor charge “necessarily involves a degree of deception,” and may involve lying under oath as well as a failure to reply fully and truthfully. Ludlum, 278 F.3d at 1284-85. Although a charge of lack of candor does not necessarily require proof of the specific intent required for a falsification charge, it does necessarily entail an allegation that the misconduct at issue was deceptive, which by its very nature is intentional. 11 Thus, the agency was not required to notify the appellant that it intended to “aggravate” the penalty on the basis that his lack of candor was intentional. The deciding official did not deny the appellant due process of law by determining that he was Giglio-impaired. ¶28 The agency’s proposal notice specifically indicated that the proposing official believed the appellant’s misconduct would render him Giglio-impaired. IAF, Tab 12 at 54. The appellant did not address this issue in his response to the proposed removal. Id. at 42-45. In issuing his decision to remove the appellant from employment, the deciding official concluded that the appellant was Giglio-impaired. Id. at 38. On review, the appellant argues that it was improper for the deciding official to make this determination based on his own experience, instead of a determination being made by the United States Attorneys’ Office, and that this somehow denied him due process of law. PFR File, Tab 1 at 15-16. ¶29 A determination by a deciding official that an employee is Giglio-impaired, without notifying the employee in the proposal notice that this would be 11 In Payton v. Department of Veterans Affairs, MSPB Docket No. AT-0752-14-0055-I- 1, Final Order (Jan. 29, 2015), the Board determined in a nonprecedential decision that because neither of the sustained charges—which included a charge of lack of candor— required proof of intent, the deciding official erred in considering the intentional nature of the appellant’s misconduct without advanced notice. We decline to follow Payton to the extent that it holds that a decidin g official vio lates due process by considering, without notice, the inherently deceptive nature of the conduct underlying any lack of candor charge.  16 considered, would present significant due process problems. See Bennett, 119 M.S.P.R. 685, ¶¶ 9-11; Solis, 117 M.S.P.R. 458, ¶¶ 9-10. Here, the agency did give the appellant notice and an opportunity to respond to this issue; he simply failed to avail himself of that opportunity. The appellant has failed to establish harmful procedural error. ¶30 The Board may not sustain an agency decision if it results from harmful error in the application of the agency’s procedures. 5 U.S.C. § 7701(c)(2)(A). Harmful error cannot be presumed; an agency error is harmful only where the record shows that the procedural error was likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error. Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 681, 685 (1991). The appellant makes two allegations of harmful procedural error. ¶31 The appellant asserts that agency procedures require that proposing officials consider employees’ written responses and that the proposing official committed harmful error by failing to consider his written response. PFR File, Tab 1 at 17-19. The rule he says was violated is IRM 6.752.2.23. PFR File, Tab 1 at 17. As the administrative judge properly observed, however, the rule in question relates to the duties of an oral reply officer. IAF, Tab 40 at 78; ID at 32. This rule has no application to this case because the appellant never requested an oral reply. ¶32 The appellant asserts that the agency violated agency rules by twice denying his request for the presence of counsel regarding his questioning on April 30, 2010. PFR File, Tab 1 at 19-22. He cites section 210.6.2 of the TIGTA Operations Manual as being the source of his right to the presence of counsel. PFR File, Tab 1 at 21. The first sentence of the section 210.6.2 reads as follows: “The presence of counsel in non-criminal or non-prosecution type interviews is a privilege and not a right.” IAF, Tab 41 at 37. The administrative judge correctly observed that the appellant had not identified any authority to support a finding  17 that he was entitled to have an attorney present at the interview. ID at 29. Here, the record reflects that the questioning was non-criminal and non-prosecutorial. The appellant has not established a basis for suppressing his statements to investigators on April 30, 2010. ¶33 The appellant argues that nothing he said during the April 30 interview could be used against him because it was a custodial interview conducted without protection of his Fifth Amendment privilege against self-incrimination. PFR File, Tab 1 at 23-25. ¶34 The Employee Interview form that the appellant signed on April 30 informed him that, “[a]s an employee, you must answer the questions asked during this interview and under oath when required; failure to answer may subject you to dismissal from Federal employment or other disciplinary or adverse action.” IAF, Tab 12 at 219. It further advised him that “[f]urnishing false information may result in criminal prosecution.” Id. That the appellant was required to answer questions, however, does not, however, mean he was subject to a custodial interrogation. See Connett v. Department of the Navy, 31 M.S.P.R. 322, 327 (1986) (although the possibility of criminal action existed when the agency required the appellant to complete a financial disclosure form, the agency was not required to give Miranda notice because the appellant was not in custodial interrogation), aff’d, 824 F.2d 978 (Fed. Cir. 1987) (Table). If the appellant had refused to answer questions on the ground that his answers might incriminate him and the agency had disciplined him for that refusal, we would be addressing different legal issues. But since he chose to answer, he was obligated to answer truthfully and with candor. As the administrative judge correctly observed, having decided to answer questions, the appellant did not have a right to lie. ID at 31 (citing Lachance v. Erickson, 522 U.S. 262, 268 (1998)).  18 NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW RIGHTS The initial decision, as supplemented by this Final Order, constitutes the Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to request further review of this final decision. Discrimination Claims: Administrative Review You may request review of this final decision on your discrimination claims by the Equal Employment Opportunity Commission (EEOC). See Title 5 of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your request by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit your request via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, NE Suite 5SW12G Washington, D.C. 20507 You should send your request to EEOC no later than 30 calendar days after your receipt of this order. If you have a representative in this case, and your representative receives this order before you do, then you must file with EEOC no later than 30 calendar days after receipt by your representative. If you choose to file, be very careful to file on time. Discrimination and Other Claims: Judicial Action If you do not request EEOC to review this final decision on your discrimination claims, you may file a civil action against the agency on both your discrimination claims and your other claims in an appropriate United States district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with  19 the district court no later than 30 calendar days after your receipt of this order. If you have a representative in this case, and your representative receives this order before you do, then you must file with the district court no later than 30 calendar days after receipt by your representative. If you choose to file, be very careful to file on time. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e5(f) and 29 U.S.C. § 794a. FOR THE BOARD: ______________________________ William D. Spencer Clerk of the Board Washington, D.C. 

Cite as 2017 Ark. App. 108 ARKANSAS COURT OF APPEALS DIVISION IV No. CV-15-1058 Opinion Delivered February 22, 2017 JASON BOYD APPELLANT APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, V. WESTERN DISTRICT [NO. DR-2014-165] CANDACE CROCKER AND OFFICE HONORABLE PAMELA OF CHILD SUPPORT HONEYCUTT, JUDGE ENFORCEMENT APPELLEES AFFIRMED PHILLIP T. WHITEAKER, Judge Appellant Jason Boyd appeals the order of the Craighead County Circuit Court imputing income to him and ordering him to pay child support based on that imputed figure. Boyd contends that the circuit court erred as a matter of law in its application of the “net- worth method” of calculating income for a self-employed payor.1 We affirm. Boyd and appellee Candace Crocker were engaged in a relationship that led to the birth of a child, G.B. Crocker filed a petition to establish paternity. Boyd admitted that he was G.B.’s father, but the parties litigated the issues of visitation, custody, and child support. The 1 The Office of Child Support Enforcement filed a motion to intervene in the circuit court pursuant to Arkansas Code Annotated section 9-14-210(d) because Crocker was receiving services under Title IV-D of the Social Security Act. The circuit court granted the motion to intervene. While OCSE is thus a named party in this appeal, it has not filed a brief.  Cite as 2017 Ark. App. 108 circuit court granted custody of G.B. to Crocker, set a visitation schedule for Boyd, and set the amount of child support. Boyd does not appeal the court’s rulings on custody or visitation; rather, his only issue on appeal pertains to the issue of child support. In determining an appropriate amount of child support, courts are to refer to the family support chart contained in Supreme Court Administrative Order Number 10, which provides a means of calculating child support based on the payor’s net income. Browning v. Browning, 2015 Ark. App. 104, 455 S.W.3d 863; Cowell v. Long, 2013 Ark. App. 311. The definition of income is intentionally broad and is designed to encompass the widest range of potential income sources for the support of minor children. Montgomery v. Bolton, 349 Ark. 460, 79 S.W.3d 354 (2002); Stuart v. Stuart, 99 Ark. App. 358, 260 S.W.3d 740 (2007). Case law has specifically held, however, that the definition of income for purposes of support may differ from income for tax purposes. See Stuart, supra; Huey v. Huey, 90 Ark. App. 98, 204 S.W.3d 92 (2005); Delacey v. Delacey, 85 Ark. App. 419, 155 S.W.3d 701 (2004); Brown v. Brown, 76 Ark. App. 494, 68 S.W.3d 316 (2002). Our standard of review for an appeal from a child-support order is de novo on the record, and we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Hall v. Hall, 2013 Ark. 330, 429 S.W.3d 219; Brown v. Brown, 2014 Ark. App. 455, 440 S.W.3d 361. In reviewing a circuit court’s findings, we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Brown, supra. Moreover, it is the province of the trier of fact to resolve conflicting testimony. Crismon v. Crismon, 72 Ark. App. 116, 34 S.W.3d 763 (2000). 2  Cite as 2017 Ark. App. 108 As a rule, when the amount of child support is at issue, we will not reverse the circuit court absent an abuse of discretion. Id. However, a circuit court’s conclusion of law is given no deference on appeal. Id. With these standards in mind, we examine the evidence received by the circuit court and its rulings on the issue of child support. The circuit court had undisputed evidence that Boyd was a self-employed farmer for purposes of calculating child support. With respect to Boyd’s income, Crocker took the position at trial that Boyd lived an extravagant lifestyle and could pay a higher amount of child support. Boyd, in contrast, contended that his monthly income for calculating child support was only $3,500, based on his affidavit of financial means. To support their respective positions, Crocker and Boyd presented evidence of Boyd’s bank records, tax returns, and lifestyle. Concerning Boyd’s bank records, bank statements from his family’s farming business, dated March 2013 through December 2014, were introduced into evidence. Total monthly deposits by Boyd into that bank account ranged from $3,500 to more than $10,000. Bank records from his personal checking account, dating from February 2013 to December 2014, reflected deposits ranging from $5,000 to nearly $25,000 per month and total withdrawals or expenditures ranging from $4,900 to over $20,000 per month. In response to this evidence of deposits and withdrawals from his accounts, Boyd did not disagree that he had deposited $131,594 into his checking account in 2013 and had not paid taxes on the money. He also did not disagree that an average figure of “about $14,731 per month” had been deposited into his checking accounts during 2014. Although Boyd testified that the deposits into his account 3  Cite as 2017 Ark. App. 108 were “not all income,” he also stated that he did not “have a source of income other than this Boyd Farms checking account.” Despite the wide range of deposits and the large number of months in which deposits in excess of $10,000 were made, Boyd asked the court to find his monthly income to be $3,500, based on his affidavit of financial means. With respect to his tax returns, Boyd contended that his records for the last three years showed that he had a negative income on his tax returns and that he had “not paid any taxes lately.” The last time he recalled paying taxes was “probably four years ago.” Boyd claimed losses of $285,000 in 2012 and “about $200,000” in each of the last two years, but he was not certain whether the losses were “a personal loss or a Boyd Farm loss or what.” Citing his 2012 Arkansas income tax form, Boyd claimed as his total income negative $252,000. He was “honestly not sure” whether he had told the IRS that his income was a negative $200,000 to $300,000 per year. He further asserted that he “[did]n’t deal with the accounting” and hadn’t “had to pay in any income taxes in the last two years.” He did not “recall reporting [his] income to Social Security.” The court also heard evidence about Boyd’s lifestyle. Boyd testified that he was living in a house that he had just built for approximately $55,000 on land that he owned. He bought a new truck in 2014 for $50,000 and had an $800 per month car payment. He recently sold a boat for $51,500 and recently bought a camper and an ATV for $20,000 and $18,000 respectively. He sold a four-wheeler in 2014 for $7,000, and he sold his house in Paragould for $275,000 “because [he] couldn’t afford the mortgage.” Boyd also admitted that he used his personal checking account to pay expenses on things like a housekeeper, truck accessories, 4  Cite as 2017 Ark. App. 108 boat insurance, lake visits and hotel rooms, payments on his several vehicles, construction of his house, and, eventually, child-support payments of $400 per month.2 Based on the evidence presented at the hearing, the circuit court imputed monthly income of $11,105 to Boyd and set his child-support payments at $1,606 per month. Boyd timely appealed the circuit court’s ruling, and he now argues that the circuit court erred in the methodology used to calculate his income. On appeal, Boyd argues that the circuit court committed reversible error in calculating his child-support obligation as a self-employed person. Pursuant to Administrative Order No. 10(III)(c), for self-employed payors like Boyd, “support shall be calculated based on the last two years’ federal and state income tax returns and the quarterly estimates for the current year. . . .” Here, the court found that Boyd was self-employed, had a farming operation with his father, and had “reported a large loss of income on his tax returns for several years, although he claims to have no personal knowledge of his finances with regard to income taxes.” Noting that Boyd’s 2014 tax returns were not available, the court specifically found that his 2012 and 2013 returns were unreliable.3 Pursuant to Administrative Oder No. 10 (III)(c), when a court finds a self-employed person’s tax returns unreliable, “the court shall consider the amount the payor is capable of earning or a net worth approach based on property, life-style, etc.” Administrative Order No. 10 then advises that, “[f]or ‘clarification of the procedure for 2 A temporary order entered prior to the hearing had set child support at $400 per month. 3 Boyd does not challenge the court’s finding that his tax returns were unreliable. 5  Cite as 2017 Ark. App. 108 determining child support by using the net-worth method,’ see Tucker v. Office of Child Support Enforcement, 368 Ark. 481, 247 S.W.3d 485 (2007).” In Tucker, supra, the supreme court cited Holland v. United States, 348 U.S. 121 (1954), to set forth the “net-worth method” of calculating income. As described in Tucker, the “net- worth method” involves “establishing a beginning net worth at the start of the relevant period and an ending net worth at the end of the period and considers living expenses and allowed deductions for the same period.” Tucker, 368 Ark. at 488, 247 S.W.3d at 491 (citing Holland, 348 U.S. at 125). The court then established the procedure a circuit court should employ: If the circuit court determines that the tax returns are unreliable, then it shall make specific findings explaining the basis of its determination. The circuit court shall then proceed using the net-worth method. The circuit court shall establish a beginning net worth at the start of the relevant period and an ending net worth at the end of the period, considering living expenses and allowable deductions for the same period. See Holland, 348 U.S. at 125, 75 S. Ct. 127. Additionally, the circuit court shall consider the following factors: (1) the impact of inflation or deflation on the payor’s net worth; (2) liquidity of the payor’s assets; (3) the payor’s cash flow; (4) the payor’s current and long-term financial obligations; (5) the payor’s lifestyle; and (6) any other relevant factors. After determining the payor’s disposable income, the circuit court shall calculate child support in accordance with the child-support guidelines Id. at 490, 247 S.W.3d at 492. In this case, Boyd argues that the circuit court “did not employ the correct analysis” set out in Tucker. Boyd complains on appeal that the court erred in determining his income because it failed to establish a beginning net worth and an ending net worth before considering the factors set out in Administrative Order No. 10. He claims that it is “erroneous as a matter of law” to “recite the factors without applying them to the beginning and ending net worth in the applicable period.” He relies on Colley v. Colley, 2014 Ark. App. 698, 450 6  Cite as 2017 Ark. App. 108 S.W.3d 274, as holding that Tucker requires a circuit court to determine beginning and ending net worth for the relevant period and then to consider the factors. We are unable to agree with Boyd’s contentions. Here, after finding that Boyd’s tax returns were unreliable, the circuit court expressly acknowledged that it was to use the net- worth method; however, the court found, based on the facts presented to it, that it did not have sufficient evidence of Boyd’s net worth to be able to utilize that mechanism. The court therefore stated that it considered Boyd’s assets and lifestyle, the amount of money deposited into his personal checking account, his testimony, and his affidavits of financial means in making a determination as to Boyd’s income. The court determined that Boyd’s affidavit of financial means was inconsistent with both his tax returns and his lifestyle, noting that, during a time when Boyd claimed losses in income of $200,000, he had built and paid cash for a house, lived an exorbitant lifestyle, and purchased new boats and other vehicles for him and his girlfriend. The court concluded as follows: [The] evidence provided at trial was insufficient to determine [Boyd’s] total net worth in any given year. [The] best evidence provided to the court to determine his net income for child support purposes were his bank statements, which contained monthly deposits, for which he personally paid zero (0) in taxes. Nor were any farming expenses paid which were not reimbursed by him from these funds. The court will not allow a deduction for income tax in this case, because [Boyd] testified that he has not paid taxes in years. The court finds that the best evidence of [Boyd’s] income were the deposits into his personal account. In addition, the profit [Boyd] made from the sale of his home is income pursuant to Administrative Order No. 10. [Boyd’s] bank records for his personal account, not including assets he pays for from the business/farm account, reflect $139,294.70 in deposits in 2013, and $116,141.44 in deposits in 2014. The court finds averaging [Boyd’s] monthly deposits into his personal account a reasonable way to determine his income for purposes of child support. The statements and deposits before the court are from January of 2013 through November of 2014. The average monthly deposit amount is $11,105.00. 7  Cite as 2017 Ark. App. 108 Accordingly, the court set Boyd’s support obligation at $1,606 per month. We conclude that the best evidence the court had was Boyd’s bank records, and it considered the relevant two years’ worth of information that they provided, as well as the factors set forth in Administrative Order No. 10, to discern a realistic assessment of Boyd’s income. On the record before us, we are unable to say that the circuit court’s approach and conclusions were clearly erroneous. Boyd also briefly complains that the circuit court erred by failing to give “proper consideration” to facts that Boyd asserts decreased his net worth. Here, he cites his own testimony about the farm’s alleged financial losses and crop loans. Again, however, we are unable to find reversible error on the circuit court’s part. Apart from Boyd’s failure to cite to convincing authority on this point, see Louisiana v. Joint Pipeline Grp., 2010 Ark. 374, at 37, 373 S.W.3d 292, 314, his complaint essentially goes to the weight and credibility that the circuit court assigned to the evidence presented to it. It is axiomatic that we defer to the circuit court’s findings as to the weight of the evidence and credibility of the parties. See, e.g., Ingle v. Ingle, 2013 Ark. App. 660. Affirmed. VAUGHT and MURPHY, JJ., agree. Bristow & Richardson, PLLC, by: Kristofer E. Richardson, for appellant. Tiner, Cobb & Byars, by: Kara L. Byars, for appellee. 8 

919 F.2d 736 Fischerv.Stalder* NO. 90-4338 United States Court of Appeals,Fifth Circuit. NOV 05, 1990 1 Appeal From: W.D.La. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2

