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82 Cal.Rptr.2d 723 (1999) 70 Cal.App.4th 463 The PEOPLE, Plaintiff and Respondent, v. Trell James MERCER, Jr., Defendant and Appellant. No. E021569. Court of Appeal, Fourth District, Division Two. March 1, 1999. *724 Pearl Gondrella Mann, under appointment by the Court of Appeal, Orange, for Defendant and Appellant. Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Robert M. Foster, Supervising Deputy Attorney General, and Bradley A. Weinreb, Deputy Attorney General, for Plaintiff and Respondent. Certified for Partial Publication.[*] OPINION WARD, J. Defendant Trell James Mercer, Jr., appeals from his commitment to Atascadero State Hospital following a jury finding that he was a sexually violent predator within the meaning of the Sexually Violent Predator Act (SVP Act) (Welf. & InstCode, § 6600 et seq.) On appeal, defendant contends the evidence was insufficient to establish that he was a sexually violent predator likely to reoffend if released. He also contends the SVP Act denied him equal protection of the law because it treats offenders differently than they are treated under other civil commitment schemes. In a supplemental brief, defendant contends the prosecution failed to meet its burden of establishing the reliability of the protocol and techniques its expert witnesses had used to predict he was likely to reoffend. We find no error, and we affirm. FACTS AND PROCEDURAL BACKGROUND[**] ANALYSIS I. The Evidence Was Sufficient to Support the Jury's Finding Defendant contends the evidence was insufficient to establish that he was a sexually violent predator likely to reoffend if he was released. *725 A. Standard of Review No court has yet articulated the standard for considering the sufficiency of the evidence to support a commitment under section 6600. However, in the context of commitments under the Mentally Disordered Offender Law (MDO Law) (Pen.Code, § 2960 et seq.), courts apply the same test as for reviewing the sufficiency of the evidence to support a criminal conviction. (See People v. Martin (1980) 107 Cal.App.3d 714, 719, 165 Cal.Rptr. 773.) Similarly, in the context of extended commitments under Penal Code section 1026.5 for defendants acquitted by reason of insanity, courts apply the same test. (See People v. Overly (1985) 171 Cal. App.3d 203, 207, 216 Cal.Rptr. 924.) Because those classes of offenders are so similar, we conclude the same standard should apply in proceedings under the SVP Act. Thus, this court must review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination below. (People v. Johnson (1980) 26 Cal.3d 557, 576-578, 162 Cal.Rptr. 431, 606 P.2d 738.) To be substantial, the evidence must be "`of ponderable legal significance ... reasonable in nature, credible and of solid value.'" (Id. at p. 576, 162 Cal.Rptr. 431, 606 P.2d 738.) B. The Evidence Was Sufficient to Establish That Defendant Was a Sexually Violent Predator To establish that defendant was a sexually violent predator, the People were required to prove that (1) defendant had been convicted of two separate sexually violent offenses; (2) he had received a determinate term; (3) he had a diagnosable mental disorder; and (4) his disorder made it likely he would engage in sexually violent conduct if released. The parties stipulated to the first two elements. With respect to the third and fourth elements, defendant argues that the expert witnesses were unable to agree on what mental disorder he suffered from, and there was no evidence he lacked the ability to control his sexually violent behavior. With respect to the mental disorder diagnosis, all three psychologists testified that defendant had pedophilia. The two prosecution experts agreed he suffered from a personality disorder with schizoid features; however, the defense expert testified that defendant tested low in that area, but exhibited histrionic and narcissistic characteristics. None of the experts discussed the degree or severity of the diagnoses. With respect to defendant's volitional control, the two prosecution experts testified defendant could not control his sexually violent behavior. However, the defense expert testified there was no evidence of an inability to control behavior. The credibility of the experts and their conclusions were matters resolved against defendant by the jury. We are not free to reweigh or reinterpret the evidence. (People v.. Perry (1972) 7 Cal.3d 756, 785, fn. 17, 103 Cal.Rptr. 161, 499 P.2d 129.) Moreover, we must draw all reasonable inferences in favor of the judgment. (People v. McCleod (1997) 55 Cal.App.4th 1205,1220-1221, 64 Cal.Rptr.2d 545.) Here, the jury could reasonably believe the evidence of the prosecution witnesses and reject that of the defense witness. We therefore conclude that sufficient evidence existed from which a rational fact-finder could determine that defendant could not control his sexually violent behavior and would likely reoffend if released. II.-III.[***] DISPOSITION The judgment is affirmed. HOLLENHORST, Acting P.J., and GAUT, J., concur. NOTES [*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of the Facts and Procedural Background, part II, and part III. [**] See footnote *, ante. [***] See footnote *, ante.

980 F.2d 739 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Trent Lee DAVIS, Defendant-Appellant. No. 92-30202. United States Court of Appeals, Ninth Circuit. Submitted Nov. 23, 1992.*Decided Dec. 1, 1992. Before SCHROEDER, FLETCHER and NOONAN, Circuit Judges. 1 MEMORANDUM** 2 Trent Lee Davis appeals his sentence under the United States Sentencing Guidelines, imposed following a guilty plea, for bank robbery in violation of 18 U.S.C. § 2113(a). Davis contends that the district court erred by counting two prior convictions separately pursuant to U.S.S.G. § 4A1.2 when calculating his criminal history score. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand. 3 We review de novo the district court's determination that prior convictions are unrelated under section 4A1.2, while we review for clear error the underlying factual findings. United States v. Chapnick, 963 F.2d 224, 226 (9th Cir.1992). 4 "Prior sentences imposed in related cases are to be treated as one sentence...." U.S.S.G. § 4A1.2; accord United States v. Bachiero, 969 F.2d 733, 734 (9th Cir.1992). " '[P]rior sentences are considered related if they ... were consolidated for trial or sentencing.' " Bachiero, 969 F.2d at 734 (defendant's prior sentences were "related" where she was sentenced to identical terms by the same judge at a single hearing) (quoting U.S.S.G. § 4A1.2, comment. (n. 3)). 5 Here, sentencing occurred on April 29, 1992. The presentence report indicated that Davis had received identical concurrent sentences in the same court on the same day for both of the contested prior convictions. The district court, without the benefit of Chapnick and Bachiero, treated Davis' prior offenses as unrelated because they involved two separate and distinct crimes. We have recently rejected this reasoning. See Bachiero, 969 F.2d at 734; see also Chapnick, 963 F.2d at 228-29. 6 In light of our recent decisions, we consider Davis' prior offenses to have been consolidated for sentencing purposes. Accordingly, we vacate Davis' sentence and remand the case for resentencing consistent with this memorandum disposition. 7 VACATED AND REMANDED. * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, we deny Davis' request for oral argument ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

598 S.W.2d 421 (1980) James W. ROBINSON, Appellant, v. STATE of Arkansas, Appellee. No. CR 79-197. Supreme Court of Arkansas. May 19, 1980. *423 Thomas E. Brown, Pine Bluff, for appellant. Steve Clark, Atty. Gen. by Catherine Anderson, Asst. Atty. Gen., Little Rock, for appellee. MAYS, Justice. Appellant received a sentence of life without parole after a jury found him guilty of capital murder. Included among the issues raised by appellant on appeal is whether the trial court erred in refusing to instruct the jury on lesser included offenses. From our review of the record, we find sufficient evidence to support an instruction on the lesser included offense of second degree murder, Ark.Stat.Ann. § 41-1503 (Repl. 1977). Therefore, we reverse appellant's conviction and remand for a new trial. Appellant, James Robinson, was charged with capital murder on December 4, 1978 in Jefferson County Circuit Court. The information alleged that appellant, with the premeditated and deliberated purpose of causing the death of any person, caused the death of Linda Sue Williams and Dora Jackson in the course of the same criminal episode. At the time of the alleged offense, appellant was 36 years of age and had been married for approximately ten years. He had met Linda Sue Williams approximately 2V2 years earlier and entered into an extramarital relationship with her. He had apparently become ambivalent about the relationship and sought emotional comfort from a Reverend Moore who operated a spiritual counseling service for donational fees. Reverend Moore advised appellant that Linda Sue Williams and her mother, Dora Jackson, had placed a "hex" on him and prescribed various rituals for appellant and his wife to perform to remove the spell of their influence. In the late evening of December 2, 1978, while visiting Linda at her home after returning from a hunting trip with a friend, appellant engaged in a relatively tense conversation with Linda and her mother who were upset because they had heard that appellant had accused them of putting a "hex" on him. Although appellant at first lied and denied the accusations, Linda continued to treat him coldly and left with her mother and aunt to go to a local shopping center. Appellant, apparently disturbed by Linda's lack of attention and less than cordial attitude, followed them to the shopping center and, after approaching them again on the parking lot and being rejected, discharged a shot gun and 22 pistol at them, killing Linda and her mother and wounding Linda's aunt, Amy McKinney. Confessing to the crimes, appellant surrendered to law enforcement officials three days later. While awaiting trial, appellant was committed on two occasions by the court for a psychological evaluation but was found to be without psychosis. During the trial appellant raised the affirmative defense of not guilty because of mental disease or defect and presented expert testimony which concluded that at the time of trial appellant was a psychotic schizophrenic. Appellant's experts also indicated that at the time of the crime, appellant was "confused" and probably in a "dreamlike state." At the conclusion of the evidentiary presentation, the appellant's attorney requested the trial court to instruct the jury on first degree murder, second degree murder and manslaughter in addition to the instructions on capital murder. The court refused and appellant now alleges error. No right has been more zealously protected by this court than the right of an accused to have the jury instructed on lesser offenses included in the more serious offense charged. Caton & Headley v. State, 252 Ark. 420, 479 S.W.2d 537 (1972). Where there is the slightest evidence to warrant such an instruction, we have consistently held that it is error to refuse to give it. King v. State, 117 Ark. 82, 173 S.W. 852 (1915); Walker v. State, 239 Ark. 172, 388 S.W.2d 13 (1965); Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979). This is so, no matter how strongly the trial judge feels that the evidence weighs in favor of a finding of guilty on the most *424 serious charge. Our strong preference for such an instruction has even induced us to approve giving it over the defendant's objections. Kurck v. State, 235 Ark. 688, 362 S.W.2d 713 (1962), cert, denied 373 U.S. 910, 83 S.Ct. 1299, 10 L.Ed.2d 412 (1963). Irrespective of a request, however, the court may refuse to give such an instruction when there is absolutely no evidence to support it. Frederick v. State, 258 Ark. 553, 528 S.W.2d 362 (1975). Although charged with capital murder, appellant requested an instruction on first degree murder, second degree murder and manslaughter. The crimes of capital murder and first degree murder require proof that the accused acted with premeditation and deliberation in causing the death of another. Although the premeditation and deliberation need not exist for any particular length of time, there must be a weighing in the mind of the consequences of a course of conduct as distinguished from acting upon sudden impulse without the exercise of reasoning powers. A failure of proof in this regard, however, may still result in a conviction of second degree murder which only requires a purposeful homicide or a homicide which was knowingly caused under circumstances manifesting extreme indifference to the value of human life. In the instant case, the jury could only acquit appellant or convict him of capital murder. Since appellant's primary defense was insanity, a rejection of that defense in the absence of a lesser included offense provided the jury no realistic alternative but to find the requisite premeditation and deliberation or permit the appellant to go free. Although the jury concluded that appellant's evidence of mental disease or defect did not constitute a complete defense, the jury could have concluded from such evidence that appellant did not act with a premeditated or deliberated purpose. In fact, one of the defense witnesses, Mr. Phillip Simon, a psychological examiner, testified that appellant's psychological test results demonstrated a propensity to act impulsively and without forethought. Another defense expert witness, Mr. Roy Murtishaw, also a psychological examiner, indicated that on the date of the homicides appellant was probably "confused," in a "dreamlike state" and had "an unusual lack of appreciation" for what had happened. Although the evidence that appellant acted with premeditation and deliberation is strong and convincing, it is for the jury and not the court to weigh the evidence and credit that which it believes to be the most cogent. We, therefore, hold that there was some evidence upon which the jury could have relied to find an absence of premeditation and deliberation. Under such circumstances the jury could have found the appellant guilty of second degree murder since premeditation and deliberation are not elements of that crime. On retrial the court should also include an instruction on first degree murder if the evidence again supports an instruction on second degree murder. We perceive no justification for an instruction on manslaughter, however, since it contemplates a crime committed with at least some evidence of reasonable excuse. Although appellant asserts numerous other points for reversal, we shall limit any further discussion to the two which are likely to again confront the lower court on a retrial. Appellant alleges that the trial court erred in admitting photographic slides of the victims and crime scene and in allowing their display to the jury during the prosecutor's closing argument. We have held many times that the admission and relevancy of photographs is a matter largely within the sound discretion of the trial court. Lee v. State, 229 Ark. 354, 315 S.W.2d 916 (1958). A trial court is not obliged to exclude such evidence unless its probative value is substantially outweighed by the danger of unfair prejudice to the defendant. Ark.Stat.Ann. § 28-1001, Rule 403 (Repl. 1979). Likewise, allowing the slide display during the prosecutor's closing argument is within the sound discretion of the trial judge whose judgment will not be reversed on appeal in the absence of manifest gross abuse. Perry v. State, 255 Ark. 378, 500 S.W.2d 387 (1973); Hill v. State, 253 Ark. 512, 487 S.W.2d 624 (1972). Here, the photographs were not particularly inflammatory and were relevant to the issue *425 of premeditation and deliberation and helpful in illuminating the facts for the jury's consumption. We discern no abuse of discretion. Appellant also contends that he was entitled to a specific instruction informing the jury that he had placed in issue his mental capacity to form the kind of mental state necessary to establish the commission of the alleged offense. Appellant grounds his contention on Ark.Stat.Ann. § 41-602 (Repl. 1977) which permits the introduction of evidence of mental disease or defect to determine whether the defendant possessed the kind of culpable mental state required for the commission of the crime charged. However, we do not construe Ark.Stat.Ann. § 41-602 (Repl. 1977) as requiring an instruction of this nature. The statute simply clarifies any issue concerning the admissibility of mental disease evidence when it is less than persuasive in connection with an affirmative defense of insanity. Moreover, the essence of appellant's proffered instruction is effectively given when the court instructs the jury on the burden of the state to prove beyond a reasonable doubt each element of the offense, especially when such instruction is accompanied by an instruction on lesser included offenses. Reversed and remanded.

648 F.Supp. 820 (1986) Chowdary M. ANWAR, Petitioner, v. UNITED STATES of America, Respondent. Nos. 85-CV-1650, 83-CR-2. United States District Court, N.D. New York. November 18, 1986. *821 *822 David A. Lenihan, Albany, N.Y., for petitioner. Frederick J. Scullin, Jr., U.S. Atty. for N.D.N.Y., Albany, N.Y., for respondent; David R. Homer, Asst. U.S. Atty., of counsel. MEMORANDUM-DECISION AND ORDER MUNSON, Chief Judge. In this motion brought pursuant to 28 U.S.C. § 2255 (1982) the petitioner, Chowdary Anwar, challenges his conviction in federal court after a jury trial on four counts of conspiracy to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1982). Petitioner claims he was afforded ineffective assistance of counsel due to a conflict of interest on the part of his trial lawyer in violation of his sixth amendment right to counsel and his fundamental right to a fair trial. I. BACKGROUND The scenario developed by the government at trial is as follows: In the summer of 1981, petitioner, a Pakistani national, obtained approximately one kilogram of pure, brown Pakistani heroin from Muhammed Aslam, his contact in Pakistan. (Trial Transcript 128). Petitioner then delivered the heroin to James Grieco in Albany, who agreed to find a buyer for the drug and to split any profits with petitioner. (Tr. 360-65). They agreed to refer to the drug in future conversations as "carpets" or "bottles of whiskey." (Tr. 365). Petitioner also insisted that he was not to meet any potential buyer, on the theory that if the conspirators minimized the number of individuals who had contact with them, the risk of exposure would be reduced. (Tr. 365-66). Thereafter, Grieco solicited the help of Berton Hunter, who agreed to try to find a buyer for the heroin. It was agreed that Hunter would not meet petitioner, and that Grieco would not meet any buyer that Hunter located, again for security reasons. (Tr. 369-70). A month passed without Grieco or Hunter finding a buyer. Petitioner then informed Grieco that the supplier in Pakistan wanted the heroin returned. Petitioner instructed Grieco to remove approximately eight ounces of heroin before returning the drug, however, and to replace it with brown sugar. The packets of heroin and sugar were then delivered to petitioner. (Tr. 376-77). In November and December 1981 Grieco and Hunter sold the eight ounces of heroin that had been retained to Vic Lindberg for $29,000, of which petitioner received $19,000. (Tr. 377-82). In the spring of 1982 a Pakistani heroin ring headed by Khwaja Majid and Zulkarnen Khan smuggled approximately four kilograms of heroin into the United States via Sherul Zaman Khan (Zaman). Zaman stayed at the Philadelphia residence of Zafar Qureshi, and kept the heroin at the same residence. (Tr. 109-12). Majid Kahn thereafter telephoned Zaman and instructed him to await a telephone call from a "Mr. Javed" from Albany, New York. Within a couple of days, "Javed" attempted to contact Zaman. In a subsequent telephone conversation, Zaman agreed to deliver the drugs to "Javed." (Tr. 112-16). In April or May 1982 Zaman and Qureshi delivered approximately 1.5 kilograms of heroin to "Javed" in Albany. (Tr. 116-20). Quereshi identified petitioner as "Javed," *823 the man to whom the contraband was delivered. (Tr. 122-23). Petitioner paid Zaman $6,000 as a courier fee and agreed to pay an additional $14,000 upon the sale of the heroin. (Tr. 123-25). Petitioner delivered the heroin to Grieco, and Grieco and Hunter again sought out buyers. (Tr. 385-92). Meanwhile, in June 1982, Majid ordered Qureshi to deliver 2.5 kilograms of heroin to Ali Malik in Brooklyn. By this time, however, Malik was cooperating with the Drug Enforcement Administration (DEA). When Qureshi arrived in Brooklyn to deliver the heroin to Malik, he was arrested. Thereafter, Qureshi also agreed to cooperate with the government. (Tr. 133-41). Qureshi placed a series of telephone calls to petitioner in Albany advising him that he had a buyer for the heroin he had delivered to petitioner earlier that spring. These conversations were tape recorded.[1] In one recorded conversation, Qureshi advised petitioner that this buyer was willing to pay $80,000 for a kilogram of heroin. Qureshi agreed to repay petitioner the $6,000 that was previously paid to Zaman plus an unspecified additional amount if petitioner would supply the heroin to complete the deal. (Tr. 145-53). On June 30, 1982 Qureshi, in custody, and DEA Special Agent Emilio Garcia, posing as a buyer, met petitioner in an Albany hotel room to complete the deal. Petitioner did not have the drugs with him. Surprised by the unexpected presence of Garcia, petitioner suspected that Qureshi was cooperating with the government and refused to discuss any transaction. After thirty-five minutes, petitioner terminated the meeting. (Tr. 155-61). Petitioner, however, apparently verified that Qureshi had been arrested and concluded that the suppliers in Pakistan would believe that the heroin then in the possession of Grieco had been seized from Qureshi at the time of his arrest. Petitioner then advised Grieco that whatever proceeds could be obtained from the sale of the heroin in Grieco's possession was theirs to keep, and that the Pakistani suppliers would be none the wiser. (Tr. 393-401). Ultimately, an acquaintance of Grieco and Hunter, James Massaro, introduced the two to Christopher Egan, a DEA Special Agent posing as a figure from the Boston underworld. Grieco and Hunter sold Egan seven ounces of heroin on December 18, 1982 for $16,500, which was split among petitioner, Grieco, Hunter, and Massaro. Future deals were discussed, and it was agreed that an additional nineteen ounces of heroin would be sold to Egan for approximately $80,000. Upon delivery of the heroin to Egan on January 5, 1983 Hunter was arrested. (Tr. 93-99/12). Grieco and petitioner were arrested soon thereafter, and a marked $100 bill used in the December 18, 1982 transaction was found in petitioner's possession. (Tr. 564-69). On January 12, 1983 a grand jury in Syracuse indicted petitioner, Grieco and Hunter on four counts of conspiracy to distribute heroin and possession with intent to distribute heroin in violation of 21 U.S.C. §§ 846 and 841(a)(1)(1982).[2] At his arraignment *824 before then-United States District Judge Roger J. Miner on January 14, petitioner was represented by Paul T. DeVane, Esq. At the arraignment, all three defendants pleaded not guilty, but on March 11, 1983 Grieco pleaded guilty on two of the four counts in satisfaction of the indictment. A week later, Hunter also pleaded guilty to two counts. Though not representing Grieco on the charges arising out of the events described above, attorney DeVane had known Grieco since the early 1970s and had represented him in a variety of matters, including a real estate transaction, a pending divorce action and the defense of certain traffic violations. When Grieco pleaded guilty, it became apparent that Grieco would testify at petitioner's trial. DeVane, in part because of the potential conflict of interest raised, sought and obtained court leave to withdraw as petitioner's attorney.[3] On March 18, 1983 DeVane was replaced by Bertrand Gould, Esq. On April 27, 1983 Gould represented petitioner at his suppression hearing. The trial commenced on the afternoon of the same day. On May 4, 1983 the jury convicted petitioner on all counts of the indictment. Petitioner was sentenced to four consecutive four and one-half year terms of imprisonment, totaling eighteen years, plus a special parole term of three years. In November 1985 the instant motion to vacate petitioner's conviction and sentence pursuant to 28 U.S.C. § 2255 (1982) was filed. Petitioner alleges that at the time of their representation of petitioner, DeVane and Gould were de facto law partners. (Doc. 101, at 2, 308). Petitioner claims that Gould assisted DeVane before DeVane asked to be excused as petitioner's counsel, that the two attorneys shared the fee paid by petitioner, that both attorneys worked out of the same office, and that they otherwise conducted business as partners. It is also alleged that DeVane, at the urging of Grieco, sought out and "thrust himself" upon petitioner after the arrest, becoming petitioner's counsel. As DeVane prepared to take petitioner's case to trial, Grieco negotiated a plea and received a reduced sentence. On the eve of petitioner's trial, DeVane arranged to have his "de facto" law partner, Gould, substituted as counsel. At trial, Grieco became the prosecution's "star witness," essential to the conviction of petitioner. Gould, it is alleged, was unprepared and represented petitioner so ineffectively that petitioner received the most severe sentence ever rendered in this district for the crime with which he was charged. All of this, petitioner claims, was *825 part of a scheme to obtain leniency for Grieco at the expense of petitioner's right to a vigorous defense. This depiction of events forms the basis of petitioner's § 2255 motion. II. DISCUSSION When a prisoner in federal custody brings a motion under 28 U.S.C. § 2255 (1982)[4] to vacate, set aside or correct his sentence, the court must first determine whether an evidentiary hearing need be held. Section 2255 requires such a hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." See Fontaine v. United States, 411 U.S. 213, 215, 93 S.Ct. 1461, 1462, 36 L.Ed.2d 169 (1973). In addressing this threshold inquiry, the court must ascertain whether a petitioner's affidavit, read in conjunction with the available record, is sufficient on its face to warrant a hearing. Dalli v. United States, 491 F.2d 758, 760 (2d Cir. 1974); see also Newfield v. United States, 565 F.2d 203, 207 (2d Cir.1977); Williams v. United States, 503 F.2d 995, 998 (2d Cir.1974); Word v. United States, 616 F.Supp. 695, 699 (S.D.N.Y.1985). Affidavits submitted by the government in opposition to a § 2255 motion cannot be deemed a part of the "records and files of the case" for the purpose of determining whether petitioner is entitled to a hearing, Taylor v. United States, 487 F.2d 307, 308 (2d Cir. 1973), though such affidavits "may be considered in assessing the sufficiency of the petitioner's supporting affidavit." Dalli, 491 F.2d at 762 n. 4; see also Wright v. United States, 732 F.2d 1048, 1057 n. 10 (2d Cir.1984), cert. denied, 469 U.S. 1106, 105 S.Ct. 779, 83 L.Ed.2d 774 (1985); United States v. Franzese, 525 F.2d 27, 31 (2d Cir.1975), cert. denied, 424 U.S. 921, 96 S.Ct. 1128, 47 L.Ed.2d 328 (1976). Further, conclusory statements in a petitioner's affidavit will not suffice; "[t]he petitioner must set forth specific facts which he is in a position to establish by competent evidence." Dalli, 491 F.2d at 761 (citing Machibroda v. United States, 368 U.S. 487, 495-96, 82 S.Ct. 510, 514-15, 7 L.Ed.2d 473 (1962)). In his affidavit, petitioner claims he was denied effective assistance of counsel as a result of a conflict of interest on the part of his defense attorney in violation *826 of his sixth amendment right to counsel. Ordinarily, a petitioner alleging ineffectiveness of counsel must establish (1) that his attorney's performance was so deficient and riddled with "errors so serious that counsel was not functioning as the `counsel' guaranteed the [petitioner] by the Sixth Amendment;" and (2) that the deficient performance prejudiced the defense to such an extent that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984); Cuevas v. Henderson, 801 F.2d 586, 589-90 (2d Cir.1986). However, "[p]rejudice is presumed ... if the [petitioner] demonstrates that counsel `actively represented conflicting interests' and `that an actual conflict of interest adversely affected his lawyer's performance.'" Strickland, 466 U.S. at 692, 104 S.Ct. at 2067 (quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 348, 100 S.Ct. 1708, 1718, 1719, 64 L.Ed.2d 333 (1980) (footnote omitted)); United States v. Iorizzo, 786 F.2d 52, 58 (2d Cir.1986). Thus, a petitioner is entitled to a hearing under § 2255 if he alleges facts sufficient to establish that his lawyer had an actual conflict of interest, and that a "lapse in representation" resulted from the conflict. Cuyler, 446 U.S. at 349, 100 S.Ct. at 1718-19; Iorizzo, 786 F.2d at 58. A. Petitioner's Allegations of a Conflict of Interest In order to establish a presumption of prejudice arising out of an alleged conflict of interest, "a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler, 446 U.S. at 348, 100 S.Ct. at 1718 (emphasis added). A potential conflict of interest is not sufficient. Bryan v. United States, 645 F.2d 842, 843 (9th Cir. 1981). Whenever a defense attorney has previously represented an important government witness who testifies against his client, the possibility of a conflict of interest exists.[5]See Iorizzo, 786 F.2d at 57; United States v. Shepard, 675 F.2d 977, 979 (8th Cir.1982). Three major potential areas of conflict arise: the attorney's pecuniary interest in furthering his business relationship with the government witness may impair the attorney's ability to cross-examine the witness zealously, see Shepard, 675 F.2d at 979; Model Code of Professional Responsibility Canon 7, DR 7-101, DR 5-101 (1984); the attorney "may misuse confidential information obtained from the [witness], or may fail to fully cross-examine for fear of misusing confidential information," Shepard, 675 F.2d at 979; see also United States v. Jeffers, 520 F.2d 1256, 1264-65 (7th Cir.1975), cert. denied, 423 U.S. 1066, 96 S.Ct. 805, 46 L.Ed.2d 656 (1976); or the attorney may be required to testify about material aspects of the witness' testimony or otherwise place his own credibility at issue either in cross-examining the witness or in attacking the witness' testimony in summation. See *827 Iorizzo, 786 F.2d at 57; United States v. McKeon, 738 F.2d 26, 34-35 (2d Cir.1984); Model Code of Professional Responsibility DR 5-102(A) (1984). In the present case, petitioner does not allege that attorney Gould ever represented witness Grieco.[6] Instead, petitioner argues that DeVane and Gould were "de facto partners" and that the conflict of interest that prevented DeVane from representing petitioner should be imputed to Gould. Petitioner alleges that DeVane and Gould shared an office suite and shared rent and secretaries. In affidavits submitted in response to the present motion, DeVane and Gould admit this, but claim that they otherwise conducted business as sole practitioners, maintaining separate clients and refraining from sharing fees or income.[7] Petitioner further alleges that Gould assisted DeVane in the preparation of petitioner's case before DeVane asked to be relieved as petitioner's counsel. Petitioner cites a number of instances where the two attorneys visited him together at the Montgomery County Jail in Fonda, New York and the fact that Gould allegedly conferred with petitioner over the telephone while DeVane was still his attorney of record in support of his claim that he believed that both attorneys were in fact representing him. Indeed, both attorneys admit that they would assist each other for a fee on different cases by making court appearances or providing consultation or advice, and that in petitioner's case DeVane sought Gould's assistance because of the latter's experience in criminal cases.