398 So.2d 10 (1981) Stephen C. JONES v. MFA MUTUAL INSURANCE COMPANY et al. No. 8154. Court of Appeal of Louisiana, Third Circuit. February 4, 1981. Brittain & Williams, Joe Payne Williams, Natchitoches, for defendant-relator. Davis & Simmons, Kenneth N. Simmons, Many, for plaintiff-respondent. *11 John G. Williams, Natchitoches, Harry A. Johnson, Shreveport, for defendants-respondents. Before GUIDRY, DOUCET and LABORDE, JJ. LABORDE, Judge. On November 14, 1980, we granted a writ of certiorari in this case on the application of Standard Fire Insurance Company of Alabama (Standard Fire) to review the correctness of a ruling of the district court overruling Standard Fire's exceptions of jurisdiction over the person, improper service of process, improper venue, and improper cumulation of actions. STATEMENT OF THE CASE On February 20, 1980, Luther Thomas Jones, a resident of Alabama, was fatally injured in a one-vehicle accident on Louisiana Highway 35, in Vermilion Parish. Jones was a guest passenger in the vehicle when the driver lost control of the vehicle causing it to overturn. At the time of the accident, the vehicle was owned by Bobby G. Goss, a resident of Mississippi, and driven by Bonnie T. Williams, a resident of Alabama. Stephen C. Jones, a resident of Sabine Parish, Louisiana, the plaintiff in the original action, filed suit in Sabine Parish for the wrongful death of Luther Thomas Jones. Subsequently, Edna Lee Jones Oswalt, the mother of the deceased and a resident of Alabama, intervened in the suit filed by Stephen C. Jones, naming Standard Fire Insurance Company of Alabama, Luther Thomas Jones's uninsured motorist carrier, as an additional defendant. Service of process was made on the Louisiana Secretary of State and on Standard Fire by certified mail. It is stipulated that Standard Fire Insurance Company of Alabama is a foreign insurance company domiciled in Alabama and is not licensed to do business in Louisiana nor is it in fact doing business in Louisiana, nor does it have any agents or employees living or working in Louisiana. Standard Fire, as defendant in intervention, filed exceptions of lack of jurisdiction over the person, improper service of process, improper venue and improper cumulation of actions. It seeks supervisory relief from the judgment of the trial court overruling these exceptions. SUPERVISORY RELIEF The exercise of supervisory jurisdiction by appellate courts is within their plenary power. La.Const. 1974, Art. 5, § 10. Appellate courts will not exercise such jurisdiction unless an error in the trial court's ruling will cause the petitioner irreparable injury or an ordinary appeal will not afford an adequate remedy. Supervisory Powers of the Louisiana Courts of Appeal, Albert Tate, Jr., 38 Tul.L.Rev. 429. Generally, the courts of appeal deny writ applications complaining of the overruling of exceptions on the basis that the relator may win on the merits or may obtain adequate relief on appeal after trial on the merits. However, this policy is not absolute, for the appellate court may, in its discretion, grant applications for supervisory writs in the interest of efficient judicial administration and fundamental fairness to the litigants. Mangin v. Auter, 360 So.2d 577 (La.App. 4th Cir. 1978). ON THE MERITS Standard Fire has been joined as a defendant to this suit pursuant to the Louisiana Direct Action Statute, LSA-R.S. 22:655. However, this statute merely provides a right of action against insurance companies. Therefore, an independent basis of jurisdiction must exist before a non-resident insurer can be sued under the Direct Action Statute. See Morse v. Hartford Casualty Ins. Co., 301 So.2d 741 (La.App. 3rd Cir. 1974); McKeithen v. M/T Frosta, 435 F.Supp. 572 at 576 (U.S.D.Ct., La.1977). In Morse, supra, at page 743 we stated: "The quoted statute is not jurisdictional. Instead the cited provisions deal with venue. In Davis v. Hanover Insurance Company, 289 So.2d 292 (La.App. 3 Cir. *12 1974), we discuss the venue granted by LSA-R.S. 22:655 holding that C.C.P. art. 42 did not incorporate the exceptions provided in C.C.P. arts. 71-83. ... The Direct Action Statute is not a legislative grant of jurisdiction. It merely gives claimant a direct right of action and a method for enforcing their right against liability insurers when they have a cause of action against the insured, or where the insured would be liable but for an immunity personal to him. Weingartner v. Fidelity Mutual Insurance Company, 205 F.2d 833 (5th Cir. 1953); Taylor v. Fishing Tools, Inc., 274 F.Supp. 666 (U.S. D.C.La., E.D.1967). There must be an independent legislative grant of jurisdiction which satisfies due process requirements of "minimum contacts", together with service of process, before a claimant may utilize this right of direct action against the liability insurer." It is stipulated that Standard Fire is a foreign insurance company domiciled in Alabama. It is further stipulated that Standard Fire is not licensed to do business in Louisiana nor is it in fact doing business in Louisiana and that it has no agents or employees in Louisiana. It is also stipulated that Standard Fire's insured, Luther Thomas Jones, was a resident of Alabama and that the policy of insurance was issued and delivered in the state of Alabama. Jurisdiction over the person is based on service of process. LSA-C.C.P. art. 6. Louisiana's "longarm" statute, LSA-R.S. 13:3201[1], confers personal jurisdiction over non-residents for causes of action arising under the circumstances set forth in the cited statute. In light of the stipulated facts, we conclude that the cause of action asserted by intervenor does not arise under any of the circumstances set forth in the cited statute and therefore such statute cannot be relied upon as conferring in the courts of Louisiana personal jurisdiction over Standard Fire. Neither can personal jurisdiction over Standard Fire be based on the "Louisiana Motorist Longarm Statute", LSA-R.S. 13:3474. This statute provides that a non-resident and his insurer, by operating a motor vehicle on the public highways of Louisiana, are deemed to have submitted to the jurisdiction of this state and to have appointed the Secretary of State as their agent for service of process. This statute is inapplicable to the instant case because it has been stipulated that Standard Fire's insured, Luther Thomas Jones, was not the operator of the vehicle involved, but a guest passenger. Furthermore, the record reflects that there has been no "minimum contacts" between Standard Fire and the state of Louisiana to satisfy due process requirements. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Adcock v. Surety Research & Inv. Corp., 344 So.2d 969 (La.1977). Standard Fire has had no contact whatever with the state of Louisiana. Its only contact is that it insures persons whom it is foreseeable will travel to Louisiana and will be involved in litigation in Louisiana. The United States Supreme Court in World-Wide *13 Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), held that "foreseeability" alone does not provide sufficient minimum contacts to support jurisdiction under the Due Process Clause. For the above reasons the writ of certiorari issued herein is made peremptory and the judgment of the Eleventh Judicial District Court dated October 23, 1980, overruling Standard Fire's exception to jurisdiction is reversed and set aside and such exception is hereby ordered sustained and accordingly, it is further ordered, adjudged and decreed that plaintiff in intervention's suit against Standard Fire Insurance Company of Alabama is dismissed.[2] Costs in this court are taxed to plaintiff in intervention, Edna Lee Jones Oswalt. WRIT MADE PEREMPTORY, JUDGMENT OVERRULING EXCEPTION TO JURISDICTION REVERSED. NOTES [1] § 3201. Personal jurisdiction over nonresidents "A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident's (a) transacting any business in this state; (b) contracting to supply services or things in this state; (c) causing injury or damage by an offense or quasi offense committed through an act or omission in this state; (d) causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state; Amended by Acts 1977, No. 734, § 1, eff. July 21, 1977. (e) having an interest in, using or possessing a real right or immovable property in this state; or (f) non-support of a child or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the non-resident formerly resided in this state." [2] Considering our disposition with regard to the exception of jurisdiction, we do not consider the correctness of the trial court's judgment overruling the exceptions of improper service of process, venue and improper cumulation of actions.

34 Cal.Rptr.3d 927 (2005) 133 Cal.App.4th 605 LISA I., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Phillip V., Real Party in Interest. No. B182219. Court of Appeal, Second District, Division Eight. October 18, 2005. *928 Guy C. Iversen for Petitioner. *929 No appearance for Respondent. Glen H. Schwartz, a Law Corporation, Glen H. Schwartz, Encino, and Larry M. Hoffman for Real Party in Interest. RUBIN, J. INTRODUCTION We are called upon to consider whether a claimed biological father of a child born within 300 days of the mother's divorce from another man has standing under Family Code section 7630 to declare his paternity of that child.[1] The child was conceived while the mother was married but separated from her husband, was born after the mother's divorce, and is being raised by the mother and ex-husband, along with their two other children. The claimed biological father contends that applying the statutory paternity presumptions and standing requirements to deprive him of the opportunity to establish his paternity would violate a liberty interest protected by the United States Constitution. We conclude that California's statutory presumptions and standing rules do not violate the biological father's constitutional rights where the biological father has no existing relationship with the child. Accordingly, we grant the mother's writ petition and direct the trial court to grant her motion to quash the paternity action. PROCEDURAL AND FACTUAL BACKGROUND Lisa, the petitioner here, and Guy were married in October 1993; by 1997, they had two sons. In 2003, while she was separated from Guy, Lisa became pregnant with Dane. Dane was born in May 2004, almost six months after Lisa's divorce from Guy. Dane was given Guy's surname. In November 2004, real party in interest Phillip, who has never been married to Lisa, filed a petition against her to declare his paternity of Dane. Phillip asked for rulings on child support, visitation, joint custody, attorneys' fees, and that Dane's last name be changed to Phillip's surname. In his supporting declaration, Phillip stated the following: (1) He met Lisa in September 2001, they developed a romantic relationship, and she became pregnant in August 2003; (2) He and Lisa talked about becoming a blended family, but their relationship disintegrated; (3) Lisa did not advise him when she gave birth in May 2004; (4) He learned of the birth by calling the hospital, and did not have an opportunity to sign a declaration of paternity; (5) A month after Dane's birth, he gave Lisa a letter stating he wanted a relationship with the child and would pay for Dane's insurance and support. Lisa moved to quash the paternity petition, contending only a statutorily presumed father has standing to bring an action to declare his paternity and that Phillip did not qualify as a presumed father. Lisa argued her ex-husband Guy was the only presumed father because Dane was conceived during her marriage to Guy and born within 300 days of her divorce from Guy — the period specified by the Family Code. In support of the motion, Lisa provided her declaration and that of two other persons. Lisa's declaration stated the following: (1) Dane was conceived while she and her husband Guy were still married; (2) She and Guy have two other young sons; *930 (3) She and Guy were divorced on October 30, 2003; (4) Her relationship with Phillip started during her separation from Guy, it ended in June 2003, and she and Phillip were apart during the summer of 2003; (5) Phillip never volunteered to provide any type of emotional or financial support during her pregnancy or after Dane was born; (6) Except for a couple of short visits at her mother's home in May and June 2004, Phillip made no efforts to visit Dane or inquire about him; (7) Phillip actively ignored her when they encountered each other on several occasions during the pregnancy, and he ignored Lisa and Dane during encounters after Dane's birth; (8) Phillip never executed or asked her to execute a declaration establishing paternity; (9) She and her children, including Dane, are supported by Guy and her father; (10) She and her children, including Dane, regularly visit and stay with Guy at his home, and together they function as a family — regularly attending parties, sporting events, social gatherings, and other events, as well as planning holidays and vacations; (11) Guy has brought Dane into his home and regularly takes care of him; and (12) Dane's last name is Guy's family name, which is listed in a variety of school, medical, and financial records. The declarations filed by Lisa's friends stated they have consistently seen Guy care for and support Lisa and Dane, and have seen Dane's baby things in every room of Guy's house, which one of the friends referred to as "Guy and Lisa's house." The trial court denied Lisa's motion to quash. The court found denying Phillip standing to establish paternity would violate his constitutional right to due process. The court also granted Phillip's request that Lisa and Dane undergo genetic testing. Lisa filed a petition for writ of mandate challenging the denial of her motion to quash and asked for a stay of all proceedings, including the order requiring genetic testing. We stayed the proceedings and the testing, and issued an order to show cause. DISCUSSION The threshold issue in this case is whether the Family Code grants Phillip, the claimed biological father, standing to pursue his paternity action against Lisa. If not, then we must decide whether applying the statutory paternity presumptions and standing requirements would violate a liberty interest protected by the federal Constitution's due process clause. 1. Phillip Has No Standing Under Section 7630. Section 7630, part of the Uniform Parentage Act, lists those persons who have standing to file an action to determine paternity. Subdivision (a) provides, in relevant part, "A child, the child's natural mother, or a man presumed to be the child's father under subdivision (a), (b), or (c) of Section 7611, may bring an action ... [a]t any time for the purpose of declaring the existence of the father and child relationship presumed under subdivision (a), (b), or (c) of Section 7611." Subdivision (b) provides, "Any interested party may bring an action at any time for the purpose of determining the existence or nonexistence of the father and child relationship presumed under subdivision (d) or (f) of Section 7611." Thus, the essential inquiry in determining a man's standing under section 7630 is whether he is a "presumed father" under the applicable subdivision of section 7611. Section 7611 lists the conditions under which a man will be considered the presumed father of a child. Only subdivisions *931 (a) and (d) are potentially relevant here. Under subdivision (a), a man is presumed to be the natural father of a child if "[h]e and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court." Under subdivision (d), a man is presumed to be the natural father if "[h]e receives the child into his home and openly holds out the child as his natural child."[2] "The presumptions arising under section 7611 are rebuttable presumptions affecting the burden of proof and may be rebutted in an appropriate action by clear and convincing evidence. [Citation.] The [Uniform Parentage] Act, however, restricts standing to challenge the presumption of a husband's paternity to the child, the child's natural mother, or a presumed father. [Citations.]5" Footnote 5 reads in part as follows: "[S]ection 7630, subdivision (a), grants standing only to the child, the child's mother, or a man presumed to be the child's father as a result of his marriage to the child's mother to bring an action to declare the existence or nonexistence of the father and child relationship presumed as a result of the mother's marriage to the presumed father. . . . [¶] Section 7630, subdivision (b), by contrast, allows `[a]ny interested party' to bring an action to determine the existence or nonexistence of the father and child relationship presumed under subdivision (d) of section 7611. . . ." (Dawn D. v. Superior Court (1998) 17 Cal.4th 932, 938, 72 Cal.Rptr.2d 871, 952 P.2d 1139 (Dawn D.), italics omitted.) The paternity presumptions are generated by society's interest in preserving the *932 integrity of the family and legitimate concerns for the welfare of the child. The state has an "`"interest in preserving and protecting the developed parent-child . . . relationships which give young children social and emotional strength and stability."'" (In re Nicholas H. (2002) 28 Cal.4th 56, 65, 120 Cal.Rptr.2d 146, 46 P.3d 932, quoting Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1116-1117, 39 Cal.Rptr.2d 535; see also Susan H. v. Jack S. (1994) 30 Cal.App.4th 1435, 1442, 37 Cal.Rptr.2d 120 ["applying the statutory presumption furthers the state's interest in preserving the familial relationship between the child and the presumed father"].) These relationships are not always founded in biological reality. It is clear in this case that Phillip has no standing under the foregoing statutes because he does not qualify as a presumed father. Indeed, Phillip does not attempt to argue he is a presumed father. He was never married to Lisa, he never received Dane into his home, and he never held Dane out to the world as his natural child. In contrast, it is Guy who qualifies as the presumed father under subdivisions (a) and (d) of section 7611 because Guy was married to Lisa when Dane was conceived, Dane was born within 300 days of their divorce, and Guy has received Dane into his home and has held him out to the world as his natural son. Accordingly, because Phillip is not a presumed father, his claimed biological link is insufficient to give him statutory standing to establish his paternity. 2. Phillip has no Protected Liberty Interest that Overcomes the Family Code Standing and Presumption Statutes. Acknowledging he does not qualify as a presumed father under section 7611, and therefore has no standing under section 7630, Phillip argues his right to establish his paternity is a liberty interest protected by the due process clause of our federal Constitution. Specifically, Phillip contends sections 7611 and 7630 are invalid as applied to him because Dane was conceived while Lisa was separated from Guy, was born after their divorce, and is not being raised in a "subsisting marital family." We conclude that these facts, although largely undisputed, are insufficient to invalidate the substantive paternity laws and the purposes they serve. The overarching consideration in deciding if due process precludes the application of paternity laws in a given situation is whether "an existing father-child relationship" between the unwed biological father and the child will be affected. (See Brian C. v. Ginger K. (2000) 77 Cal.App.4th 1198, 1200, 1207-1216, 92 Cal.Rptr.2d 294 (Brian C.), original italics.) The leading California exposition of the rule is found in Dawn D., supra, 17 Cal.4th 932, 72 Cal.Rptr.2d 871, 952 P.2d 1139. As the similarities and differences between the present controversy and Dawn D. are important, we review the familial relationships in Dawn D. in some detail. In January 1995, Dawn separated from her husband Frank and began living with Jerry. According to Jerry, Dawn told him she would marry him as soon as she legally could and that she wanted to start a family. Jerry began building an addition to his home in anticipation of having a child, and submitted to fertility testing at Dawn's request. After she became pregnant, Dawn told people the baby was Jerry's and that she intended to marry him. (Id. at p. 949, 72 Cal.Rptr.2d 871, 952 P.2d 1139 (dis.op.Chin, J.).) In April, however, Dawn moved back with her husband. That August, Jerry filed an action to establish his paternity to the yet to be born child after unsuccessfully attempting to negotiate a child support and visitation *933 agreement with Dawn and Frank. Jerry also completed a parenting course. In November, Dawn gave birth to a son, who lived with Dawn and Frank. (Id. at p. 936, 72 Cal.Rptr.2d 871, 952 P.2d 1139.) Dawn moved for judgment on pleadings, contending that Jerry had no standing to establish paternity under section 7630. The trial court denied the motion, finding that, because Jerry had done all he could to demonstrate a commitment to his parental responsibilities, he had established "due process rights" that must be balanced against the state's interest in enforcing Frank's statutory presumption. (Dawn D., supra, 17 Cal.4th at p. 936, 72 Cal.Rptr.2d 871, 952 P.2d 1139.) After the court of appeal denied a writ of mandate, our Supreme Court reversed and ordered that judgment be entered in Dawn's favor. The Supreme Court held that "a biological father's mere desire to establish a personal relationship with the child is not a fundamental liberty interest protected by the due process clause." (Dawn D., supra, 17 Cal.4th at p. 942, 72 Cal.Rptr.2d 871, 952 P.2d 1139.) Focusing on whether there was an existing relationship between Jerry and the child, rather than simply a desire to form a relationship, the court held Jerry did not have a constitutionally protected interest in creating a relationship with the child where none existed, and that application of sections 7611 and 7630 did not deprive him of due process. Jerry's claim failed because "Jerry has never had any personal relationship with Dawn's child, only an alleged biological link with an attempt to negotiate an agreement for child support and visitation." (Ibid.) In other words, because Jerry had not actually received the child into his home or developed a personal relationship beyond their biological connection, Jerry had no constitutional liberty interest in establishing his paternity. Jerry's intent and Dawn's promises were essentially irrelevant. Our Supreme Court relied significantly on the United States Supreme Court's decision in Michael H. v. Gerald D. (1989) 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (Michael H.). Michael H. involved a series of events, including a more developed relationship between the biological father and the child than existed in either Dawn D. or is present here. There, Carole began an affair with Michael while married and living with Gerald. The child was born into the marriage, but Carole and Gerald separated five months later. Carole and Michael confirmed the child was theirs by blood tests and then lived together for two months, during which time Michael held the child out as his own. Carole then left Michael and began living with another man. Some months later, Michael filed an action to establish paternity and rights to visitation. For eight months while the action was pending, Carole and Michael lived together and Michael held the child out as his own. Carole and Michael even executed a stipulation stating Michael was the natural father. Before the stipulation was filed, however, Carole reconciled with Gerald and continued to live together with him, the child, and two other children born during the marriage. (Id. at pp. 113-115, 109 S.Ct. 2333.) A plurality of the United States Supreme Court concluded Michael did not have a liberty interest in continuing his relationship with the child, notwithstanding that he had lived with Carole and the child for a period of time and held the child out as his own. (Michael H., supra, 491 U.S. at pp. 124-127, 109 S.Ct. 2333.) Manifestly, those four justices "necessarily rejected as well the position a biological connection without any actual personal relationship gives rise to a protected liberty interest." (Dawn D., supra, 17 Cal.4th at *934 p. 941, 72 Cal.Rptr.2d 871, 952 P.2d 1139.) Although three dissenting justices concluded the actual personal relationship between the biological father and the child was a protected liberty interest, those three acknowledged a biological connection alone was not sufficient. Thus, seven of the nine justices agreed that an unwed father's biological link to a child alone did not give rise to a constitutionally protected liberty interest: "[A]lthough an unwed father's biological link to his child does not, in and of itself, guarantee him a constitutional stake in his relationship with that child, such a link combined with a substantial parent-child relationship will do so." (Michael H. at pp. 142-143, fn. 2, 109 S.Ct. 2333 (dis. op. of Brennan, J. joined by Marshall, J. & Blackmun, J.; see also Dawn D., supra, 17 Cal.4th at p. 942, 72 Cal.Rptr.2d 871, 952 P.2d 1139.) It was the concurrence of views in the Michael H. opinions on this issue that caused our Supreme Court in Dawn D. to conclude that the question of whether a biological father without an existing personal relationship with a child has a protected liberty interest "has a ready answer" citing Michael H. (Dawn D., supra, 17 Cal.4th at p. 941, 72 Cal.Rptr.2d 871, 952 P.2d 1139.) And the answer was that a father in that situation had no such liberty interest. (Ibid.) We now apply these principles to the case before us. Here, Phillip's only link to Dane is his contention that he is the biological father. Phillip has no relationship with Dane. And, other than his letter offering to provide Dane with insurance and support (which Lisa denies receiving) and two short visits with him between May and June 2004, Phillip made no substantial efforts to establish a parent-child relationship with Dane or provide for his or Lisa's support. Contrary to Phillip's assertion that he nonetheless has a constitutional liberty interest in the opportunity to develop a relationship with Dane, this was precisely the test proposed by the dissent in Dawn D. and specifically rejected by the majority of that court. (Dawn D., supra, 17 Cal.4th at p. 942, 72 Cal.Rptr.2d 871, 952 P.2d 1139; see id. at p. 948, 72 Cal.Rptr.2d 871, 952 P.2d 1139, dis. op. of Chin, J.) Phillip cites several cases for the proposition that a biological father has a constitutional right to establish paternity where the mother's marriage to the presumed father terminated shortly after the child was born. He contends under the circumstances of this case, where Dane was born after Lisa and Guy's divorce, that the paternity presumptions do not further the state's interest in the sanctity of marriage. He points out that in neither Dawn. D. nor Michael H. did the mother and presumed father divorce. Careful analysis of Phillip's authorities reveals they are not helpful. The first of the three is In re Lisa R. (1975) 13 Cal.3d 636, 119 Cal.Rptr. 475, 532 P.2d 123 (Lisa R.). There, the juvenile court ruled that under former parentage statutes, the biological father had no standing to participate in juvenile dependency proceedings. By the time the trial court made its ruling, the marital father and the mother, both of whom had a history of substance abuse, had died. The child was in foster care. The biological father and mother had lived together both before and after Lisa was born. The biological father was named in the birth certificate and had contributed to support. Only when the mother had returned to live with the marital father and had taken Lisa with her was the biological father deprived of custody. When he eventually learned of on-going juvenile dependency proceedings, the biological father appeared at a scheduled hearing and sought to introduce evidence *935 of his paternity. The juvenile court refused. The Supreme Court held that a presumption which prevented the claimed biological father from offering evidence to prove paternity was unreasonable and a denial of due process under the circumstances. As Lisa R. precedes both Dawn D. and Michael H. by more than a decade, the Supreme Court's opinion does not contain the now familiar concepts of "substantive due process" and "protected liberty interest." (E.g., Dawn D., supra, 17 Cal.4th at p. 941, 72 Cal.Rptr.2d 871, 952 P.2d 1139.) Nevertheless, its discussion of due process and "private interests" (see Lisa R., supra, 13 Cal.3d at p. 648, 119 Cal.Rptr. 475, 532 P.2d 123) appears doctrinally consistent with the court's later analysis in Dawn D. The Lisa R. court concluded there were substantial private interests that arose "from more than the mere biological fact that he is Lisa's natural father." (Id. at p. 649, 119 Cal.Rptr. 475, 532 P.2d 123). The court cited the "more than casual" relationship between the biological father and the mother, the fact the two adults had lived together for four or five months, the former had contributed to support, and the mother had used the biological father's name. (Ibid.) In contrast, the court found the state's interest in denying standing to be minimal: although the state had a legitimate interest in promoting marriage and not impugning the family unit, that interest had been "dissolved" by the death of both the mother and the marital father. (Id. at p. 650, 119 Cal.Rptr. 475, 532 P.2d 123.) Lisa R. is essentially consistent with Dawn D.'s holding that a protected liberty interest does not arise from biological connection alone but from the existing relationship, if any, between the biological father and child. It was present in Lisa R. but not in Dawn D., and it is not present here. Assuming Lisa R.'s reference to the countervailing state interest in marriage still has vitality after Dawn D. and is applicable beyond dependency proceedings, it is not dispositive here. It is true that the family here is not fully intact; however, the state interest in the stability of the existing relationship among Guy, the mother and all three children is far more pronounced than the death-dissolved former family unit in Lisa R.[3] Phillip also cites In re Melissa G. (1989) 213 Cal.App.3d 1082, 261 Cal.Rptr. 894 (Melissa G.), another dependency proceeding. Melissa was born in August 1983, eight days prior to the marital parents' separation. Four months later the mother and Melissa began living with Melissa's biological father. The mother and biological father were married in August 1984 and had another daughter. Melissa continued to live with her mother and biological father for the next three years. When the mother was occasionally in jail because of alcohol abuse, the biological father alone cared for Melissa. In July 1987, the biological father was arrested for spousal abuse, and a dependency petition was filed against him and the mother. Over the objection of the Department of Social Services, Melissa, and the biological father, the juvenile court agreed with mother's *936 prior husband that he was Melissa's conclusively presumed father because she was born prior to his separation from the mother. (Id. at p. 1084, 261 Cal.Rptr. 894.) The court of appeal reversed. The opinion discusses both the nonexistent original family unit consisting of the presumed father and mother, and the existing family relationship of the biological father and Melissa. A fair reading of the decision reveals that the court struggled with how much weight to give to the fact that the original marriage no longer was intact. It noted that in the then-recently decided Michael H., the United States Supreme Court was faced with a paternity claim by a biological father that would have interfered with a husband and wife who wanted "to raise the [wife's] child jointly." (Michael H., supra, 491 U.S. at p. 130, fn. 7, 109 S.Ct. 2333.) The Michael H. plurality said that a protected liberty interest might exist when no such union exists. The court of appeal observed, however, that the original family unit was intact when Melissa was born even though it was no longer so. Ultimately the Melissa G. court found that the biological father, who had an existing relationship with Melissa, had a protected liberty interest. (Melissa G., supra, 213 Cal.App.3d at pp. 1088-1089, 261 Cal.Rptr. 894.) In the present case, Guy and Lisa, previously married, wish to raise their daughter jointly. This is not the fully intact family present in Michael H. and Dawn D. where the parents first separated but then reconciled without getting a divorce. On the other hand, it is not the situation in Lisa R. where both parents were dead or in Melissa G. where the divorced mother and presumed father had no relationship at all. Dawn D. does not discuss Melissa G. so we cannot discern whether the Supreme Court would have found more significant the fact that in this case Guy and Lisa are together and raising three sons, or that they are no longer married and do not have an existing formal marital union to preserve. However, Dawn D.'s holding is clear that where the biological father has no relationship with the child, there is no protected liberty interest. It was absent in Dawn D., is absent here, and present in Melissa G. In light of Dawn D., we find the precedential value of Melissa G. doubtful at best. The third case on which Phillip relies, Brian C., supra, 77 Cal.App.4th 1198, 92 Cal.Rptr.2d 294, is likewise unavailing. There, Ginger married William in March 1994. She met Brian in December 1994. Ginger and Brian commenced a relationship that month. In late January 1995, the two of them had sex in a Las Vegas hotel room, and it was about that time that Ginger's daughter, Kennedy, was conceived. During this same period of time, Ginger lived, and had a sexual relationship, with her husband. In March, Ginger left her husband and moved into an apartment which she rented with Brian. Kennedy was born in October 1995. Brian was present at Kennedy's birth, his name appeared as Kennedy's father on her birth certificate and baptismal records, and the three of them lived together. (Id. at pp. 1201-1202, 92 Cal.Rptr.2d 294.) One year later, Ginger and Brian broke up. However, Brian continued to see Kennedy after work each day and had custody on weekends until May 1997, when Ginger unilaterally "cut off all contact" because she and her husband William were reconciling. Brian continued to try to see Kennedy, calling Ginger and leaving messages all to no avail. Brian filed a paternity action, and Ginger moved for summary judgment. The trial court concluded that because Ginger and William were cohabitating at the time Kennedy was conceived, *937 the conclusive presumption of section 7540 applied. (Brian C., supra, 77 Cal.App.4th at p. 1202, 92 Cal.Rptr.2d 294.) That section provides that "the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage." The appellate court disagreed and concluded that the important factor in overriding statutory presumptions of paternity was the existence of a relationship between the unwed father and the child. The court, relying extensively on Dawn D., stated, "Ginger, Brian and Kennedy were the only `family' known by Kennedy for the first year of her life"; and the court held Brian had "a strong private interest in continuing an existing parent-child relationship based on a substantial period of time elapsing between the child's birth and the mother's return to her husband." (Brian C., supra, 77 Cal.App.4th at pp. 1217-1218, 92 Cal.Rptr.2d 294, original italics.) Although Phillip here trumpets the result in Brian C., he fails to acknowledge that, unlike the biological father there, he has had no existing relationship with Dane. As these cases exemplify, an existing relationship between the unwed father and the child is paramount in whether to nullify paternity presumptions. Substantive rules of paternity law will not be automatically applied in situations where their effect would be to terminate an existing father-child relationship. However, when there is no existing relationship between the claimed biological father and the child, courts must defer to legislative choices reflected in paternity statutes. (See Michelle W. v. Ronald W. (1985) 39 Cal.3d 354, 362-363, 216 Cal.Rptr. 748, 703 P.2d 88 [claimed biological father's abstract interest in establishing paternity not as weighty as the state's interest in familial stability and the welfare of the child]; Caban v. Mohammed (1979) 441 U.S. 380, 397, 99 S.Ct. 1760, 60 L.Ed.2d 297 [parental obligations and rights "do not spring full-blown from the biological connection between parent and child. They require relationships more enduring."]; Comino v. Kelley (1994) 25 Cal.App.4th 678, 684, 30 Cal.Rptr.2d 728 [court refused to apply conclusive presumption to deny the child the only father she had ever known]; Rodney F. v. Karen M. (1998) 61 Cal.App.4th 233, 239, 71 Cal.Rptr.2d 399 ["There is . . . an obvious distinction between a biological father who has actually established a parent and child relationship, and a man who has not established such a relationship but would like to do so. Only the former are presumed fathers under section 7611, subdivision (d)"].) The fact the mother and a presumed father chose to terminate their marriage by divorce is not, by itself, a sufficient reason to conclude the state no longer has a legitimate interest in applying the paternity presumptions and preserving on-going familial relationships. (See Susan H. v. Jack S., supra, 30 Cal.App.4th at pp. 1442-1442, 37 Cal.Rptr.2d 120 [application of paternity presumption furthers substantial state interests in preserving the familial relationship between the child and presumed father and in promoting the child's welfare even after the marriage between the presumed father and the mother has been dissolved].) Indeed, by its very terms, section 7611, subdivision (a)'s presumption is specifically intended to apply in the situation where the marriage dissolves and the child is born within 300 days of the dissolution. Guy also cites Adoption of Kelsey S. (1992) 1 Cal.4th 816, 823, 4 Cal.Rptr.2d 615, 823 P.2d 1216, an adoption case, and Michael M. v. Giovanna F. (1992) 5 Cal.App.4th 1272, 7 Cal.Rptr.2d 460 (Michael M.), in support of his position. Yet, our *938 Supreme Court, in Dawn D., while acknowledging both of these cases, considered and rejected the claimed biological father's constitutional arguments. (Dawn D., supra, 17 Cal.4th at p. 936, 72 Cal.Rptr.2d 871, 952 P.2d 1139.) As stated in Dawn D.'s concurring opinion, adoption cases such Adoption of Kelsey S. are not applicable because those cases concern the situation where the unwed mother voluntarily surrenders her parental responsibilities by giving up her child to third parties, thereby not only dissolving any family unit but ending all parental relationship whatsoever. (Dawn D., at p. 943, 72 Cal.Rptr.2d 871, 952 P.2d 1139; see also id. at pp. 946-947, 72 Cal.Rptr.2d 871, 952 P.2d 1139, conc. op. of Kennard, J.) In such cases, the recognition of the biological father's "opportunity interest" in developing a relationship with his child, preserved by demonstrating a full commitment to parental responsibilities, does not necessarily conflict with the state's interest in family integrity and preserving on-going family relationships. (See Michelle W. v. Ronald W., supra, 39 Cal.3d at pp. 361-362, 216 Cal.Rptr. 748, 703 P.2d 88.) Adoption cases also involve different statutory schemes, including notice requirements, than is present here. (See Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051, 43 Cal.Rptr.2d 445, 898 P.2d 891.) In Michael M., unwed parents conceived a child while living together. The mother then left the biological father, married another man, and the child was born during that marriage. (5 Cal.App.4th at p. 1277, 7 Cal.Rptr.2d 460.) Principally relying upon Adoption of Kelsey S., the appellate court allowed the biological father to establish his paternity because the court believed he had promptly and sufficiently attempted to form a relationship with the child, and thus he had preserved his "opportunity interest." (Id. at pp. 1284-1285, 7 Cal.Rptr.2d 460.) We doubt that the broad reference to "opportunity interest" in Michael M. has any meaningful precedential value after Dawn D. The case is cited only twice in the Dawn D. opinion. The first time, the Supreme Court noted that the trial court had relied on Michael M. in making its order, an order the Supreme Court vacated. The second time, the court stated that family interests are not threatened if a man marries an unwed women who is then pregnant with another man's baby. No such facts exist here, as Guy and Lisa were married when Dane was conceived. (See also Fuss v. Superior Court (1991) 228 Cal.App.3d 556, 279 Cal.Rptr. 46 [biological father's rights not cut off by mother who conceived child while unmarried and then married another man before birth].)[4] CONCLUSION That this area of law is still in its evolutionary stage is obvious. The United States Supreme Court's effort to grapple with the subject in Michael H., produced a plurality opinion of four justices, two concurring opinions and two dissenting opinions. Dawn D. generated three opinions. The uncertainty likely will continue in the near future because the so-called nuclear family, on which many of our paternity laws are based, now resembles more of an electron field. The clearest pronouncement from our Supreme Court is that biological fathers *939 who have developed an existing relationship with a child have a protected liberty interest (Dawn D.). The interest claimed by Phillip here, the so-called "opportunity interest," is significantly limited, if it exists at all, to those situations where the marital parents are either dead (Lisa. R.) or have relinquished an interest in the child by placing the child for adoption by third persons (Kelsey S.). To the extent these exceptions to Dawn D.'s mandate of an existing relationship have any current viability, they are simply not applicable to the case before us. Here, Lisa has always had custody of Dane. Guy, the presumed father, is the only father Dane has ever known. Lisa and Guy have consistently assumed the parental role both in and outside their marriage. Although arguably Dawn D. presented a stronger case for denying a biological father a protected liberty interest because there the mother and presumed father never divorced, we see little practical difference in the facts of this case, and none at all from the vantage point of the mother and the child. The uncertainty in their lives that would be created if Phillip were afforded standing is no less than that which would have occurred in Dawn D. Of course, the Legislature is free to change the presumed father and standing laws if it chooses. Until it does, courts are left with the difficult job of grafting elusive substantive due process concepts onto a statutory scheme. Our Supreme Court has cautioned that courts must be careful in this endeavor, emphasizing that, even though we have a duty to entertain such challenges, we must always presume the constitutional validity of legislative acts and resolve doubts in favor of the statute. (Dawn D., supra, 17 Cal.4th at p. 939, 72 Cal.Rptr.2d 871, 952 P.2d 1139.) Given that tether, we find no compelling reason to invalidate the application of the Family Code under the circumstances.[5] DISPOSITION The petition is granted. The trial court is ordered to (1) vacate its order of March 22, 2005, denying Lisa's motion to quash Phillip's paternity action and granting genetic testing, and instead (2) issue a new order granting the motions to quash and for testing, and dismissing Phillip's action. Petitioner shall recover her costs. We concur: COOPER, P.J., and BOLAND, J. NOTES [1] We assume, for the purpose of this opinion only, that real party in interest Phillip V. is the biological father even though there has been no finding on the subject. All further statutory references are to the Family Code. [2] Family Code section 7611 provides: "A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any of the following subdivisions: "(a) He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court. "(b) Before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: "(1) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce. "(2) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation. "(c) After the child's birth, he and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: "(1) With his consent, he is named as the child's father on the child's birth certificate. "(2) He is obligated to support the child under a written voluntary promise or by court order. "(d) He receives the child into his home and openly holds out the child as his natural child. "(e) If the child was born and resides in a nation with which the United States engages in an Orderly Departure Program or successor program, he acknowledges that he is the child's father in a declaration under penalty of perjury, as specified in Section 2015.5 of the Code of Civil Procedure. This subdivision shall remain in effect only until January 1, 1997, and on that date shall become inoperative. "(f) The child is in utero after the death of the decedent and the conditions set forth in Section 249.5 of the Probate Code are satisfied." [3] The majority opinion in Dawn D. cites Lisa R. only for a procedural matter and not for the point that a biological father who has no existing relationship with the child nevertheless has a protected liberty interest which must be balanced with any state interest in preserving the relationship between the mother and presumed father. (See Dawn D., supra, 17 Cal.4th at p. 939, 72 Cal.Rptr.2d 871, 952 P.2d 1139.) The dissent, on the other hand, relies extensively on Lisa R. to explain that the court should have adopted a balancing test. (See, e.g., Dawn D. at p. 962, 72 Cal.Rptr.2d 871, 952 P.2d 1139 (dis.op.Chin, J.).) [4] Likewise inapposite are those cases (e.g., County of Orange v. Leslie B. (1993) 14 Cal.App.4th 976, 17 Cal.Rptr.2d 797) where courts have ignored statutory presumptions to prevent a biological father from avoiding child support obligations by disassociating himself from the child. Both the majority and the dissent in Dawn D. agreed that those cases are distinguishable. (See Dawn D., supra, 17 Cal.4th at p. 943, 72 Cal.Rptr.2d 871, 952 P.2d 1139; id. at p. 962, 72 Cal.Rptr.2d 871, 952 P.2d 1139 (dis.opn.Chin, J).) [5] The wariness with which both our Supreme Court and the United States Supreme Court have entered this field appears related to the vagaries inherent in applying substantive due process to a complex statutory scheme. As our highest Court said in another context, "`. . . guideposts for responsible decision-making in this unchartered area are scarce and open-ended.'" (Washington v. Glucksberg (1997) 521 U.S. 702, 719, 117 S.Ct. 2258, 138 L.Ed.2d 772.) Because of this uncertainty, Justice Kennard in her concurring opinion in Dawn D. sounded a warning to biological fathers, a warning which, with slight modification, has application here: "A man who wishes to father a child and ensure his relationship with that child can do so by finding a partner, entering into a marriage, and undertaking the responsibilities marriage imposes. One who instead fathers a child with a woman married to another man takes the risk that the child will be raised within that marriage and that he will be excluded from participation in the child's life. The due process clause of the United States Constitution provides no insurance against that risk and is not an instrument for disrupting the marital family in order to satisfy the biological father's unilateral desire, however strong, to turn his genetic connection into a personal relationship." (Dawn D., supra, 17 Cal.4th at p. 947, 72 Cal.Rptr.2d 871, 952 P.2d 1139 (conc.opn.Kennard, J.).)