[8] Petitioner further alleges that the two attorneys shared in the fee paid by petitioner. Petitioner's allegations, if true, do not indicate a general partnership relationship between DeVane and Gould extending beyond the representation of petitioner himself. It is not alleged that the two attorneys regularly shared clients; nor is it claimed that they represented themselves to the world at large as partners. It is commonplace for sole practitioners to share office space, office expenses, and secretaries. In sum, taking petitioner's allegations as true, the most that can be said is that DeVane and Gould were sole practitioners who worked together as "de facto partners" for the purpose of defending petitioner only. The general rule in this Circuit is that in the absence of evidence that two attorneys are partners and that their interests overlap generally in the acceptance of clients and in the sharing of fees, a mere showing that "they worked in close physical proximity, that they shared an office and perhaps a secretary," by itself, is an "insufficient basis on which to erect a claim of conflict of interest." United States v. Badalamente, 507 F.2d 12, 21 (2d Cir.1974), cert. denied, 421 U.S. 911, 95 S.Ct. 1565, 43 L.Ed.2d 776 (1975); cf. Davis v. Franzen, 671 F.2d 1056, 1058-59 (7th Cir.1982) (no actual conflict of interest when co-defendants represented by different lawyers from same public defender's office). Thus, in order to prevail in his motion, petitioner must be able to establish that by working together on petitioner's case, Gould's representation of petitioner at the suppression hearing and at trial was tainted by the conflict of interest that caused DeVane to withdraw. Petitioner fails to allege facts that can establish this, largely because he focuses on the wrong attorney-client relationship. Petitioner's allegations concern the joint efforts of DeVane and Gould in the preparation of his own defense; but the attorney-client relationship that gave rise to DeVane's potential conflict of interest was that of DeVane and the witness, *828 Grieco. Petitioner does not allege facts indicating that Gould was connected in any way with the representation of Grieco. By failing to allege facts sufficient to support the conclusion that Gould represented Grieco, petitioner failed to show that Gould had a pecuniary interest in furthering a business relationship with Grieco such that his ability to represent petitioner to the best of his ability was impaired; that Gould possessed confidential information obtained from Grieco hampering his ability to cross-examine Grieco vigorously; or that Gould's credibility could become a material issue when he attacked the testimony of Grieco on cross-examination and in summation. Petitioner has failed to allege facts supporting a conclusion that any of the potential areas of conflict arising when an attorney has previously represented an important witness for the prosecution existed in this case. Thus, petitioner has failed to demonstrate an "actual conflict of interest adversely affect[ing] his lawyer's performance," Cuyler, 446 U.S. at 348, 100 S.Ct. at 1718, and is not entitled to a presumption of prejudice under Strickland and Cuyler.[9] B. Sufficiency of Representation Even if petitioner were able to establish an actual conflict of interest, he could not obtain relief under § 2255 absent a showing that his attorney's performance was so inadequate that the attorney "was not functioning as the `counsel' guaranteed the [petitioner] by the Sixth Amendment." Strickland, 446 U.S. at 687, 104 S.Ct. at 2064; Cuevas v. Henderson, 801 F.2d 586, 589 (2d Cir.1986). The standard for attorney performance is "reasonably effective assistance." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Trapnell v. United States, 725 F.2d 149, 151-52 (2d Cir.1983). "Reasonableness" must be gauged in light of all of the circumstances, 466 U.S. at 688, 104 S.Ct. at 2065, and "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S.Ct. at 2065. To avoid placing any oppressive constraints on a defense attorney's wide latitude in making tactical decisions, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689, 104 S.Ct. at 2066 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). Petitioner's specific allegations of misfeasance on the part of attorney *829 Gould do not overcome this presumption of reasonable professionalism. The most serious challenge to the effectiveness of Gould's representation of petitioner is the assertion that Gould failed to impeach Grieco's credibility by probing into his criminal record. Grieco's record before his guilty plea on March 11, 1983, however, consisted only of one conviction for petit larceny in 1962 and an arrest for the possession of a defaced firearm in 1972.[10] The 1962 conviction was more than ten years old and thus was not admissible under Fed. R.Evid. 609.[11] Further, since the 1972 arrest was more than ten years old and was not probative of Grieco's truthfulness or untruthfulness, it was inadmissable under Fed.R.Evid. 608(b).[12] Gould reasonably concluded that inquiry into Grieco's prior arrests was impermissible and did not pursue such questioning. Petitioner also asserts that Gould's cross-examination of Grieco was marred by his failure to inquire into the seizure of weapons and money found in Grieco's apartment at the time of his arrest on January 5, 1983. Since no criminal charges were brought against Grieco as a result of this seizure, it could not be raised on cross-examination under Rule 609. Further, since the items seized were not relevant to Grieco's character for truthfulness or untruthfulness, *830 such inquiry was not permissible under Rule 608(b).[13] Petitioner contends that his defense was damaged by Gould's failure to question Grieco more fully about his acquaintance with at least three other men from Lahore, Pakistan, the origin of the heroin sold to undercover DEA Agent Egan. Apparently, petitioner believes that such inquiry might have left the jury with the impression that Grieco implicated petitioner in order to protect those men. This is speculative at best; it is just as possible that the jury would have inferred that these men were a part of a larger network of drug smugglers to which petitioner belonged. Under the circumstances, it was well within the bounds of reasonable trial strategy not to probe too deeply into a potentially damaging matter when the result of such inquiry was uncertain. Petitioner also finds significance in Gould's failure to exploit a contradiction between the testimony given by Grieco and that of Berton Hunter. Grieco testified that he had given Hunter $5,000 after the sale of heroin to undercover DEA Agent Egan on December 18, 1982. (Tr. 418). Hunter testified that he had received only $4,900. (Tr. 552). Petitioner claims that this $100 discrepancy "could have been shown to have been the $100 alleged to have been found on [petitioner's] person." (Doc. 101, at 16). However, petitioner offered other evidence, through the testimony of petitioner's wife, Najma Anwar, to explain petitioner's possession of the marked $100 bill. Najma Anwar testified that she had given a woman change for the $100 bill while waiting in the check-out line at a supermarket and that she had given the $100 bill to her husband. (Tr. 581-82). It is possible that Gould reasonably concluded that contradictory "alibi" testimony would harm more than help petitioner's cause, and did not pursue the tactic petitioner now suggests. The other tactical "errors" cited by petitioner are either minor, irrelevant or non-existent.[14] Evaluating Gould's performance "from counsel's perspective at the time" of the trial and affording him a strong presumption that he exercised reasonable professional judgment, it cannot be said that his conduct fell outside "the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. at 2066. III. CONCLUSION Petitioner has failed to allege facts which, if taken as true, would establish that attorney Gould had an actual conflict of interest at the time he represented petitioner. Petitioner has not alleged facts which, when considered in light of the files and records of this case, are sufficient to support his claim that Gould's performance was so inadequate that petitioner was not afforded "the `counsel' guaranteed ... by the Sixth Amendment." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Therefore, *831 petitioner is not entitled to an evidentiary hearing under 28 U.S.C. § 2255 (1982). Petitioner's motion is denied. NOTES [1] These taped telephone conversations were translated and transcribed. The transcripts were marked in evidence as Government Exhibits 4a, 5a, 6a, 7a, 4b, 5b-5f, and 6b-6e and read to the jury. (Tr. 306-56). [2] 21 U.S.C. §§ 841(a)(1) makes it "unlawful for any person knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." 21 U.S.C. § 841(a)(1) (1982). Section 846 provides that "[a]ny person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy." 21 U.S.C. § 846(1982). The indictment charged petitioner, Grieco and Hunter with the following four counts: First, conspiracy with each other and with unknown others from on or about June 1981 until the date of the indictment to "knowingly, intentionally, and unlawfully distribute heroin, a Schedule I controlled substance, in violation of Section 841(a)(1) of Title 21, United States Code," in violation of 21 U.S.C. § 846 (1982); second, possession on or about December 18, 1982 with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1)(1982); third, distribution of a controlled substance on or about December 18, 1982 in violation of 21 U.S.C. § 841(a)(1)(1982); and fourth, possession, on or about January 5, 1983, with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1)(1982). [3] By letter dated March 16, 1983 Assistant United States Attorney David R. Homer informed DeVane that the government intended to call Grieco to testify against petitioner and that a potential conflict of interest existed. Two weeks earlier, on or about March 1, 1983, DeVane had been notified by the New York Supreme Court, Appellate Division, Third Judicial Department, that he would be suspended from the practice of law for a period of six months commencing May 1, 1983 due to his neglect of his client's matters in two cases unrelated to petitioner's case. Shortly thereafter, DeVane decided not to appeal his suspension and to request that his suspension commence on April 1 rather than May 1. On March 18, 1983, on the eve of petitioner's trial, DeVane and Gould claim to have informed petitioner both of the suspension and the conflict of interest and that he had the choice of having Gould substituted as counsel, retaining new counsel, or having the court appoint new counsel for him. Petitioner agreed to have Gould represent him at trial, and at a hearing held later that day before the Honorable Roger J. Miner, then-United States District Judge, Gould was substituted for DeVane as petitioner's counsel with petitioner's consent. See Affidavit of Paul T. DeVane, Answer in Opposition to the Motion of Defendant Chowdary M. Anwar under 28 U.S.C. § 2255, Ex. 1 (hereinafter Affidavit of DeVane); Affidavit of Bertrand F. Gould, Answer in Opposition to the Motion of Defendant Chowdary M. Anwar under 28 U.S.C. § 2255, Ex. 2 (hereinafter Affidavit of Gould). The government does not contend that the hearing held on March 18, 1983 complied with the requirements of United States v. Curcio, 680 F.2d 881 (2d Cir.1982), nor that it was intended that petitioner's consent to the substitution of Gould would also constitute a waiver of his right to be represented by an attorney unconstrained by a conflict of interest. See infra, note 5. [4] 28 U.S.C. § 2255 provides: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. A motion for such relief may be made at any time. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate. A court may entertain and determine such motion without requiring the production of the prisoner at the hearing. The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner. An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus. An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention. 28 U.S.C. § 2255 (1982). [5] Because a criminal defendant has a constitutional right not to have his freedom to choose his own counsel constricted unnecessarily, a criminal defendant may knowingly and intelligently waive his right to an attorney of undivided loyalty. If he so chooses, a defendant in a criminal trial may be represented by an attorney who might be hindered by an actual or potential conflict of interest. See United States v. Cunningham, 672 F.2d 1064 (2d Cir.1982), cert. denied, 466 U.S. 951, 104 S.Ct. 2154, 80 L.Ed.2d 540 (1984). In United States v. Curcio, 680 F.2d 881 (2d Cir.1982), the Second Circuit established procedures through which a criminal defendant could waive his right to representation by an attorney free from a conflict of interest. In such cases, the trial court is obligated to advise the defendant of the dangers arising from the particular conflict, determine whether the defendant understands those risks and is willing to take them, and give the defendant time to contemplate the risks after encouraging him to seek advice from independent counsel. Id. at 888-90. Since attorney DeVane sought to be relieved from the case, compliance with these procedures with respect to DeVane was unnecessary. No potential conflict of interest on the part of attorney Gould was brought to the court's attention, and thus these procedures were not put into use with respect to Gould. Thus, petitioner did not effectively waive his right to representation by an attorney of undivided loyalty by consenting to the substitution of counsel in a hearing before Judge Miner on March 18, 1983. [6] In his affidavit attached to the government's opposition papers, Gould expressly denies having ever represented Grieco in any matter. Affidavit of Gould ¶ 6. [7] In fact, the two attorneys claim that they shared the office suite with three other sole practitioners — Lawrence Dolan, Robert Meyer, and Thomas Flannery — and that office expenses, including rent and the salaries of the secretaries, were shared among the five attorneys. Affidavit of Gould ¶ 5; Affidavit of DeVane ¶¶ 5-7. [8] Affidavit of DeVane ¶¶ 8, 16; Affidavit of Gould ¶¶ 5, 7-8. [9] In order to prevail on a § 2255 challenge based on ineffective assistance of counsel in cases where the petitioner is not given the benefit of a presumption of prejudice, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. In light of this court's determination, see text, infra, that the record does not support petitioner's contention that attorney Gould's representation of petitioner fell below the standard of "reasonably effective assistance," 466 U.S. at 687, 104 S.Ct. at 2064, it is unnecessary to address this issue. However, it should be noted that even if Gould's performance was constitutionally deficient, petitioner was not prejudiced. A convicted defendant suffers no prejudice when the evidence presented at trial so overwhelmingly establishes his guilt that his attorney's error could not have affected the outcome. See United States v. Sanchez, 790 F.2d 245, 253-54 (2d Cir.1986). The most damaging evidence presented by the prosecution was the testimony of James Grieco (Tr. 356-447, 470-91), the testimony of Zafar Qureshi (Tr. 102-90), the transcripts of translations of tape-recorded telephone conversations between petitioner and Qureshi which were read into evidence (Tr. 305-55), and a marked $100 bill from the December 18, 1982 purchase of heroin by undercover agent Egan found in petitioner's possession at the time of his arrest (Tr. 567). This evidence was supported by the testimony of agents Egan and Garcia, co-conspirator Hunter, a forsensic chemist, and others. A recorded meeting of petitioner, Qureshi, and agent Garcia was admitted into evidence. (Government Ex. 7b). All told, the prosecution presented evidence over the course of a five day trial which convincingly portrayed petitioner as an active distributor of heroin in Upstate New York. The alleged errors committed by Gould, mostly involving the cross-examination of Grieco, are not "sufficient to undermine confidence in the outcome" of petitioner's trial in light of the extensive credible evidence introduced by the government against petitioner. See Strickland, 466 U.S. at 694-95, 104 S.Ct. at 2068-69. [10] Grieco's prior criminal record is related in the presentence report prepared by United States Probation Officer Alan J. Cunningham and dated May 9, 1983 for the sentencing of Grieco after his plea of guilty on two counts of the four count indictment which initiated the criminal action underlying petitioner's present civil action, Docket No. 83-CR-2. [11] Rule 609 provides, in pertinent part: (a) General rule For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment. (b) Time Limit Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. Fed.R.Evid. 609. [12] Rule 608(b) provides: Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. Fed.R.Evid. 608(b). Unlike Rule 609(b), see note 11, supra, which pertains to the admissibility of criminal convictions for the purpose of impeaching the credibility of a witness, Rule 608(b) does not, by its express terms, impose a ten-year "time limit" on the cross-examination of a witness concerning specific instances of conduct relevant to a witness's character for truthfulness or untruthfulness. However, the Advisory Committee Notes on the Proposed Rules of Evidence state that safeguards against abuse are built into Rule 608(b) "in the form of specific requirements that the instances inquired into be probative of truthfulness or its opposite and not remote in time." Fed.R.Evid. 608 advisory committee note (emphasis added). This implies that the absence of a time limit in Rule 608 was an error in drafting. Regardless, courts in construing Rule 608, no doubt noting the inconsistency which would result if the credibility of a witness could not be attacked by reference to convictions that are more than ten years old but could be impeached by inquiry into mere arrests that are just as stale, have generally applied Rule 608(b) as if the time limits imposed by Rule 609 were a part of Rule 608. See, e.g., United States v. Merida, 765 F.2d 1205, 1216-17 (5th Cir.1985); United States v. Toner, 728 F.2d 115, 122 (2d Cir.1984). [13] For the text of Fed.R.Evid. 608(b), see note 12, supra. [14] For example, petitioner claims that Gould failed to challenge adequately the translations of tape-recorded telephone conversations between petitioner and Qureshi that were read into evidence (Tr. 305-55) by failing to stress the complexity of the Punjabi language in which these conversations were conducted. As example of erroneous translation, petitioner claims that the word "khaka," translated as "blueprints," could also mean "map" or "sketch," and that the word "gar," translated as "dwelling unit" or "apartment," could mean "house" or "home." Obviously, such discrepancies are meaningless in the context of the facts of this case. Petitioner also claims that Gould failed to introduce as evidence the list of items seized from petitioner at the time of his arrest. This is simply not true. The entire list was read to the jury. (Tr. 573-75). Petitioner alleges that Gould's failure to obtain fingerprint analysis of the packets of heroin entered into evidence at trial harmed petitioner's defense. Fingerprint reports on those packets would not have been helpful to petitioner, however, since the evidence introduced by the government indicated that Grieco had transferred the heroin delivered by petitioner into the packets introduced at trial. There was no evidence offered indicating that petitioner ever handled those packets, and thus the absence of his fingerprints from those packets would not help his defense.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-4133 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus ALEXANDER JAMES HARDNETT, a/k/a Alex, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, District Judge. (CR-03-212) Submitted: February 2, 2005 Decided: March 3, 2005 Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part, vacated in part, and remanded with instructions by unpublished per curiam opinion. Dwight E. Crawley, LAW OFFICE OF DWIGHT E. CRAWLEY, Hopewell, Virginia, for Appellant. Paul Joseph McNulty, United States Attorney, Alexandria, Virginia; Sara Elizabeth Flannery, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Alexander James Hardnett was convicted after a bench trial of one count of conspiracy to possess with intent to distribute fifty grams or more of cocaine base and one count of distribution of cocaine and aiding and abetting such distribution. Hardnett’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting there are no meritorious issues, however raising several issues for review. Hardnett has filed a pro se supplemental brief in which he raises issues contained in counsel’s brief and other issues. While we affirm the convictions, we vacate the sentence and remand for resentencing. We find the district court did not abuse its discretion denying the motions to substitute counsel. United States v. Corporan-Cuevas, 35 F.3d 953, 956 (4th Cir. 1994). We further find no error in the court’s decision not to preclude the testimony of three witnesses. Hardnett’s challenge to the court’s credibility findings must fail. United States v. Hobbs, 136 F.3d 384, 390 n.11 (4th Cir. 1998). We further find no error because the court did not review the grand jury transcript. Similarly, we find no prosecutorial misconduct. There was no error in the court’s decision to admit evidence of cocaine that was stored in a law enforcement officer’s evidence locker. There is no evidence the chain of custody was broken or that the evidence was tampered with. Hardnett’s claim that he should have been given a reason as to why - 2 - a different judge was assigned to his trial and an opportunity to reconsider his decision to have a bench trial is without merit. There is no evidence of an unnecessary delay prior to having Hardnett be arraigned before a magistrate judge. Moreover, Hardnett cannot show he was prejudiced by the delay. At sentencing, the district court made factual findings with respect to the drug amount, possession of a firearm, obstruction of justice and Hardnett’s supervisory role in the conspiracy. These findings increased the offense level from 32 (based on the conviction for conspiracy to distribute 50 grams or more of crack cocaine) and mandated a life sentence. Without the enhancements, Hardnett would not have faced a mandatory life sentence under the guidelines. The statutory term of imprisonment for the conspiracy charge was twenty years’ imprisonment to life imprisonment. We find Hardnett’s sentence was in violation of the rule announced in United States v. Booker, 125 S. Ct. 738, 2005 WL 50108 (2005). Booker held that the “Sixth Amendment is violated when a district court, acting pursuant to the Sentencing Reform Act and the guidelines, imposes a sentence greater than the maximum authorized by the facts found by the jury alone.” United States v. Hughes, __ F.3d __, 2005 WL 147059, *3 (4th Cir. Jan. 24, 2005). In Booker, the Supreme Court severed and excised two provisions of the Sentencing Reform Act: 18 U.S.C. § 3553(b)(1), requiring - 3 - sentencing courts to impose a sentence within the guideline range, and 18 U.S.C. § 3742(e), setting forth standards of review on appeal. The Court held that the remainder of the guidelines remain as advisory, requiring a sentencing court to consider applicable guidelines ranges, but allowing the court to “tailor the sentence in light of other statutory concerns . . . .” Booker, 2005 WL 50108, at *38. In Hughes, we found Hughes’ sentence exceeded the maximum sentence authorized by the facts found by the jury alone, in violation of Booker. Hughes, 2005 WL 147059, at *4. Hughes raised the issue for the first time on appeal and review was for plain error. Id. Under plain error review, we found there was error, the error was plain, and the error affected Hughes’ substantial rights. Id. at *4-5. We recognized the error because “to leave standing this sentence imposed under the mandatory guideline regime, we have no doubt, is to place in jeopardy the fairness, integrity or public reputation of judicial proceedings.” Id. at *5 (internal quotation marks omitted). Although neither counsel nor Hardnett raised this issue on appeal, under the dictates of Anders we must review the record for any meritorious issues. Based on our review of the imposition of the sentence, we find plain error and must vacate the sentence and remand to the district court for resentencing consistent with the rules announced in Booker and Hughes. - 4 -  Because the sentencing guidelines remain in place in an advisory capacity, we have reviewed the enhancements. We find no error with respect to the enhancements for drug quantity, possession of a firearm or Hardnett’s role in the offense. With respect to the enhancement for obstruction of justice, we find any error harmless as it has no bearing on the sentence recommended by the sentencing guidelines. In accordance with the requirements of Anders, we have reviewed the entire record in this case. We affirm the convictions. We vacate the sentence and remand for resentencing consistent with the rules and instructions announced in Booker and Hughes. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS - 5 - 

134 F.Supp. 63 (1955) NEW YORK LIFE INSURANCE COMPANY, Plaintiff, v. Norman S. LAWSON, Executor of the Estate of Marcia L. Winn, Margaret B. Manear and Sara Neff Grove, Defendants. NEW YORK LIFE INSURANCE COMPANY, Plaintiff, v. Norman S. LAWSON, Executor of the Estate of Marcia L. Winn, and Joseph T. (sometimes known as Joe T.) Winn, Defendants. Civ. A. Nos. 1500, 1501. United States District Court D. Delaware. September 2, 1955. *64 Richard F. Corroon (of Berl, Potter & Anderson), Wilmington, Del., for plaintiff. Caleb M. Wright, Georgetown, Del., for defendant Norman S. Lawson. Ralph S. Baker, Georgetown, Del., for defendants Margaret B. Manear, Sara Neff Grove and Joseph T. Winn. LEAHY, Chief Judge. Plaintiff insurance company filed a bill of interpleader seeking an adjudication of beneficiaries entitled to the proceeds of three insurance policies upon the life of the late Marcia L. Winn. The total proceeds of the three policies satisfy the requisite jurisdictional amount. There is no dispute of facts for a stipulation of facts was agreed to by all parties. Prior to August 14, 1954, the deceased was the owner of three annuity policies whose beneficiaries were: Policy No. 113 254 — Joseph T. Winn Policy No. 202 825 — Margaret B. Manear and Sara Neff Grove Policy No. 213 234 — Margaret B. Manear and Sara Neff Grove By letter dated August 14, 1951, Mrs. Winn wrote to plaintiff requesting "forms and instructions for changing beneficiaries in three policies I have in your company". Two days later plaintiff replied, requesting names of the proposed beneficiaries and their relationships so the proper forms could be forwarded. To plaintiff's letter the insured replied in her own handwriting,[1] dated August 31, 1951, in part as follows: "I would like the beneficiaries of the three annuities to be changed to payable to my estate (so that in case of my death the amounts to be put in with the general estate) and I shall attend to the individuals in my will." (Emphasis by the insured). On September 13, 1951, Marcia L. Winn died, after having first made her will, dated September 8, 1951, naming defendant Lawson executor of her estate. Thereafter by letter dated September 17 plaintiff forwarded the "official" forms to be completed for the change in beneficiaries with instructions they be signed, witnessed and returned to plaintiff with the three policies. The policies provide the procedure for change of beneficiary: "Beneficiary. The Annuitant may from time to time change the Beneficiary, unless otherwise provided by indorsement on this Policy or unless there be an existing assignment of this Policy. Every change of beneficiary must be made by written notice to the Company, at its Home Office accompanied by the Policy for indorsement of the change thereon by the Company, and unless so indorsed the change shall not take *65 effect. After such indorsement the change will relate back to and take effect as of the date the Annuitant signed said written notice of change whether the Annuitant be living at the time of such indorsement or not, but without prejudice to the Company on account of any payment made by it before receipt of such written notice at its Home Office. Unless otherwise provided herein, the interest of any beneficiary dying before the Annuitant shall vest in the Annuitant." 1. The question for decision is whether the deceased during her lifetime effected a legally recognizable change of beneficiaries. Defendants Winn, Manear and Grove (original beneficiaries) contend the deceased's mere expression of a desire to change beneficiaries, absent a transmittal of the policies to the plaintiff-insurer for indorsement, does not constitute compliance with the formal requirements of the policies. Defendant Lawson, qua executor, argues the deceased did all within her power to disclose her intention to consummate the change of beneficiaries before her death. 2. All counsel for claimants agree the Delaware Courts have adopted the substantial compliance doctrine in cases involving validity of a change of beneficiary, but part company in their views whether the deceased's actions in the instant case fall within the ambit of this equitable principle. 3. From the legion of cases involving status of beneficiaries under policies of insurance, certain fundamental principles are guide-posts in the determination of this problem.[2] A named beneficiary has a vested interest in a policy of insurance unless the right to change the beneficiary is reserved in the policy or given by statute.[3] An insurer, however, has no discretion to refuse to indorse the change of beneficiary in the policy when the insured has sent the policy to the home office with a request for the change.[4] A court of equity, considering that done which ought to be done, will treat an attempted change as actually accomplished, where the insured has done all she could to bring about that end to the extent her intent is plainly manifested.[5] For decision here I adopt Chancellor Wolcott's view in New York Life Insurance Co. v. Cannon,[6] where concerning the necessity for compliance with the policy provisions in attempting a change of beneficiary, he wrote: "* * * The bringing of the fund into court and the demand by the company that the rival claimants litigate their respective claims thereto, constitute a waiver by the company of a compliance by the insured with the provision as to surrender of the policy on a change of beneficiary. McDonald v. McDonald, 212 Ala. 137, 102 So. 38, 36 A.L.R. 761." 4. Having determined precise compliance with the policy provisions is not inexorable, the question is whether the deceased as the insured did all she could to accomplish the purpose she allegedly had in mind. Defendants Winn, Manear and Grove argue the failure to forward the policies along with her letter of August 31, wherein she designated her estate as proposed beneficiary, evidences an abandonment by the deceased of her intent to effect such a change. The realistic facts do not lend themselves to such an interpretation. Mrs. Winn's *66 letter of August 31 was written on the insurer's letter to her wherein she was requested to identify the proposed beneficiaries. She did this. Nowhere in the insurer's letter of August 16 did it ask delivery of the policies to it for indorsement. The deceased did not transmit the policies along with her reply for the obvious reason she did not think the plaintiff-insurer wanted or needed them. In fact, the deceased wrote in her letter: "I have the annuities, here with me." While the contracts of insurance looked to actual delivery of the policies to the insurer in re change of beneficiaries, I do not think Mrs. Winn had realization of this fact. It was not until plaintiff's letter of September 17, (written four days after the death of Mrs. Winn), enclosing the formal forms for execution, was there any mention of the necessity for transmitting the policies or contracts. If subjective intent is to be sought, the guide as to what the deceased would have reasonably been expected to know about the procedure for changing beneficiaries must be found from the internal evidence as to what occurred.[7] Her letter of August 14, the first in the series of correspondence, indicates her knowledge of the procedure involved was limited since she asked not only for forms but "instructions" as well. In the light of the deceased's knowledge of what was required of her near the terminal point of her existence, she had done all she thought necessary. True, there were steps yet to be completed before a beneficiary change, within the meaning of the policy provisions and the insurance company's rules. But death intervened. The clear wishes of a dead woman should be respected, especially where a corporate insurer has by the nature of the institution of its own litigation insulated itself from a duality of liability. I conclude the deceased's intent to change beneficiaries crystallized in law and warrants the finding she had complied with plaintiff's requirements for designating her estate as the final beneficiary of the policies in suit. Such is the law of Delaware, and I am not only bound by it in a diversity case, but I agree with it. NOTES [1] In fact, the insured wrote her reply on the back of plaintiff's original letter. [2] See, e. g., collection of authorities and discussion in 29 Am.Jur., Insurance, §§ 1315, 1320, 1324; 78 A.L.R. 966, 976; 19 A.L.R.2d 33, 35, 41, 44, 101, 104-105, 128-129; 48 Mich.L.Rev. 591, Grismore, "Changing the Beneficiary of a Life Insurance Contract"; 13 U. Boston L.Rev. 391, Grossman, "Problem of the Insurer When Attempted Change Is Incomplete, Irregular, or of Doubtful Validity". [3] Metropolitan Life Ins. Co. v. O'Donnell, 11 Del.Ch. 404, 102 A. 163. [4] Reid v. Durboraw, 4 Cir., 272 F. 99. [5] New York Life Ins. Co. v. Cannon, 22 Del.Ch. 269, 194 A. 412. [6] Id., 194 A. at page 413. [7] Lord Chancellor Sugden in Attorney General v. Drummond, 1 Drury & Warren 353, 368, said: "Tell me what you have done under such a deed, and I will tell you what that deed means".