Cite as 2016 Ark. App. 617 ARKANSAS COURT OF APPEALS DIVISION IV No.CV-16-742 LATISHA BANE AND JOSEPH BANE Opinion Delivered: DECEMBER 14, 2016 APPELLANTS APPEAL FROM THE CONWAY V. COUNTY CIRCUIT COURT [NO. 15JV-15-21] ARKANSAS DEPARTMENT OF HONORABLE TERRY SULLIVAN, HUMAN SERVICES AND MINOR JUDGE CHILDREN APPELLEES AFFIRMED; MOTION GRANTED KENNETH S. HIXSON, Judge Appellant Latisha Bane and appellant Joseph Bane appeal separately from the termination of their parental rights to their fourteen-year-old daughter N.B., twelve-year- old son A.B.1, and nine-year-old daughter A.B.2. On appeal, Latisha argues that she received improper service of process, and further argues that the case should not have gone forward without a determination of whether an attorney ad litem should have been appointed for her. Latisha also challenges the sufficiency of the evidence to support the termination of her parental rights. Joseph’s counsel has filed a no-merit appeal and a motion to withdraw, stating that there is no issue of arguable merit to advance on appeal and that she should be relieved of counsel. We affirm both appeals, and we grant Joseph’s counsel’s motion to be relieved. We review termination of parental rights cases de novo. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must  Cite as 2016 Ark. App. 617 exist, in addition to a finding that it is in the child’s best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Repl. 2015); Mitchell v. Ark. Dep’t of Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851. Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). The appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Yarborough v. Ark. Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006). Latisha and Joseph lived with their three children in a trailer in Hattiesville, Arkansas. In 2011, Latisha suffered a stroke, which rendered her unable to care for herself. Shortly thereafter, Joseph was appointed as Latisha’s permanent guardian. The order appointing Joseph as guardian stated that the guardianship was necessary due to Latisha’s lack of capacity to make decisions for her health or safety, and that Latisha’s impairments were not expected to improve. After his appointment as guardian, Joseph became the caretaker of both Latisha and the children. These proceedings began on March 3, 2015, when appellee Arkansas Department of Human Services (DHS) exercised an emergency hold on all three children. According to a caseworker’s affidavit, Joseph had been arrested on misdemeanor warrants and, as a result of Latisha’s medical condition, she was unable to care for the children. Police investigators 2  Cite as 2016 Ark. App. 617 informed the caseworker that Joseph had admitted that he supplied alcohol to his oldest daughter, N.B., who was then twelve years old, as well as to a twenty-year-old woman. Joseph had further acknowledged to police that he witnessed a sexual assault by the woman on his daughter N.B., but that he had failed to report the incident or cooperate in the investigation. The police investigator stated that Joseph would be charged with contributing to the delinquency of a minor and endangering the welfare of a minor, and that it was uncertain how long Joseph would remain in jail. Based on these allegations DHS filed a motion for emergency custody of all three children, and on March 6, 2015, the trial court entered an ex parte order for emergency custody finding that immediate removal of the children was necessary to protect their health and safety. On June 22, 2015, the trial court entered an order adjudicating the children dependent-neglected. The adjudication was based on the parents’ stipulation of neglect based on Joseph’s failure to take reasonable action to protect his twelve-year-old daughter from sexual abuse or to report the abuse after he observed it. At the time of the adjudication the parents had not participated in the case despite numerous attempts by a caseworker to contact the parents and develop a case plan. The goal of the case was reunification. The trial court ordered DHS to offer services toward reunification and ordered the parents to cooperate with DHS and comply with the case plan. A review order was entered on September 30, 2015, and the goal of the case continued to be reunification. Trina Yerby appeared at the review hearing as counsel for Latisha and Joseph. In the review order, the trial court found that DHS had made reasonable efforts to provide family services including parenting classes, drug-and-alcohol assessments, 3  Cite as 2016 Ark. App. 617 psychological evaluations, home visits, counseling, transportation, and visitation with the children. The trial court found that Latisha had minimally complied with the case plan, in part due to her disability. The trial court also found that Joseph had minimally complied with the case plan, stating that he lived in a structurally unsound and filthy home, was unemployed, was abusing pain medication, had tested positive for opiates, and had stopped attending parenting classes. The trial court noted that the parents had visited the children only five times since the children were taken into DHS custody. Another review order was entered on January 7, 2016, at which time the case goal was changed to termination of parental rights and adoption. Trina Yerby appeared at the hearing as counsel for the parents. In that order, the trial court again found that both parents had minimally complied with the case plan. The trial court found that Joseph had not completed parenting classes, was discharged from counseling for failure to participate, and had tested positive for benzodiazepines without a prescription. The trial court stated that Joseph had made no progress at all on cleaning or repairing the home, that there were huge holes in the floor, and that there were multiple animals living there causing feces and urine to accumulate and strong odors to permeate the trailer. The trial court noted that the parents had attended only eight visits with the children since the case had begun. DHS filed a petition to terminate both parents’ parental rights on March 1, 2016. The termination hearing was held on May 5, 2016. Trina Yerby appeared at the termination hearing as counsel for the parents. On May 23, 2016, the trial court entered an order terminating both Latisha’s and Joseph’s parental rights to their three children. The trial court found by clear and convincing 4  Cite as 2016 Ark. App. 617 evidence that termination of parental rights was in the children’s best interest, and the court specifically considered the likelihood that the children would be adopted, as well as the potential harm of returning them to the custody of their parents as required by Arkansas Code Annotated section 9-27-341(b)(3)(A)(i)&(ii) (Repl. 2015). The trial court also found clear and convincing evidence of the following four statutory grounds under subsection (b)(3)(B): (i)(a) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent. .... (ii)(a) The juvenile has lived outside the home of the parent for a period of twelve (12) months, and the parent has willfully failed to provide significant material support in accordance with the parent’s means or to maintain meaningful contact with the juvenile. .... (iv) A parent has abandoned the juvenile. .... (vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent the placement of the juvenile in the custody of the parent. At the termination hearing, Joseph testified that he continued to care for his wife and that they had recently moved out of their trailer and into his mother’s trailer. Joseph stated that they moved in with his mother because their trailer was “falling apart” and the floors 5  Cite as 2016 Ark. App. 617 were falling through. Joseph acknowledged that he had a fairly long criminal history, and that he had recently pleaded guilty to contributing to the delinquency of a minor after furnishing alcohol to the twenty-year-old woman who sexually assaulted his older daughter. Joseph denied, however, giving alcohol to his daughter. Joseph testified that he is currently unemployed, but explained that he had significant back problems and had filed for disability benefits. Michelle Mallett was the caseworker assigned to this case. Ms. Mallett testified that DHS had provided extensive services, including parenting classes, home visits, homemaker services, counseling, case management, visitation, and transportation assistance. Ms. Mallett stated that, despite the offer of DHS services, the parents had made no measurable progress on the case plan. Ms. Mallett stated that Joseph had failed to work toward reunification with the children, and that Latisha was incapable of caring for the children as a result of her stroke. Ms. Mallett testified that the appellants’ trailer was found to be in a filthy, unsafe, and unlivable condition on each home visit. She further stated that, despite the offer of transportation, appellants had visited the children only nine times in a fourteen-month period. Ms. Mallett was also concerned about Joseph’s drug use and the potential harm of returning the children to an unstructured and unsafe environment. Ms. Mallett indicated that the children were doing very well in foster care and were adoptable. Ms. Mallett stated that there were no additional services to be offered by DHS that could remedy the problems that caused the children’s removal, and she thought that termination of parental rights was in the children’s best interest. 6  Cite as 2016 Ark. App. 617 In Latisha’s appeal to this court, she first argues that termination of her parental rights should be reversed because there was improper service on her. The adjudication order stated that Latisha was personally served pursuant to Rule 4 of the Arkansas Rules of Civil Procedure. The affidavit of service of the petition to terminate parental rights shows that Latisha was served by serving Joseph at their residence. Rule 4(d)(3) provides that when a defendant has been appointed a guardian, service shall be made upon the individual and the guardian. Latisha argues that, contrary to the rule stated above, Joseph was not served in his capacity as her guardian. Latisha further notes that, after Joseph was appointed as her guardian in 2011, he appointed Karen Reagler to accept service of process with respect to the guardianship proceedings. Latisha contends that because Karen Reagler was never served in this matter as agent for service of process, service was defective and this case should be reversed and dismissed. We hold that Latisha’s challenge to proper service has been waived because the record fails to reflect any objection below. Although service of valid process is necessary to give a court jurisdiction over a defendant, the defense of personal jurisdiction may be waived. Affordable Bail Bonds v. State, 2015 Ark. App. 44. We have held that any defects in process or the service thereof are cured or waived by the appearance of the defendant without raising an objection, and he or she is precluded from thereafter taking advantage of the defect. Id. In this case, Latisha appeared at the adjudication hearing, review hearings, and termination hearing without raising an objection. Latisha was represented by counsel in each of the pertinent hearings, and there is nothing in the record showing that Latisha or 7  Cite as 2016 Ark. App. 617 her attorney requested any inquiry into improper service. Therefore, we conclude that this argument has been waived. Latisha next argues that, due to her questionable competency and capacity and the fact that her legal guardian, Joseph, was not adequately protecting her interests, this case should not have gone forward without ascertaining whether a guardian ad litem should have been appointed to assist her in defense of her parental rights. Latisha was represented by counsel in each of the pertinent hearings, and there is nothing in the record showing that Latisha or her attorney requested the appointment of an attorney ad litem below. It is well settled that we will not consider arguments raised for the first time on appeal. See Patel v. Patel, 2015 Ark. App. 726, 479 S.W.3d 580. Because this argument is being raised for the first time on appeal, it is not preserved for review. Finally, Latisha challenges the sufficiency of the evidence supporting termination of her parental rights. She contends that none of the statutory grounds found by the trial court were supported by the evidence, and further asserts that termination of her parental rights was not in the best interest of the children. She contends that, other than parenting and visitation, all of the services provided by DHS were provided exclusively to Joseph. She further asserts that DHS and the trial court allowed her parental rights to simply hinge on Joseph’s choices and efforts because she was legally and physically dependent on him. Although she concedes that there was sufficient evidence that the children were adoptable, Latisha argues that there was a lack of proof of whether the children would be at a potential risk of harm after she has been given a meaningful opportunity to participate in the DHS case as a parent. 8  Cite as 2016 Ark. App. 617 Only one statutory ground is necessary to terminate parental rights. Albright v. Ark. Dep’t of Human Servs., 97 Ark. App. 277, 248 S.W.3d 498 (2007). In this case we hold that the trial court did not clearly err in concluding that, in accordance with Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a), the juveniles had been adjudicated dependent- neglected and had continued outside the home for twelve months, and that despite a meaningful effort by DHS to rehabilitate the parents the conditions causing the children’s removal had not been remedied. In this case the children were removed after Joseph had furnished alcohol to his twelve-year-old daughter and failed to report a sexual assault. The children were deemed, by stipulation of the parents, to be at serious risk of harm due to neglect, and fourteen months after the children’s removal the children could not be safely returned to their parents’ custody. The record demonstrates that the conditions causing the children’s removal had not been remedied by the parents. The caseworker testified that Latisha was incapable of caring for the children. The caseworker testified that extensive services had been offered by DHS, but that there were no further services that would result in successful reunification of the children with their parents. Specifically, the caseworker testified: During the course of this case, we’ve offered the parents parenting classes, random drug screens, drug and alcohol assessment for dad, psych eval for the father, homemaker services, foster care, board payments, clothing, residential treatment, PACE evals, counseling, medical services, educational services, transportation assistance, visitation, [and] case management. . . . There aren’t any other set of services in our toolbox that I could offer this family that would help them step up and remedy the circumstances that brought the children into [foster] care. . . . In regard of Ms. Bane . . . I don’t think there’s any set of services we could offer that would allow her to raise these children. 9  Cite as 2016 Ark. App. 617 We have held that parental rights will not be enforced to the detriment or destruction of the health and well-being of the children. Brumley v. Ark. Dep’t of Human Servs., 2015 Ark. App. 90, 455 S.W.3d 347. We conclude that there was evidence in the record to support the trial court’s determination that there were meaningful DHS efforts in this case but that the conditions causing removal had not been remedied more than one year after the children’s removal. Furthermore, we find no clear error in the trial court’s finding that termination of Latisha’s parental rights was in the best interest of the children. The testimony showed that the children were making remarkable progress in their structured and stable foster-care placement and were adoptable. With the children’s father’s rights being terminated and Latisha being incapable of caring for the children, termination and adoption was necessary to achieve permanency and was in the children’s best interest. We acknowledge that, in the conclusion section of her brief, Latisha cites Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(b), which provides that DHS shall make reasonable accommodations to parents with disabilities in accordance with the Americans with Disabilities Act. Latisha asserts that such accommodations were not provided to her. However, Latisha did not raise this argument below or request ADA accommodations. Moreover, in Anderson v. Arkansas Department of Human Services, 2016 Ark. App. 428, ___ S.W.3d ___, we observed that the requirement that DHS make reasonable accommodations for a disability is not an overarching mandate applicable to all grounds for termination, but instead is one of the elements contained only in the “other factors” ground. In this case, 10  Cite as 2016 Ark. App. 617 we are affirming the termination of Latisha’s parental rights under the “failure to remedy ground,” and not the “other factors” ground. We now turn to Joseph’s no-merit appeal. In compliance with Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6-9(i), Joseph’s counsel has examined the record for adverse rulings, explaining why each adverse ruling would not support a meritorious ground for reversal. Joseph’s counsel has accurately asserted that the only adverse ruling was the termination itself. A copy of Joseph’s counsel’s brief and motion to withdraw were mailed to Joseph, along with information advising him of his right to file pro se points, but no pro se points have been filed. We agree with Joseph’s counsel that any challenge to the sufficiency of the evidence supporting the termination of his parental rights would be wholly without merit. The evidence showed that Joseph’s conduct caused the removal of the children from the home, and that in the fourteen months following their removal he had not complied with the case plan, made efforts toward reunification, or made any demonstration that the children could be safely returned to his custody. We agree with Joseph’s counsel that the “other factors” statutory ground was established, and we further conclude that the “failure to remedy” ground was proved as to Joseph. And on this record the trial court did not clearly err in finding that termination of Joseph’s parental rights was in the children’s best interest. After examining the record and the briefs presented, we affirm the termination of Latisha’s parental rights. Moreover, we have determined that Joseph’s counsel has complied with our requirements for no-merit cases and that his appeal is wholly without merit. 11  Cite as 2016 Ark. App. 617 Accordingly, we affirm the order terminating both appellants’ parental rights, and we grant Joseph’s counsel’s motion to be relieved from representation. Affirmed; motion granted. VIRDEN and GRUBER, JJ., agree. Dusti Standridge, for appellant Latisha Bane. Leah Lanford, Ark. Pub. Defender Comm’n, for appellant Joseph Bane. Mary Goff, Office of Chief Counsel, for appellee. Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children. 12 

256 Wis. 318 (1950) TOLLEFSON, Appellant, vs. GREEN BAY PACKERS, INC., Respondent. Supreme Court of Wisconsin. January 10, 1950. February 7, 1950. *319 For the appellant there was a brief by Hanaway & Byrnes, attorneys, and Alex Wilmer of counsel, all of Green Bay, and oral argument by Charles T. Hanaway. For the respondent there was a brief by Martin, Clifford, Dilweg, Warne & Duffy, and oral argument by G. F. Clifford and George P. Polnaszek, all of Green Bay. GEHL, J. Plaintiff, Charles Tollefson, a professional football player, had played football with defendant, Green Bay Packers, Inc., in the years 1944 and 1945. On May 4, 1946, *320 the parties entered into a contract, which is a printed form with insertions in the handwriting of E. L. Lambeau, manager of defendant corporation. The pertinent provisions of the contract are these: "The Green Bay Packers herein is called the club, and Chas. Tollefson, of Green Bay, Wis. herein is called the player. "The club is a member of the National Football League. As such, and jointly with the other members of the league, it is obligated to insure to the public wholesome and high-class professional football by defining the relations between club and player, and between club and club. "In view of the facts above recited the parties agree as follows: "1. The club will pay the player a salary for his skilled services during the playing season of 1946, at the rate of $300 dollars for each regularly scheduled league game played, provided he has not been released by the club prior to the playing of the first league game. For all other games the player shall be paid such salary as shall be agreed upon between the player and the club. As to games scheduled but not played, the player shall receive no compensation from the club other than actual expenses. "Minimum $3,600 for season. "2. The salary above provided for shall be paid by the club as follows: "Seventy-five per cent (75%), after each game and the remaining twenty-five per cent (25%), at the close of the season or upon release of the player by the club. "3. The player agrees that during said season he will faithfully serve the club, and pledges himself to the American public to conform to high standards of fair play and good sportsmanship. . . . "7. This contract may be terminated at any time by the club giving notice in writing to the player within forty-eight (48), hours after the day of the last game in which he has participated with his club. . . . "13. In case of dispute between the player and the club the same shall be referred to the commissioner of the National *321 Football League, and his decision shall be accepted by all parties as final. "14. Verbal contracts between club and player will not be considered by this league, in the event of a dispute." The provision "Minimum $3,600 for season" was inserted in the printed form in the handwriting of the manager, E. L. Lambeau. Plaintiff, Tollefson, practiced with the team, appeared in an intersquad game, and played in three practice games and a regular league game. He also appeared in uniform and on the bench for the Los Angeles Rams game, the second scheduled. Plaintiff was not given formal notice of his discharge; it came to him by an article published in a newspaper after the second league game played, reporting that waivers had been asked by the defendant upon him. He understood that a request for waivers and action taken by defendant, as reported in the newspaper, meant that he had been discharged. Following his release he reported for practice on a number of occasions, obviously as an offer to continue to perform. On those occasions the manager was present but he had no conversation with him. On the second or third day of practice after his release, while on the practice field, he talked with one of the coaches, but the subject of his conversation does not appear. He was paid $900 for the three practice games played and the two league games played before his discharge. He seeks to recover $2,700, the difference between the amount paid him and the $3,600 provided in the inserted provision. Defendant now makes no claim that plaintiff should have proceeded under the provisions of paragraph 13 of the complaint. Plaintiff submitted his case solely upon the theory that the provision, "Minimum $3,600 for season," entitles him to payment of that amount regardless of full performance by him. The trial court disagreed and therefore granted defendant's motion for nonsuit. *322 Plaintiff contends that the inserted provision "Minimum $3,600 for season," which will be referred to hereinafter as the "minimum clause," entitles him to that amount. Defendant does not agree and in its answer sets up the additional defense that plaintiff was discharged for failure to properly perform. Unquestionably, absent the minimum clause, under the provisions of paragraph 7 of the contract, the defendant might have released plaintiff at any time, with or without cause. Although it was not definitely known when the contract was made how many practice games would be played, the amount stated in the minimum clause appears to have been determined from the fact that it would at least approximately compensate plaintiff for the games scheduled and planned to be played. If plaintiff had been permitted to perform fully he would have been entitled to the precise amount stated in the minimum clause. This, and the mere fact that it was inserted, would indicate that it was intended that it should serve some purpose. It is our view that its terms are inconsistent with the provisions of paragraph 7 of the contract. There is applicable the rule: "Where written provisions are inconsistent with printed provisions [of a contract], an interpretation is preferred which gives effect to the written provisions." Restatement, 1 Contracts, p. 328, sec. 236 (e). See also 4 Williston, Contracts (rev. ed.), p. 3281, sec. 1143; Atlanta Terra Cotta Co. v. Goetzler, 150 Wis. 19, 136 N. W. 188. If, as defendant contends, plaintiff would have been entitled to the $3,600 only in case he completed the season's play, there would have been no reason for the insertion of the minimum clause. Before the contract was executed plaintiff and defendant's coach discussed the fact that the former had had an offer to play with another professional football team. No doubt that fact prompted plaintiff to insist upon some form of relative *323 security and induced defendant to agree that he should have it. We conclude that the minimum clause must be construed to mean that, unless discharged for cause, plaintiff was entitled to the full sum of $3,600 whether he participated in the games played or not. Defendant argues that, upon plaintiff's construction, even though plaintiff had not performed or offered to perform to the best of his ability, he might still have been entitled to the full amount of the minimum clause. That is not correct. An employer may discharge an employee for cause at any time without incurring liability even though the employee is engaged for a definite term as plaintiff was here. 35 Am. Jur., Master and Servant, p. 470, sec. 36. We conclude that plaintiff was entitled to the amount stated in the minimum clause unless it were shown that there was cause for his discharge. Defendant was entitled to that defense. Plaintiff's motion for summary judgment was properly denied. The court was in error in granting defendant's motion for nonsuit. By the Court. — The order denying plaintiff's motion for summary judgment is affirmed. The judgment granting defendant's motion for nonsuit is reversed, and the cause is remanded for a new trial.

271 P.3d 154 (2011) 247 Or. App. 353 TAYLOR v. NOOTH. No. A147088. Court of Appeals of Oregon. December 14, 2011. Affirmed without opinion.

2 F.Supp.2d 388 (1997) Marilyn J. BARTLETT, Plaintiff, v. NEW YORK STATE BOARD OF LAW EXAMINERS; James T. Fuller, Individually and as Executive Secretary, New York State Board of Law Examiners; John E. Holt-harris, Jr., Individually and as Chairman, New York State Board of Law Examiners; Richard J. Bartlett, Individually and as Member, New York State Board of Law Examiners, Laura Taylor Swain, Individually and as Member, New York State Board of Law Examiners, Charles T. Beeching, Jr., Individually and as Member, New York State Board of Law Examiners and Ira P. Sloane, Individually and as Member, New York State Board of Law Examiners, Defendants. No. 93 Civ. 4986(SS). United States District Court, S.D. New York. August 15, 1997. *389 Jo Anne Simon, Patricia Ballner, Brooklyn, New York, for Plaintiff. Dennis Vacco, Attorney General of the State of New York, New York, NY, Judith T. Kramer, Rebecca Ann Durden, Assistant Attorneys General, for Defendants. MEMORANDUM OPINION AND ORDER SOTOMAYOR, District Judge. Defendants move, pursuant to Fed. R.Civ.P. 59(e) and 60(b), for amendment of the judgment or relief from the decision and order of this Court rendered on July 3, 1997 (the "Opinion"), familiarity with which is assumed. For the reasons to be discussed, defendants' motion is DENIED. I. The Court's Use of The EEOC Regulations Under Title I of the ADA A. The Appropriateness of Employing Title I Regulations Generally In its Opinion, the Court used the regulations promulgated by the EEOC under Title I of the Americans with Disabilities Act (the "ADA" or the "Act") to elucidate and expand upon the Court's understanding of the concept of "substantial limitation" as it relates to defining who is disabled under the Act. The Court employed the Title I regulations for this purpose even though plaintiff's claim was brought under Titles II and III of the Act, and the Department of Justice, not the EEOC, is charged with promulgating regulations pursuant to those titles. While neither party directly challenges the Court's use of the EEOC regulations and interpretive guidance, the tenor of the defendants' instant motion for reconsideration implies that the use of the Title I regulations was somehow inappropriate.[1] The Court disagrees for the following reasons. Initially, one must understand, how, if at all, regulations under Title I and Title II differ, keeping in mind that the statutory definition of "disabled" is the same for all titles of the Act and that no agency is imbued with dispositive authority to state what the term means. The only difference between the Title I regulations promulgated by the EEOC and the Title II regulations *390 promulgated by the Justice Department is that the EEOC goes to much greater lengths to explore the concept of substantial limitation, particularly as that concept relates to the major life activity of working. Both sets of regulations define a disability— according to the statutory definition—as an impairment that substantially limits any major life activity. Both regulations list the following examples of major life activities: "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i) (Title I regulation) (emphasis added); 28 C.F.R. § 36.104(2) (Title II regulation) (emphasis added). Clearly, then, the Department of Justice in promulgating rules under Title II contemplated an assessment of a plaintiff's impairment under the major life activity of working. The only question is whether the Department of Justice regulations under Title II forecloses application of the EEOC's interpretation that substantial limitation in the context of the major life activity of working should be measured by a different reference population—by a comparison to "the average person with comparable training, skills and abilities" 29 C.F.R. § 1630.2(j)(1)(ii) rather than "the average person in the general population." 29 C.F.R. § 1630.2(j)(3)(i).[2] I hereby reaffirm my prior conclusion that the EEOC's interpretation of substantial limitation in the context of the major life activity of working is both a part of, and consistent with, the Department of Justice's regulations and the purpose of the ADA. I reach this conclusion in part because of the cooperative spirit in which the regulations were promulgated. See, e.g., I Henry H. Perritt, Jr., Americans With Disabilities Act Handbook § 1.9 (3d ed.1997) (discussing the fact that the Justice Department and EEOC regulations were issued jointly, as required by § 107(b) of the ADA). In addition, the Department of Justice's own "[r]ule of interpretation," under Title II provides: "Except as otherwise provided in this part, this part shall not be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 ... or the regulations issued by Federal agencies pursuant to that title." 28 C.F.R. § 36.103. Notably, the Rehabilitation Act now looks to the standards established by Title I of the ADA and the regulations promulgated thereunder. See 29 U.S.C. § 793(d) (providing that "[t]he standards used to determine whether this section has been violated in a complaint alleging nonaffirmative action employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act"). In its analysis of this "rule of interpretation," the Justice Department has even more pointedly written: "Title II, however, also incorporates those provisions of titles I and III of the ADA that are not inconsistent with the regulations implementing section 504. Therefore, this part also includes appropriate provisions derived from the regulations implementing those titles." 28 C.F.R. § 35.103, App. A, reprinted in, Arlene B. Mayerson, ed., Americans With Disabilities Act Annotated: Legislative History, Regulations & Commentary Title II - 25 (1997); see also H.R.Rep. No. 101-485 at 49-51 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 472-74 ("Title II should be read to incorporate provisions of titles I and III which are not inconsistent with the regulations implementing Section 504 of the Rehabilitation Act of *391 1973.... However, nothing in the other titles should be construed to lessen the standards in the Rehabilitation Act regulations which are incorporated by reference in Section 204."); U.S. Equal Employment Opportunity Commission & The Department of Justice, Americans with Disabilities Act Handbook I-3 (1992) ("It is the intent of Congress that the regulations implementing the ADA be comprehensive and easily understood. Part 1630 [promulgated by the EEOC], therefore, defines terms not previously defined in the regulation implementing section 504 of the Rehabilitation Act, such as "substantially limits ..." Where possible, part 1630 establishes parameters to serve as guidelines in such inquiries."). From these two statements, it is self-evident that the Department of Justice's own "rule of interpretation" sanctions the use of regulations from a different title to help lend meaning to a concept that is not addressed in its own regulations, see note 2, supra, provided that the other regulations do not impose or permit a "lesser standard." Here, the Title I regulation merely determines the appropriate characteristics—comparable training, skills, and abilities—of the persons within the general population against which a substantial limitation is measured in the context of the major life activity of working. The EEOC's conclusion, therefore, does not provide a lesser standard. Moreover, it is perfectly consistent with the Rehabilitation Act, as well as Title II and the remedial nature of the ADA as a whole, and has a sound basis in logic. Thus, the Court's invocation of the Title I regulations as a meaningful interpretive tool was consistent with general rules of statutory interpretation. See, e.g., Silverman v. Eastrich Multiple Investor Fund, 51 F.3d 28, 31 (3d Cir.1995) (explaining that there is "a basic tenet of statutory construction, equally applicable to regulatory construction, that a statute `should be construed so that effect is given to all of its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another unless the provision is the result of obvious mistake or error.'") (citation omitted); Bower v. Federal Express Corp., 96 F.3d 200, 209-10 (6th Cir.1996) (arguing that the better choice is to use another regulation for interpretative guidance rather than interpret a term "without regulatory assistance"); Yeskoo v. United States, 34 Fed.Cl. 720, 734 (1996) (providing that "[i]n construing a statute, courts should attempt not to interpret a provision such that it renders other provisions of the same statute inconsistent, meaningless or superfluous. ... The meaning of statutory language depends on context, and a statute should be read as a whole.... Therefore, when reviewing the statute and regulations at issue in this case, this court must construe each part of a statute in connection with all the other sections, so as to produce a harmonious whole. Moreover, common sense requires that the same words used twice in the same act should have the same meaning."); United States v. Hayashi, 22 F.3d 859 (9th Cir.1993) (providing that a defendant can not be convicted under the regulations of a statute different from that under which he was indicted, but that nevertheless "a regulation implementing a different statute might aid in interpreting those under another statute."); Price v. The National Board of Medical Examiners, 966 F.Supp. 419, 426 & n. 2 (S.D.W.Va.1997) (employing the Title I regulations in a Title II case, and explaining that "The EEOC guidelines do not govern [Title II] because the guidelines pertain only to Subchapter I. However, Congress clearly intended for the term `disability' (and, therefore, the phrase `substantially limits') to have a uniform meaning throughout the ADA. Accordingly, wherever possible, the Court must define the phrase `substantially limits' in a manner consistent with each of the agencies' interpretations."); Medical Society of New Jersey v. Jacobs, 1993 WL 413016 (D.N.J. 1993) (importing Title I requirements into Title II context); Ellen S. v. Florida Board of Bar Examiners, 859 F.Supp. 1489 (S.D.Fla.1994) (applying Title I standard regarding pre-employment inquiries to Title II case involving bar application). B. The Appropriateness of Invoking the Major Life Activity of Working 1. The Court Considered Other Major Life Activities First As previously explained, the defendants do not directly challenge the Court's *392 reliance upon the Title I regulations. In fact, defendants invoke the Title I regulations promulgated by the EEOC as the correct test for assessing disability under the Act. (See Defs.' Brief at 3). However, looking to the EEOC regulations, the defendants contend that the Court erred by analyzing plaintiff's impairment as one which impacts the major life activity of working "without first determining whether [plaintiff's impairment] substantially limits her ability to read or learn...." (Defs.' Brief at 4). Defendants seem to suggest that it only would have been appropriate for the Court to look to the major life activity of working if it first found that plaintiff was substantially limited in other major life activities. In fact, the reverse is true. If the Court had found, which it did not, that plaintiff was substantially limited in any other major life activity, it would have been prevented, by the EEOC analysis, to consider the effect of plaintiff's impairment on any other major life activity, and specifically the major life activity of working. If, however, as was the case, the Court found that plaintiff was not substantially limited in the other major life activities, it had a duty to see whether plaintiff was substantially limited in the major life activity of working. See 29 C.F.R. Pt. 1630, App., § 1630.2(j). The interpretive guidance to the EEOC regulations clearly provide that: If an individual is not substantially limited with respect to any other major life activity, the individual's ability to perform the major life activity of working should be considered. If an individual is substantially limited in any other major life activity, no determination should be made as to whether the individual is substantially limited in working. 29 C.F.R. Pt. 1630, App., § 1630.2(j) (emphasis added). In explaining why other major life activities should be considered before the major life activity of working, the EEOC has written: Most of the discussion and analysis of substantial limitation has focused on its meaning as applied to the major life activity of working. This is largely because there has been little dispute about what is meant by such terms as "breathing" "walking" "hearing" or "seeing" but much dispute about what is meant by the term "working." Consequently, the determination of whether a person's impairment is substantially limiting should first address major life activities other than working. If it is clear that a person's impairment substantially limits a major life activity other than working, then one need not determine whether the impairment substantially limits the person's ability to work. On the other hand, if an impairment does not substantially limit any of the other major life activities, then one must determine whether the person is substantially limited in working. For example, if an individual's arthritis makes it unusually difficult (as compared to most people or to the average person in the general population) to walk, then the individual is substantially limited in the ability to walk. In that case, one would not need to ascertain whether the individual is also substantially limited in working. If, however, it was not clear whether the person's impairment substantially limited his/her ability to walk (or to perform other major life activities), then one would have to analyze whether the impairment substantially limited the person's ability to work. EEOC Compliance Manual § 902—Definition of the Term "Disability"—reprinted in Arlene B. Mayerson, Americans with Disabilities Act Annotated: Legislative History, Regulations & Commentary App.P. at p. 27 (1994) (emphasis added). In its Opinion, the Court did the very analysis that defendants insist should have been done by the Court. The Court first considered whether plaintiff was "substantially limited" in her reading when compared to the average person in the general population. Finding that plaintiff's history of self accommodation enabled her to perform marginally as well as the average person in the general population, the Court concluded that plaintiff was not substantially limited when compared to this population. (See Opinion at 56 (stating that when plaintiff's reading skills are compared to the average person in the *393 general population, she would be considered "barely average.")) Then, and only then, did the Court embark on its analysis of whether plaintiff's impairment substantially limited her ability to work. Using the benchmark of "the average person having comparable training, skills and abilities," 29 C.F.R. § 1630.2(j)(3)(i), the Court found that plaintiff was substantially limited and therefore "disabled" under the law. There is nothing in the law, the regulations, or the EEOC guidance to suggest that this analysis was anything but appropriate. 2. The Appropriateness of Invoking the Major Life Activity of Working Despite framing the bulk of their argument in terms of the Court's purported failure to consider other major life activities before considering the major life activity of working, it appears that what actually troubles the defendants is that the major life activity of working was invoked at all. To this end, the defendants place tremendous (and almost exclusive) weight in their reconsideration memorandum on a case from the Southern District of West Virginia, Price et al. v. The National Board of Medical Examiners, 966 F.Supp. 419 (S.D.W.Va. June 6, 1997). Although the case and the arguments found therein have superficial appeal, especially as applied to the limited facts and legal argument before that court, upon closer examination they are revealed as unpersuasive authority for the issues before this Court. Price involved a suit for injunctive relief brought by medical students who were seeking additional time and other accommodations on the medical licensing examination administered by the National Board of Medical Examiners. According to the opinion, medical students are required to pass "Step 1" of the examination before proceeding on in their medical school education. This factual context differs markedly from the instant case, of course, where the plaintiff has completed all of the necessary schooling required to practice as a lawyer and where the only obstacle remaining between her and the practice is her passing the bar examination. After a limited evidentiary hearing (as opposed to the very lengthy trial and voluminous submissions in this case), the Price court found that the plaintiffs' "history of significant scholastic achievement" id. at 427, in college and medical school evinced the fact that the plaintiffs were not substantially limited in their ability to learn as compared to "most unimpaired persons." Id. at 425. Analyzing all of the plaintiffs' impairments under the major life activity of learning (without any mention of the major life activity of working), the Court found that the plaintiffs were "able to learn as well as or better than the average person in the general population." Id. at 422. Hence, the court found that the plaintiffs were not disabled under the law. Price differs from the instant case in an important factual respect. The Price plaintiffs all claimed they had Attention Deficit Hyperactivity Disorder ("ADHD").[3] Thus, their very claims went to their ability to learn, which was belied by their significant achievements in education. However, in the instant case, plaintiff's so-called "learning" disability is in actuality a difficulty in reading words—not in learning per se. This is an important distinction because plaintiff's significant accomplishments in education do not belie her claim that she has significant difficulty reading. In reaching its ultimate conclusion that the plaintiffs were not disabled, the Price Court raised the following concern: The ADA is not designed "to allow individuals to advance to professional positions through a back door. Rather, it is aimed at rebuilding the threshold of a profession's front door so that capable people with unrelated disabilities are not barred by that threshold alone from entering front door." Jamie Katz & Janine Valles [sic], The Americans with Disabilities Act and Professional Licensing, 17 Mental & Physical Disability L.Rep. 556, 561 (Sept./Oct. 1993). If a court were to grant testing *394 accommodations to persons that do not have disabilities within the meaning of the ADA, it would allow persons to advance to professional positions though the proverbial back door. In so undermining the integrity of the USMLE, that court would hinder the Board's ability to distinguish between qualified students and unqualified students. Price, at 421-22. This argument is reminiscent of the defendants' claims in the instant case. It is true that if nondisabled individuals were granted accommodations on the examination, the examination's integrity would be compromised.[4] What the defendants and the Price court fail to recognize, however, is the impact of measuring applicants' impairments against inappropriate reference characteristics and how that practice would systematically result in persons with legitimate impairments being found not disabled under the Act, thereby seriously compromising the purpose of the Act, which is to employ disabled individuals to their fullest potential. By measuring a disability for purposes of a professional examination against a reference population that would otherwise be totally unprepared and unqualified to take such an examination, the findings of such applicants' disability is automatically skewed against a finding of disability. The ADA and its dictates are highly context-specific. See, e.g., 29 C.F.R. Part 1630 App., § 1630.2(j) ("The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual."). Therefore, one can not look to whether an individual is disabled, without considering in what context the individual might be "substantially limited." For example, the EEOC Technical Assistance Manual provides: An individual who had been employed as a reception-clerk sustained a back injury that resulted in considerable pain. The pain permanently restricted her ability to walk, sit, stand, drive, care for her home and engage in recreational activities. Another individual who had been employed as a general laborer has sustained a back injury, but was able to continue an active life, including recreational sports, and had obtained a new position as a security guard. The first individual was found by a court to be an individual with disabilities. The second individual was found not significantly restricted in any major life activity and therefore not an individual with a disability. EEOC Technical Assistance Manual at II-4 to 5. Because context is a very important part of the ADA, it would be incongruous to examine a person's impairments outside of the context in which the impairment affects their lives or livelihoods. Hence, by failing to measure an applicant's disability against the appropriate reference group—those engaging in that particular activity, or, in the words of the EEOC, those with "comparable training, skills and abilities" —applicants are placed in a horrific Catch 22. If an applicant strives hard enough to prove him or herself a "qualified individual" who has completed the prerequisites *395 for sitting for an examination and who is otherwise capable of performing within the profession, he or she is—almost by definition and by the very nature of his or her accomplishments in graduate work—"average" when compared to the general population. The bar and medical licensing examinations are not "average" tests geared to "average" persons, however. These sophisticated, professional tests are designed to challenge the analytical abilities of generally above-average achievers. Hence, by failing to employ the major life activity of working standard when a person's entrance into a profession is at stake,[5] courts deny applicants the opportunity to compete on a level playing field when there is no doubt that once the applicants were employed within the profession their disabilities would have to be recognized and accommodated under Title I. This result is contrary to the remedial nature of the statute, and to Congress' unequivocal desire to employ disabled individuals up to their full potential. See S.Rep. No. 101-116, at 9 (1989) ("Individuals with disabilities experience staggering levels of unemployment and poverty. According to a recent Lou Harris poll not working is perhaps the truest definition of what it means to be disabled in America."). Although it can not be said that Dr. Bartlett is unemployed or unemployable, this does not assuage Congress' apparent concern for the employment difficulties of the disabled in America.[6] It is little consolation to tell disabled individuals that they can seek other forms of employment, *396 but cannot seek employment in fields in which they studied for years. Understanding as it did the employment obstacles that the disabled face in this country, it could not have been Congress's intent to exclude the disabled from participating in large classes of customary professions, such as medicine and the law, merely because they can not receive the accommodations on a licensing exam—accommodations which the law would require them to be given once they began work for an employer. Such a result would be abhorrent—the disabled would be relegated to some form of an underclass— able to practice in jobs that do not require licensing, but wholesale excluded from some of the most prestigious, lucrative, and rewarding professions in our society which do require licensing. Hence I find that the use of the major life activity of working standard and its comparison to the average person of comparable training, skills and abilities was appropriate and consistent with the spirit and letter of the Act. II. Plaintiff's Purported Failure to State on Her Accommodation Application that She Was Impaired in Her Ability to Work Finally, defendants argue that in order to recover damages under the Act, plaintiff was required to state on her accommodation application that she was disabled in the major life activity of working. Clearly, the law imposes no such obligation on the plaintiff in order to receive a remedy under the ADA. The major life activity of working is only part of a legal analysis which helps courts and investigators determine whether a given plaintiff is "substantially limited" and therefore "disabled" as that term is defined under the law. It is not a prerequisite to filing a complaint or to recovery.[7] What these forms, and the ADA, require is that plaintiff list her impairment, not what it substantially limits.[8] Plaintiff's impairment is a learning disability that manifests itself in a difficulty in reading and understanding the written word with automaticity; plaintiff expressed this clearly on her application. She was under no obligation to tell defendants more or to explain to defendants that they should consider some of her marginal reading skills in the context of the type of test at issue and the nature of the skills of the population taking the test. By relying exclusively upon an expert whose approach rejects the generally accepted discrepancy theory in identifying learning disabilities, defendants themselves chose to ignore the full context specific dictates of the ADA and Rehabilitation Act. CONCLUSION For the reasons discussed, defendants' motion for reconsideration is DENIED.[9] SO ORDERED. NOTES [1] The Defendants only raise the question vaguely in a footnote in their brief: Both this Court and the court in Price rely upon EEOC regulations for guidance even though they pertain only to Subchapter I which addresses workplace discrimination and neither this case nor Price were filed against employers nor do they involve discrimination in the workplace. (Defs.' Brief at 4 n. 2). Although defendants raise the question, they do not discuss it further, nor do they explain why they likewise relied upon the EEOC regulations in presenting their arguments to the Court. [2] The Justice Department regulations under Title II merely define the phrase "major life activities", without giving any definition of "substantial limitation" or any reference to whether or what comparison should be made in finding a substantial limitation. In its analysis of the definition of "major life activities," the Department only discusses the concept of substantial limitation briefly, without defining what it means. Its analysis explains that "[a] person is considered an individual with a disability ... when the individual's important life activities are restricted as to the conditions, manner, or duration under which they can be performed in comparison to most people." U.S. Equal Employment Opportunity Commission & U.S. Department of Justice, Americans With Disabilities Act Handbook II-20 (1992). What the Department neglects to explain is whether "most people" refers to most people in the general population or to most people engaging in that particular life activity. Obviously, such a distinction is of critical importance in this context. [3] Although two of the three plaintiffs had been diagnosed with "Disorder of Written Expression and Reading Disorder," Price, 966 F.Supp. at 422, Price discussed their impairment, and limited its analysis, to a "learning" disability in the strictest sense of that word. [4] It is important to underscore that bar examinations, like many other licensing examinations, purport to test technical knowledge and expertise and not reading speed or fluidity. This Court has specifically found, and the Bar Examiners conceded at trial, that neither reading speed or automaticity are tested on the New York Bar Examination. See Opinion at 74, 78-79. Often, one scholar has noted, concerns that the integrity of examinations may be compromised by granting accommodations to the learning disabled are premised on the fallacy shared by many licensing examiners that "applicants with learning disabilities are either slow readers without any real impairment—and therefore not disabled—or not bright enough to pass the pertinent exam." Deborah Piltch et al., The Americans With Disabilities act & Professional Licensing, 17 Mental & Physical Disability L.Rep. 556, 558 (Sept./Oct.1993). This fallacy appeared to affect the attitudes of some of the defendants in the instant case. See Opinion at 91-92. Unlike the Price Court, however, this Court has found that the plaintiff before it is not a slow reader but rather is a person with an impairment that affects her ability to read with the automaticity and speed of the average person with comparable training, skills and abilities. See Opinion at 69-70. Care must be taken by courts (as Dr. Hagen noted is taken by trained psychologist in diagnosing learning disabilities) not to equate the legal effects of slow reading that arises from an impairment with the legal effects of slow reading arising from intelligence, educational, or emotional problems. The law does not protect the latter but it does require accommodation for the former. [5] The argument could be made that many, if not most, standardized tests such as the LSAT, or even the SAT, have an effect on a person's ability to enter a profession to the extent they affect a person's ability to gain the other credentials necessary to enter that profession. Those tests, however, are more generic intelligence tests, and, therefore, are more geared to the average population. Even more importantly, those tests are a considerably less proximate cause for denial of employment in any given area and hence the major life activity of working standard is much less appropriate in that context. Nevertheless, the Court does not have before it such a case. In the instant case, the plaintiff has already successfully achieved all of the requirements for being a lawyer; she merely lacks the license to practice. On any level, the bar examination at issue is a much more appropriate context for employing the major life activity of working than other standardized tests. [6] See S.Rep. No. 101-116, at 10 (noting among other employment obstacles, disabled individuals' "under-employment"); 135 Cong.Rec. S10712, (daily ed. September 7, 1989) (Statement of Sen. Harkin) (providing that "people with disabilities as a group occupy an inferior status ... vocationally ..."); 135 Cong.Rec. S10717 (daily ed. September 7, 1989) (Statement of Sen. Kennedy) ("Disabled citizens deserve the opportunity to work for a living, ... and do all the other things that the rest of us take for granted."); 135 Cong.Rec. S10789 (daily ed. September 7, 1989) (Statement of Sen. Kennedy) ("With the challenge facing our country, we cannot afford to ignore the talent of the disabled, or neglect the skills they have to offer."); 135 Cong. Rec. S 10791 (daily ed. September 7, 1989) (Statement of Sen. Riegle) (explaining that "our economy can no longer afford not to enlist the unique abilities and talents of people with disabilities."); 135 Cong.Rec. S10792-92 (daily ed. September 7, 1989) (Statement of Sen. Biden) ("Too many disabled persons have been locked out of the American workplace, excluded from jobs for which they are more than capable.... [T]oo many people fail to see the intelligence, energy, and potential of millions of Americans. Disabled Americans are not asking for pity or for a handout. They are asking for a fair chance to compete and take part on an equal basis....") (emphasis added); 136 Cong.Rec. H2433 (daily ed. May 17, 1990) (Statement of Rep. Luken) ("In short, this bill will help our country use an immense amount of talent, intelligence, and other human resources which heretofore have been underestimated, underdeveloped, and underutilized."); 136 Cong.Rec. H2446 (daily ed. May 17, 1990) (Statement of Rep. Gallo) ("For too long, Americans with mental and physical disabilities have been prevented from performing many daily activities of living and from fulfilling dreams of employment, prosperity, and full participation in our communities. Not only has this been a great loss to our communities and to our economy, it has also been an added hardship to the individuals who have struggled so valiantly to overcome the obstacles imposed by their disabilities and for their families who have been by their side all along."); 135 Cong.Rec. S4997 (daily ed. May 9, 1989) (statement of Sen. Cranston) (providing that the "single purpose" of the ADA is "to help ensure that persons with disabilities have the opportunity—freed of the shackles of discriminatory practices—to participate in our society as fully as possible and, thus, to achieve their full potential."); 136 Cong.Rec. H2427 (daily ed. May 17, 1990) (Statement of Rep. Hoyer) ("This bill does not guarantee a job—or anything else. It guarantees a level playing field; the qualified individuals won't be discriminated against because of their disability."); 136 Cong. Rec. H2440 (daily ed. May 17, 1990) (Statement of Rep. Fish) ("This bill aims at opening up opportunities for all persons with disabilities."). [7] Defendants argue that plaintiff should not recover her expenses expended on at least three of the bar examinations because she did not timely apply for accommodations on two of them, and she was granted accommodations on the third. As for the two examinations in which plaintiff's application for accommodations may have been untimely, the Court finds defendants' argument to be specious. The defendants have consistently through the years considered untimely applications. Moreover, the letters denying accommodations for these two tests made clear that the Board considered the lack of merit in plaintiff's application as the primary reason for denying an accommodation. And, as for the third examination on which the Board actually did grant accommodations, recovery is merited given that the accommodations granted were neither those that the plaintiff requested nor those to which the Court has deemed plaintiff was entitled. [8] The Court notes that there is no such thing as a per se working disability, and certainly none has been recognized by the ADA. Therefore, virtually every impairment that substantially limits the major life activity of working will have, in actuality, some other form of impairment at its root, such as asthma, reading, walking, writing, etc. [9] Because I find that defendant's motion, while perhaps in poor judgment, is not frivolous, I hereby deny plaintiff's motion for sanctions under Rule 11.