415 B.R. 870 (2009) In re Kevin Richard BURPEE and Candace Mae Burpee, Debtors. No. 6:09-bk-07997-ABB. United States Bankruptcy Court, M.D. Florida. October 1, 2009. Robert H. Pflueger, Robert H. Pflueger PA, Altamonte Springs, FL, for Debtors. ORDER ARTHUR B. BRISKMAN, Bankruptcy Judge. This matter came before the Court on the Objection to Claim of Exemptions (Doc. No. 12) filed by the Chapter 7 Trustee Robert E. Thomas ("Trustee") and the Response (Doc. No. 13) filed by the Debtors Kevin Richard Burpee and Candace Mae Burpee (collectively, "Debtors"). An evidentiary hearing was held on September 21, 2009 at which the Debtors, the Trustee, and their respective counsel appeared. The Objection addresses the Debtors' entitlement to the $4,000.00 personal property exemption of Section 222.25(4) of the Florida Statutes, enacted by the Florida Legislature in 2007. The Debtors claim several assets as exempt pursuant to Section 222.25(4) in their Schedule C, including a 2002 Ford Windstar and a 2004 Ford Taurus (Doc. No. 1). They reside at 145 Alhambra Avenue, Altamonte Springs, Florida 32714 ("Property"). Mr. Burpee and his sister own the Property; Mrs. Burpee does not have an ownership interest in the Property. The Debtors claim fifty percent of the Property's value as exempt homestead *871 property in Schedule C pursuant to Article X, Section 4(a) of the Florida Constitution and Fla. Stat. Sections 222.01, 222.02, and 222.05 (Doc. No. 1). The Trustee asserts the Debtors are not entitled to claim the Section 222.25(4) exemption because they are receiving the benefits of the homestead exemption. Courts interpreting Section 222.25(4) have reached differing conclusions on the operation of this controversial statute. Compare In re Bennett, 395 B.R. 781, 790 (Bankr.M.D.Fla.2008) (holding where debtors do not affirmatively claim homestead exemption, homestead is subject to administration by the trustee; therefore, debtors are not receiving the benefit of Florida's constitutional homestead exemption and are thus entitled to the $4,000.00 personal property exemption); with In re Kent, 411 B.R. 743, 755-56 (Bankr.M.D.Fla.2009); In re Brown, 406 B.R. 568, 571 (Bankr. M.D.Fla.2009), In re Rogers, 396 B.R. 100, 104 (Bankr.M.D.Fla.2008), In re Magelitz, 386 B.R. 879, 884 (Bankr.N.D.Fla.2008), In re Franzese, 383 B.R. 197, 205-206 (Bankr. M.D.Fla.2008) (each concluding that, where debtor retains the home, debtor receives the benefit of Florida's constitutional homestead exemption and is not entitled to the $4,000.00 personal property exemption). Given the divergent opinions of the Courts interpreting Section 222.25(4), the Eleventh Circuit Court of Appeals recently certified the following question to the Florida Supreme Court for resolution: Whether a debtor who elects not to claim a homestead exemption and indicates an intent to surrender the property is entitled to the additional exemptions for personal property pursuant to Florida Statute Section 222.25(4). Osborne v. Dumoulin (In re Dumoulin), 326 Fed.Appx. 498 (11th Cir.2009). Because the certified question involves the issue raised in this case, because resolution of the issue appears imminent, and in an attempt to avoid a result inconsistent with this upcoming ruling, this Court will abate ruling on the Objection until the decisions of the Florida Supreme Court and Eleventh Circuit are issued. The intent is not to delay the administration of this case or to deprive the Debtors of their requested exemption, but rather to insure the ultimate decision will conform to the decision of a higher court providing much needed guidance on this controversial statute. The parties have agreed the amount of $3,865.00 is the maximum exemption amount the Debtors may claim for the vehicles pursuant to Section 222.25(4) if the Court finds they are entitled to claim the Section 222.25(4) exemption. Accordingly, it is ORDERED, ADJUDGED AND DECREED that the Court will abate ruling on whether the Debtors are entitled to claim the Fla. Stat. Section 222.25(4) exemption until the decisions of the Florida Supreme Court and the Eleventh Circuit Court of Appeals are issued on the question certified by the Eleventh Circuit Court of Appeals in In re Dumoulin, 326 Fed.Appx. 498 (11th Cir.2009); and it is further ORDERED, ADJUDGED AND DECREED that upon entry of the rulings of the Florida Supreme Court and the Eleventh Circuit Court of Appeals and, if desired, the parties shall have thirty days to file any supplemental briefs to clarify or argue any matters relevant to the specific facts of this case; and it us further ORDERED, ADJUDGED AND DECREED that, if it is determined the Debtors are entitled to claim the Fla. Stat. Section 222.25(4) exemption, the claim of *872 exemption for the vehicles shall be limited to $3,865.00.

41 Cal.App.2d 535 (1940) JOSEPH M. MURPHY, Respondent, v. ST. CLAIRE BREWING CO. (a Corporation), Appellant. Civ. No. 11185. California Court of Appeals. First Appellate District, Division One. November 19, 1940. Bronson, Bronson & McKinnon for Appellant. James Martin MacInnis for Respondent. Peters, P. J. Defendant appeals from a judgment based upon a jury verdict awarding plaintiff damages for personal injuries in the sum of $3,000 general damages, and $458.50 special damages. On this appeal the defendant contends that under the evidence the defendant was not negligent, that, as a matter of law, plaintiff was guilty of contributory negligence, and that the trial court erred in giving a certain instruction to which reference will hereafter be made. A reading of the transcript and briefs demonstrates that, other than the question of the propriety of the challenged instruction, fundamentally the sole issue involved is that of proximate cause--an issue which, except in a very limited number of cases, is a question of fact for the determination of the jury. The jury having impliedly found that defendant's *537 negligence was the sole and proximate cause of the accident, and that finding being amply supported by the record, this court has no power to disturb the judgment. Respondent is a motorman employed by the Municipal Railway Company of San Francisco. Early in the afternoon of May 19, 1937, he was off duty, and was riding as a passenger on a "D" streetcar, which operates on Geary Street, on his way to the car barn where he was due to go on duty. He had boarded that car at Geary and Larkin Streets. The "B" and "C" cars also pass that intersection on Geary Street. The "D" car turns northerly on Van Ness Avenue, but the "B" and "C" streetcars cross Van Ness Avenue and continue out Geary to the car barn. Respondent had boarded the "D" car because he had observed that the conductor was a friend of his to whom he wished to deliver a message. He intended to leave the car at Geary and Van Ness, and to then board a "B" or "C" car, one of which was following the "D" car. At Van Ness Avenue the "D" car, if traffic permits, does not stop even when the traffic light is red, but makes the turn and stops on Van Ness Avenue. However, there is evidence that about eight out of ten times the "D" car stops at the corner before making the turn because of automobile traffic which must obey the traffic signals. As already stated, respondent boarded the streetcar at Geary and Larkin. The next cross-street is Polk, and the next is Van Ness. Between Polk and Van Ness the sidewalk on the north side of the street is twelve feet wide. From the curb to the nearest streetcar track is thirteen feet eleven inches. Running parallel to this rail, and a distance of two feet seven and one-half inches northerly therefrom, there is a line of metal staples or tabs driven into the pavement to mark the overhang of the streetcar. Actually, the overhang of the streetcar is but two feet and one-quarter inch, so that there is a seven and one-quarter inch safety factor. At about the middle of the block between Polk and Van Ness, on the northerly side of Geary, along the curb is a loading zone, the curb there being painted the usual yellow. On the day in question a beer truck of appellant, about twenty or twenty-one feet long, desired to make a delivery to a grocery store adjoining the loading zone. Certain automobiles were partially *538 parked in the loading zone so that there was not sufficient room to park the truck parallel to the curb. The driver proceeded to park the truck diagonally to the curb at an angle variously estimated at from forty to seventy degrees. He drove the truck partially up on the sidewalk, the exact distance being a matter of dispute. While the truck was so parked it so projected out into Geary Street that, according to the testimony most favorable to respondent, one corner of the truck projected over the metal safety tabs so that the clearance between a passing streetcar and the rear corner of the truck was but several inches. At the time of the accident, section 41 of the Traffic Ordinance of San Francisco required all vehicles to park parallel with the curb at the place in question. Admittedly, appellant's truck was parked in direct violation of this ordinance. After boarding the "D" car at Larkin Street, respondent remained on the rear platform of that car and conversed with the conductor. By the time respondent had delivered his message to the conductor, the streetcar was between Polk and Van Ness running at about ten to fifteen miles per hour. The respondent, as already indicated, was intending to alight at Van Ness. He said good-bye to the conductor and moved over to the exit side of the rear platform. He grasped the stanchion that bisects the real platform with his right hand, and with his left hand grasped the side of a folding bench that is normally raised to a vertical position on the rear of such streetcars. He and his witnesses testified that at no time did his feet go down below the platform level--in other words, that he did not step down on the step. He further testified that when the car was about the middle of the block, and without attempting to alight prematurely, he inclined his head beyond the streetcar's side in order to observe traffic conditions in preparation to alight at Van Ness. Immediately upon extending his head beyond the car he was struck by the rear corner of the truck, was knocked from the car, and suffered the serious injuries for which this action was brought. [1] On this appeal it is urged that, although appellant admittedly was parked in violation of the provisions of the traffic ordinance, such violation was not a proximate cause of the accident, for the reason that the ordinance was not intended to protect streetcar riders. This argument is so *539 obviously without merit that it deserves but little consideration. Obviously, one of the purposes of such ordinances is to afford the public traveling on the road, including those riding on streetcars, the maximum possible degree of safety. (Flynn v. Bledsoe Co., 92 Cal.App. 145 [267 P. 887].) That this is one of the purposes of the ordinance is demonstrated by the fact that the ordinance permits the police department to permit diagonal parking on certain streets under certain conditions not here present, but expressly prohibits diagonal parking on streets where streetcars operate unless there is a distance of thirty feet or more from the curb to the nearest rail. Under such circumstances, whether the violation of the ordinance was the sole proximate cause of the injury was a question of fact for the jury. This is illustrated by many cases. (Kingston v. Hardt, 18 Cal.App.2d 61 [62 PaCal.2d 1376]; Scalf v. Eicher, 11 Cal.App.2d 44 [53 PaCal.2d 368]; McKay v. Hedger, 139 Cal.App. 266 [34 PaCal.2d 221]; see, also, Mecchi v. Lyon Van & Storage Co., 38 Cal.App.2d 674 [102 PaCal.2d 422, 104 PaCal.2d 26], which involved a violation of the identical ordinance here involved.) [2] Appellant's main contention is that respondent was guilty of contributory negligence as a matter of law. This contention is partially predicated on the theory that respondent was violating an ordinance in attempting to alight from a moving streetcar. In support of this theory appellant offered evidence to the effect that respondent had in fact stepped down on the lower step before he was hit. That question of fact was resolved against appellant, on conflicting evidence, by the verdict of the jury. But appellant also contends that the danger was obvious and apparent, citing such cases as Shanley v. American Olive Co., 185 Cal. 552 [197 P. 793], Mautino v. Sutter Hospital Assn., 211 Cal. 556 [296 P. 76], and Blodgett v. B. H. Dyas Co., 4 Cal.2d 511 [50 PaCal.2d 801]. No useful purpose would be served by discussing these cases. Each case must turn upon its own facts. Whether the danger was obvious and apparent, whether respondent acted as a reasonable man in placing his head outside the car to observe traffic, and whether the truck could have been seen easily without placing his head outside, were all questions of fact for the *540 jury. [3] It must be kept in mind that respondent was violating no law and was entitled to assume that others would obey the law. (Kingston v. Hardt, 18 Cal.App.2d 61 [62 PaCal.2d 1376]; Lucke v. Pacific Elec. Ry. Co., 129 Cal.App. 707 [19 PaCal.2d 263].) The presence or absence of negligence on the part of respondent, and the question of proximate cause, were fact questions for the jury. Under the facts of this case its determination is conclusive. [4] The only other contention of appellant is that the trial court erred in giving the following instruction: "You are instructed that under the law of this State every person has a right to assume that every other person will perform his duty and obey the law, and in the absence of reasonable grounds to think otherwise, it is not negligence to assume that he is not exposed to danger which will come to him only through violation of law or duty by such other person, provided that such person himself uses reasonable care to protect his own safety." Appellant contends that this instruction is prejudicially erroneous for the alleged reason that it fails to mention contributory negligence. It is urged that the first part of the instruction should have contained the words that a "person who is himself free from negligence" has the right to expect that the defendant will exercise due care. In this connection appellant places its greatest reliance on the case of McPherson v. Walling, 58 Cal.App. 563 [209 P. 209]. In that case the court held an instruction on this subject to be prejudicially erroneous that failed, except in a very indirect fashion, to refer to contributory negligence. In the present case, as part of the very sentence that informed the jury that plaintiff was entitled to assume that others would obey the law, the jury was also told that this rule only applied "provided that such person himself uses reasonable care to protect his own safety." In other words, the very element omitted in the instruction in the McPherson case, supra, was supplied in this case. Another answer to this contention, if one were needed, is that there are several recent cases holding that an entire omission of the contributory negligence factor in such an instruction is not prejudicial error if the trial court gives, as it did in the case at bar, complete and detailed instructions on contributory negligence. (Angel v. Los Angeles Gas & *541 Elec. Corp., 5 Cal.App.2d 270 [42 PaCal.2d 690]; Passarelli v. Souza, 37 Cal.App.2d 1 [98 PaCal.2d 809].) The judgment appealed from is affirmed. Knight, J., and Ward, J., concurred.