440 P.2d 772 (1968) Dorothy A. TAYLOR, C. Robert Taylor, and Theodore N. Taylor, Plaintiffs In Error, v. COLORADO STATE BANK OF DENVER, Colorado, Defendant In Error. No. 22068. Supreme Court of Colorado, En Banc. May 13, 1968. Robert E. Holland and H. A. Nikkel, Denver, for plaintiffs in error. Winner, Berge, Martin & Camfield, Denver, for defendant in error. MOORE, Chief Justice. The parties appear here in the same order as they appeared in the trial court, and we shall refer to them respectively as plaintiffs and defendant, or by name. Plaintiffs are here on writ of error to review a judgment of the district court, entered on the defendant's motion at the close of plaintiffs' evidence, dismissing their action against the defendant the Colorado State Bank of Denver. In the plaintiffs' complaint three groups of defendants were named, and it was alleged that defendants Alfred Gray and Virginia Gray, individually and doing business, in the sale of used cars, as Spot Motors, fraudulently obtained the sum of $12,315 from plaintiffs' special account in the Colorado State Bank of Denver. Plaintiffs further alleged that defendant Western Surety Company issued surety bonds totalling $8,500 to indemnify any persons against losses suffered by reason of the Grays' and the Spot Motors' fraudulent acts. Alfred Gray confessed judgment on the plaintiffs' claim. Plaintiffs' motion for summary judgment against Virginia Gray, individually and doing business as Spot Motors, and the Western Surety Company was granted by the district court. The *773 Grays, Spot Motors, and Western Surety Company are not parties to the present writ of error. At the trial to the court, plaintiff Dorothy Taylor testified that she established a special account in the Colorado State Bank in which she deposited the sum of $12,500. She also testified that, pursuant to her agreement with Alfred Gray, the latter could draw upon this account to finance the purchase by him of used cars for Spot Motors. Gray agreed with plaintiffs that his drafts on the account would identify the make, year, and serial number of each vehicle purchased, and that an envelope containing the vehicle's title certificate would accompany each draft. The agreement did not involve the creation of an encumbrance upon the vehicle purchased by Gray to secure the repayment of moneys advanced by plaintiffs. Rather, the defendant bank was to take possession of the title certificate on each vehicle purchased by Gray, which certificate Gray was to deliver with each draft. Plaintiffs and Gray understood that when Gray found a purchaser for one of the used cars he could recover the vehicle's title certificate from the bank by depositing the amount previously withdrawn from the account under the draft for that particular car. Gray violated the terms of his agreement on three occasions by deliberately misrepresenting on the face of his drafts the type of vehicle actually purchased. Thus his June 13, 1960 draft for $1400 described a 1956 Oldsmobile, but the accompanying envelope contained a Colorado certificate of title to a 1946 Chevrolet. On July 9, 1960, drafts drawn by Gray for $800 and $600 described respectively a 1957 Ford and a 1954 Chevrolet, but the accompanying Colorado title certificates were issued for a 1947 Ford and a 1942 Chevrolet. These and other fraudulent acts not pertinent to the case as related to the bank resulted in depletion of plaintiffs' special account by $12,315. Plaintiffs sought to establish the defendant bank's liability for breach of an agreement to create and supervise plaintiffs special account. This agreement, couched in ambiguous terms, appears as Exhibit A: "May 8, 1959 "Colorado State Bank of Denver Denver, Colorado "Gentlemen: "You are authorized and directed to charge the account of Dorothy A. Taylor, et al. Special with drafts accompanied by supporting papers when such drafts are presented to you with the O.K. of A.M. Gray. "The papers are to be held by you subject to order of Dorothy A. Taylor. "This order to continue until cancelled in writing. "/s/ Dorothy A. Taylor "/s/ C. Robert Taylor "/s/ Theodore N. Taylor" During the presentation of testimony offered by plaintiffs the trial court permitted the introduction of parol evidence to clarify the intention of the parties regarding this instrument. According to the testimony of Dorothy Taylor the phrase "supporting papers" in the parties' contemplation referred to automobile certificates of title. A title would "support the draft if it corresponded to the make, year, and number of the vehicle described on the face of the draft. The president of the defendant bank was called for cross-examination by counsel for plaintiffs. He admitted signing the instrument and charging plaintiffs' account $1.50 for each of Gray's drafts. He stated that the phrase "supporting papers" referred to therein was meaningless surplusage to the parties' agreement. The only witnesses called by the plaintiffs were Dorothy Taylor and the bank officer who was cross-examined. When the plaintiffs rested the bank moved for dismissal on two grounds, namely: that there was a failure to establish liability on the part of the bank; and, assuming arguendo that liability had been proven under the evidence, there was no competent evidence establishing *774 the amount of damage to which plaintiffs were entitled. The trial court dismissed the action against the bank for the sole reason that, "* * * there has been no showing as to the amount of damages which was suffered by the plaintiff[s]." It stated, with reference to the showing made upon the question of liability, that, "So that as far as a prima facie case being proven by the plaintiff[s], I think that has been done." It was the trial court's view that the defendant bank wrongfully neglected to obtain supporting certificates of title on Gray's June 13 and July 9 drafts, and that the measure of plaintiffs' damage was the difference in value between the three vehicles described in Gray's fraudulent drafts and the three vehicles actually purchased by Gray. In the absence of evidence as to the relative value of the vehicles, the trial court granted defendant's motion to dismiss the action. The trial court misconceived the measure of damages applicable to the pertinent facts which were undisputed at the time the motion to dismiss was made. The fundamental rule to be observed in breach of contract actions is that the wronged party shall recover compensatory damages sufficient to place him in the position he would have occupied had the breach not occurred. See Law v. Simon, 110 Colo. 545, 136 P.2d 520; Fort v. Brighton Ditch Co., 79 Colo. 462, 246 P. 786; Restatement of Contracts, § 329. In 25 C.J.S. Damages § 74, it is stated: "* * * The measure is the amount which will compensate the injured person for the loss which a fulfillment of the contract would have prevented or the breach of it has entailed, * * *." The court ruled that a prima facie case was established that the bank honored three drafts submitted by Gray in violation of its contractual obligation to honor such drafts only when they were accompanied by supporting papers. As the case stood at the time the plaintiffs rested, the bank was obligated to refuse to honor the three drafts, and had it refused to do so the aggregate sum of $2,800 would not have been withdrawn from plaintiffs' special account. Defendant misconceives the measure of plaintiffs' damages as the difference in value between the three used vehicles represented by the title certificates and the three vehicles described on Gray's drafts. The record shows that plaintiffs and defendant never obtained any security interest in Gray's vehicles such that in the event of his default the parties could have foreclosed encumbrances against the vehicles by independent in rem proceedings. Defendant's mere possession of Gray's title certificates did not suffice to create an encumbrance against the vehicles. C.R.S. 1963, 13-6-19 and 13-6-20; Codding v. Jackson, 132 Colo. 320, 287 P.2d 976. Since plaintiffs had no recourse against the used vehicles when Gray's fraud was discovered, their actual damages were not mitigated or reduced by the value of the three vehicles. The bank's contentions would have merit in the distinguishable situation where a defendant contracts to procure a mortgage or deed of trust against a debtor's property to secure a plaintiff's loan. The defendant's failure to perform, coupled with the debtor's insolvency, would in such a case entitle the plaintiffs to recover damages limited to the value of the security which the defendant neglected to obtain. Wages v. Garmon, 75 Colo. 507, 226 P. 667; Leven v. Lolcama, 72 Colo. 427, 211 P. 870; Restatement (Second) of Agency § 401, comment e. In the instant case, however, the bank's breach consists of allowing unauthorized withdrawals from the special account, and not of any failure to perfect a security interest in plaintiffs' favor. In the authorities cited by defendant, Commercial Savings Bank of Sterling v. Baum, 137 Colo. 538, 327 P.2d 743, and First National Bank of Denver v. Jones, 124 Colo. 451, 237 P.2d 1082, the banks had not entered into contractual agreements defining their duties and responsibilities. The present action, based upon the defendant's claimed express contract, is therefore *775 distinguishable and not controlled by the cited cases. The judgment is reversed and the cause remanded for further proceedings at which the defendant shall be permitted to introduce any and all evidence pertinent to any issue of liability or damages with reference to the three drafts specifically referred to herein.

108 P.3d 1201 (2004) 198 Or. App. 546 STATE of Oregon, Respondent, v. Scott Dean HARBERTS, Appellant. CR0002110; A114825. Court of Appeals of Oregon. Argued and Submitted September 28, 2004. Decided March 30, 2005. *1203 Eric M. Cumfer, Salem, argued the cause and filed the brief for appellant. Jonathan Fussner, Assistant Attorney General, argued the cause for respondent. On the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Robert B. Rocklin, Assistant Attorney General. Before LANDAU, Presiding Judge, HASELTON, Judge, and DEITS, Judge pro tempore. LANDAU, P.J. Defendant appeals a judgment of conviction on one count of sexual abuse in the first degree. Former ORS 163.425 (1983), renumbered as ORS 163.427 (1991). He assigns error to the trial court's (1) denial of his motion to dismiss the indictment as untimely; (2) exclusion of evidence that defendant claims would have shown the bias of the complaining witness; and (3) denial of his motions in arrest of judgment proffered on the ground that the indictment did not state an offense. We affirm. I. FACTUAL BACKGROUND In July 1989, defendant was arrested for the aggravated murder of Kristina Hornych. At the time, defendant was living with Kristina's father, Kevin Hornych, and Kevin's girlfriend, Sylvia, whom Kevin married a short time later. The victim in this case, CS, is Sylvia's daughter, who lived with Kevin and Sylvia part of the time. After defendant's arrest on the murder charge, police referred the children who had lived in the house to CARES for evaluation. CS, then age 10, was among those children. During that evaluation, CS was questioned about whether defendant had sexually abused her. She said that defendant had not abused her, and the CARES evaluation reported that denial. Meanwhile, defendant was convicted of the aggravated murder of Kristina. In September 2000, however, the Oregon Supreme Court reversed the conviction, vacated the sentence, and remanded with instructions to dismiss the indictment. State v. Harberts, 331 Or. 72, 11 P.3d 641 (2000). Shortly after that decision, CS reported to police that, in fact, defendant had sexually abused her between February 1987 and July 1989. On October 24, 2000, a grand jury returned an indictment that alleged, in part: "The said defendant on or between the 1st day of February, 1987 to the 14th day of July 1989, in the County of Clackamas, State of Oregon, did unlawfully and knowingly subject [CS], a person under the age of twelve years, to sexual contact by touching her vagina, a sexual and intimate part of [CS], said act of defendant being contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon. "The state further alleges that [CS] was under the age of 18 at the time of the crime and the crime was reported before [CS] attained 24 years of age. "The state further alleges the offense was reported to a law enforcement agency or other governmental agency within the last six years." During the dates alleged in the indictment, the applicable statute of limitations required prosecution within three years of the date on which the crime was committed. ORS 131.125(2)(a) (1987). In 1989, however, the legislature amended that statute to provide that, if the victim was under 18 years of age at the time the crime was committed, a prosecution for first-degree sexual abuse must be commenced within six years of the date on which the sexual abuse was committed. Or. Laws 1989, ch. 831, § 1. In 1991, the legislature again amended the statute to provide that a prosecution for first-degree sexual abuse must be commenced "anytime before the victim attains 24 years of age or within six years after the offense is reported to a law enforcement agency or other governmental agency, whichever occurs first." ORS 131.125(2)(k). Before trial, defendant moved to dismiss the indictment on statute of limitations grounds. Defendant advanced two arguments. First, he argued that the indictment was untimely under the three-year 1987 statute of limitations that applied when the crime *1204 was committed. Subsequent amendments that extended that limitations period, he argued, cannot constitutionally be applied to him without violating the state and federal prohibitions against ex post facto laws. Second, and in the alternative, he argued that, even if the current version of ORS 131.125(2)(k) applies to him, the prosecution remains untimely because it occurred more than six years after the first report of sexual abuse occurred in 1989, when CARES staff first questioned the victim about possible abuse. The state argued that the 1987 statute of limitations did not apply, having been superseded by amendments in 1989 and 1991 that extended the limitations period. The state further argued that applying the extended statute of limitations period to defendant did not offend either the state or the federal ex post facto prohibition. As for defendant's argument that the prosecution was untimely even under the current law, the state responded that the victim's denial in 1989 that defendant had abused her did not constitute a "report" that triggered the statute of limitations. According to the state, the first report of sexual abuse occurred in September 2000, only one month before the grand jury returned the indictment. The trial court denied defendant's motion. During the trial to the court, the victim's mother, Sylvia, testified. Defense counsel questioned her about the location of a bottle of rubbing alcohol and a bloody elastic bandage that had been found at the scene of Kristina's murder. The state objected to the question on the ground of relevance, arguing that facts concerning the murder of Kristina were unrelated to the charge before the court. The state further objected that the evidence was inadmissible under OEC 403 and OEC 404. Defense counsel replied that, indeed, he wanted to inquire about the circumstances of Kristina's murder. According to counsel, if it could be established that defendant had not killed Kristina and that, in fact, Kevin and Sylvia did, that evidence would demonstrate a motive for "the Hornych family to collude and fabricate" the sexual abuse charge against him as a way to draw attention away from themselves as suspects in Kristina's murder. The trial court sustained the state's objection to the question concerning the alcohol and the bandage: "[A]t this point, I don't find that the location of these wraps is relevant to the issues that we have to decide here. Any marginal relevance it's got is, you know, just as under Rule 403, is, if there is any, and I don't — I'm not even conceding that there is, that it's just going to necessitate, you know, visiting collateral issues that are not going to be helpful to the Court." Defense counsel responded with a request to make an offer of proof. The court allowed the request. Defense counsel did not, however, make an offer of proof at that time. The court ultimately found defendant guilty. After the court's decision — and a week after the court's ruling on the admissibility of the evidence of the rubbing alcohol and the bandage — defendant submitted an offer of proof detailing evidence that he believed demonstrated that defendant "did not murder Kristina Hornych and that Kevin and Sylvia Hornych know that [defendant] did not kill Kristina Hornych." Also after the court's decision, defendant filed two motions in arrest of judgment. In each of the two motions, defendant argued that the facts stated in the indictment did not constitute an offense. The trial court denied both motions and found defendant guilty. After a sentencing hearing, the court imposed a suspended sentence of five years' imprisonment. II. DISPOSITION OF THE MERITS A. Denial of motion to dismiss on statute of limitations grounds Defendant first assigns error to the denial of his motion to dismiss on statute of limitations grounds. As we have noted, at trial, he advanced two arguments in support of his motion; first, that the application of the current version of ORS 131.125(2)(k) violates state and federal ex post facto prohibitions and, second, that, in any event, the current statute of limitations has run. On appeal, he renews both arguments. *1205 1. Ex post facto arguments We begin with defendant's ex post facto arguments. Article I, section 21, of the Oregon Constitution provides that "[n]o ex post facto law * * * shall ever be passed[.]" Article I, section 10, of the United States Constitution likewise provides that "no State shall * * * pass any * * * ex post facto * * * Law[.]" As usual, we start with the meaning and application of the state constitution, State v. Cookman, 324 Or. 19, 25, 920 P.2d 1086 (1996), although, as it turns out, there is substantial overlap in the analysis pertaining to the state and federal constitutional provisions. a. State ex post facto analysis In State v. Fugate, 332 Or. 195, 214, 26 P.3d 802 (2001), the Oregon Supreme Court explained that Article I, section 21, of the Oregon Constitution "prohibits the application of the types of laws that the framers of the Oregon Constitution understood to be prohibited by the Ex Post Facto Clause of the United States Constitution." That is to say, the framers of the Oregon Constitution intended the state ex post facto clause to apply to whatever laws were subject to the federal counterpart as of 1857. As of 1857, the federal ex post facto clause applied to four categories of laws, famously identified by Justice Chase in Calder v. Bull, 3 U.S. (3 Dall) 386, 390-91, 1 L.Ed. 648 (1798): "I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender. All these and similar laws are manifestly unjust and oppressive." In Fugate, the Oregon Supreme Court made clear that the framers of the Oregon Constitution would have understood Article I, section 21, of the state constitution to apply to each of the four categories described in Calder. Fugate, 332 Or. at 213, 26 P.3d 802. In State v. Dufort, 111 Or.App. 515, 827 P.2d 192 (1992), we addressed the specific issue whether an amendment extending retroactively a statute of limitations that applies to a crime falls under any of the categories of prohibited laws identified in Calder. We concluded that such an amendment does not offend the state or federal ex post facto prohibitions. We reasoned that an amendment to a statute of limitations — at least one that has not already expired — "does not punish acts that were legal at the time they occurred or impose greater punishment." Dufort, 111 Or.App. at 520, 827 P.2d 192. Moreover, we explained, such an amendment "does not alter the definition of the crime nor the amount or nature of the punishment." Id. at 521, 827 P.2d 192. Defendant acknowledges Dufort, but he insists that it was incorrectly decided. In particular, he argues, Dufort failed to address whether a retroactive extension of a statute of limitations amounts to a change in the rules of evidence to his disadvantage. According to defendant, "[u]nder the 1989 version of ORS 131.125, [defendant] could be charged and convicted only if the evidence showed that his offense occurred within three years of the date of the commission of the offense." Thus, he reasons, by extending the limitation period, the legislature changed the nature of the evidence required to convict him. Defendant is correct that our decision in Dufort did not specifically address whether a retroactive extension of an unexpired statute of limitations in a criminal proceeding amounts to an unconstitutional alteration of the rules of evidence within Calder's fourth category of ex post facto laws. But he is incorrect in arguing that the retroactive extension of an unexpired statute of limitation in fact is an impermissible alteration of the rules of evidence. *1206 At the outset, we note that the issue was anticipated by the Court in Calder itself. The Court explained that the federal ex post facto prohibition most likely arose from concerns that the Parliament of Great Britain had claimed the authority to enact a variety of laws and apply them retroactively. Among the categories of such laws, the Court continued, were those that altered "rules of evidence (to supply a deficiency of legal proof) by admitting one witness, when the existing law required two; by receiving evidence without oath; or the oath of the wife against the husband; or other testimony, which the courts of justice would not admit[.]" 