34 B.R. 683 (1982) INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW), et al., Plaintiffs, v. MILES MACHINERY COMPANY, Defendant. Civ. No. 82-10261. United States District Court, E.D. Michigan, N.D. December 21, 1982. *684 MEMORANDUM OPINION AND ORDER JAMES HARVEY, District Judge. I. Introduction Plaintiffs brought this action seeking equitable and monetary relief relative to a dispute arising under a collective bargaining agreement (hereafter "Agreement"), entered into between plaintiffs and the defendant, Miles Machinery Company (hereafter "Miles"). The matter is presently before the Court as follows: *685 1.) Defendant's motion to dismiss; and 2.) Plaintiffs' motion for preliminary injunction requesting an order requiring that Miles specifically perform under the Agreement, arbitrate grievances pursuant to the Agreement and abide by an arbitrator's award conditionally reinstating three union committeemen as Miles employees. The Court will address these motions jointly. II. Findings and Conclusions On November 12, 1982 the Court conducted a hearing on plaintiff's motion for preliminary injunction wherein the parties presented evidence and oral arguments. Having considered the matter and being fully advised, the Court hereby sets forth its findings of fact and conclusions of law. FR Civ P 52(a) and 65(d); 11 Wright & Miller, Federal Practice and Procedure, Section 2955, at 540. FINDINGS OF FACT 1.) Defendant, Miles Machinery Company, is a Michigan corporation, incorporated under the laws of the State in 1964. 2.) Plaintiffs are labor organizations within the meaning of Section 2(5) of the Labor Management Relations Act, 29 U.S.C. Sections 152(5) and 185. 3.) Plaintiffs have principal offices located in Michigan. 4.) Plaintiffs and Miles have been parties to a collective bargaining agreement first entered into in March, 1975. 5.) The agreement in question was renegotiated and became effective from May 7, 1981 through May 7, 1984. 6.) Article VII of the Agreement contains a grievance procedure providing for final and binding arbitration of disputes arising under the Agreement. 7.) On June 5, 1981, Miles filed a Chapter 11 petition in bankruptcy and thereafter continued to operate as a debtor in possession. 8.) On July 31, 1981, Miles filed an application with the Bankruptcy Court to reject its Agreement with plaintiffs. The application was denied initially, In Re Miles Machinery Company, No: 81-0388 (Bankr., ED Mich, decided June 17, 1982), and was again denied on a motion for reconsideration, In Re Miles Machinery Co., No: 81-0388 (Bankr., ED Mich, decided October 29, 1982). 9.) On April 23, 1982, an offer was made by B & K Corporation and accepted by Miles and other interested parties providing, among other things, for the purchase of 100% of the outstanding stock of Miles upon the condition "that no employment contracts exist by and between the corporation and any of its employees." Plaintiffs did not participate in any discussions regarding this agreement. 10.) Based upon the accepted offer from B & K, a proposed plan of reorganization (hereafter the "Plan"), was filed with the Bankruptcy Court in May, 1982. 11.) The Plan provided that Miles would continue in basically the same form and at the same location as a wholly owned subsidiary of B & K. 12.) The Plan provided in Article VII that "all executory contracts shall be rejected." 13.) On July 13, 1982, plaintiffs filed objections to the Plan. The debtor in possession responded that it did not intend to reject the Agreement, but that it could provide no answer to the question whether B & K, the purchaser, intended to reject the agreement. 14.) The Bankruptcy Court confirmed the Plan on July 22, 1982, with an amendment changing the name of the stock purchaser from B & K Corporation to Valerian Kostrzewa and his two brothers who immediately thereafter acquired 100% of the outstanding stock of Miles. Simultaneously, the Agreement was rejected by the stock purchasers. 15.) All employees were terminated and the Miles plant was closed for the Friday and weekend following the Plan confirmation. Certain employees were then rehired, *686 upon application, at the discretion of Miles and were subject to terms and conditions of employment determined by Miles. These actions were taken in accordance with written notices dated July 16, 1982, from the attorney for Valerian Kostrzewa to plaintiffs and the employees covered by the Agreement. 16.) On July 28, 1982, the plaintiffs filed a grievance protesting numerous alleged violations of the Agreement in connection with the events and conduct by Miles noted in Finding of Fact # 15, supra. Miles responded on August 2, 1982 that it did not recognize the Agreement and maintained that the grievance was without standing. 17.) In October, 1981, three union committeemen were terminated for an alleged conflict of interest. These employees had filed articles of incorporation for a new corporation entitled Mid-Michigan Machinery, which they intended to operate in the event that Miles did not survive. 18.) In an arbitrator's award dated August 2, 1982, the three union committeemen were ordered reinstated with the condition that such reinstatement become effective when they demonstrated to Miles that they had divested their interest in Mid-Michigan. 19.) On August 27, 1982, Mid-Michigan was dissolved. Upon proof thereof and demand by plaintiffs, Miles refused to reinstate the three committeemen. On September 20, 1982, Miles responded that it did not recognize responsibility for the actions of its "predecessor," Miles Machinery Company. 20.) Miles listed 15 active shop employees as of mid-October, 1982. All were employees of Miles prior to the Plan confirmation, although two were non-bargaining employees. Of the remaining 13 employees, only four were among the top 13 in seniority rights under the Agreement. 21.) Assets of Miles at the time of the stock acquisition consisted of cash receivables, work in process, inventory, prepaid expenses, office and other equipment and a possible tax loss carryover from prior operating losses. A factor considered in the acquisition of the stock was the possible benefit of the tax loss carryover which might best be realized by a stock acquisition. CONCLUSIONS OF LAW 1.) A collective bargaining agreement, such as the one in question, is an "executory contract" which may be assumed or rejected by the debtor in possession in a Chapter 11 bankruptcy proceeding, subject to the bankruptcy court's approval. Shopmen's Local 455 v. Kevin Steel Prod. Inc., 519 F.2d 698, 701 (CA 2, 1975); Carpenters Local 2746 v. Turney Wood Prod. Inc., 289 F.Supp. 143, 147 (W.D.Ark., 1968); Bankr. Act Section 313(1); 11 U.S.C. § 365(a). 2.) A collective bargaining agreement can be rejected in Chapter 11 bankruptcy proceedings only by a formal court order. In Re W.T. Grant Co., 474 F.Supp. 788 (S.D.N.Y., 1979), aff'd, 620 F.2d 319 (CA 2, 1980). 3.) The decisions of the Bankruptcy Court, referred to in Finding of Fact # 8, supra, are pertinent to the instant case because they directly address the policy arguments made by Miles in support of its contention that the Court should consider the economic realities of the situation and allow sufficient "breathing room" for the surviving corporation. Pursuant to the standards set forth in Kevin Steel, supra; Brotherhood of Ry. Airline and Steamship Clerks v. REA Express Inc., 523 F.2d 164 (CA 2, 1975); and In Re Bildisco, 682 F.2d 72 (CA 3, 1982), the Bankruptcy Court determined that the Agreement was not so onerous and burdensome as to make successful reorganization unfeasible, nor did the equitable considerations favor rejection of the Agreement. 4.) The debtor in possession is a separate legal entity from the pre-bankruptcy corporation, with its own rights and duties and is subject to the supervision of the court. Kevin Steel, supra, at 704. Unlike the pre-bankruptcy corporate debtor, the debtor in possession may reject a collective bargaining agreement with the court's approval *687 pursuant to Bankruptcy Act 313(1), 11 U.S.C. Section 365(a). The pre-bankruptcy corporate debtor, who is a party to such an agreement, must comply with the more stringent termination provisions of Section 8(d) of the Labor Act, 29 U.S.C. 158(d). As explained in Truck Drivers Local 807 v. Bohack Corp, 541 F.2d 312, 320 (CA 2, 1976), the fact that there is a distinction between these entities does not imply that the agreement ceases to exist. Rather, for the narrow purpose of resolving the conflicting provisions of the labor and bankruptcy laws, the debtor in possession is simply not considered a party to the agreement subject to Section 8(d) and may reject the agreement under Section 313(1). 5.) Given the limitation of the distinction between corporate entities explained by the court in Bohack, the Court finds no basis for the defendant's argument that a distinction between the pre-bankruptcy Miles and Miles as it now exists can be made. 6.) The Agreement between the parties herein was not rejected in the Chapter 11 bankruptcy proceedings which were completed, for purposes of this action, with the July 22, 1982 Plan confirmation. An unrejected executory contract survives confirmation of the Plan of Reorganization and becomes binding on the reorganized corporation. Federal's Inc. v. Edmonton Investment Co., 404 F.Supp. 68, 71 (E.D.S.D.Mich., 1975), aff'd 555 F.2d 577 (CA 6, 1977); In Re Alfar Dairy Inc., 458 F.2d 1258 (CA 5, 1972); In Re Central Watch Inc., Bkrtcy., 22 B.R. 561, 564 and 565 (E.D.Wis., 1982). 7.) The Court is not persuaded that Miles is a "successor employer" with the limited obligation of participating in good faith negotiations with the plaintiffs, pursuant to the Supreme Court's holding in NLRB v. Burns Security Services Inc., 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972). Successor employer situations arise when there is no substantial continuity of identity of the business enterprise transcending the change of ownership of business assets or interests. Howard Johnson Co. Inc. v. Hotel Employees, 417 U.S. 249, 263, 94 S.Ct. 2236, 2244, 41 L.Ed.2d 46 (1974). Nearly every case cited by Miles in support of its successor employer argument involved a sale or transfer of assets between unrelated parties. As noted in Findings of Fact # 9 through # 14, supra, the Kostrzewas obtained ownership in Miles by the purchase of 100% of the underlying stock. Thus, the legal corporate entity was identical before and after the transaction. Further, while Miles claims that there have been substantial changes in the workforce and operations of the business, the Court perceives these "changes" as cut-backs and shifts in emphasis of what previously existed, necessitated by the prevailing economic and market forces. The Federal Courts as well as the NLRB have consistently recognized that a change in stock ownership does not alter the contractual liabilities of an employer under an existing collective bargaining agreement or result in a successor employer situation. Teamsters v. Portland Auto Delivery Co., 90 LRRM 2786 (D.Ore., 1975); Local 228 v. Gayety Theatre, 87 LRRM 3020 (N.D.Ohio, 1974); NLRB v. Topinka's Country House Inc., 235 NLRB 72 (1978), aff'd 624 F.2d 770 (CA 6, 1980); Western Boot and Shoe Inc., 205 NLRB 999 (1973); NLRB v. Miller Trucking Service Inc., 445 F.2d 927 (CA 10, 1971). The exceptions to this general doctrine of law as applied in the cases relied upon by Miles, see NLRB v. Edjo Inc., 631 F.2d 604 (CA 9, 1980); and MPE Inc., 226 NLRB 79 (1976), are narrow and the Court finds them unpersuasive when applied in the present case. 9.) As indicated in Finding of Fact # 20, supra, one reason for the nature of the stock acquisition in the present case was the tax benefit that might be realized thereby. The Sixth Circuit has recently held that it would be improper to find that a corporation exists for tax purposes but does not exist for purposes of a labor agreement with the corporation's workers. Further, a company seeking the substantial benefits of a tax loss, must accept the obligations arising out of the arrangement. Miami Foundry Corp. v. NLRB, 11 LRRM 2367, 2368 (CA 6, No. 80-1731, decided July 17, 1982). *688 10.) Based upon the above Findings of Fact and Conclusions of Law the Court has determined that the Agreement exists between defendant, Miles, and plaintiffs and that it is binding upon both parties. Further, the Court has jurisdiction over the case under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Accordingly, Miles' motion to dismiss is DENIED and the Court will proceed to consider plaintiff's motion for preliminary injunction. 11.) A federal district court may issue an injunction pursuant to its jurisdiction under 29 U.S.C. § 185 to preserve the status quo pending resolution of a contractual dispute by arbitration. Boys Markets v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 1991 (1970). Although Boys Markets involved an injunction against union activities, its principle has also been applied where the employer is allegedly violating a labor agreement. Local Lodge 1266 Machinists v. Panoramic, 668 F.2d 276 (CA 7, 1981); United Steelworkers v. Fort Pitt Steel Casting, 598 F.2d 1273 (CA 3, 1979); Lever Brothers Co. v. International Chemical Workers Union Local 217, 554 F.2d 115 (CA 4, 1976). 12.) The plaintiffs filed their grievance pursuant to the Agreement as noted in Findings of Fact # 6 and # 16, supra. Therefore the underlying dispute may be the subject of mandatory arbitration justifying injunctive relief. Buffalo Forge Co. v. United Steelworkers, 428 U.S. 397, 407-408, 96 S.Ct. 3141, 3147-3148, 49 L.Ed.2d 1022 (1976); Fort Pitt Steel Casting, supra, at 1278. 13.) Upon determining that the Agreement is binding and that the matters in dispute are arbitrable, the Court must then consider the following factors in determining whether a preliminary injunction should issue: (1) Whether the plaintiffs have shown a strong or substantial likelihood or probability of success on the merits; (2) Whether the plaintiffs have shown irreparable injury; (3) Whether the issuance of a preliminary injunction would not likely cause substantial harm to others; and (4) Whether the public interest would be served by issuing a preliminary injunction. Mason County Medical Assoc. v. Knebel, 563 F.2d 256 (CA 6, 1977); UAW v. Mueller Brass Co., No. 80-74159 (E.D.Mich., decided November 21, 1980). 14.) Based upon the above Findings of Fact and Conclusions of Law, the Court concludes that plaintiffs have shown a substantial likelihood of success on the merits. 15.) As noted in Findings of Fact # 15, # 19, and # 20, supra, employees covered by the Agreement have suffered loss of employment with no reasonable prospect of being rehired or recovering lost entitlements without injunctive intervention by the Court. Such a situation provides adequate grounds for a finding of irreparable injury. Amalgamated Food Employees Union Local 590 v. National Tea Co., 346 F.Supp. 875, 882 (W.D.Pa., 1972); Columbia Typographical Union No. 101 v. The Evening Star Newspaper Co., 100 LRRM 2394 (D.D.C., 1978); Local Union No. 328 v. Armor & Co., 294 F.Supp. 168, 171 (W.D.Mich., 1968); Gayety Theatre, supra; Portland Auto Delivery, supra. 16.) Miles asserts that issuance of the preliminary injunction will prevent them from making changes in their corporate structure, composition of labor force, task assignments, nature of supervision and other areas of management. The Court recognizes the policy of encouraging freedom of corporate management, however this policy does not justify unilateral rejection of a collective bargaining agreement in disregard of national labor laws and the underlying policy encouraging such arrangements. The equitable concerns of relative harms and public policy clearly favor plaintiffs in this case. III. Preliminary Injunction Accordingly, in view of the foregoing, IT IS HEREBY ORDERED AND ADJUDGED *689 that a preliminary injunction issue against the defendant Miles Machinery Company preliminarily enjoining Miles as follows: (1) To promptly comply with the grievance procedure prescribed in Article VII of the Agreement, including final and binding arbitration, if necessary, in resolving the grievance filed July 28, 1982 by plaintiffs as well as other matters as may be properly resolved under such procedure. Plaintiffs are likewise directed to cooperate fully with defendants in pursuing their grievances under the Agreement. (2) To promptly notify plaintiffs of the specific material proofs that will be necessary to satisfy the arbitrator's order of reinstatement dated August 2, 1982. Such notice shall be in a single writing and shall specify only those matters of concern which are clearly pertinent to the conflict of interest charges. Upon presentation of such proofs, Miles is directed to comply with the terms of the arbitrator's award immediately. (3) To meet with plaintiffs in an endeavor to reach a satisfactory and timely solution to the problems confronting the parties, provided however, if either party is of the opinion that the other is refusing to meet in good faith in such efforts, such party may apply to the Court for further directions with respect to this matter. This preliminary injunction is to remain in effect until such time as the Grievance Procedure under the Agreement has been fully exhausted as to these matters and the arbitrator's award has been complied with, or until a final decree is entered in this case. The plaintiffs shall post bond with surety approved by this Court in the amount of $50,000 contemporaneously with the issuance of this preliminary injunction order.

542 So.2d 1247 (1988) William Glen BOYD, v. STATE. 7 Div. 861. Court of Criminal Appeals of Alabama. January 26, 1988. Rehearing Denied March 8, 1988. *1248 Stephen Brian Levinson and Michael L. Allsup, Anniston, for appellant. Don Siegelman, Atty. Gen., and Rivard Melson and William D. Little, Asst. Attys. Gen., for appellee. TYSON, Judge. William Glen Boyd was charged in an eight-count indictment with the capital murders of Fred and Evelyn Blackmon. Four counts of the indictment charged the appellant with murder during the course of a kidnapping, and the other four counts charged him with murder during the course *1249 of a robbery. The jury found the appellant guilty on each count of the indictment. At the sentence phase of the trial, the jury recommended that the appellant be sentenced to life without parole by a seven to five vote. The trial judge rejected the jury's recommendation and sentenced the appellant to death. Julie Greenwood, Evelyn Blackmon's daughter, testified that on March 26, 1986, she was living with her mother and her mother's husband, Fred Blackmon, at 401 Fairway Drive in Anniston. When Julie Greenwood left for school that particular morning, both Mr. and Mrs. Blackmon were at home. After school that day, Julie went to a friend's house and then to the appellant's house to get some tapes. Julie had dated the appellant for a couple of years until the two broke up in February of 1986. Julie went home at 9:30 p.m. When she arrived home, neither Mr. nor Mrs. Blackmon was home. Mr. Blackmon's black Cadillac Eldorado was not at the house either. Julie went to bed soon after she got home. The next morning, Fred and Evelyn Blackmon still had not returned home. Julie became worried and told her father, Wayne Greenwood. The next afternoon, Julie and her father filed a missing person's report with the Anniston, Alabama, Police Department. In October of 1986 Julie went to see the appellant in the jail. He told her that he had a letter which would explain everything. However, the appellant never gave her a letter. He told her that she would be surprised to learn who was involved in the murders but he would not give her any names. Julie went to see the appellant a second time in the jail. He told her that a gang was involved in the murders and they had threatened that, if he did not do what they said, the gang would kill Julie and Evelyn Blackmon. Julie testified that two telephones were missing from the Blackmon house on March 26, 1986. She stated that the phones were tapped because someone had been calling Mr. Blackmon and saying things about Mrs. Blackmon. Julie testified that the appellant knew this and that he had been in the Blackmon house on numerous occasions in the past. Officer Ken Murphy of the Anniston Police Department testified that he was patrolling Fairway Heights at approximately 8:40 on the morning of March 26, 1986. At this time, Murphy noticed a 1976 white, two-door, Chevrolet Camaro illegally parked near the intersection of Sunset and Fairway Drives. The tag number of this vehicle was Alabama 11K-9970. This car was parked approximately one-quarter of a mile away from the Blackmon house. Linda Jenkins, the operations officer at the Quintard branch of First Alabama Bank in Anniston, testified that she knew Fred Blackmon and saw him several times a week. She stated that on the morning of March 26, 1986, Mr. Blackmon drove up to the drive-in window. A slender, white male with long dark hair was with Mr. Blackmon in the car. Mr. Blackmon presented a check in the amount of $5,000. When Jenkins saw Mr. Blackmon, she spoke to him but he did not reply. Then Jenkins said, "Fred, this is Linda. How are you doing?" (R. 387.) He just looked at her and nodded. Jenkins approved the check and Mr. Blackmon received $5,000 in $100 bills. Jenkins stated that Mr. Blackmon's behavior was not normal that day. Ellen Bass was the teller at the drive-in window that morning. Her testimony was substantially the same as Jenkins' testimony. Alvin Gibbs, the commissioner of licenses for Calhoun County, testified that a 1985 black Cadillac Eldorado, tag number 11P-2864, was registered to Fred Blackmon. He also testified that a 1976 white Chevrolet Camaro, tag number 11K-9970, was registered to this appellant. Eugene Hunt Scheuerman testified that he was a medical examiner with the Department of Forensic Sciences in March of 1986. He stated that he was present when a black Cadillac Eldorado, tag number 11P-2864, *1250 was pulled from the Coosa River. The body of Fred Blackmon was removed from the trunk of this vehicle. Fred Blackmon was identified by the use of dental records. Scheuerman performed the autopsy on Fred Blackmon's body. Mr. Blackmon's clothing was soiled, muddy, and wet when it was removed from the trunk of the vehicle. There was a strip of white cloth on Mr. Blackmon's body which was used as a gag. Three holes were present on Mr. Blackmon's shirt. Two gunshot wounds were found on Mr. Blackmon's body. One of the gunshots penetrated the neck and passed into the chest cavity. The other gunshot penetrated the left side of the chest and passed through the heart. Both of these projectiles were recovered. The weapon which caused these gunshot wounds was fired at close range. Scheuerman also found minor blunt force injury to Mr. Blackmon's head. However, he determined Mr. Blackmon's cause of death to be the gunshot wounds to the chest and neck. Dr. Joseph Embry, a forensic pathologist with the Department of Forensic Sciences, testified that he was present when a 55-gallon barrel was pulled from the Coosa River. The body of Evelyn Blackmon was found inside the barrel. She was identified through the use of head x-rays. Cinder blocks and bricks were also found in this barrel. Embry performed the autopsy on Mrs. Blackmon's body. There was a gag in Mrs. Blackmon's mouth and a piece of cloth tied around her ankles. Mrs. Blackmon sustained three gunshot wounds. One of the wounds was to the head and it was a superficial wound. Another one of the wounds was to the right side of the neck. The other wound was to the back. None of the projectiles which caused these wounds was found in Mrs. Blackmon's body. Mrs. Blackmon also sustained a laceration of her right forehead. She had numerous fractures to her nose and face. Mrs. Blackmon also had a chop wound in her lower back which penetrated her backbone. Mrs. Blackmon's cause of death was due to the two gunshot wounds to her neck and back. Charles Hall, an officer with the Anniston Police Department, testified that he arrested the appellant for kidnapping in the first degree on April 3, 1986 at 3:25 p.m. at 701 Mulberry Street in Anniston. The appellant was arrested in front of his house as he arrived home in his Camaro. Hall drove the appellant's car to the city impound lot and secured it. He gave the key to the car to Sergeant Robertson. Gary Carroll, an investigator with the Anniston Police Department, testified that the appellant made a statement to him on April 3, 1986 at 5:00 p.m. Before this statement was made, the appellant was advised of his Miranda rights and he signed a waiver of those rights. No threats, promises, hopes of reward, or other inducements were made to obtain the appellant's statement. The following is a summary of the appellant's statement. On the morning of March 26, 1986, the appellant and Robert Milstead went to the home of Fred and Evelyn Blackmon. The two had discussed getting money from the Blackmons. The appellant parked his 1976 white Camaro several blocks away from the Blackmons' house. Milstead went in the Blackmons' house first and held a gun on the Blackmons while the appellant came in the house. Both Milstead and the appellant had guns. One was a .25 caliber and the other was a .22 caliber gun. Mr. Blackmon agreed to get Milstead and this appellant money from his bank. Mr. Blackmon wrote out a check and the appellant accompanied him to the bank. A check in the amount of $5,000 was cashed at the bank and Mr. Blackmon gave the money to the appellant and they returned to Blackmon's house. Once they got back to the house, the appellant and Mr. Blackmon, along with Milstead and Mrs. Blackmon, left the house in Mr. Blackmon's Cadillac Eldorado. Before leaving the house, the appellant took phones from the kitchen and upper bedroom *1251 because he knew the phones had been tapped. Milstead drove the car and Mr. Blackmon sat in the front seat with Milstead. Mrs. Blackmon sat in the back seat with the appellant. They drove to Ohatchee and went down a dirt road to a spot on the river. The appellant said that they planned to tie the Blackmons up and leave them and he and Milstead were going to leave the state. Milstead took Mrs. Blackmon into the woods. When the appellant heard Mrs. Blackmon scream, he went into the woods. The appellant stated that Milstead hit Mrs. Blackmon from behind with a log and then he shot her. They left Mrs. Blackmon tied up there. The two decided to knock Mr. Blackmon out and leave him. The appellant hit Mr. Blackmon on the head with a stick. Milstead then said they had to kill him and Milstead shot Mr. Blackmon. Mr. Blackmon's body was then put in the trunk of his car. Milstead and the appellant then drove Mr. Blackmon's car to a grocery store parking lot and left it there until after dark. The two went back and picked up the car and drove it back to the river. They then drove the car off a boat ramp into the river. The next morning, Milstead purchased some 55-gallon barrels. The appellant and Milstead then went back to the place where they left Mrs. Blackmon. They put Mrs. Blackmon's body into one of the barrels along with rocks to weigh it down. They then rolled the barrel into the river. The appellant stated that he and Milstead split the money in half. He said that the guns he and Milstead had were thrown in a creek in Ohatchee. On April 4, 1986, the appellant gave another statement to the police. The statement consisted of a detailed description of how to find the locations of the crime scenes. On April 11, 1986, the appellant took the police to the place where the guns were thrown into the creek. The guns were found in the creek. Bryan Watson, an evidence technician with the Anniston Police Department, testified that the scene where Mrs. Blackmon was killed was located on April 3, 1986. The scene consisted of a dirt road which ended at a brush pile in the woods. There were vehicle tire tracks on the dirt road which ended at the brush pile. There were two distinct footprints found parallel to the tire tracks. A drag trail was found leading from the tire tracks into the woods. At this scene, Watson found a liberal sampling of bleached hair with white fiber entwined in the hair. Several white and yellow entwined fibers were also found at the scene. Watson also collected soil and debris samples which contained blood stained leaves and soil. A spent .25 caliber hull was found close to the blood stained area. Watson collected and secured this evidence. On April 4, 1986, Watson went to a cement boat ramp located about ¾ of a mile from the first scene. A 1985, two-door Cadillac Eldorado, Alabama tag number 11P-2864, was recovered from the river at this site. The windows were down and the doors were unlocked. A single key was in the ignition and the ignition was in the on position. The car was in first gear. The lights and radio were off. The right rear taillight was broken and there was damage to the front fender. The scene where Mr. Blackmon was killed was also found that day. The scene was a dirt road. At this scene, several pieces of a taillight lens were found as was a silver Cadillac emblem. Two spent .25 caliber hulls were found here. A long white fiber was also located here. This evidence was collected. On April 7, 1986, Watson obtained the key to the appellant's car and inventoried the contents of the vehicle. The vehicle was located in the police department's fenced and locked impound area. The windows were up and the doors were locked. Watson photographed the car and then conducted an inventory of the vehicle in compliance with the policies of the Anniston Police Department. Watson followed the standard inventory procedures for impounded vehicles. *1252 Inside the car, Watson found a piece of white and yellow entwined cloth on the front floorboard of the car. One end of the cloth was knotted and there was hair entwined in the knot. A black mesh shirt, a pair of blue underwear, a black jacket, and another piece of cloth were also found in the right front floorboard. Watson also found a roll of gauze in the console of the car along with a yellow gold necklace inside an envelope. The necklace was identified as belonging to Mrs. Blackmon. Two spent .22 caliber hulls were found on the dashboard. On April 9, 1986, Watson went to a site on the Coosa River where a barrel had been recovered. This site was close to the initial crime scene, where Mrs. Blackmon's body was found. On April 11, 1986, the appellant told the police where the guns that were used on March 26, 1986, had been thrown. A nickel plated Raven Arm Company .25 caliber automatic pistol and a black .22 caliber pistol were found at this location. Only one round was in the .25 and there were five live rounds in the .22 pistol. Richard Townsley, an officer with the Anniston Police Department, went to the Wood's Body Shop on April 5, 1986. Mr. Blackmon's car was taken there and impounded after