3 U.S. at 389. Moreover, after setting out the now-familiar four categories of ex post facto laws, the Court explained that there is a difference between "retroactive" laws and ex post facto laws. Only the latter, he explained, are prohibited. Calder, 3 U.S. at 391. The Court then listed a number of enactments that, although clearly retroactive, nevertheless are not ex post facto laws, including "[e]very law that is to have an operation before the making thereof, as to commence an antecedent time; or to save time from [i.e., toll] the statute of limitations[.]" Id. Both statements fairly clearly suggest that retroactive alterations of an unexpired statute of limitations would not amount to a prohibited alteration of a "rule of evidence" within the meaning of the fourth Calder category. To be sure, the statements in Calder are dicta. But they are dicta with which the framers of the Oregon Constitution would have been familiar in 1857. Fugate, 332 Or. at 213 n. 6, 26 P.3d 802 ("What concerns us, however, is the fact that, as the Cookman court recognized, Calder * * * would have influenced what the framers of the Oregon Constitution understood by the prohibition against ex post facto laws."). The Court's dicta in Calder are consistent with the ordinary meaning of the term "rules of evidence," which in the nineteenth century — as now — generally referred to the rules of admissibility or sufficiency of evidence, that is, the rules that govern how particular issues are proved, not rules that concern which issues must be proved, such as the substantive elements of crimes or defenses. Compare, e.g., John Bouvier, A Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union (1839) (defining "evidence" as "that which is legally submitted to a jury to enable them to decide upon questions in dispute or issue"); Simon Greenleaf, A Treatise on the Law of Evidence 3 (1842) (defining "evidence" as "the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved") with, e.g., McCormick on Evidence § 1, 2 (John William Strong ed. 1992) ("The law of evidence is the system of rules and standards by which the admission of proof at the trial of a lawsuit is regulated."). The Oregon Supreme Court's more recent ex post facto cases are consistent with that understanding of the scope of the fourth Calder category. Thus, in Fugate, the court concluded that a statute expanding the extent to which evidence obtained in violation of statutes is admissible could not be applied retroactively. The court reasoned that the retroactive application of the statute clearly altered the rules of evidence in a manner that made conviction of defendants easier. 332 Or. at 213-14, 26 P.3d 802. Similarly, in State v. Guzek, 336 Or. 424, 86 P.3d 1106 (2004), the court held that the retroactive amendment of a statute altering the admissibility of "aggravating evidence" at a death-penalty sentencing hearing is an ex post facto law prohibited under Calder's fourth category. In both cases, the offending statutes concerned the retroactive alteration of the rules of admissibility of evidence only. Statutes of limitation are not "rules of evidence" in any ordinary sense. They do not govern admissibility or the means by which issues in contention may be proved or disproved. Instead, they are, as we noted in Dufort, "`matters of legislative grace; they are a surrendering by the sovereign of its right to prosecute.'" 111 Or.App. at 519, 827 P.2d 192 (quoting State v. Hodgson, 108 Wash.2d 662, 667, 740 P.2d 848, 851 (1987), cert. den., 485 U.S. 938, 108 S.Ct. 1117, 99 L.Ed.2d 277 (1988)); cf. Nichols v. Wilbur, 256 Or. 418, 419, 473 P.2d 1022 (1970) (noting, *1207 in the context of a civil case, that, because statutes of limitations "are merely an extension of the right to bring the action," legislatures have "`absolute power to amend the statute and alter the period of limitations'") (quoting Davis & McMillan v. Industrial Accident Commission, 198 Cal 631, 636, 246 P. 1046 (1926)). Because statutes of limitations are not rules of evidence, retroactive amendments to them in criminal cases do not amount to ex post facto laws prohibited under Calder's fourth category, at least as Calder would have been understood by the framers of the Oregon Constitution. Dufort, therefore, remains a correct statement of the meaning and scope of Article I, section 21. Although, strictly speaking, it does not bear on our analysis of the intended meaning of Article I, section 21, it is perhaps worth noting in passing that the foregoing conclusion is consistent with the decisions of courts in most other jurisdictions that have addressed the issue. See, e.g., State v. Creekpaum, 753 P.2d 1139, 1144 (Alaska 1988) ("[T]he extension of the statute of limitations for the offense * * * before the original period of limitations had expired, does not violate the federal or the Alaska Constitution."); People v. Holland, 708 P.2d 119, 120 (Colo.1985) ("[T]he legislature may extend the statute of limitations for prosecutions not already time-barred as of the effective date of the extension[.]"); State v. Schultzen, 522 N.W.2d 833, 834-35 (Iowa 1994) (same); State v. Nunn, 244 Kan. 207, 217, 768 P.2d 268, 277 (1989) (same); Commonwealth v. Bargeron, 402 Mass. 589, 591, 524 N.E.2d 829, 830 (1988) (same); Christmas v. State, 700 So.2d 262, 267-68 (Miss.1997) (same); State v. Thill, 468 N.W.2d 643, 647 n. 8 (N.D.1991) (same); State v. Johnson, 158 Vt. 344, 346, 612 A.2d 1114, 1115-16 (1992) (same); Hodgson, 108 Wash.2d at 666, 740 P.2d at 851 (same); see also Comment, A Legislative Miracle: Revival Prosecutions and the Ex Post Facto Clauses, 50 Emory LJ 397, 406 (2001) (statement that "the decided weight of precedent counsels that the mere extension of a criminal statute of limitations does not constitute a violation of the Ex Post Facto Clauses" is "very close to black-letter law"). The rationale of most of the cited cases is that an unexpired statute of limitations is at best an inchoate, tentative defense that affects none of a defendant's "substantive" rights. In contrast, nearly all of the cases — including Cookman, 324 Or. at 32, 920 P.2d 1086 — conclude that the retroactive extension of an expired statute of limitations does amount to an impermissible ex post facto law because, once the statute of limitations has expired, the defendant has a complete defense to the prosecution. Laws that retroactively deprive a defendant of such a complete defense fall within the second of Calder's four categories of ex post facto laws. In none of the cases is there a suggestion that an alteration of an unexpired statute of limitations is an amendment to a "rule of evidence." b. Federal ex post facto analysis We turn to the question whether the retroactive extension of an unexpired statute of limitations in a criminal case nevertheless violates the federal ex post facto prohibition, even if it does not violate Article I, section 21, of the Oregon Constitution. Analysis of the federal ex post facto prohibition also focuses primarily on the meaning and significance of the four categories of ex post facto laws that the Court identified in Calder. The principal distinction between the state and federal analyses — at least for our purposes — is that the state analysis is confined to the law as the framers of the Oregon Constitution would have understood it in 1857, while the federal analysis includes consideration of federal case law developments after that time. Fugate, 332 Or. at 213-14, 26 P.3d 802. The scope of the fourth Calder category has not always been clear under the federal cases. For a while, it seemed that the United States Supreme Court had even abandoned the category altogether, describing Calder in terms of only the first two or three of the Court's listed laws. See, e.g., Collins v. Youngblood, 497 U.S. 37, 43, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) ("Legislatures may not retroactively alter the definition of *1208 crimes or increase the punishment for criminal acts."); Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 70 L.Ed. 216 (1925) ("[A]ny statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto."). In Carmell v. Texas, 529 U.S. 513, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000), however, the Court unambiguously revived the fourth category and reinstated the original four Calder categories as the definitive statement of the scope of the federal ex post facto clause. In Carmell, the Texas legislature amended retroactively a statute that previously had required corroboration of the testimony of a victim of sexual abuse; under the new law, the victim's testimony alone sufficed. The defendant challenged the retroactive application of the law on the ground that it fell within Calder's fourth category of laws that alter rules of evidence in ways that permit conviction on less evidence. The court reviewed Calder and its historical underpinnings in some detail and, on the basis of that history, concluded that, for a retroactive alteration of a "rule of evidence" to offend the ex post facto prohibition, the evidentiary change must be one that alters the sufficiency-of-evidence standard or otherwise "reduces the quantum of evidence necessary to meet the burden of proof" to convict. Carmell, 529 U.S. at 532-33, 120 S.Ct. 1620. That is a more limited reading of the scope of Calder's fourth category than the Oregon Supreme Court has given the ex post facto clause of Article I, section 21, of the Oregon Constitution. See State v. Acremant, 338 Or. 302, ___, ___ P.3d ___ (2005) ("Despite that shared acceptance of Calder, however, this court has interpreted the Oregon Constitution as prohibiting a broader range of evidentiary changes than the United States Supreme Court has delineated for purposes of the United States Constitution."). The retroactive extension of an unexpired statute of limitations in a criminal case does not alter the sufficiency-of-evidence standard. Nor does it alter the "quantum of evidence" necessary to convict. It necessarily follows that such a law does not constitute a prohibited "rule of evidence" within the meaning of Calder's fourth category of ex post facto laws as a matter of federal constitutional law. To be sure, it is conceivable that the retroactive extension of an expired statute of limitations could be characterized as an impermissible alteration of the quantum of evidence necessary to convict, in the sense that — once the statute of limitations has expired — the quantum of evidence that otherwise would suffice would no longer. The United States Supreme Court alluded to that possibility in Stogner v. California, 539 U.S. 607, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003), in which the Court invalidated a California statute that retroactively revived an expired prosecution. The Court concluded that, once the statute of limitations expired, the defendant obtained a complete defense, which the legislative revival of the prosecution eliminated. Thus, the Court concluded, the California law ran afoul of the second Calder category of ex post facto laws because it retroactively eliminated a defense to the crime. 539 U.S. at 612-15, 123 S.Ct. 2446. The Court noted that, although it is clear that the law fell within the second Calder category, the same law "may well" fall within the fourth category as well. The Court speculated that it could be asserted that "to resurrect a prosecution after the relevant statute of limitations has expired is to eliminate a currently existing conclusive presumption forbidding prosecution." Id. at 616, 123 S.Ct. 2446. The Court, however, expressly declined to explore the matter further. Moreover, in its discussion of the possible relevance of the fourth Calder category, the Court emphasized that it was referring only to retroactive revival of expired prosecutions. Id. Indeed, the Court went to some lengths to distinguish its holding from the long line of lower court cases upholding the validity of retroactive extensions of unexpired statutes of limitations. Id. at 618-19, 123 S.Ct. 2446. *1209 This case, as we have noted, involves the retroactive extension of an unexpired statute of limitations. Such legislation does not fall with in any of Calder's four categories of prohibited ex post facto laws, as a matter of either state or federal constitutional law. 2. Violation of ORS 131.125(2)(k) Defendant argues that, if it is constitutionally permissible to apply ORS 131.125(2)(k) to him retroactively, the indictment should have been dismissed because it is time-barred even under the new statute of limitations. According to defendant, the referral of the victim to CARES for evaluation in 1989 constituted a "report" of sexual abuse within the meaning of the statute. As a result, he concludes, the prosecution that occurred in 2000 violated the statute, which requires prosecutions to commence within six years after the offense was reported to a law enforcement agency or other governmental agency. The state argues that, under our decision in State v. Hutchison, 176 Or.App. 363, 31 P.3d 1123 (2001), an offense is not "reported" until the facts pertaining to the commission of the offense itself are communicated to a law enforcement or other governmental agency. That, the state argues, did not occur until September 2000, only one month before the grand jury returned the indictment. We agree with the state. In Hutchison, we held that, under ORS 131.125(2), "the statute of limitations begins to run as to each separate offense when the facts of each separate offense have been reported." 176 Or.App. at 369, 31 P.3d 1123. An offense is "reported," we explained, when there has been "actual communication of the facts that form the basis for the particular offense reported." Id. at 368, 31 P.3d 1123. In this case, the victim reported no facts to a law enforcement or other governmental agency in 1989 other than that she was not sexually abused. Under Hutchison, that is not the sort of "report" that triggers the statute of limitations in ORS 131.125(2). The victim did make such a report in September 2000. The indictment, which issued only a month later, was not time-barred. Defendant acknowledges that the prosecution was timely commenced under Hutchison, but argues that Hutchison was wrongly decided. Defendant offers no support for his argument in that regard other than the conclusion itself. We reject his argument without further discussion and conclude that the trial court did not err in denying his motion to dismiss on statute of limitations grounds. B. Exclusion of evidence of bias Defendant next assigns error to the exclusion of what he broadly characterizes as "evidence regarding the motivation of the witness to fabricate the charges." He argues that he was unlawfully denied the opportunity to demonstrate that he did not kill Kristina Hornych and that "Kevin and/or Sylvia Hornych were the true perpetrators of the offense." He argues that such evidence was critical to his defense that CS's report of sexual assault had been fabricated. The state responds that defendant's argument on appeal strays well beyond the narrow issue that was preserved at trial. According to the state, the only ruling before us is the court's decision not to permit questioning as to the location of a bottle of rubbing alcohol and an elastic bandage. The state contends that the trial court was never called upon to make a broader ruling as to the admissibility of other evidence as to who killed Kristina Hornych. As for the actual ruling on the admissibility of the bottle and the bandage, the state contends that the court's determination — that the costs of essentially retrying the murder case far outweighed the marginal relevance of the evidence — was not an abuse of discretion. We agree with the state. To begin with, the only ruling to which defendant has assigned error is the decision to exclude evidence as to the location of a bottle of alcohol and an elastic bandage. Defendant's attempt to broaden the scope of the ruling by reference to an offer of proof produced after trial is unavailing. See Rudie Wilhelm W'house v. Royal Ind., 271 Or. 701, 704, 533 P.2d 1368 (1975) (an offer of proof submitted after the evidence has been completed is untimely). *1210 We turn to the ruling itself. The trial court concluded that the location of the bottle and the bandage was not relevant to any issue in the case. In the alternative, the court concluded that, any marginal relevance the evidence might have was clearly outweighed by the costs of, in effect, retrying the murder case. Defendant insists that the location of the bottle and the bandage bear on his innocence of the murder, and, thus, inferentially, the victim's parents' culpability for the same murder, and — as a result — the victim's motivation to fabricate her report of sexual abuse. According to defendant, the bandage belonged to Kevin Hornych and was saturated in blood, but it was never examined to determine whether it was on Kevin's wrist at the time of saturation. Defendant reasons that the bandage could have been on Kevin's wrist at the time of the murder, which would establish Kevin's culpability, which in turn would establish a motive for CS, who was Kevin's wife's daughter, to fabricate her accusations against defendant. We review the court's relevance determination as a matter of law. In reviewing the court's ruling, we are mindful that "[r]easonable inferences are permissible." State v. Bivins, 191 Or.App. 460, 467, 83 P.3d 379 (2004). Speculation, however, is not. Id. In this case, defendant's string of inferences from the location of the bottle and the bandage is simply too strained to support his conclusion that the victim fabricated her testimony. The trial court did not err in concluding that the evidence was not relevant. In any event, the trial court's alternative ruling — that any relevance of the excluded testimony was so marginal as to be outweighed by the costs of, in effect, retrying the murder case — was not an abuse of discretion. State v. Cunningham, 337 Or. 528, 536, 99 P.3d 271 (2004), cert. den., ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ WL 637787 (Mar 21, 2005) ("[T]he question whether relevant evidence should be excluded under OEC 403 because its probative value is substantially outweighed by the danger of unfair prejudice or other factors is reserved to the trial court's discretion."). C. Denial of motions in arrest of judgment In his final assignment of error, defendant asserts that the trial court erred in denying his motion in arrest of judgment, made on the ground that the facts stated in the indictment did not constitute an offense. The key, defendant argues, is that the indictment did not allege that he committed sexual abuse on a particular date. Defendant notes that the indictment alleged only that he committed the sexual abuse some time between February 1, 1987 and July 14, 1989. He argues that, because the Board of Parole amended its rules on July 1, 1988, so as to increase the maximum permitted board-established prison term of an indeterminate sentence, if his conduct occurred on or before July 1, 1988, his maximum possible prison term would be three to six months shorter than if the conduct occurred after July 1, 1988. Defendant reasons that, because a fact increasing the punishment is an element of the offense, the omission of the date from the indictment amounts to an omission of an element of the offense. As a result, he concludes, the indictment failed to give him adequate notice of the offense, thereby violating both state and federal due process, as well as his right to a jury trial under Article I, section 11, of the Oregon Constitution, the Sixth and Fourteenth Amendments to the United States Constitution, see Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and the right to an indictment by a grand jury in Article VII (Amended) of the Oregon Constitution. We emphasize that defendant does not challenge his indeterminate maximum sentence itself. Rather, defendant argues that, because the indictment omitted what he regards as an element of the offense, it was fatally defective. We reject that contention. Initially we note that, although the described rule permitted the board to change the actual prison time served by a few months, the board was not authorized to increase the indeterminate maximum sentence beyond the statutorily prescribed maximum sentence of 10 years' imprisonment for *1211 the Class B felony of sexual abuse in the first degree. ORS 161.605(2). The board's action setting the prison term is simply not a part of the sentence imposed by the court. Thus, the exact date of the offense with which defendant was charged was not a fact that would increase his punishment beyond the statutorily prescribed maximum. We therefore reject defendant's contention that the exact date of the offense was an element of the offense that must have been pleaded and proved beyond a reasonable doubt. Defendant advances other arguments in support of his various assignments of error. We reject them without discussion. Affirmed.