it was pulled from the river. Townsley compared the pieces of a taillight found on the dirt road to the missing portion of the taillight on Mr. Blackmon's car. The pieces matched. That same day, Townsley went to Milstead's house at 515 Dixie Avenue in Anniston. A blue metal barrel and an ax were found in the backyard. Larry Huys, a serologist with the Department of Forensic Sciences, testified that the soil samples given to him from the place where Mrs. Blackmon was killed contained type A blood. Stains on the articles of clothing found in the appellant's car tested positive for blood. David Higgins, a firearms and toolmarks examiner for the Department of Forensic Sciences, testified that the two bullets found in Mr. Blackmon's body and the three expended cartridges found at the murder scenes were fired from the .25 caliber pistol found in the creek. Higgins could not check for toolmarks comparison between the ax found in Milstead's backyard and the barrel removed from the river because the barrel was rusty. John Case, a criminalist with the Department of Forensic Sciences, testified that he examined numerous pieces of evidence collected in this case. He stated that the hair samples collected at the scene where Mrs. Blackmon was killed matched the known scalp hair of Mrs. Blackmon. The hair found in the appellant's car had some similarities to Mrs. Blackmon's hair. The cloth found on the floorboard of the appellant's car was the same fabric as the ligatures from the ankles and head of Mrs. Blackmon and the gag on Mr. Blackmon. Case also testified that some blue smears found on the ax from Milstead's back yard were consistent with scrapings of the barrel which was recovered from the river. Kenny Surrett testified that he is a friend of the appellant and grew up with him. He stated that he was with the appellant and Milstead the night before the murders took place. Surrett saw a silver .25 caliber gun and a .32 caliber gun in the appellant's car. On March 27, 1986, Surrett went by the appellant's house to talk to him about some money the appellant owed him. When Surrett arrived, the appellant came out of the bathroom and said he could not believe how cold-blooded he was. Then the appellant said he had something to tell Surrett. He said he and Milstead went to the Blackmons' house on the morning in question. The appellant took Mr. Blackmon to the bank and Mr. Blackmon got some money. Milstead and the appellant then took the Blackmons to the river. The appellant said Milstead hit Mrs. Blackmon in the nose and then shot her a couple of times. Later, the two broke Mrs. Blackmon's back and put her in a barrel which they pushed into the river. The appellant said he hit Mr. Blackmon with a stick and then shot him. They put *1253 Mr. Blackmon's body into the trunk of his car and drove it into the river. After the appellant finished talking, Surrett noticed some money on a table. The appellant said he got the money from Mr. Blackmon and paid Surrett the money he owed him. The next week, the appellant called Surrett and asked him if he had heard the news about the Blackmons being missing. The appellant asked Surrett if he believed his story now. Surrett told the appellant that he did not want to hear it, and it was not something to joke about. The next day, Surrett was with the appellant at the barber shop. The appellant made a joke that the Blackmons might be at the bottom of the river. The following day, Surrett told the appellant that he had told somebody about what the appellant told him. The appellant was mad. Robert Denton Milstead testified that he pleaded guilty to four counts of capital murder in connection with the Blackmons' deaths. He received a life sentence in exchange for his testimony at this trial. On March 24, 1986, the appellant told Milstead that he was going to blackmail Mrs. Blackmon with names of the men she had slept with while she was married to Mr. Blackmon. He said he was then going to sell the names to Mr. Blackmon. He did not mention anything about kidnapping the Blackmons. Milstead did not know the Blackmons. On the morning of March 26, 1986, the appellant and Milstead drove by the Blackmons' house and then parked the appellant's car several blocks away. The appellant gave Milstead a .25 caliber gun and told him to go to the Blackmons' house and hold them until he came in the house. The appellant said the Blackmons would not let him in if he went to the door. Milstead put the gun in his pants and knocked on the Blackmons' door. Mr. Blackmon came to the door with his pajamas on and let Milstead in. Milstead said he was a friend of Julie Greenwood and he had to talk to Mrs. Blackmon about her daughter's safety. Milstead then went downstairs to see Mrs. Blackmon. He told her that the appellant was on a "rampage" and he was scared the appellant would hurt her daughter. Milstead and Mrs. Blackmon then went upstairs and the appellant came in the house. The appellant then put a .22 revolver to Mrs. Blackmon's head. Mrs. Blackmon told her husband to call the police. The appellant said it would not be a wise thing to do and told the Blackmons to sit down. He told Milstead to hold the gun on them and he then went into the kitchen and ripped a pillow case into pieces. The appellant then tied up Mrs. Blackmon and gagged and blindfolded her. The appellant went back to the kitchen and pretended to dial a number on the phone. He said, "We're in here and everything is going ok. If I call you back and let the phone ring once, kill Julie and get out." (R. 713.) The appellant then told Mr. Blackmon that Julie was a hostage and he wanted $75,000. Mr. Blackmon said he did not have that much money that he could get to because his money was tied up in stocks. The appellant then agreed to take $5,000. The appellant went upstairs with Mr. Blackmon while he changed his clothes, then the appellant and Mr. Blackmon went to the bank. Milstead stayed with Mrs. Blackmon. The appellant and Mr. Blackmon returned from the bank with $5,000 in $100 bills. The appellant later gave Milstead half of this money. The appellant told Milstead that they were going to take the Blackmons to a secluded spot, tie them up and leave them so he and the appellant could get out of the state. The four then left in Mr. Blackmon's Eldorado. Before they left the house, the appellant took $1,500 from Mr. Blackmon's wallet and one of Mrs. Blackmon's gold necklaces which the appellant later left in his car. The appellant also took some phones because he knew they were tapped. Milstead drove the car and Mr. Blackmon sat beside him in the front seat. The appellant and Mrs. Blackmon sat in the back seat. Milstead drove across the Coosa River to Ohatchee (in St. Clair County) and *1254 drove down a dirt road. At some point, the appellant, Milstead, and Mrs. Blackmon got out of the car and walked to a clearing behind a brush pile. The appellant then told Mrs. Blackmon to sit down. He tied her hands and feet, gagged and blindfolded her. After talking to Mrs. Blackmon, the appellant hit her on the nose with a stick and then hit her on the forehead. Mrs. Blackmon screamed and the appellant tried to choke her with a cloth. The appellant then took the .22 gun, muffled it with the cloth and shot Mrs. Blackmon. The shot did not kill her so the appellant took the .25 gun from Milstead and shot Mrs. Blackmon in the back and head. They covered Mrs. Blackmon's body up and left. Milstead and the appellant then took Mr. Blackmon back across the river (into Calhoun County) and parked on a dirt road. The appellant told Mr. Blackmon to get out of the car. The appellant hit Mr. Blackmon on the head with a stick. This hit broke the taillight on Mr. Blackmon's car. Then the appellant took a piece of cloth and started choking Mr. Blackmon. Mr. Blackmon struggled and stabbed the appellant with a stick. The appellant took out the .25 gun and put it to Mr. Blackmon's throat. Mr. Blackmon begged the appellant not to shoot him and said he could get $50,000 for him. The appellant told Mr. Blackmon it was too late and shot him in the chest and neck. Milstead and the appellant then put Mr. Blackmon's body in the trunk. Milstead and the appellant then drove Mr. Blackmon's car to the Piggly Wiggly grocery store lot and parked it there. They went to Milstead's father's house and washed up and changed clothes. Later that night, Milstead and the appellant went back and picked up Mr. Blackmon's car and drove it to a boat ramp on the Coosa River. The appellant rolled the windows of the car down and rolled the car down the ramp into the river. After a few minutes, the car sank. They threw the two pistols in a creek that night. The next morning, Milstead and the appellant went back to the place where they left Mrs. Blackmon's body. They were going to put her body in a barrel that Milstead bought the previous afternoon. The appellant said the body was too stiff and he took Milstead's ax and tried to cut Mrs. Blackmon's body in half. He then took the body and broke Mrs. Blackmon's back. The two then put her body into the barrel with some cement blocks and rocks. The appellant cut some holes in the barrel with the ax. Milstead and the appellant then rolled the barrel into the river and it sank. The appellant told Milstead to tell the police a story about the mafia if he was questioned concerning the Blackmons' deaths. He said that Milstead would wind up like Mrs. Blackmon if he said anything to the police about him. Milstead testified that he had a conversation with Sharon Johnson on the day the murders occurred. Milstead told Johnson that he and the appellant kidnapped the Blackmons and that the appellant killed them. Sharon Johnson testified for the defense. She said that she had a conversation with Milstead on March 26, 1986. Milstead told her that he shot Mrs. Blackmon and the appellant shot Mr. Blackmon. She said she saw the appellant that day with $3,000 in cash. She and the appellant were dating at the time. I On the afternoon of April 3, 1986, the appellant was arrested for kidnapping in the first degree as he drove up to and parked his automobile in front of his house at 701 Mulberry Street in Anniston, Alabama. The police took the appellant into custody and impounded his vehicle. The vehicle was taken to the Anniston Police Department's impound area. This area was fenced and locked. The vehicle's windows were up and the doors were locked. On the morning of April 7, 1986, Officers Watson and Bradley conducted an inventory search of the appellant's vehicle according to the standardized procedures of the Anniston Police Department. All of the contents of the vehicle were inventoried. During the course of the inventory, Watson and Bradley seized certain items which circumstantially *1255 linked this appellant to the Blackmons' deaths. At trial, the appellant objected to the admission of these items of evidence on the ground that they were illegally seized during a warrantless search of his vehicle. He contends on appeal that this search was unreasonable and in violation of the Fourth Amendment to the United States Constitution. In South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the United States Supreme Court recognized an inventory search exception to the warrant requirement of the Fourth Amendment. Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987); Ringer v. State, 489 So.2d 646 (Ala.Cr.App.), cert. denied 489 So.2d 646 (Ala.1986); Lippold v. State, 365 So.2d 1015 (Ala.Cr.App. 1978), cert. denied, 365 So.2d 1022 (Ala. 1979). In Opperman, the United States Supreme Court ruled that inventories of lawfully impounded vehicles which are conducted pursuant to standard police procedures are reasonable under the Fourth Amendment. Here, both officers testified that the inventory search of the appellant's vehicle was conducted according to standard procedures of the Anniston Police Department. The fact that the inventory was conducted some four days after the vehicle's impoundment does not necessarily render the inventory search unreasonable. See Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967) (the Supreme Court upheld an inventory search which was carried out one week after the defendant's arrest and the vehicle's impoundment). During the four days between the appellant's vehicle's impoundment and the inventory of its contents, the Anniston Police Department was locating the various sites at which the events of this case took place. Officer Watson was involved in the collection of evidence found at these sites. Certainly, the discovery and preservation of evidence, found where each of the killings took place, were more important at the time than the inventory of the contents of the appellant's vehicle, which was properly secured. Under these circumstances, we cannot say that the inventory search of the appellant's vehicle four days after its impoundment was unreasonable. The appellant also claims that the inventory search of the appellant's vehicle was a subterfuge for obtaining evidence in this case. Officer Bradley testified that police are always aware that they may find incriminating evidence when conducting an inventory search. However, "... the mere expectation of uncovering evidence will not vitiate an otherwise valid inventory search. United States v. Prescott, supra, 599 F.2d [103] at 106." Ringer, 489 So.2d at 649 (quoting United States v. Bosby, 675 F.2d 1174, 1179 (11th Cir.1982). In Bertine, the Supreme Court upheld an inventory search of the defendant's vehicle where "there was no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation." Bertine, 107 S.Ct. at 742. The court concluded that "reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment...." Bertine, 107 S.Ct. at 742. On the afternoon of March 28, 1986, some two days after Mr. and Mrs. Blackmon disappeared, Julie Greenwood and her father, Mr. Greenwood, filed a missing persons report with the Anniston Police Department. In the case at bar, there was no showing that the officers acted in bad faith or conducted the inventory for investigative purposes. The police had probable cause to believe that the appellant's vehicle had been used in the commission of the crimes. This probable cause was supplied by the accomplice, Milstead, who had given the police a detailed statement several hours before the appellant was arrested as he drove up in front of his home. See State v. Stott, 395 So.2d 714 (La.1981). Thus, we conclude that the inventory search of the appellant's vehicle was reasonable and not in violation of the United *1256 States Fourth Amendment. (Authorities herein cited.) II The evidence adduced at the appellant's trial showed that Mrs. Blackmon's death and murder occurred in St. Clair County, Alabama. The appellant argues on appeal that he should have been tried in St. Clair rather than Calhoun County for Mrs. Blackmon's murder since the killing took place in that county. Section 15-2-2, Code of Alabama (1975) states that: "Unless otherwise provided by law, the venue of all public offenses is in the county in which the offense was committed." (Emphasis added.) Section 15-2-6, Code of Alabama, provides that: "When an offense is committed partly in one county and partly in another or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, venue is in either county." In Ex parte Williams, 383 So.2d 564 (Ala.1980), cert. denied, Williams v. Alabama, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980), the Alabama Supreme Court examined the language of § 15-2-6, Code of Alabama (1975). In that case, the court stated: "Obviously, the phrase, `or requisite to the consummation of the offense' means requisite to the completion of the offense —to the achievement of the unlawful purpose—to the ends of the unlawful enterprise. By the use of the word `consummation' the legislature drew a distinction between an act or an effect thereof which is essential to the commission of an offense, and an act or effect thereof which, although unessential to the commission of the offense, is requisite to the completion of the offense— that is, to the achievement of the unlawful purpose of the person committing the offense." Williams, 383 So.2d at 566 (quoting People v. Megladdery, 40 Cal.App.2d 748, 106 P.2d 84 (1940). The appellant was charged with two counts of kidnapping/murder and two counts of robbery/murder involving the death of Mrs. Blackmon. In Ex parte Baldwin, 456 So.2d 129 (Ala.1984), the Alabama Supreme Court, interpreting the 1975 capital murder statute stated: "The crime of robbery when the victim is intentionally killed is a single offense beginning with the act of robbing or attempting to rob and culminating with the act of intentionally killing the victim. The offense consists of two elements, robbing and intentionally killing, but does not consist of two separate offenses. See Ex parte Clements, 370 So.2d 723 (Ala.1979); Horsley v. State, [374 So.2d 363] (Ala.Crim.App.1978)." Baldwin, 456 So.2d at 133. Although the language in the present 1981 capital murder statute defining robbery/murder differs somewhat from the earlier statute, the offense of robbery/murder is still a single offense consisting of two elements. The capital offense of robbery/murder cannot be consummated unless there is a 1) murder committed by the defendant, 2) during the course of a robbery in the first degree or an attempt thereof. The capital offense of kidnapping/murder likewise is a single offense consisting of two elements—1) a murder committed by the defendant, 2) during the course of a kidnapping in the first degree or an attempt thereof. As was stated earlier, the appellant was charged with two counts of kidnapping/murder (counts I & III) with regard to Mrs. Blackmon's death. Section 13A-6-43(a), Code of Alabama (1975) provides that: "A person commits the crime of kidnapping in the first degree if he abducts another person with intent to (1) hold him for ransom or reward; or (2) use him as a shield or hostage; or (3) accomplish or aid the commission of any felony or flight therefrom; or (4) inflict physical injury upon him, or to violate him sexually; or (5) terrorize him or a third person; or (6) interfere with the performance of any governmental or political function." *1257 Count I of the indictment charged the appellant with the murder of Mrs. Blackmon during an abduction of her with the intent to inflict physical injury upon her. Count III of the indictment charged the appellant with the murder of Mrs. Blackmon during an abduction of her with the intent to terrorize her. The definition of "abduct" as it relates to § 13A-6-43, Code of Alabama (1975) is as follows: "To restrain a person with intent to prevent his liberation by either: a. Secreting or holding him in a place where he is not likely to be found, or b. Using or threatening to use deadly physical force." Ala.Code, § 13A-6-40(2) (1975). "Restrain" is defined as follows: "To intentionally or knowingly restrict a person's movements unlawfully and without consent, so as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved. Restraint is `without consent' if it is accomplished by: a. Physical force, intimidation or deception...." Ala.Code, § 13A-6-40(1) (1975). Applying the above definitions to the case at bar, there is ample evidence that the offense of kidnapping (the abduction of Mrs. Blackmon by the appellant with the intent to 1) inflict physical injury upon her, and 2) terrorize her) occurred in Calhoun County, Alabama. The abduction of Mrs. Blackmon was a requisite to the completion of the capital offense of kidnapping/murder. Thus, venue was properly in Calhoun County, Alabama, with regard to counts I and III of the indictment (kidnapping/murder). The appellant was also charged with two counts of robbery/murder in counts V and VII of the indictment. "A person commits the crime of robbery in the first degree if he violates § 13A-8-43, and he (1) Is armed with a deadly weapon or dangerous instrument; or (2) Causes serious physical injury to another." Ala.Code, § 13A-8-41(a) (1975). Section 13A-8-43(a), Code of Alabama (1975) provides: "A person commits the crime of robbery in the third degree if in the course of committing a theft he: (1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance, or (2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property." In count V of the indictment, the appellant was charged with the murder of Mrs. Blackmon during the course of a robbery (of the Cadillac and $5,000) while armed with a deadly weapon. Obviously, the robbery element, as alleged in count V was completed in Calhoun County, Alabama, when the appellant and Milstead obtained unauthorized control of the $5,000 and the Cadillac automobile while armed with deadly weapons. Count VII of the indictment charged the appellant with the murder of Mrs. Blackmon during the course of a robbery, and during said robbery, he caused serious physical injury or death to her. Although there was no evidence that the appellant caused Mrs. Blackmon serious physical injury or death in Calhoun County, venue is still proper in Calhoun County with regard to count VII of the indictment. The theft of the Cadillac and the $5,000 by the threat or use of force against Mrs. Blackmon by the appellant, was an act requisite to the completion of the offense of robbery/murder. Although the robbery element as contained in count VII was consummated in St. Clair County, it began in Calhoun County. From our examination of § 15-2-6, Code of Alabama (1975), and the Alabama Supreme Court's interpretation in Williams, of the language used in this statute, we conclude that venue, for the kidnapping/murder *1258 and robbery/murder charges against this appellant for the death of Mrs. Blackmon, was properly in Calhoun County, Alabama. III During the course of the jury's deliberations during the guilt phase of trial, the following occurred: "THE COURT: Let the record reflect the jury is outside the courtroom. Counsel for the defendant and the state are present. "I have received a note from the jury which reads: `Could we have a distinction between murder and capital murder?' I have responded: `Murder and capital murder have already been defined to you. You should use your own recollection of those definitions to determine any distinction.' "What says the state? "MR. FIELD: Satisfied, Your Honor. "THE COURT: What says the defendant? "MR. PARIS: Satisfied, Your Honor. "THE COURT: I'll send the note back up." (R. 961.) The appellant asserts in his brief that a proper objection was made to the trial court's refusal to give additional instructions on murder and capital murder. The only evidence concerning this matter which is contained in the record before us is the above-quoted portion of the record, a motion to correct or modify the record filed with the trial court and an order by the trial court denying this motion. The order of the trial court, dated July 10, 1987, states that a hearing was held on the appellant's motion. The order further states that the trial judge, after hearing testimony from both sides and reviewing the court reporter's notes and tapes of the trial, found that "any objections made by the Defense Counsel to the Court's response to the question submitted by the Jury to the Court were not preserved for the record." Thus, the evidence before this court is that the appellant failed to object to the court's refusal to give additional instructions to the jury, and, therefore, counsel had not preserved this issue for our review. The appellant has attached to his brief a motion to extend the record on appeal (appellant's brief, p. 39-40), and copies of affidavits made by the appellant's attorneys (appellant's brief, p. 43-45). In the affidavits made by counsel, Brian Stephen Levinson, he states: "On March 20, 1987, in the midst of appellant's trial, I was present and objected to the trial judge's failure to recharge the jury as to capital murder and murder, after the jury asked for a distinction of the two, and I also objected to the trial judge's failure to inquire of the jury what the basis of their inquiry was. I informed the judge of my intent to object thereto, on the record, I then did object thereto, although the Court Reporter did not note my objection for the record." (Appellant's brief, p. 43.) In the affidavit made by counsel, Grant A. Paris, he states: "In Volume 5, at Page R961, of said transcript, it indicates that I was present and answered, `Satisfied, Your Honor,' when in fact I was not present in the Courtroom at that time and never so answered." (Appellant's brief, p. 45.) This court cannot consider the appellant's motion to extend the record on appeal and the accompanying affidavits as part of the record merely because they are attached to the appellant's brief. See Edwards v. State, 287 Ala. 588, 253 So.2d 513 (1971); Dunaway v. State, 50 Ala.App. 198, 278 So.2d 198, cert. denied, 291 Ala. 777, 278 So.2d 200 (1973); Anderson v. State, 455 So.2d 957 (Ala.Cr.App.), cert. denied, 455 So.2d 957 (Ala.1984). The appellant has failed to make a proper motion to supplement the record under Rule 10(f), A.R.A.P. Thus, the validity of the affidavits attached to the appellant's brief cannot be considered on appeal. Turner v. State, 380 So.2d 393 (Ala.Cr. App.1980); Callens v. State, 471 So.2d 482 (Ala.Cr.App.1984), cert. denied, 471 So.2d 482 (Ala.1985); Edwards, supra. In Vaughn v. Britton, 740 F.2d 833 (11th Cir.1984), cert. denied, 469 U.S. 1163, 105 *1259 S.Ct. 920, 83 L.Ed.2d 932 (1985), defense counsel stated in the defendant's brief to this court that he had objected to the trial court's Allen charge to the jury, but that his objection was not noted in the record. The Eleventh Circuit held that this was insufficient, under Alabama law, to comply with the duty to file a correct record on appeal and that this procedural default precluded review of the merits of the issue. When a defendant fails to file a proper 10(f) A.R.A.P. motion and the record demonstrates the trial proceedings are regular on its face, this court can only conclude that the record on appeal is correct. Hollins v. State, 415 So.2d 1249 (Ala. Cr.App.1982). Thus, this issue has not been preserved for our review. Furthermore, we do not find the trial judge's refusal to give additional instructions to the jury on murder and capital murder to be error, since the trial judge thoroughly instructed the jury on these matters in his oral charge to them. There is no basis of error to reversal shown here. IV Section 13A-5-53, Code of Alabama (1981), requires this court to review the propriety of the appellant's death sentence and to examine the record for any errors affecting this conviction. This court has reviewed the entire record in this cause as required by § 13A-5-53(a), Code of Alabama (1975), and we have found no error adversely affecting the rights of this appellant. Beck v. State, 396 So.2d 645 (Ala.1980). See also rule 45A, A.R.A.P. The trial court found the existence of two aggravating circumstances: "The capital offense was committed while this defendant was engaged in the commission of, or flight after committing or attempting to commit Robbery and Kidnapping," (§ 13A-5-49(4)), and, that, "The Capital offenses were especially heinous, atrocious or cruel when compared to other capital offenses." (§ 13A-5-49(8).) (P.C. 200.) The first aggravating circumstance is fully supported by the record, supra. Further, we are convinced that these capital offenses were especially heinous, atrocious, and cruel. Hubbard v. State, 500 So.2d 1204 (Ala.Cr.App.1986), affirmed, 500 So.2d 1231 (Ala.1986), cert. denied, Hubbard v. Alabama, 480 U.S. 940, 107 S.Ct. 1591, 94 L.Ed.2d 780 (1987). The appellant planned to obtain some money from these victims and went to their home to carry out his plan. He told the victims that Mrs. Blackmon's daughter was being held hostage and obtained $5,000 from the Blackmons based on this story. He then kidnapped both victims and gagged and bound them. He took Mrs. Blackmon to a secluded spot and hit her with such force that same broke her nose. Then the appellant shot her three times and left her. He returned the next day, mutilated her body and then put her in a "weighted barrel" and pushed it in the Coosa River. Mr. Blackmon was shot and killed after he begged for his life and offered the appellant $50,000 to spare his life. His body was placed in his automobile's trunk and driven into the Coosa River. These facts certainly sustain and support the trial judge's finding of the second aggravating circumstance. See Thompson v. State, 503 So.2d 871 (Ala.Cr.App.1986), affirmed, 503 So.2d 887 (Ala.1986), cert. denied, Thompson v. Alabama, ___ U.S. ___, 108 S.Ct. 204, 98 L.Ed.2d 155 (1987). The trial judge found one statutory mitigating circumstance. "The defendant was twenty (20) years of age at the time of the commission of the crime charged." (§ 13A-5-51(7).) (P.C. 202). See Neelley v. State, 494 So.2d 669 (Ala.Cr.App.1985), aff'd, 494 So.2d 697 (Ala.1986), cert. denied, Neelley v. Alabama, 480 U.S. 926, 107 S.Ct. 1389, 94 L.Ed.2d 702 (1987) (wherein this court found that the same two aggravating circumstances present here outweighed the one statutory mitigating circumstance of age (18 at the time of the offense), and several non-statutory mitigating circumstances). The trial court also considered the fact that the appellant "to some degree assisted the law enforcement officers in locating the *1260 bodies of the two victims and the weapons used in the crime," and evidence concerning the appellant's background and character as mitigating circumstances. The trial judge's finding regarding the mitigating circumstances is also supported by the record. We find no evidence in this record that the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor. Hubbard, supra; Thompson, supra. Our independent weighing of the aggravating and mitigating circumstances convinces us that death was the proper sentence to be imposed in this case. Further, the sentence of death here is not disproportionate to the penalty imposed in similar cases, considering the crime and this appellant. See Beck v. State, 396 So.2d 645, 654, n. 5 (Ala.1980) (the great majority of death sentences are for robbery (murder); Neelley (kidnapping/murder) (and cases cited therein). Furthermore, the fact that the appellant's accomplice received a life without parole sentence does not render this appellant's sentence disproportionate. See Neelley and Ex parte Womack, 435 So.2d 766 (Ala. 1983,), cert. denied, Womack v. Alabama, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 367 (1983) (wherein accomplices had not even been prosecuted for the offense). We have carefully searched this record for plain error and have found none. Therefore, the appellant's judgment of conviction and sentence of death is proper. The same is due to be, and is hereby, affirmed.[*] AFFIRMED. All the Judges concur. *1261 APPENDIX *1262 *1263 *1264 *1265 *1266 *1267 *1268 *1269 *1270 *1271 *1272 *1273 *1274 *1275 NOTES [*] The trial judge's findings and sentencing order are set out in an appendix to this opinion.

266 B.R. 523 (2001) In re Pablo MARTINEZ, Debtor. Pablo Martinez, Plaintiff, v. Law Offices of David J. Stern, P.A., Defendant. Bankruptcy No. 99-42274-BKC-RAM, Adversary No. 00-1118-BKC-RAM-A. United States Bankruptcy Court, S.D. Florida. May 30, 2001. Order Denying Rehearing July 6, 2001. Order Awarding Attorney Fees August 22, 2001. *524 *525 *526 *527 *528 *529 Lawrence Shoot, Miami, Florida, for debtor. Becket and Lee LLP, Newark, NJ, Arthur E. Lewis, Plantation, FL, Andrew D. Zaron, Ft. Flauderdale, FL, for creditor. MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ROBERT A. MARK, Chief Judge. The cross-motions for summary judgment filed in this proceeding raise an issue *530 of law under § 1692g of the Fair Debt Collection Practices Act ("FDCPA"). The issue is whether the defendant/ debt collector provided effective notice to the plaintiff/ consumer of the consumer's rights under 15 U.S.C. § 1692g pursuant to the hypothetical least sophisticated consumer standard. For the reasons set forth below, the plaintiff's motion will be granted and the defendant's motion denied. Factual and Procedural Background The material facts are undisputed. On June 30, 1992, the plaintiff, Pablo Martinez ("Plaintiff" or "Debtor"), his wife Anna Martinez and Eduardo Martinez executed a mortgage in the amount of $70,791.00 in favor of American Trust Mortgage Corporation. Union Planters Bank, N.A. ("Union Planters"), by virtue of a series of assignments, became the owner and holder of the mortgage. On September 16, 1999, the defendant, the Law Offices of David J. Stern, P.A. (the "Defendant"), as counsel for Union Planters, prepared, filed and caused to be served a foreclosure action against the Debtor and the other individuals who executed the mortgage (the "Foreclosure Action"). The Defendant had no prior contact or communication with the Debtor and the service of the foreclosure summons, complaint and items contained therewith was the initial communication between the parties (the "Initial Communication"). The Initial Communication contained 16 pages of documents. In sequence, the package began with the summons (two pages), a lis pendens (two pages) and a Complaint to Foreclose Mortgage (three pages). The eighth page of the package was the document which constitutes the focus of this proceeding, entitled Notice Required By The Fair Debt Collection Practice Act (the "FDCPA Notice") (one page), followed by a copy of the note, mortgage and attachments (eight pages). On the first page of the summons, which was the first page of the Initial Communication, was the following statement: "IF YOU DO NOT FILE YOUR RESPONSE ON TIME, YOU MAY LOSE THE CASE, AND YOUR WAGES, MONEY AND PROPERTY MAY THEREAFTER BE TAKEN WITHOUT FURTHER WARNING FROM THE COURT." The FDCPA Notice (eighth page) consisted of seven numbered paragraphs which contained the statutory language, including the following: 3. The debtor may dispute the validity of this debt or any portion thereof, within 30 days of receipt of this notice. If the debtor fails to dispute the debt within 30 days, the debt will be assumed valid by the creditor. 4. If the debtor notifies the creditor's law firm in writing within 30 days from receipt of this notice that the debt, or any portion thereof is disputed, the creditor's law firm will obtain verification of the debt or a copy of a judgment and a copy of the verification will be mailed to the debtor by the creditor's law firm. On December 15, 1999, the Debtor filed a chapter 13 bankruptcy petition in this Court and the following day filed a suggestion of bankruptcy in the Foreclosure Action. On March 23, 2000, the Debtor filed this adversary proceeding. Count I alleged that the Defendant, as a debt collector, violated 15 U.S.C. § 1692g by not conveying effective notice of the Plaintiff's rights as required under the FDCPA. Count II alleged that the Defendant violated § 1692f, claiming it was an abusive debt collection practice to file a foreclosure complaint without first advising the Debtor that such a complaint was imminent. In a May 30, 2000 Order which granted in part Defendant's Motion to Dismiss, the Court dismissed the § 1692f claim, leaving only *531 the § 1692g claim at issue in this proceeding. The parties filed cross-motions for summary judgment which were argued on January 8, 2001. In addition to the memoranda and oral arguments presented by the parties, the Court considered the amicus brief and oral argument presented by Wells Fargo Mortgage, Inc. ("Wells Fargo") in support of the Defendant's Motion. After further briefing, the Court conducted a second hearing on the cross motions for summary judgment on February 12, 2001. The Court has now fully considered the record including the memoranda and supplemental memoranda submitted by the parties and by Wells Fargo, the oral arguments presented at the two hearings and applicable law. Summary of the Law The FDCPA was enacted to eliminate unscrupulous debt collection practices of consumer debts. See 15 U.S.C. § 1692; Russell v. Equifax A.R.S., 74 F.3d 30, 33 (2d Cir.1996); see generally O. Randolph Bragg, The Fair Debt Collection Practices Act, 1172 PLI/ Corp 917 (April, 2000). Quoting the applicable legislative history, the Eleventh Circuit has stated that in establishing the FDCPA, Congress recognized "the serious and widespread abuses in the [debt collection area] . . . [which] make this legislation necessary and appropriate." Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1173 (11th Cir.1985) quoting S.Rep. No. 95-382, 95th Cong., 1st Sess., reprinted in 1977 U.S.Code Cong. & Ad.News 1695, 1697. Consistent with this goal, § 1692g obligates a debt collector, upon solicitation of payment on a consumer debt or within five days thereof, to provide a detailed validation notice ("Validation Notice") to the consumer. See 15 U.S.C. § 1692g.[1] The Validation Notice must include, inter alia, a statement that the debt's validity will be assumed unless it is disputed by the consumer within 30 days of receipt of the notice and an offer by the debt collector to provide information regarding the details and verification of the debt. See id. The ease of obtaining this information allows a consumer to arm himself to challenge the claimed amount or entirety of the debt prior to making payment. The notice provisions of § 1692g do not require any specific statement of the legal consequences of requesting such notice, namely, the obligation of a debt collector to cease collection efforts until the requested information is provided. This "cease and desist" charge is in the statute, but notice of the obligation is not explicitly required. See 15 U.S.C. § 1692g(b). A debt collector must ensure that notice of the right to dispute the debt is actually conveyed to the consumer, and that the notice is conveyed effectively. See Wilson v. Quadramed Corp., 225 F.3d 350, 354 (3d Cir.2000); Russell, 74 F.3d at 35; Graziano v. Harrison, 950 F.2d 107, 111 (3d Cir.1991); Swanson v. Southern Oregon Credit Service, Inc., 869 F.2d 1222, 1225 (9th Cir.1988); Rabideau v. Management Adjustment Bureau, 805 F.Supp. 1086, 1093 (W.D.N.Y.1992). The effectiveness of the notice is based on an objective standard of the manner in which a "least sophisticated consumer" would interpret the notice. See Jeter, 760 F.2d at 1175; Russell, 74 F.3d at 34 ("[T]he test is how the least sophisticated consumer — one not having the astuteness of a `Philadelphia lawyer' or even the sophistication of the *532 average, everyday, common consumer — understands the notice he or she receives."). This standard allows for the protection of all consumers, the gullible and the shrewd. See Wilson v. Quadramed Corp., 225 F.3d at 354. As described by the Seventh Circuit, this standard presumes a level of sophistication that "is low, close to the bottom of the sophistication meter." Avila v. Rubin, 84 F.3d 222, 226 (7th Cir.1996). The least sophisticated consumer standard does contemplate a minimum level of sophistication which "prevents liability for bizarre or idiosyncratic interpretations of collection notices by preserving a quotient of reasonableness and presuming a basic level of understanding and willingness to read with care." Wilson, 225 F.3d at 354-55 (internal quotation marks and citations omitted); see also Jang v. A.M. Miller & Assoc., 122 F.3d 480, 483-84 (7th Cir.1997). Moreover, in applying this objective standard, courts assume that the entire content of the notice was read by the consumer. See Cavallaro v. Law Office of Shapiro & Kreisman, 933 F.Supp. 1148, 1153 (E.D.N.Y.1996); Clomon v. Jackson, 988 F.2d 1314, 1319 (2d Cir.1993) (A least sophisticated consumer "can be presumed to possess a rudimentary amount of information about the world and a willingness to read a collection notice with some care."). Therefore, although the applicable standard is that of a consumer with a minimum level of sophistication, it assumes that a Validation Notice is read in its entirety, carefully and with some elementary level of understanding. Numerous courts in various circuits have held that the mere inclusion of a Validation Notice within the first communication between a debt collector and a consumer does not necessarily satisfy the notice requirement of § 1692g. See Rabideau, 805 F.Supp. 1086; see also Bartlett v. Heibl, 128 F.3d 497, 500 (7th Cir.1997); Graziano, 950 F.2d at 111; Miller v. Payco-General American Credits, Inc., 943 F.2d 482 (4th Cir.1991); Swanson, 869 F.2d at 1225. These courts have reasoned that even where the bare bones of the required notice is present, § 1692g is nonetheless violated where the notice is "overshadowed or contradicted by accompanying messages from the debt collector." Graziano, 950 F.2d at 111; Bartlett, 128 F.3d at 500 (citing cases).[2] In many cases, the conflicting or confusing message which results in a violation of the FDCPA is a payment demand that could influence the consumer to forego the statutory rights contained in the Validation Notice. See generally Bragg, The Fair Debt Collection Practices Act, 1172 PLI/ Corp 917 (citing and discussing cases). In cases involving such overlapping statements, the information provided in the Validation Notice may be accurate, and if it had been independently conveyed, would have been sufficient to inform a least sophisticated consumer of his rights. However, when coupled with language which could confuse a least sophisticated consumer or render the consumer uncertain on how to proceed, effective notice has not been conveyed. See Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir.2000) ("The key consideration is that the unsophisticated *533 consumer is to be protected against confusion whatever form it takes.") (internal quotation marks omitted); see also Russell, 74 F.3d at 35. It is the confusion based on the context of the notice which would lead the hypothetical least sophisticated consumer to be uncertain as to his statutory rights to dispute the debt and therefore eliminate the effectiveness of the statutory notice. There is a split in the circuits as to whether the effectiveness of a Validation Notice is an issue of law or fact. See Wilson, 225 F.3d at 353 fn. 2 (noting conflicting circuit decisions). This Court agrees with the Second, Third and Ninth circuits, and finds that since the standard applied is objective in nature, i.e., a hypothetical least sophisticated consumer, the determination is a question of law. See id.; Terran v. Kaplan, 109 F.3d 1428, 1432-33 (9th Cir.1997); Russell, 74 F.3d at 35; but see Walker v. National Recovery, Inc., 200 F.3d 500, 503 (7th Cir.1999). The parties here agree that this is an issue of law and that there are no genuine issues of material fact to be decided. Analysis Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Fed.R.Civ.P. 56(c) made applicable by Fed.R.Bankr.P. 7056; Trucks, Inc. v. United States of America, 234 F.3d 1340 (11th Cir.2000). Upon careful consideration of the FDCPA Notice in the instant case, as viewed from the perspective of a hypothetical least sophisticated consumer, the Court finds that Plaintiff's motion for summary judgment should be granted. The Initial Communication in this case was a 16 page package which included a summons and complaint. The FDCPA Notice was on page eight, while the dire consequences of not responding to the complaint were set out in bold on the summons on the first page. Viewed in its entirety, the Court finds that a hypothetical least sophisticated consumer would have been confused and uncertain of his rights. As such, the FDCPA Notice did not provide effective notice and therefore violated § 1692g. In Graziano, the Third Circuit held that the notice of the right to dispute the debt was not effectively conveyed to the debtor where a ten day demand for payment and the threat of a lawsuit if payment was not made accompanied the Validation Notice. See 950 F.2d at 111. The court found that it was a reasonable possibility that "the least sophisticated debtor, faced with a demand for payment within ten days and a threat of immediate legal action if payment is not made in that time, would be induced to overlook his statutory right to dispute the debt within thirty days." Id. at 111. Although in the instant case the return date on the summons was set for thirty days following receipt, presumably to coincide with the thirty day period to dispute the debt under § 1692g, the confusion and uncertainty arising from the conflict between the summons and the FDCPA Notice is similar to the conflicts which created liability in Graziano. The summons, which was the first page of the Initial Communication, required a response to the complaint and set forth dire consequences for failure to comply. The Validation Notice on the eighth page described a very different option, namely, the right to dispute the debt and request verification. As a matter of law, exercise of this latter right requires a debt collector to cease collection efforts until the verification is provided to the consumer. As described by the Third *534 Circuit, "the juxtaposition of two inconsistent statements . . . rendered the statutory notice invalid under section 1692g." Id. at 111; see also Bartlett, 128 F.3d at 500 ("In the typical case, the letter both demands payment within thirty days and explains the consumer's right to demand verification within thirty days. These rights are not inconsistent, but . . . the letter confuses."). The same is true here. Even though the summons and the FDCPA Notice both had 30 day return dates, the conflicting statements rendered the FDCPA Notice ineffective. In another sense, the facts here are more compelling than in Graziano. In Graziano, the letter which accompanied the Validation Notice merely threatened legal action unless the debt was resolved. See 950 F.2d at 111. Here, we have not the threat of a lawsuit, but the actual commencement of a legal action. Simple a fortiori logic suggests that a least sophisticated consumer would be more compelled to obey the fulfillment of a threat than the threat itself. The Court's conclusion that the Defendant violated § 1692g is also supported by Adams v. Law Offices of Stuckert & Yates, 926 F.Supp. 521 (E.D.Pa.1996). Like the Defendant here, the defendant law firm in Adams provided the consumer with the statutorily mandated Validation Notice. However, strong language preceded such notice, including statements that failure to make "prompt" or immediate payment on the debt might result in a lawsuit, and payment was the only way for the consumer to "avoid trouble". See id. at 524-25. Citing Graziano and Russell, the court explained that "extraneous language is considered overshadowing or contradictory if it would cause the least sophisticated debtor to become confused or uncertain as to his rights under the FDCPA." Id. at 527. In granting summary judgment in favor of the consumer, the court held that the harsh language, from the perspective of a least sophisticated consumer, overshadowed the included Validation Notice in violation of § 1692g. See id. at 527. Here, the FDCPA Notice was in a package that began with a summons containing language even more blistering than that in Adams. The ominous sentence, "IF YOU DO NOT FILE YOUR RESPONSE ON TIME, YOU MAY LOSE THE CASE, AND YOUR WAGES, MONEY AND PROPERTY MAY THEREAFTER BE TAKEN WITHOUT FURTHER WARNING FROM THE COURT" on the first page of the Initial Communication would cause a least sophisticated consumer to heed the warning and choose to answer the complaint. This threatened consequence set out in bold language leads the Court to the inescapable conclusion that a least sophisticated consumer would not fully understand or appreciate the FDCPA Notice. The language in the summons would induce the consumer to answer the complaint to prevent the harsh result threatened therein. Therefore, no effective notice was provided. The confusion created by the Initial Communication was evident during oral argument on the summary judgment motions. During the January 8th hearing, the Court asked Defendant's counsel what the effect would have been on the time frame to file a responsive pleading to the complaint if the Debtor had requested validation of the debt pursuant to the FDCPA Notice. Notably, even after caucusing with co-counsel, Defendant's lead attorney was unable to define the Debtor's rights and obligations upon receipt of a single enclosure which included both a Validation Notice and a foreclosure complaint. It would be difficult to find that the Initial Communication conveyed effective notice to a hypothetical least sophisticated consumer *535 when both the Court and Defendant's counsel had difficulty harmonizing the compounded effect of a summons and Validation Notice. See Bartlett, 128 F.3d at 501 ("nor as an original matter could we doubt that the letter to [the debtor] was confusing — we found it so, and do not like to think of ourselves as your average unsophisticated consumer."). At the February 12th hearing, the Court once again questioned Defendant's counsel what a hypothetical least sophisticated consumer ought to have done upon receipt of the Initial Communication. Counsel's response to the Court's inquiry was that since the Initial Communication demanded an answer to the complaint within thirty days and also gave notice of the right to dispute the debt within the same time period, the consumer can simply do both. This response is virtually an admission that the Initial Communication is confusing. Upon acting upon a Validation Notice by disputing the debt, a consumer is under no obligation to respond to the complaint until, at the earliest, the debt collector responds with the requested information. See 15 U.S.C. § 1692g(b). It mischaracterizes the law to suggest that it is satisfactory for a least sophisticated consumer to be induced to respond to a complaint within the time set forth in the summons, when, as a matter of law, that time is statutorily extended if there is a request for the validation of his debt. Only a consumer at best uncertain as to his rights would come to this conclusion. See Bartlett, 128 F.3d at 500-01 ("A contradiction is just one means of inducing confusion."). This result would also run contrary to the stated goals of the FDCPA. By filing a signed responsive pleading with a court, the consumer is bound to the statements of law or facts contained therein. A consumer is statutorily provided with an opportunity to learn many of the details surrounding the applicable debt prior to responding to the debt collector, and filing a sworn answer unnecessarily limits such a right. Defendant's counsel's final argument is that despite any potential confusion based on context, the Defendant complied with the FDCPA because the Initial Communication contained the substantive notice required by the plain language of § 1692g. The legislature did not require a debt collector to do more than provide the specifically enumerated information to a consumer upon the attempted collection of a debt. See United States v. Lewis, 67 F.3d 225, 228 (9th Cir.1995) ("[C]anons of statutory construction dictate that if the language of a statute is clear, we look no further than that language in determining the statute's meaning."). Therefore, according to the Defendant, the FDCPA notice requirements are satisfied by the simple enclosure of the specific rights enumerated in the statute. The Court rejects the Defendant's position. Although the plain language of the statute is controlling as to the substantive information that must be provided through the notice, the manner and sufficiency of the notice may still be set and weighed by the courts. As stated above, the long standing rule in this Circuit and others is that the FDCPA requires effective notice to be conveyed pursuant to the least sophisticated consumer standard. See Jeter, 760 F.2d at 1175; Wilson, 225 F.3d at 354. As Judge Posner explained in Bartlett, [I]t is implicit that the debt collector may not defeat the statute's purpose by making the required disclosures in a form or within a context in which they are unlikely to be understood by the *536 unsophisticated debtors who are the particular objects of the statute's solicitude. 128 F.3d at 500. For the reasons discussed, the Defendant's FDCPA Notice violated § 1692g since it did not provide effective notice consistent with the applicable least sophisticated consumer standard. For guidance, the Court offers the following simple suggestion for satisfying the statute where inclusion of a Validation Notice with other documents might lead a consumer to be uncertain or indefinite as to his rights: to prevent confusion, a debt collector should provide clarity. Specifically, if two or more messages would deliver mixed guidance to a least sophisticated consumer as to his rights under the FDCPA, reconciling language ought to be utilized to provide effective notice. Other courts have found it appropriate to provide some direction to practitioners in analyzing what constitutes effective notice under the FDCPA, including, in particular, the Seventh Circuit's comprehensive discussion in Bartlett. See 128 F.3d 497. There, Judge Posner proposed that reconciling language between two seemingly contradictory or confusing provisions setting deadlines for a debtor to act could remedy the overshadowing. See id. at 501-02. In fact, the Bartlett opinion set forth a hypothetical letter which would act as a safe harbor if a debt collector chose to include the FDCPA notice provision and a seven day demand for payment of the amount owed in the same document. See id. The hypothetical letter ends with the following statement: The law does not require me [the debt collector] to wait until the end of the thirty-day period before suing you [the consumer] to collect this debt. If, however, you request proof of the debt or the name and address of the original creditor within the thirty-day period which begins with your receipt of this letter, the law requires me to suspend my efforts (through litigation or otherwise) to collect the debt until I mail the requested information to you. Id. at 502. This Court affirmatively approves the Seventh Circuit's safe harbor in Bartlett. Similar reconciling language included on page eight of the Initial Communication could have avoided the statutory violation in this proceeding, providing the required notice without sacrificing efficiency.[3] Such language would harmonize and explain the consumer's obligations in responding to the lawsuit when, in the same communication, the consumer is advised of his statutory rights under the FDCPA. In sum, the Court finds that the notice provided by the Defendant in the Initial Communication was not effective in light of the applicable hypothetical least sophisticated consumer standard. In coming to this result, the Court is guided by the United States Supreme Court's admonition in FTC v. Colgate-Palmolive Co., where in a case also involving consumer protection issues, the Supreme Court stated: [I]t does not seem unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line. 380 U.S. 374, 393, 85 S.Ct. 1035, 13 L.Ed.2d 904 (1965) (internal quotation marks omitted) quoting Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 96 L.Ed. 367 (1952). *537 The Defendant took the risk, crossed the line and violated federal law. Damages A debt collector who violates the FDCPA is liable for actual damages sustained as a result of the violation (§ 1692k(a)(1)), additional damages (the "Statutory Damages") up to $1,000.00 (§ 1692k(a)(2)(A)) and the plaintiff's costs and reasonable attorney's fees (§ 1692k(a)(3)). The statute sets forth certain non-exhaustive factors for a court to consider in determining the amount of liability for actual and statutory damages, namely (1) the frequency and persistence of noncompliance; (2) the nature of the noncompliance; and (3) the extent to which the noncompliance was intentional. See § 1692k(b). These factors are not applicable to the award of costs and attorney's fees. As summarized by the Third Circuit in Graziano, Given the structure of [§ 1692k], attorney's fees should not be construed as a special or discretionary remedy; rather the [FDCPA] mandates an award of attorney's fees as a means of fulfilling Congress's intent that the [FDCPA] should be enforced by debtors acting as private attorneys general. 950 F.2d at 113 (emphasis added). In determining the amount of damages in the instant proceeding, the Court first finds that the Plaintiff neither alleged nor submitted proof of any actual damages. In applying the factors to determine whether to award Statutory Damages, the Court finds that the Defendant ordinarily and regularly violated the statutory requirements of § 1692g. In fact, the Defendant emphasized that it regularly included a Validation Notice in the same form of the Initial Communication served on the Plaintiff in this case. Indeed, the Defendant stressed the hardship which would fall on collection attorneys if they were required to change the form and manner in which they must convey effective notice. Next, the Court finds that the nature of the noncompliance was moderate. The Defendant provided the notice required by the statute, but failed to meet the hypothetical least sophisticated standard because the notice was overshadowed by other information in the Initial Communication. Finally, the Court finds that the violation was, if not intentional, then measured. As stated earlier, the Defendant in this action is a law firm and the abundant case law, including numerous opinions from federal circuit courts, clearly sets forth the standard upon which a debt collector must operate. Moreover, while it is on opinion from another circuit, Defendant could easily have looked to Judge Posner's "safe haven" language in Bartlett, see 128 F.3d at 501, and included similar language adequately explaining the Debtor's rights upon receipt of both a summons and the Validation Notice. It chose not to do so and must now face the consequences. The Court concludes that the Defendant is liable for the 1,000.00 maximum amount of Statutory Damages and further liable for the costs and attorney's fees incurred in the prosecution of this proceeding. Having concluded that Defendant violated 15 U.S.C. § 1692g, it is ORDERED as follows: 1. The Debtor's Motion for Summary Judgment is GRANTED. 2. The Defendant's Motion for Summary Judgment is DENIED. 3. The debtor is awarded statutory damages in the amount of $1,000.00 plus the costs of the action, together with a reasonable attorney's fee to be determined *538 by the Court. No later than June 18, 2001, Plaintiff's counsel shall file a motion to award fees and costs together with an exhibit detailing the time expended and costs incurred in prosecuting the complaint in this proceeding. The Defendant shall have until July 3, 2001 to file an objection and request for hearing, failing which the Plaintiff may submit an order awarding the fees and costs sought in the motion. 