910 F.2d 1309 UNITED STATES of America, Plaintiff-Appellee,v.Paul R. EDGECOMB (88-3853) and Gordon R. Edgecomb (88-3943),Defendants-Appellants. Nos. 88-3853, 88-3943. United States Court of Appeals,Sixth Circuit. Argued June 4, 1990.Decided Aug. 8, 1990.Rehearing Denied Sept. 18, 1990. Linda M. Betzer, argued, Office of the U.S. Atty., Cleveland, Ohio, for plaintiff-appellee. Rick Drake, argued, Chagrin Falls, Ohio, for Paul R. Edgecomb. Randy D. Briggs, argued, Akron, Ohio, for Gordon R. Edgecomb. Before JONES and RYAN, Circuit Judges, and PECK, Senior Circuit Judge. NATHANIEL R. JONES, Circuit Judge. 1 Defendants Paul R. Edgecomb ("Paul") and Gordon R. Edgecomb ("Gordon") appeal their sentences resulting from their guilty pleas to conspiracy to possess cocaine with intent to distribute. For the following reasons, we affirm in part and remand in part. I. 2 On January 11, 1988, Gordon was indicted on three counts of possession with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) (1988) and one count of conpiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 846. On April 6, 1988, a superseding indictment was filed with additional counts and a conspiracy date of "on or about January, 1987, to on or about December 11, 1987 ..." J.App. (88-3943) at 13. On May 31, 1988, Gordon pled guilty to count one of the superseding indictment, which charged him with conspiracy. On August 19, 1988, the United States District Court for the Northern District of Ohio, Judge Alvin Krenzler presiding, sentenced Gordon to 151 months imprisonment. 3 On February 9, 1988, Paul, who is Gordon's brother, was indicted for possession of cocaine with intent to distribute. On April 6, 1988, Paul was indicted as a part of the superseding indictment. On May 31, 1988, Paul pled guilty to the conspiracy count of the indictment. Under the plea agreement, plaintiff-appellee United States of America ("the government") agreed to make a binding recommendation that any sentence imposed not exceed 151 months. J. App. (88-3853) at 31. On August 16, 1988, the court sentenced Paul to 136 months imprisonment. II. 4 Both Paul and Gordon pled guilty to the conspiracy count in the indictment, which specified overt acts of possession of cocaine with intent to distribute from January 1987 to December 11, 1987. The Sentencing Reform Act of 1984 provided that the Sentencing Guidelines shall not go into effect until November 1, 1987. Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, ch. II, Sec. 235(a)(1), 98 Stat. 2031 (1984), amended by Sentencing Reform Act Amendments Acts of 1985, Pub.L. No. 99-217, Sec. 4, 99 Stat. 1728 (1985), and Criminal Law and Procedure Technical Amendments Act of 1986, Pub.L. No. 99-646, Sec. 35, 100 Stat. 3599 (1986). In 1987, Congress further amended the Act, adding that the Act, "shall apply only to offenses committed after" the November 1, 1987 effective date. Sentencing Act of 1987, Pub.L. No. 100-182, Sec. 2(a), 101 Stat. 1266 (1987), codified at 18 U.S.C. Sec. 3351 note. The language of the Act is unclear as to whether the Guidelines apply to crimes such as conspiracy, the commission of which began before November 1, 1987 and ended after that date (hereinafter referred to as "straddle" crimes). The district court ruled that the Sentencing Guidelines were applicable to Gordon because the conspiracy ended after the November 1, 1987 effective date. This court reviews de novo the applicability of the Sentencing Guidelines. United States v. Gray, 876 F.2d 1411, 1418 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2168, 109 L.Ed.2d 497 (1990). 5 On appeal Gordon contends that (1) the conspiracy to which he pled guilty ended prior to November 1, 1987, and (2) even if it did continue beyond the effective date, the Sentencing Guidelines are not applicable.1 Gordon's first argument is that his conspiracy ended prior to November 1, 1987. Specifically, Gordon notes that the agreement to commit the conspiracy was formulated on or about January 1987. Thus, he contends that the conspiracy took place before November 1, 1987. Moreover, Gordon maintains that he told the court at the sentencing hearing that he was involved in a conspiracy up until October 1987, but not afterward. Most important, Gordon contends that he authorized his attorney to contact the government in order to discuss the possibility of a plea bargain and related cooperation with the government, therefore effectively withdrawing from the conspiracy. According to Gordon, his attorney first made contact with the U.S. Attorney in October 1987. 6 While the Sixth Circuit has not yet addressed the issue of the applicability of the Guidelines to straddle crimes,2 several other circuits have. Each of these circuits has ruled that the Guidelines apply to conspiracies which began prior to the effective date and terminated after that date. See United States v. Story, 891 F.2d 988, 994-95 (2d Cir.1989) (legislative history reveals an intent to apply the Guidelines to straddle cases; such an application does not violate the Ex Post Facto Clause unless the post-Guidelines sentence was greater than any possible pre-Guidelines sentence); United States v. Rosa, 891 F.2d 1063, 1069 (3d Cir.1989) (Guidelines applicable where conspiracy straddled effective date; court rejected argument that defendant withdrew from the conspiracy); United States v. Lee, 886 F.2d 998, 1003 (8th Cir.1989) (Guidelines applicable to straddle cases), cert. denied, --- U.S. ----, 110 S.Ct. 748, 107 L.Ed.2d 765 (1990); Gray, 876 F.2d 1411 (9th Cir.1989) (same). Thus, in the instant case, so long as there is a showing that Gordon's participation in the conspiracy continued beyond November 1, 1987, the district court was correct in applying the Guidelines to Gordon's case; for the Guidelines sentence is not greater than the pre-Guidelines penalty (ten years to life imprisonment). 7 The indictment recounted specific overt acts committed in the furtherance of the conspiracy in November and December 1987, and the Assistant U.S. Attorney read some of these acts into the record at the plea hearing, including evidence that Gordon brought one kilogram of cocaine from Florida to Ohio in November and was arrested when he attempted to sell the cocaine on December 11, 1987. J.App. (88-3943) at 123. Gordon's contention that the agreement ended before November 1, 1987 is not persuasive. Conspiracy is a continuing crime which is not completed at the conclusion of the agreement. See United States v. Baresh, 790 F.2d 392, 404 (5th Cir.1986). In addition, Gordon's contention that he pled guilty to a conspiracy only before November 1, 1987 is belied by the record. The plea agreement specifically provided that Gordon plead guilty to count one of the indictment, which stated that the conspiracy continued until December 11, 1987, the date of arrest. If Gordon disagreed with the dates of the conspiracy, he should have attempted to negotiate a change in the plea agreement. Finally, any direction by Gordon to his counsel to negotiate with the government did not constitute a withdrawal from the conspiracy. To prove a withdrawal from a conspiracy, "a conspirator must show he acted affirmatively to defeat or disavow the purpose of the conspiracy." United States v. Nicoll, 664 F.2d 1308, 1315 n. 6 (5th Cir.), cert. denied, 457 U.S. 1118, 102 S.Ct. 2929, 73 L.Ed.2d 1330 (1982). If Gordon had withdrawn from the conspiracy, he would not have continued to deal cocaine. Thus, we believe that it is clear that Gordon's participation in the conspiracy continued beyond November 1, 1987, subjecting the crime to application of the Sentencing Guidelines. 8 Gordon's second argument is that even if he did not withdraw from the conspiracy, the government should be estopped from applying the Sentencing Guidelines because the government misled him into committing further criminal acts. Gordon contends that the government informed his attorney that it was interested in his cooperation and the U.S. Attorney knew or should have known that Gordon had to continue his criminal conduct to stay in a position to cooperate with the authorities. According to Gordon, his attorney met with Assistant U.S. Attorney Linda Betzer on several occasions in October and November of 1987. Betzer first indicated that she was interested in Gordon's cooperation, but would have to check with other law enforcement agencies. During contacts in November, Betzer wanted additional information about the people against whom Gordon could testify. Gordon claims that when questioned in November, Betzer specifically denied to Gordon's attorney that Gordon was under a current investigation, even though there was an investigation at that time. Gordon maintains that if he had immediately ceased his drug-related activities and walked away from the illegal business, then his sellers and buyers would have become suspicious, reducing his ability to cooperate to zero. He contends that his activity after November 1, 1987 was solely to keep a "hot" profile on the streets so that others would be more willing to deal with him when he was later cooperating with the federal agents. The government specifically denies entering into any type of a deal or agreement with Gordon or inducing Gordon to commit further criminal acts. 9 While there is no direct case law on Gordon's claim, he cites United States v. Robinson, 763 F.2d 778, 785 (6th Cir.1985), which set forth four factors to be used in determining whether police conduct was so outrageous as to violate due process: "the need for the type of police conduct, the impetus for the scheme, the control of the government exerted over the criminal enterprise, and the impact of the police activity on the commission of the enterprise." In Robinson, the court concluded that the role of the undercover government agent in the conspiracy did not constitute outrageous conduct because he did not initiate the discussions of the criminal activity and merely followed the conspirators instructions. In the instant case, the district court made no specific findings of fact concerning the government's actions. At the sentencing hearing, the court denied Gordon's renewed motion for the court not to apply the Sentencing Guidelines, but it did not set forth its reasons for doing so. Whether the government "induced" Gordon to commit further criminal activity is a factual issue which must be resolved by the district court. As such, we conclude that a remand for a factual finding as to this issue would be appropriate. III. 10 Gordon makes several other arguments concerning the validity of his sentence, the first of which is joined by Paul. A. 11 Both Gordon and Paul argue that the district court did not adequately explain the term "conspiracy" to them. Under Fed.R.Crim.P. 11(c), the district court must inquire as to whether the defendant understands the nature of the charge against him. In United States v. Van Buren, 804 F.2d 888, 892 (6th Cir.1986), the court noted that "[w]here the crime is easily understood, several courts have held that a reading of the indictment, or even a summary of the charges in the indictment and an admission by the defendant, is sufficient to establish a factual basis under Rule 11." Nevertheless, in the Van Buren case itself, the court ruled that "[t]he charge of utilizing a communication facility to further a conspiracy or in the commission of a conspiracy is a complex charge that a lay person would not easily understand.... Because the charge of the indictment is complex and the Court failed to determine that defendant understood it, the reading of the indictment and defendant's response that he had no further questions do not establish a factual basis for the plea." Id. 12 In the instant case, the court recited the count of the indictment and asked both Gordon and Paul if they understood the charge against them and if they discussed the charge with their attorneys. In addition, the government read the facts constituting the conspiracy. Gordon and Paul argue that conspiracy is not a simple term, particularly here where Gordon denies committing the overt acts after October 1987. However, the record does not reflect any statement by either Gordon or his counsel at the Rule 11 proceeding denying the commission of overt acts after October 1987. As such, we believe that the conspiracy involved here, as read into the record by Assistant U.S. Attorney Betzer at the hearing, is simple enough for a lay person to understand, in contrast to the "use of a communication facility for the furtherance of a conspiracy" charge in Van Buren. Therefore, we do not find a Rule 11 violation. B. 13 Next, Gordon argues that the trial court failed to make findings of fact under Fed.R.Crim.P. 32. Section 6A1.3 of the Guidelines specifies that "[t]he court shall resolve disputed sentencing factors in accordance with Rule 32(a)(1) ... notify the parties of its tentative findings and provide a reasonable opportunity for the submission of oral or written objections before imposition of sentence." Rule 32(a)(1) requires that the court provide a copy of the Presentence Report (PSR) prior to the sentencing hearing and allow the defendant's counsel to comment on the PSR at the hearing. Rule 32(c)(3)(D) provides that if there is any allegation of a factual inaccuracy, the court must make a written factual finding or a determination that such a finding is not necessary. If a district court fails to make a factual finding, this court must remand for resentencing. United States v. Manni, 810 F.2d 80, 83 (6th Cir.1987). 14 In the instant case, the Probation Department filed its PSR; subsequently, Gordon filed objections to the report. The probation officer then included these objections in the PSR under a section entitled "UNRESOLVED OBJECTIONS." At the sentencing hearing of August 19, 1988, the court asked Gordon's attorney if he was satisfied with the report as it was, and his attorney answered affirmatively; earlier, he stated to the court that he had no additions or deletions to the PSR. J.App. (88-3943) at 141, 152. The government maintains that the failure to object mollifies any concern with Rule 32. Gordon argues that his lawyer did not question the accuracy of the PSR at the hearing because a portion of the PSR already included his objections. Upon review of the transcript, we find that since the objections were clearly in the PSR, the district court had an obligation to make specific findings of fact. Thus, we remand for factual findings and resentencing. C. 15 Gordon next argues that the government violated the plea agreement in two ways: by making a recommendation for a sentence and by failing to disclose Gordon's cooperation to the court. "What the parties agreed to [in a plea agreement] is a question of fact" subject to the clearly erroneous standard. Baker v. United States, 781 F.2d 85, 90 (6th Cir.), cert. denied, 479 U.S. 1017, 107 S.Ct. 667, 93 L.Ed.2d 719 (1986). The plea agreement provided that the government "will not make a recommendation [with] regards to sentencing" and that the government "advise any Court or prosecutor of the extent of [Gordon's] cooperation ..." J.App. (88-3943) at 53-54. First, Gordon argues that the government recommended a sentence in violation of the plea agreement. At the plea acceptance hearing, the court asked about the Sentencing Guidelines as applied to Gordon. Assistant U.S. Attorney Betzer replied that Gordon is pleading with no sentencing recommendation attached, but she went ahead to explain that the government's computation of a base offense level of 36 resulted in a sentencing range of 188 to 235 months. She then noted that Gordon would likely object to the offense level. Id. at 131. Second, Gordon argues that the government did not mention his cooperation, despite the requirement of the plea agreement. Specifically, Gordon contends that Ms. Betzer referred to Gordon's assistance with two names, even though he actually supplied four names. 16 "When a promise by the prosecutor induces a defendant to plead guilty[,] that promise must be fulfilled." United States v. Holman, 728 F.2d 809, 813 (6th Cir.), cert. denied, 469 U.S. 983, 105 S.Ct. 388, 83 L.Ed.2d 323 (1984). With regard to the promise not to recommend a sentence, we do not believe that the prosecutor violated the plea agreement. She noted the calculations under the Guidelines and stated to the court that such calculations would be the subject of disagreement. The second alleged breach--the alleged failure of the government to detail Gordon's cooperation--is a matter appropriate for remand. It is not clear from the record the extent to which Gordon cooperated with the government and the detailing of any such cooperation by the Assistant U.S. Attorney. Since the failure to note the cooperation of Gordon was an objection to the sentencing report under the heading of "acceptance of responsibility," we believe that this issue should be remanded to the district court for a factual finding. IV. 17 Paul makes several arguments which apply only to his conviction. A. 18 Paul claims that there was a thirty-two day period between his return to Cleveland and his indictment, which violates the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq. Under the Speedy Trial Act, the indictment must be filed within thirty days of the arrest; and if no indictment is filed, the charge is dismissed. 18 U.S.C. Sec. 3161(b); Sec. 3162. However, the periods of delay "resulting from any proceeding relating to the transfer of a case or the removal of any defendant from another district under the Federal Rules of Criminal Procedure ..." are not included in the calculation of the thirty-day period. 18 U.S.C. Sec. 3161(h)(1)(G). In addition, section 3161(h)(1)(H) gives the United States Marshal ten days to transport the defendant pursuant to the removal order. 19 Paul was arrested in Florida on December 11, 1987 pursuant to an arrest warrant issued in the Northern District of Ohio. On December 16, 1987, Paul appeared before a magistrate in the Southern District of Florida and waived removal. The Warrant of Removal was filed in Cleveland on December 28, 1987. On January 8, 1988, the magistrate in the Northern District of Ohio set an initial appearance for January 13, 1988. The government argues that the proper computation under the Speedy Trial Act gives the U.S. Marshal ten days to get from Florida to Ohio. Excluding Saturdays, Sundays and holidays, as required under Fed.R.Crim.P. 45(a) for any time limits less than eleven days, this ten-day time period ended on January 12, 1988. Since the indictment was filed February 9, 1987, twenty-nine days after return, the government contends that there is no violation of the Speedy Trial Act. Paul contends that the warrant of removal was signed on December 16, 1987, even though it was not docketed in Cleveland until December 28, 1987. Thus, Paul contends that the ten-day period starting on December 16, 1987 ends on December 31, 1987, which is more than thirty days prior to the filing of the indictment. 20 In United States v. Hernandez, 863 F.2d 239 (2d Cir.1988), the Second Circuit confronted a similar situation. The court held that a forty-eight day delay between the arrest and the indictment did not violate the Speedy Trial Act. Specifically, the court noted that the period between the arrest in Nevada and the initial appearance in Vermont constitutes excludable time under both sections 3161(h)(1)(G) and (H). The court relied heavily on the Guidelines for the Speedy Trial Act, which were the subject of favorable comment by the Senate Judiciary Committee when the Speedy Trial Act was amended. The Guidelines note that "the time between the defendant's arrest in another district on a complaint from this district and his appearance (or arrival) in this district is excluded from the arrest-indictment or information interval.... [However,] the period of delay found by the court to be unreasonable shall not be excluded." Id. at 242. Thus, we conclude that the period between December 11, 1987 (arrest) and January 13, 1988 (Paul's initial appearance) is excludable from the Speedy Trial Act computations. Since there are less than thirty days between January 13 and February 9, we find that there was no Speedy Trial Act violation. B. 21 Next, Paul argues that his sentence violated his plea agreement. Specifically, he contends that his plea agreement promised a 120 month sentence and he was sentenced to 136 months. This argument is meritless. The plea agreement states that the government will make a binding recommendation to the sentencing court that the sentence not exceed 151 months. J.App. (88-3853) at 31. A sentence of 136 months does not exceed this amount. C. 22 Finally, Paul argues that he was denied his right to speak before sentencing because the trial judge did not issue "a personal invitation to speak prior to sentencing." Green v. United States, 365 U.S. 301, 305, 81 S.Ct. 653, 655, 5 L.Ed.2d 670 (1961). Fed.R.Crim.P. 32(a)(1)(C) provides that before sentencing, the court shall "address the defendant personally and determine if the defendant wishes to make a statement and to present any information in mitigation of the sentence." In United States v. Thomas, 875 F.2d 559, 563 (6th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 189, 107 L.Ed.2d 144 (1990), this court held that "the district court must personally and unambiguously invite the defendant to speak in his own behalf." (emphasis in original). 23 The district court's Judgment of Conviction and Sentencing Order of Paul R. Edgecomb states that, "The court then provided counsel for the defendant and the defendant himself with the opportunity to make a statement in the defendant's behalf and to present any information in mitigation of punishment." J.App. (88-3853) at 37. Upon review of the transcript of the August 15, 1988 sentencing hearing, we find that the district court did not "personally and unambiguously invite" Paul to speak on his behalf. Instead, Paul only spoke in response to direct questions of the court. However, specific questions from the court concerning aspects of the PSR are not adequate to satisfy the requirements of Rule 32(a)(1)(C). V. 24 For the foregoing reasons, we VACATE and REMAND Gordon Edgecomb's sentence for (1) a determination of whether there was outrageous police conduct which would render the Guidelines inapplicable, (2) specific factual findings on the objections to the PSR, and (3) a finding of whether the prosecutor adequately informed the court of Gordon's cooperation; and VACATE and REMAND Paul Edgecomb's sentence for an opportunity to speak during resentencing. 1 Paul filed a supplemental appellate brief in which he essentially repeated some of Gordon's arguments concerning this issue. Even though Paul did not raise this issue below, we shall review his arguments since an issue of statutory construction with potential constitutional implications is involved 2 At the time this opinion was circulating prior to publication, an opinion by Judge Kennedy was circulating which also addresses the issue of "staddle crimes." See, United States v. Walton, 908 F.2d 1289 (6th Cir.1990)