4. The Court will enter a separate Judgment after it fixes the amount of fees and costs to be awarded. ORDER DENYING DEFENDANT'S MOTION TO ALTER OR AMEND JUDGMENT On January 8, 2001 and February 12, 2001, the Court conducted hearings on the Debtor's Motion for Summary Judgment and the Defendant's Cross-Motion for Summary Judgment and took the matter under advisement. After fully considering the parties' briefs and the relevant case law, on May 30, 2001, the Court entered a Memorandum Opinion and Order Granting the Debtor's Motion for Summary Judgment and Denying the Defendant's Cross Motion for Summary Judgment (the "Memorandum Opinion"). On June 11, 2001, the Defendant filed a Motion to Alter or Amend Judgment (the "Motion for Rehearing"). After reviewing the findings of fact and the conclusions of law in the Memorandum Opinion, the relevant legal standards for rehearing and the grounds for relief set forth in the Motion for Rehearing, the Court finds that the Motion for Rehearing should be denied. "A motion for reconsideration should raise new issues, not merely address issues litigated previously." Socialist Workers Party v. Leahy, 957 F.Supp. 1262, 1263 (S.D.Fla.1997) (citing Government Personnel Services, Inc. v. Government Personnel Mutual Life Ins. Co., 759 F.Supp. 792, 793 (M.D.Fla.1991)). The motion should also demonstrate why the court should reconsider its prior decisions, and set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. The Court will not reconsider its decision when a motion does not raise new issues, but only relitigates what has already [been] found to be lacking. Gelles v. Skrotsky, 15 F.Supp.2d. 1293, 1294 (M.D.Fla.1998) (citations omitted). Courts generally consider only three grounds that may justify granting reconsideration of an order: "1) an intervening change in controlling law; 2) the availability of new evidence; and 3) the need to correct clear error or manifest injustice." Securities and Exchange Commission v. Seahawk Deep Ocean Technology, 74 F.Supp.2d 1188, 1192 (M.D.Fla. 1999) (citations omitted). Furthermore, "[i]n the interests of finality and conservation of scarce judicial resources, reconsideration of a previous order is an extraordinary remedy to be employed sparingly." Id. The Defendant makes three arguments, each of which fail to warrant modification of the Memorandum Opinion under the foregoing legal standard. First, the Defendant argues that it should not be held responsible for the strong language included in the summons for it is the exact language approved by the Florida Supreme Court for use in a summons. See Form 1.902, Florida Rules of Civil Procedure. The Court rejects this contention, finding that it overlooks the focus of the Memorandum Opinion. Set alone, this Court finds no problem with the language approved by the Florida Supreme Court for use in a summons. The problem arose in the instant case because the summons was included in a single enclosure which *539 also contained a validation notice required under § 1692g of the Fair Debt Collection Practices Act (the "FDCPA"). Case law has determined that only effective notice pursuant to a least sophisticated consumer standard may satisfy the notice requirements of § 1692g. See Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1173 (11th Cir.1985); Russell v. Equifax A.R.S., 74 F.3d 30, 33 (2d Cir.1996). Derived therefrom, courts have ruled that language which would confuse a least sophisticated consumer or render the consumer uncertain on how to proceed would obviate such notice, thus violating the statute. See Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir.2000); Russell, 74 F.3d at 35. In short, the fact that the Defendant used an approved form summons does not affect the Court's decision. It is not the specific language in the summons that renders the notice ineffective; it is its coupling with the validation notice which created liability in the instant case. Second, the Defendant argues that the Court did not consider Ferree v. Marianos, 1997 WL 687693 (10th Cir.1997). In fact, the Court did review Ferree prior to issuing the Memorandum opinion. In Ferree, there is a dearth of information relating to the specifics of the makeup of the enclosure received by the consumer. The only provided facts are that both the validation notice and the foreclosure pleadings arrived to the consumer in the same envelope. See Ferree, 1997 WL 687693, at *2. Moreover, as stated in the opinion, the plaintiff in Ferree conceded that the 20 day response date on the summons and 30 day period to dispute the debt were not mutually exclusive. There are numerous facts which distinguish the instant case from Ferree, including the harsh language on the first page of the summons and the fact that the FDCPA Notice was on the eighth page of a sixteen page enclosure. These factual differences, along with the weight of the other circuit cases cited in the Memorandum Opinion resulted in the Court considering Ferree, but not deeming it sufficiently persuasive to sustain the Defendant's position. This Court's decision not to cite to or discuss Ferree in the Memorandum Opinion was not an oversight. Ferree is an unpublished decision which contained the following language on p. 1, f.n.* of the opinion: This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The Court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.R. 36.3 Tenth Circuit Rule 36.3 provides in pertinent part: (B) Citation of an unpublished decision is disfavored. But an unpublished decision may be cited if: (1) it has persuasive value with respect to a material issue that has not been in a published opinion; and (2) it would assist the court in its disposition. Given the very limited discussion of the relevant issue in Ferree and in light of the several published decisions from other circuit courts of appeal, this Court did not find it necessary or appropriate under the 10th Circuit rules to cite Ferree in the Memorandum Opinion. Third, the Defendant argues that the Court misinterpreted the law in stating that the time period to respond to the complaint is "statutorily extended" upon a request by a consumer for the validation of his debt. The Defendant argues that the statute does not specifically extend the *540 Debtor's time to answer, but rather precludes the debt collector from seeking a default. This appears to be the Defendant's third interpretation of how a validation request would have affected the Debtor's obligation to answer the complaint. As noted in the Memorandum Opinion, at the January 8, 2001 hearing, the Defendant's attorney could not state with certainty when the Debtor would have been required to answer the Complaint if he exercised his rights under the validation notice. At the February 12th hearing, counsel suggested that if uncertain, the Debtor could file an answer on the 30th day. Now, the Defendant appears to be arguing that the Defendant was required to answer in 30 days, arguing that the statute affected only the Defendant's right to proceed with collection if a validation letter was sent, not the Debtor's obligation to answer. Rather than supporting a request for reconsideration, the Court finds this argument to be yet a further indication of the problem created by the Defendant's decision to include the FDCPA validation notice with the summons and complaint without any language reconciling the potential confusion. Whether the Defendant's interpretation of 1692g(b) is correct or not, it does not change the result. Even if (which is not conceded) the Court was incorrect in stating in its Memorandum Opinion that "as a matter of law, [the time to answer] is statutorily extended if there is a request for the validation of his debt," the Court's conclusion is unaffected. The notice provided by the Defendant in the Initial Communication was not effective. See Lamar Advertising of Mobile, Inc. v. City of Lakeland, Florida, 189 F.R.D. 480, 488 (M.D.Fla.1999) (A motion to reconsider must "set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision.") (internal citations omitted.) In sum, the Plaintiff has raised nothing new in the Motion for Rehearing. There has been no intervening change in the law, nor the presentation of new evidence. Williamson and Alton are directly on point and binding on this Court. There has been no manifest injustice. Therefore, it is — ORDERED that the Defendant's Motion for Rehearing is denied. ORDER AWARDING ATTORNEY'S FEES TO PLAINTIFF'S COUNSEL On May 30, 2001, this Court entered its Memorandum Opinion and Order Granting Plaintiff's Motion for Summary Judgment and Denying Defendant's Motion for Summary Judgment (the "Memorandum Opinion"). The Summary Judgment Order found that the Defendant violated § 1692(g) of the Fair Debt Collection Practices Act ("FDCPA"). The Court awarded $1,000 in statutory damages to the Debtor/Plaintiff plus a reasonable attorney's fee to be determined by further Order. On June 18, 2001, in furtherance of the Summary Judgment Order, Plaintiff's attorney, Lawrence M. Shoot, Esq., filed a Motion to Award Attorneys Fees (the "Fee Motion"). On July 27, 2001, Defendant filed its Response to Motion to Award Fees (the "Defendant's Response") and on July 31, 2001, the Court conducted an evidentiary hearing on the Fee Motion. After considering the Fee Motion, Defendant's Response, the testimony of the respective expert witnesses for the Plaintiff and the Defendant, the arguments of counsel, applicable law and the entirety of the record, and for the reasons set forth below which are supplemented by the Court's statements at the hearing, the *541 Court is awarding $29,037.50 in fees to Plaintiff's counsel. Legal Standards and Summary of Evidence 15 U.S.C. § 1692k(a)(3) states that a consumer successful in a FDCPA action is entitled to an award of reasonable attorney's fees and costs. This provision is intended to encourage consumers and their attorneys to act as "private attorneys general" in order to enforce the FDCPA. Baker v. G.C. Services Corp., 677 F.2d 775, 780 (9th Cir.1982); Whatley v. Universal Collection Bureau Inc., 525 F.Supp. 1204, 1206 (N.D.Ga.1981). In determining fees, the Court must look at the factors generally applicable to fee awards under federal statute, including (1) the time and labor required; (2) the novelty and difficulty of the legal questions; (3) the skill required to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee for similar work in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. See Norman v. Housing Authority of Montgomery, 836 F.2d 1292 (11th Cir.1988) citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). In the instant case, the dispute regarding the appropriate fee focuses on primarily four issues: (1) the amount of hours actually expended by Plaintiff's counsel; (2) the reasonableness of the hours expended for various tasks; (3) the appropriate hourly rate; and (4) counsel's entitlement to a fee enhancement. The Court has reviewed and considered each of the Johnson factors but, in the interest of brevity, will address only the main areas of contention in this Order. The Fee Motion requests attorney's fees in the amount of $100,000.00. According to the Fee Motion, this number is derived from (1) 250 hours of attorney time (only 175.6 hours of which was recorded in written record); (2) 40.5 hours of administrative/paralegal time at $75.00/hour; (3) an attorney billable rate of either $250.00 or $350.00 /hour; and (4) a fee enhancement of either $12,500.00 or $35,000.00, depending upon which hourly rate is used. In support of the Fee Motion, Plaintiff offered the expert testimony of attorney Joseph Weiss. Although Mr. Weiss has no experience in the FDCPA arena, he reviewed the files and testified that Mr. Shoot should be compensated for 160 to 166 hours at a rate of $250.00 to $325.00 per hour for the work accomplished and the result obtained. Further, because of the contingent nature of recovery in a FDCPA action and the favorable result, he opined that a fee enhancement of between 1.1 to 1.3 % would be appropriate. In sum, Mr. Weiss testified that an appropriate fee for Mr. Shoot would be between $44,000.00 and $70,135.00, depending upon the number of hours, hourly rate and enhancement multiplier applied. Defendant presented the report and testimony of J.W. Bonie, an attorney from St. Petersburg, Florida who specializes in FDCPA cases. Mr. Bonie reviewed all of Mr. Shoot's time records and concluded that the necessary and reasonable time to complete the litigation was only sixty-four (64) hours. Mr. Bonie also testified that a reasonable hourly rate in the Middle District of Florida for attorneys handling FDCPA cases like this one would range *542 from $195 to $225, yielding a fee of between $12,480 and $14,400. Results Obtained The Eleventh Circuit has held that upon a determination of the appropriate award of attorney's fees, "the most critical factor is the degree of success obtained." Villano v. City of Boynton Beach, 254 F.3d 1302, 1305 (11th Cir.2001) quoting Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (dealing with statutory fees under 42 U.S.C. § 1988). Defendant's counsel acknowledges that the Plaintiff won, but argues that because the Plaintiff did not prevail on two of the three counts alleged in the complaint, fees should not be awarded for time spent on those counts. The Court rejects this argument for reducing the fees. See Hensley, 461 U.S. at 435, 103 S.Ct. 1933; Villano, 254 F.3d at 1308; In Villano, the Eleventh Circuit addressed this issue and stated that [w]hen the results achieved are excellent, the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. Acknowledging that parties in good faith may raise alternative legal grounds for a desired outcome, the Supreme Court has instructed that the district court should focus on the significance of the overall relief obtained by the plaintiff. 254 F.3d at 1308 (internal citations and quotations omitted). In other words, fees are awarded based on the success of the litigation, and any and all reasonable measures taken by counsel leading to such a result deserve remuneration. Arguing alternative theories may enhance a party's chances for victory in a lawsuit, and this practice should not be discouraged by allowing compensation only for the time spent on the prevailing claim. Unrecorded Time As noted earlier, Mr. Shoot's Fee Motion claims that he spent approximately 75 hours on the case which were not recorded. Accurately and contemporaneously recording time is fundamental to an analysis of fees under the lodestar approach. Therefore, without further discussion, the Court rejects Mr. Shoot's request for payment for hours expended which were not recorded and will not award any fees for the alleged 175 hours of unrecorded time which represents the difference between the 165 hours of recorded attorney time and the asserted 250 hours of total time spent. Billing Rate "A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation." See Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir.1994) quoting Norman v. Housing Authority, 836 F.2d 1292, 1299 (11th Cir. 1988). The United States Supreme Court has stated that the determination of "an appropriate `market rate' for the services of a lawyer is inherently difficult." Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). "The party seeking attorney's fees bears the burden of producing satisfactory evidence that the requested rate is in line with the prevailing market rates." Loranger, 10 F.3d at 781 (internal quotations omitted). "A court, however, is itself an expert on the question and may consider its own knowledge and experience concerning reasonable and proper fees and may form an independent judgement either with or without the aid of witnesses as to value." Id. (internal quotations omitted). *543 Neither party presented compelling testimony on the prevailing market rate for a lawyer handling a Plaintiff's FDCPA case in the Southern District of Florida. Plaintiff's expert practices in the Southern District, but does not litigate FDCPA cases, casting some doubt on the basis for his opinion that an hourly rate between $250 and $325 would be reasonable. Conversely, Defendant's expert, Mr. Bonie, is an experienced FDCPA lawyer. However, he practices in the Middle District of Florida where hourly rates are generally lower than in the Southern District of Florida. This weakens the relevance of his testimony that Middle District of Florida FDCPA lawyers charge between $195 and $225 per hour. The Court finds that $200.00 /hour is a reasonable billing rate for Mr. Shoot in this case. The Court's conclusion is based in part on the expert testimony, and in part on a combination of factors, including (1) Mr. Shoot's reputation and experience, including his limited experience in FDCPA cases; (2) the Court's determination that although the instant facts were somewhat different from other reported case law, the law at issue in this adversary proceeding was not excessively complex; (3) the number of hours Mr. Shoot billed for particular tasks which a higher priced experienced FDCPA attorney could have accomplished in less time; and (4) Mr. Shoot's standard business practice of charging $185.00 /hour to clients as in the instant case. Inconsistencies in the Fee Motion Defendant's counsel argued in the Defendant's Response as well as at oral argument that the hours set forth in the Fee Motion were overstated. In support of this position, Defendant's counsel introduced into evidence a letter sent by Mr. Shoot to the Defendant dated December 18, 2000 (the "December 18th Letter"). The letter included an attachment detailing the hours spent by Mr. Shoot on the case through November 2, 2000. The December 18th Letter states that the total number of hours expended by Mr. Shoot was 67.8 while the Fee Motion states that in the same time period he spent 117.1 hours. Numerous examples were provided by Defendant's counsel of inconsistencies which are troubling to the Court, specifically where virtually identical tasks on the same date were set forth as one time amount in the December 18th Letter and another (larger number) in the Fee Motion. Mr. Shoot explained this seemingly irreconcilable conflict by testifying that the heading of the December 18th Letter stated that the enclosed hours were the "Core" hours expended during the course of the adversary proceeding, and that issues of pride and a hopeful settlement led him to reduce these hours for tasks performed. The Court was not persuaded by Mr. Shoot's explanation and is disallowing the 39.1 hours in time included in the Fee Motion, but not included in the December 18th letter. Determination of Reasonable Hours As explained above, the Court is allowing 67.8 hours of time through November 2, 2000. According to Mr. Shoot's fee records which were attached to the Fee Motion, Mr. Shoot spent an additional 68.7 hours from November 2, 2000 until June 17, 2001, which comes to a total of 136.5 hours. Mr. Shoot's own expert found some hours to be unreasonable and limited the total he believed compensable to between 160 to 166 hours. Mr. Bonie found a significantly larger amount of the hours excessive. Upon consideration of the expert opinions, the Court's review of the time entries, the hourly rate applied and other factors including the time disallowed for the period through November 2, 2000 *544 and the contingent nature of the fees, the Court is allowing a total of 130 hours. In coming to this conclusion, the Court is overruling, in large part, the reductions recommended by Mr. Bonie, including his opinion that Mr. Shoot should not be paid for the time spent in the state class action case to avoid the consequences of the Plaintiff not initially "opting out" of the class action settlement. In addition, the Court finds that Mr. Shoot is entitled to be compensated for the 40.5 hours of paralegal/administrative time in full at $75.00/hour. Fee Enhancement This Court has previously held that "fee enhancements are rare," as the "presumption is that the lodestar amount constitutes reasonable compensation under § 330 of the Bankruptcy Code." In re Atlas, 202 B.R. 1019, 1022 (Bankr.S.D.Fla. 1996) (citing cases). Moreover, any such fee enhancement award is within the sole discretion of the bankruptcy court. See In re Hillsborough Holdings Corp., et al., 221 B.R. 917 (Bankr.M.D.Fla.1998) citing Hensley, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40. In Atlas, this Court cited the Eleventh Circuit's decision in Grant v. George Schumann Tire & Battery Co., 908 F.2d 874, 880-81 (11th Cir.1990) which is also applicable here as it sets forth certain factors for a court to review regarding the award of a fee enhancement, including (1) the risk of non-payment; (2) exceptional results; and (3) superior representation. In the instant case, the Court finds that a fee enhancement is not warranted. Although the Plaintiff's litigation in the instant adversary proceeding was indeed successful, that alone does not lead this Court to waver from the lodestar method. If that were true, every victor would seek enhanced fees from the vanquished party. So too with the caliber of pleadings and service provided by Mr. Shoot on behalf of his client. An attorney is expected to perform to a reasonable level within the scope of his employment and that in and of itself does not merit an enhancement. Moreover, neither Mr. Shoot's pleadings nor courtroom presentation rise to the level of "superior representation", although they were by no means below the level of reasonableness. Conclusion For the reasons stated above, the Court rules that Mr. Shoot is entitled to a total fee award of $29,037.50 consisting of 130 hours of attorney time at $200/hour ($26,000) plus 40.5 hours of paralegal time at $75/hour ($3,097.50). Therefore, it is — ORDERED as follows: 1. The Fee Motion is granted in part and denied in part. 2. Mr. Shoot is awarded $29,037.50 in fees which will be included in the Final Judgment entered in this proceeding. NOTES [1] Although the FDCPA only applies to "debt collectors", the United States Supreme Court has ruled that attorneys who regularly "engage in consumer-debt-collection activity" fall within the scope of this definition. Heintz v. Jenkins, 514 U.S. 291, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995). [2] Contradictory or confusing language may also give rise to liability under § 1692e, which prohibits debt collectors from committing a "false, deceptive or misleading representation or means in connection with the collection of any debt." See 15 U.S.C. 1692e; see also Russell, 74 F.3d at 35 ("[A] collection notice is deceptive when it can be reasonably read to have two or more different meanings, one of which is inaccurate."). Plaintiff did not allege a § 1692e violation, and therefore, that subsection is not at issue here. [3] Once again, it should be noted that as stated in fn. 1, there are other statutory considerations applicable to a debt collector under § 1692, and the instant discussion is limited to § 1692g.

OSCN Found Document:CARROLL v. CAPITOL ONE AUTO FINANCE, INC. OSCN navigation Home Courts Court Dockets Legal Research Calendar Help Previous Case Top Of Index This Point in Index Citationize Next Case Print Only CARROLL v. CAPITOL ONE AUTO FINANCE, INC.2015 OK CIV APP 27Case Number: 113028Decided: 02/13/2015Mandate Issued: 03/23/2015DIVISION ITHE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION I Cite as: 2015 OK CIV APP 27, __ P.3d __ AMANDA CARROLL, Petitioner, v. CAPITOL ONE AUTO FINANCE, INC., Respondent, and AMERICAN ZURICH INSURANCE CO., Insurance Carrier. PROCEEDING TO REVIEW AN ORDER OF THE WORKERS' COMPENSATION COURT OF EXISTING CLAIMS HONORABLE DAVID P. REID, TRIAL JUDGE SUSTAINED Donald E. Smolen, II, Jack Beesley, SMOLEN, SMOLEN & ROYTMAN, PLLC, Tulsa, Oklahoma, for Petitioner, Daniel K. Zorn, Timothy E. Lurtz, COLLINS, ZORN & WAGNER, Oklahoma City, Oklahoma, for Respondent. Kenneth L. Buettner, Judge: ¶1 Petitioner Amanda Carroll seeks review of an order of the Workers' Compensation Court of Existing Claims, which found Carroll did not sustain a compensable injury. Respondent Capitol One Auto Finance (Employer) argued Carroll's injury was not compensable because it occurred in an area not controlled by Employer and where essential job functions are not performed. The trial court's decision is not against the clear weight of the evidence or contrary to law and we sustain. ¶2 In her Form 3, Carroll sought compensation for a single incident injury incurred September 26, 2013. Carroll asserted she injured her back and left ankle when she slipped in a puddle of water. Employer denied the injury was compensable. ¶3 Following trial held June 11, 2014, the trial court entered its Order Denying Compensability June 23, 2014. The court found that Carroll fell "in the building where [Employer's] office was located" and noted other companies had offices in the same building. The trial court further found Carroll was on a scheduled break and had gone downstairs to a cafeteria in the building to eat. As she was leaving the cafeteria to return to her office on the second floor, Carroll slipped in water in a walkway. The court noted Employer also had an office on the main floor where the cafeteria was, but that Employer "did not own or operate the cafeteria on the walk way (sic) where [Carroll] fell." The trial court noted that injuries occurring in common areas not owned or maintained by the employer are not compensable pursuant to 85 O.S.2011 §312(6). The trial court denied Carroll's claim. ¶4 We will sustain the trial court's decision unless it is against the clear weight of the evidence or contrary to law. 85 O.S.2011 §340(D). The evidence showed that Carroll was on a mandatory 15 minute break at the time of her fall. Employer leased office space in a building in Tulsa and Carroll's work station was on the second floor. Employer maintained a break room on the second floor, but Carroll had gone to the first floor to a cafeteria to eat during her break. Employer did not operate the cafeteria or require its employees to use it, but it had arranged for its employees to receive a 10% discount at the cafeteria. After Carroll finished eating, she left the cafeteria to walk back to her work station on the second floor. While walking she slipped in liquid and fell, injuring herself. The parties disputed whether Carroll's injury arose out of and in the course of her employment. ¶5 At the time of Carroll's injury, the Workers' Compensation Code provided, in pertinent part: The following shall not constitute a compensable injury under the Workers' Compensation Code: . . . . 6. An injury which occurs outside the course of employment. Employment shall be deemed to commence when an employee arrives at the employee's place of employment to report for work and shall terminate when the employee leaves the employee's place of employment, excluding areas not under the control of the employer or areas where essential job functions are not performed; provided, however, when the employee is instructed by the employer to perform a work-related task away from the employee's place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the performance of job duties directly related to the task as instructed by the employer, including travel time that is solely related and necessary to the employee's performance of the task. . . . 85 O.S.2011 § 312(6) (emphasis added) (repealed by Laws 2013, SB 1062, ch. 208, §171, eff. February 1, 2014). We agree with Carroll that prior to the enactment of §312, her injury likely would have been compensable. But this statute has been interpreted to mean what it says, which is that an injury occurring in an area not under the control of the employer or where essential job functions are not performed is not compensable. See Leandro v. American Staffcorp, Inc., 2013 OK CIV APP 68, __ P.3d __; Intermedix Corp. v. Wolf, 2013 OK CIV APP 82, 313 P.3d 287 (cert. denied). We recognize that another division of the Oklahoma Court of Civil Appeals has reached the opposite result, but we find the correct analysis is in Leandro and Intermedix. See Carney v. DirecTV Group, Inc., 2014 OK CIV APP 4, 316 P.3d 234. In this case, Carroll was injured in an area not controlled by Employer and in an area where essential job functions were not performed. Under either statutory basis, her injury did not arise out of and in the course of employment. The clear weight of the evidence supports the trial court's finding that Carroll's injury was not compensable. SUSTAINED. GOREE, P.J., and BELL, J., concur. Citationizer© Summary of Documents Citing This Document Cite Name Level None Found. Citationizer: Table of Authority Cite Name Level Oklahoma Court of Civil Appeals Cases  CiteNameLevel  2013 OK CIV APP 68, LEANDRO v. AMERICAN STAFFCORP, INC.Cited  2013 OK CIV APP 82, 313 P.3d 287, INTERMEDIX CORPORATION v. WOLFDiscussed  2014 OK CIV APP 4, 316 P.3d 234, CARNEY v. DIRECTV GROUP, INC.Discussed Title 85. Workers' Compensation  CiteNameLevel  85 O.S. 312, Repealed by Laws 2013, SB 1062, c. 208, § 171, eff. February 1, 2014Discussed  85 O.S. 340, Repealed by Laws 2013, SB 1062, c. 208, § 171, eff. February 1, 2014Cited

746 F.2d 811 Freemanv.Zimmer, Inc. 83-1767 United States Court of Appeals,Fifth Circuit. 10/19/84 1 N.D.Tex. DISMISSED

In the United States Court of Federal Claims Consolidated Case Nos. 17-449, 17-499, 17-493, 17-517, 17-578, 17-558, 17-633 Filed: October 31, 2017 ************************************* CONTINENTAL SERVICE * GROUP, INC., PIONEER CREDIT * RECOVERY, INC., ACCOUNT * CONTROL TECHNOLOGY, INC. * PROGRESSIVE FINANCIAL * SERVICES, INC., VAN RU CREDIT * CORPORATION, COLLECTION * TECHNOLOGY, INC. ALLTRAN * EDUCATION, INC., * Plaintiffs, * * and * * COLLECTION TECHNOLOGY, INC., * PROGRESSIVE FINANCIAL SERVICES, * INC., ALLTRAN EDUCATION, INC., * PERFORMANT RECOVERY, INC., * VAN RU CREDIT CORPORATION, and * ALLIED INTERSTATE LLC, * Intervenor-Plaintiffs, * v. * * THE UNITED STATES, * Defendant, * * and * * CBE GROUP, INC., PREMIERE * CREDIT OF NORTH AMERICA, LLC, * GC SERVICES LIMITED PARTNERSHIP, * VALUE RECOVERY HOLDINGS, LLC, * WINDHAM PROFESSIONALS, INC., * AUTOMATED COLLECTION * SERVICES, INC., FMS INVESTMENT * CORP., TEXAS GUARANTEED * STUDENT LOAN CORP., ALLTRAN * EDUCATION, INC. * Intervenor-Defendants. * * ************************************* RESPONSE TO OCTOBER 27, 2017 NOTICE OF INQUIRY BY APPELLATE COURT, MEMORANDUM OPINION, AND FINAL ORDER DENYING MAY 19, 2017 MOTION TO VACATE PRELIMINARY INJUNCTION AND JUNE 9, 2017 MOTION TO STAY PRELIMINARY INJUNCTION, PENDING APPEAL This Response is filed, pursuant to the United States’ (“Government”) October 27, 2017 Notice, to an inquiry by the United States Court of Appeals for the Federal Circuit on the same date, in CAFC Case No. 17-2155, Dkt. #258 at 5. I. PROCEDURAL BACKGROUND.1 On December 11, 2015, the United States Department of Education (“ED”) issued Solicitation No. ED-FSA-16-R-0009 (“Solicitation”) for “the collection and administrative resolution of debts resulting from non-payment of student loans and grants made under several federal programs, including the Federal Family Education Loan Program, Stafford Loans, Federal Perkins Loans, and the Pell Grant Program.” ECF No. 1 (Compl. ¶ 25). Under the Solicitation, ED intended to award Indefinite Delivery, Indefinite Quantity contract(s) with a five year Base Ordering Period and an additional Optional Ordering Period of five years. ECF No. 1 (Compl. ¶ 26). On February 22, 2016 and February 29, 2016, Continental Service Group, Inc. (“ConServe”) submitted proposals in response to the Solicitation. ECF No. 1 (Compl. ¶ 35). On December 9, 2016, ED notified ConServe that it was not selected for an award and ConServe requested a debriefing. ECF No. 1 (Compl. ¶ 51). On December 29, 2016, ED issued a Debriefing Letter, stating, [a]lthough [ConServe’s] proposal was one of the most highly rated proposals, [ConServe], was not selected for an award based on the fact that the [ED] determined that they were not responsible[, because] [ConServe] did not submit an acceptable subcontracting plan that reflects and is consistent with the commitments it offered in its small business participation plan, as required by the Solicitation. ECF No. 1 (Compl. ¶ 51). On January 3, 2017, ConServe filed a bid protest at the General Accountability Office (“GAO”). ECF No. 1 (Compl. ¶ 60). Because ConServe filed a bid protest at the GAO within five days of receiving the debriefing, the bid protest triggered an automatic stay of performance, pursuant to 31 U.S.C. § 3553(d)(3)(A), (4)(B). ECF No. 1 (Compl. ¶ 60). “Several other disappointed offerors also filed protests of this procurement at the GAO.” ECF No. 1 (Compl. ¶ 60). Some of these protests also triggered the automatic stay. ECF No. 1 (Compl. ¶ 60). 1 To facilitate a review of this Response, Memorandum Opinion, And Final Order, the court has attached herewith the Docket Sheet in this case. 2  On March 28, 2017, ConServe withdrew its bid protest at the GAO. Gen. Revenue Corp., B–414220.2, Mar. 27, 2017, 2017 WL 1316186.2 On March 28, 2017, ConServe filed a Complaint in the United States Court of Federal Claims challenging ED’s decision not to award an Indefinite Delivery, Indefinite Quantity contract to ConServe under Solicitation No. ED-FSA-16-R-0009. ECF No. 1. On March 29, 2017, ConServe filed a Motion For Temporary Restraining Order (“TRO”), pursuant to Rule of the United States Court of Federal Claims (“RCFC”) 65(d). ECF No. 7. On March 29, 2017, the court convened a Status Conference, during which the Government informed the court that the stays in the related cases at the GAO, pursuant to 31 U.S.C. § 3553(d)(3)(A), (4)(B), were not lifted, because the GAO still had to decide a related protest. ECF No. 111. The Government also represented that the GAO may issue a decision in that case in the near future, at which point the automatic stay would be lifted and performance would begin on the contract. ECF No. 111. The Government was not clear whether the GAO lifted the stay in the bid protest filed concerning ConServe. ECF No. 111. The Government, however, advised the court that it could not currently commit to staying performance, pending the resolution of this bid protest. ECF No. 111. ConServe advised the court that ED was transferring work to be performed under the stayed contracts [awarded under Solicitation No. ED-FSA-16-R-0009] to other contractors to circumvent this bid protest. ECF No. 111. 2 GAO’s Decision in Gen. Revenue Corp., B–414220.49, April 6, 2017, 2017 WL 1294988 provides the following procedural history of bid protests related to Solicitation No. ED-FSA-16- R-0009: Between December 19, 2016 and January 9, 2017, [the GAO] received 24 protests relating to [ED’s] procurement at issue. After dismissing several protests for various procedural or pleading deficiencies, . . .[the GAO] resolved . . . 17 protests in a protected decision issued on Monday, March 27[, 2017]. The remaining protests, including the protest of [ConServe], challenged [ED’s] evaluation of offerors’ small business subcontracting plans, which were evaluated as part of [ED’s] responsibility determinations. * * * On Tuesday, March 28[, 2017], ConServe notified [the GAO] that it was withdrawing its protest, and that it was its ‘intent to pursue the subject matter of this protest at the [United States] Court of Federal Claims. . . .’ On March 29[, 2017], ConServe filed its sealed complaint with the [United States] Court of Federal Claims. . . . On the same day, [the GAO] acknowledged ConServe’s withdrawal and closed [the GAO’s] files without further action. 3  On March 29, 2017, the court issued a Memorandum Opinion And Temporary Restraining Order, pursuant to RCFC 65(d), to prohibit the Government from: (1) authorizing the purported awardees to perform on the contract award under Solicitation No. ED-FSA-16-R-0009 for a period of fourteen days, i.e. until April 12, 2017; and (2) transferring work to be performed under the contract at issue in this case to other contracting vehicles to circumvent or moot this bid protest for a period of fourteen days, i.e. until April 12, 2017. ECF No. 9 at 3. On April 10, 2017, the court extended the March 29, 2017 TRO until April 24, 2017, pursuant to RCFC 65(b)(2). ECF No. 56. On April 19, 2017, the court stayed proceedings to afford an parties the opportunity to reach a global settlement and extended the April 10, 2017 TRO until May 8, 2017. ECF No. 67. On April 21, 2017, the CBE Group, Inc. (“CBE”), Intervenor-Defendant, and Premiere Credit of North America, LLC (“Premiere”), Intervenor-Defendant, filed a Joint Emergency Motion For Enforcement Of The March 29, 2017 TRO, arguing that ED planned to recall immediately accounts that were placed with CBE and Premiere prior to this litigation, altering the status quo. ECF No. 68 (amended and re-docketed as ECF No. 71). That same day, the court convened a Status Conference to discuss the April 21, 2017 Emergency Motion. ECF No. 119. At the court’s request, the parties agreed to reconvene on April 24, 2017 for another Status Conference and the Government informed the court that ED would not recall the disputed accounts until after the April 24, 2017 Status Conference. ECF No. 119. On April 24, 2017, the court convened a Status Conference and heard arguments from all parties in this case. ECF No. 89. On that same day, the court extended and modified the March 29, 2017 TRO. ECF No. 73. On May 2, 2017, the court convened an oral argument and afterwards worked with the parties in an attempt to reach an agreement, satisfactory to all parties, until ED made a decision about corrective action. ECF No. 96. That effort failed. ECF No. 96. On that date, however, the court granted the Government’s May 1, 2017 Motion To Dismiss Count VII of ConServe’s March 28, 2017 Complaint, without prejudice, and issued a preliminary injunction, wherein the court stated: On a motion for preliminary injunctive relief, the court must weigh four factors: “(1) immediate and irreparable injury to the movant; (2) the movant’s likelihood of success on the merits; (3) the public interest; and (4) the balance of hardship on all the parties.” U.S. Ass’n of Importers of Textiles & Apparel v. United States, 413 F.3d 1344, 1347–48 (Fed. Cir. 2005). “No one factor, taken individually, is necessarily dispositive . . . . [T]he weakness of the showing regarding one factor 4 may be overborne by the strength of others.” FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993) (emphasis added). Regarding the first factor, the court has determined that Plaintiffs and Intervenor- Plaintiffs will be immediately and irreparably injured, if ED allows continued performance on Task Orders issued under Solicitation No. ED-FSA-16-R-0009, or otherwise transfers work to another contracting vehicle to circumvent or moot this bid protest. Regarding the second factor, the Government has not yet produced the Administrative Record and the parties have not had an opportunity to brief the merits of this bid protest. See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) (“The APA specifically contemplates judicial review on the basis of the agency record[.]”). Nevertheless, it is likely that some or all Plaintiffs may prevail on the merits, based on the GAO’s March 27, 2017 Decision finding that ED’s prior evaluation of proposals was unreasonable in numerous respects and resulted in the reasonable possibility of prejudice. See Gen. Revenue Corp., 2017 WL 1316186. Regarding the third factor, the public interest is served by open and fair competition in public procurements and preserving the integrity of the competitive process. See PGBA, LLC v. United States, 57 Fed. Cl. 655, 663 (2003). Regarding the fourth factor, the balance of hardships weighs in favor of Plaintiffs and Intervenor-Plaintiffs. A delay in ED proceeding with performance on the 2016 Awards, prior to announcing corrective action, likely may be disruptive to some of the parties and borrowers, but is outweighed by the economic harm to Plaintiffs and Intervenor-Plaintiffs and the public’s need to have these government contracts awarded pursuant to law, particularly, because $2.8 billion of taxpayer funds [are] at issue. For these reasons, the court has determined that the weight of the factors favors injunctive relief. See FMC Corp, 3 F.3d at 427 (“[T]he weakness of . . . one factor may be overborne by the strength of others.”). Accordingly, it is ordered that the United States of America, the United States Department of Education, and their officers, agents, servants, employees, and representatives are enjoined, pursuant to Rule 65(d), from: (1) authorizing the purported awardees to perform on the contract awards under Solicitation No. ED-FSA-16-R-0009; and (2) transferring work to be performed under the contract at issue in this case to other contracting vehicles to circumvent or moot this bid protest. In effect, this Preliminary Injunction rescinds the April 24, 2017 modification to the March 29, 2017 Temporary Restraining Order, because it provided a competitive advantage to CBE Group, Inc. and Premiere Credit of North America, 5  LLC over Collection Technology, Progressive Financial and Performant Recovery, Inc. that filed appearances in this case after April 24, 2017. ECF No. 87. On May 18, 2017, ConServe filed a Motion To Continue The Preliminary Injunction to allow the parties to evaluate and respond to ED’s corrective action. ECF No. 120. On May 19, 2017, the Government filed a Notice Of Corrective Action to inform the court that ED would issue “[n]otice of awards and notices of termination” on or before August 25, 2017. ECF No. 122 at 9. On May 19, 2017, the Government filed a Motion To Vacate Preliminary Injunction. ECF No. 126. On May 22, 2017, CBE filed a Response to the Government’s Motion To Vacate Preliminary Injunction. ECF No. 122 (refiled with attachments at ECF No. 129). On that same day, GC Services Limited Partnership filed an Opposition To The Government’s Motion To Vacate Preliminary Injunction as it would benefit only small business contractors. ECF No. 130. On May 22, 2017, an Order continuing the May 2, 2017 Preliminary injunction was issued, wherein the court stated, [a]fter hearing the parties’ positions [at a May 22, 2017 status conference], the court indicated that it was inclined to lift the May 2, 2017 Preliminary Injunction, but it was concerned that the ED would transfer accounts that had been serviced by Progressive Financial, Inc., Collection Technology, Inc., Performant Recovery, Inc. and Van Ru Credit Corporation under United States General Services Administration (“GSA”) Schedule Nos. GS-23F-0239K, GS-23F-0227N, GS–23F–0286K, GS-23F-0204K (collectively the “prior accounts”), because those contracts expired on April 21, 2017. This would appear unfair, because the GAO sustained challenges to Solicitation No. ED-FSA-16-R-009 brought by those contractors. In other words, the GAO determined that but-for the ED’s alleged errors during the procurement process, Progressive Financial, Inc., Collection Technology, Inc., Performant Recovery, Inc. and Van Ru Credit Corporation might have received contracts on December 9, 2016, under which they could continue to service their prior accounts. Therefore, the court asked the Government whether it could allow Progressive Financial, Inc., Collection Technology, Inc., Performant Recovery, Inc. and Van Ru Credit Corporation to continue servicing prior accounts until the ED completes the proposed corrective action. The Government informed the court that it could not make that representation, without conferring with Dr. Patrick Bradfield, Head of Contracting at Federal Student Aid. Dr. Bradfield responded, by telephone from his home, that Progressive Financial, Inc., Collection Technology, Inc., Performant Recovery, Inc. and Van Ru Credit Corporation could not continue servicing their prior accounts, because they did not have existing contracts with the ED, but he did 6  not know if there was a legal means for the ED to enter into a temporary contractual relationship with those parties and would have to consult with the ED’s attorneys before making that determination. Dr. Bradfield informed the court that he would not be able to consult with counsel until, at least, May 23, 2017. ECF No. 132 at 2–3 (re-docketed for administrative purposes as ECF No. 134). On May 31, 2017, the court continued the May 2, 2017 Preliminary Injunction, based on information in the public domain (ECF No. 143), that subsequently was clarified to the court’s satisfaction. ECF No. 183 at 3–5. Nevertheless, the reasons underlying the May 2, 2017 Preliminary Injunction were not changed. On June 9, 2017, Alltran Education, Inc. (“Alltran”), Intervenor-Plaintiff, filed a Motion To Stay the court’s May 2, 2017 Preliminary Injunction to allow an appeal to the United States Court of Appeals for the Federal Circuit. ECF No. 155. Alltran’s June 9, 2017 Motion states that the purpose is to protect its interest in “essentially a bridge contract designed to last only until ED completes its corrective action under Solicitation No. ED-FSA-16-R-0009.” ECF No. 155 at 2. Alltran’s June 9, 2017 Motion also argued that, “given the urgency of this issue, Alltran requests that this [c]ourt stay the injunction by Wednesday June 14, 2017.” ECF No. 155 at 3 (underline, bold, and italics in original). On June 13, 2017, the Government filed a Response to Alltran’s June 9, 2017 Motion For Stay Pending Appeal, together with five declarations discussing the financial impact on ED, the private collection agencies, and student borrowers as a result of the May 2, 2017 Preliminary Injunction. ECF No. 157. On June 14, 2017, Alltran filed an appeal in the United States Court of Appeals for the Federal Circuit. CAFC Case No. 17-2155, Dkt. #1. On June 16, 2017, Pioneer Credit Recovery, Inc. ("Pioneer") filed a Response to Alltran’s June 9, 2017 Motion For Stay Pending Appeal, agreeing with Alltran’s and the Government’s request to stay the May 2, 2017 Preliminary Injunction. ECF No. 162. On June 19, 2017, Financial Management Systems, Inc. (“Financial Management”) filed a Response to Alltran’s June 9, 2017 Motion For Stay Pending Appeal, requesting the court to stay or vacate its May 2, 2017 Preliminary Injunction. ECF No. 163. On June 19, 2017, Alltran filed a Motion For Emergency Stay, Pending Appeal in the United States Court of Appeals for the Federal Circuit. CAFC Case No. 17-2155, Dkt. #12. On June 22, 2017, the Government filed a Notice Of Appeal. ECF No. 165. On June 26, 2017, ConServe filed a Response to Alltran’s June 9, 2017 Motion For Stay Pending Appeal, requesting the court to deny Alltran’s June 9, 2017 Motion For Stay Pending Appeal. ECF No. 168. 7  On June 27, 2017, the Government filed a Response to Alltran’s June 19, 2017 Motion For An Emergency Stay, Pending Appeal in the United States Court of Appeals for the Federal Circuit, “join[ing] in the emergency motion for stays pending appeal.” CAFC Case No. 17-2155, Dkt. #62. On July 6, 2017, Alltran filed a Reply to Pioneer, Financial Management, and ConServe Responses to Alltran’s June 9, 2017 Motion For Stay Pending Appeal. ECF No. 174. On July 7, 2017, Pioneer filed a Reply to the Responses to Alltran’s June 9, 2017 Motion For Stay Pending Appeal. ECF No. 175. On July 18, 2017, the United States Court of Appeals for the Federal Circuit issued an Order stating, Alltran Education, Inc., moves to stay, pending these appeals, the May 31, 2017, preliminary injunctions entered in the above-captioned appeals by the United States Court of Federal Claims enjoining the [ED] from (1) authorizing the purported awardees to perform on the contract awards under Solicitation No. ED-FSA-16-R- 0009 (“the Solicitation”) and (2) transferring work to be performed under the Solicitation to other private collection agencies to circumvent or moot the bid protest. The United States separately moves for the same relief. [ConServe] opposes the motions. Financial Management Systems, The CBE Group, Inc., Progressive [], and Van Ru Credit Corporation respond to the motions. Alltran and the United States reply. In its opposition to Alltran’s motion, [ConServe] moves to dismiss 2017-2155. Alltran and the United States oppose the motion. [ConServe] replies. [ConServe] argues that the court lacks jurisdiction over 2017-2155 because 28 U.S.C. § 1292(d)(2) controls interlocutory appeals from the Court of Federal Claims, as §1292(a)(1) is directed only to district courts. However, §1292(c)(1) grants the court jurisdiction “of an appeal from an interlocutory order or decree described in subsection (a) or (b) of this section in any case over which the court would have jurisdiction of an appeal under section 1295 of this title,” and a preliminary injunction is the type of interlocutory order that is appealable under § 1292(a)(1). The motion to dismiss the appeal is therefore without merit. The court notes that Alltran’s motions to stay the preliminary injunction are pending at the Court of Federal Claims. The Court of Federal Claims has not yet acted on Alltran’s motions to stay, the briefing of which has only recently been completed. The court will hold the motions to stay in abeyance pending the Court of Federal Claims’ decision on Alltran’s motions. Accordingly, IT IS ORDERED THAT: (1) [ConServe]’s motion to dismiss 2017-2155 is denied. 8  (2) Alltran’s and the United States’ motions to stay are held in abeyance. Within five days of the Court of Federal Claims’ rulings on Alltran’s motions to stay the May 31, 2017, preliminary injunctions, Alltran and the United States are ordered to inform the court how they believe the motions should proceed. CAFC Case No. 17-2155, Dkt. #122 at 6–7.3 On July 24, 2017, Alltran filed a Motion To Expedite Ruling On Pending Motion For Stay Pending Appeal. ECF No. 179. On July 28, 2017, ConServe filed an Opposition And Cross-Motion, arguing that, if the court lifted the May 31, 2017 Preliminary injunction, “ED would act quickly to transfer all of the [other] accounts,” subject to the court’s May 31, 2017 Preliminary Injunction. ECF No. 180 at 5 (bold and italics in original). On August 2, 2017, the court directed the Government to file a Status Report concerning the progress of ED’s corrective action, since ED announced on August 2, 2017 that “it was no longer seeking to select a single student loan servicer and would be pursuing a new proposal that would award separate contracts to one or more companies.” ECF No. 182 (Court Exhibits C, D). The August 2, 2017 Order also observed, “once again, the [Government] has failed to inform the court of these developments.” ECF No. 182. On August 4, 2017, the Government filed a Status Report, together with a Declaration from Dr. Patrick A. Bradfield, Head of the Contracting Activity Federal Student Aid, United States Department of Education, wherein the court was advised that only half of thirty-seven proposals received had been reviewed and additional time may be necessary to complete corrective action. ECF Nos. 183, 183-1 (8/4/17 Bradfield Decl.). 3 On July 18, 2017, when the United States Court of Appeals for the Federal Circuit ruled to hold Emergency Motions For Stay, in abeyance, it may not have been aware that the United States Court of Federal Claims was advised by the Government on May 19, 2017 that ED would issue “[n]otice of awards and notices of termination” on or before August 25, 2017. ECF No. 122 at 9. If so, the Government’s May 19, 2017 Motion To Vacate Preliminary Injunction, Alltran’s June 9, 2017 Motion For An Emergency Stay, Pending Appeal, Alltran’s July 24, 2017 Motion To Expedite Ruling On Pending Motion For Stay Pending Appeal, as well as the underlying appeals in CAFC Case No. 17-2155, would be moot. In addition, it appears that the appellate court was under the impression that briefing was completed. CAFC Case No. 17-2155, Dkt. #258. On July 28, 2017, however, ConServe filed a Cross-Motion and Response to Alltran’s July 24, 2017 Motion To Expedite On Pending Motion For Stay Pending Appeal. ECF No. 180. To date, neither Alltran nor the Government has filed a response to that Cross-Motion. Consequently, the Case Management Review monthly report from the Office of the Clerk to the court did not reflect and still does not reflect that a ruling on Alltran’s July 24, 2017 Motion To Expedite Ruling On Pending Motion For Stay Pending Appeal is due. 9  On August 29, 2017, the court issued an Order directing the Government to file a Status Report concerning ED’s corrective action by September 14, 2017 with the United States Court of Appeals for the Federal Circuit, together with certain of the attachments.4 ECF No. 185. On September 5, 2017, the court issued an Order consolidating all of the above-captioned bid protest cases. ECF No. 186.5 On September 7, 2017, the Government filed a Notice Of Limited Recall Of Accounts, concerning, a subset of the accounts presently assigned to six private collection agencies (PCAs) whose contracts expired on April 21, 2017. The Department of Education’s (ED) Federal Student Aid (FSA) program has determined that a limited recall of accounts is urgently needed in order to provide assistance to student borrowers who reside in hurricane disaster relief areas, such as the counties directly affected by Hurricane Harvey. * * * FSA intends to proceed with this limited recall of 1,000 accounts beginning tomorrow, Friday, September 8, 2017. FSA also anticipates expanding the recall of accounts, as necessary, to include borrowers in counties that may be identified by the Federal Emergency Management Association as hurricane disaster relief areas in the future, including areas that may be affected by Hurricane Irma and other storms currently being tracked. ECF No. 187 at 1–3. On September 8, 2017, Progressive Financial Services, Inc. (“Progressive”) filed a Motion For Emergency Relief And Objection to the Government’s September 7, 2017 Notice Of Limited Recall Of Accounts, arguing: (1) ED’s proposed recall of Progressive’s accounts violates the TRO and preliminary injunction; and (2) “unusual and compelling” circumstances require the issuance of a bridge contract to Progressive. ECF No. 188. On September 8, 2017, the Government filed a Response to Progressive’s September 8, 2017 Motion, arguing: (1) the court lacks jurisdiction to entertain Progressive’s claim and request for emergency relief; (2) ED’s limited recall of accounts is not a violation of the preliminary injunction; and (3) the court does not have authority to grant Progressive’s request for the issuance of bridge contracts. ECF No. 190. 4 On September 20, 2017, the United States Court of Appeals for the Federal Circuit granted the Government’s Motion For Leave To File The September 14, 2017 Status Report and attachments. ECF No. 195. 5 On June 20, 2017, the United States Court of Appeals for the Federal Circuit consolidated the cases on appeal. CAFC Case No. 17-2155, Dkt. #20. 10  On September 12, 2017, the court issued a Memorandum Opinion And Order, denying Progressive’s September 8, 2017 Motion For Emergency Relief, stating, [a]s a matter of law, the court has jurisdiction to adjudicate a motion to reconsider, amend, and/or enforce the May 31, 2017 Memorandum Opinion and Preliminary Injunction Order. Abbott Labs. v. TorPharm, Inc., 503 F.3d 1372, 1379 (Fed. Cir. 2007) (holding that courts have “inherent authority to enforce their own injunctions under the well-established principles of equity”). The court does not consider the Government’s September 7, 2017 Notice to violate, circumvent, or undermine the May 31, 2017 Preliminary Injunction, but rather as if it were filed under RCFC 62(c) as a motion to modify the May 31, 2017 Preliminary Injunction. In the court’s judgment, compelling public interest considerations attendant to Hurricane Harvey justify the modification requested by the Government. U.S. Ass'n of Importers of Textiles & Apparel v. U.S. Dep't of Commerce, 413 F.3d 1344, 1346 (Fed. Cir. 2005) (“Four factors are weighed in considering a motion for a preliminary injunction: (1) immediate and irreparable injury to the movant; (2) the movant's likelihood of success on the merits; (3) the public interest; and (4) the balance of hardship on all the parties.”). “No one factor, taken individually, is necessarily dispositive . . . . [T]he weakness of the showing regarding one factor may be overborne by the strength of others.” FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993) (emphasis added). ECF No. 191 at 4–5 (re-docketed for administrative purposes as ECF No. 194 at 4–5). On September 14, 2017, the Government filed a Status Report, to inform the court about the progress of ED’s corrective action, stating, [e]valuation reports are now being finalized, with an expected completion date of September 18, 2017. Once the reports are finalized, ED’s Source Selection Authority will perform an integrated assessment to identify the proposal(s) deemed to be most advantageous to the Government, followed by a responsibility determination of each apparently successful offeror. Once a new source selection determination has been made, ED will announce any new award or awards, and/or the termination of previously-awarded contracts, as appropriate. ECF No. 192 at 2. On September 14, 2017, the court also issued an Order, directing the Government seek leave to file a copy of the September 14, 2017 Status Report with the United States Court of Appeals for the Federal Circuit. ECF No. 193. On September 21, 2017, the Government informed the court that the Government filed the September 14, 2017 Status Report with the United States Court of Appeals for the Federal Circuit. ECF No. 195. On October 11, 2017, the court issued an Order, directing the Government to file a Status Report regarding the progress of ED’s corrective action by October 20, 2017. ECF No. 196. 11  On October 19, 2017, the Government filed a Status Report, wherein it reported that evaluation reports have been finalized and “[t]he Source Selection Authority has been conducting an assessment of the findings and ratings reported by the evaluating committees[.] . . . Once the apparently successful offeror/s are identified, the contracting officer will complete the responsibility determinations. Award/s will be made shortly thereafter.” ECF No. 197 at 2. On October 25, 2017, the court issued an Order, directing the Government to seek leave to file the October 19, 2017 Status Report with the United States Court of Appeals for the Federal Circuit. ECF No. 198. On October 27, 2017, the Government filed a Notice, informing the court of an October 27, 2017 Order issued by the United States Court of Appeals for the Federal Circuit in CAFC Case No. 17-2155, that appears to request the status of the Government’s May 19, 2017 Motion To Vacate Preliminary Injunction and Alltran’s June 9, 2017 Motion To Stay. ECF No. 199. II. THE COURT’S RULING ON THE PENDING MOTIONS. On May 19, 2017, the Government filed a Motion To Vacate Preliminary Injunction, pursuant to RCFC 60(b), arguing that: (1) the court should vacate the May 2, 2017 Preliminary Injunction, because the court dismissed Count VII of ConServe’s March 28, 2017 Complaint; and (2) ConServe cannot demonstrate that it satisfies any of the factors for a preliminary injunction. ECF No. 126. RCFC 60(b) provides that, [o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under RCFC 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.6 RCFC 60(b). RCFC 60(b)(6) is the only provision of this Rule relevant to the Government’s May 19, 6 2017 Motion To Vacate Preliminary Injunction. 12  As the United States Supreme Court has held, Rule 60(b)(6) “should only be applied in ‘extraordinary circumstances.’” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 864 (1988) (quoting Ackermann v. United States, 340 U.S. 193, 199 (1950)); see also Fiskars, Inc. v. Hunt Mfg. Co., 279 F.3d 1378, 1382 (Fed. Cir. 2002) (“Rule 60(b)(6) is available only in extraordinary circumstances[.]”). In addition, “[t]he determination whether to grant [a Rule 60(b) motion] is a matter largely within the discretion of the [trial] court . . . and appellate review is limited to determining whether the court abused its discretion.” Case v. Basf Wyandotte, 737 F.2d 1034 (Fed. Cir. 1984) (internal quotation marks and citations omitted). On a motion for preliminary injunctive relief, the court must weigh four factors: “(1) immediate and irreparable injury to the movant; (2) the movant’s likelihood of success on the merits; (3) the public interest; and (4) the balance of hardship on all the parties.” U.S. Ass’n of Importers of Textiles & Apparel v. United States, 413 F.3d 1344, 1347–48 (Fed. Cir. 2005). “No one factor, taken individually, is necessarily dispositive . . . . [T]he weakness of the showing regarding one factor may be overborne by the strength of others.” FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993) (emphasis added). The reasons in the court’s May 2, 2017 Preliminary Injunction have been set forth herein and may be reviewed at ECF No. 87. Nothing in the Government’s May 19, 2017 Motion To Vacate Preliminary Injunction presented “extraordinary circumstances” to “justif[y] relief” under RCFC 60(b)(6), since the Government previously filed on the same day a “[n]otice of awards and notices of termination” would issued by ED on or before August 25, 2017. ECF No. 122 at 9. This is true even more so today, in light of ED’s proposed corrective action that now appears to be imminent. ECF No. 199 (Oct. 27, 2017). * * * On June 9, 2017, Alltran also filed a Motion To Stay the May 2, 2017 Preliminary Injunction, pending an appeal to the United States Court of Appeals for the Federal Circuit. ECF No. 155. On June 14, 2017, Alltran filed an appeal in the United States Court of Appeals for the Federal Circuit. CAFC Case No. 17-2155, Dkt. #1. On July 24, 2017, Alltran filed a Motion To Expedite Ruling On Pending Motion For Stay Pending Appeal. ECF No. 179. As a threshold matter, “[a] stay is not a matter of right, even if irreparable injury might otherwise result. . . . It is instead an exercise of judicial discretion, and the propriety of its issue is dependent upon the circumstances of the particular case.” Nken v. Holder, 556 U.S. 418, 434 (2009) (internal quotation marks and citations omitted). “The fact that the issuance of a stay is left to the court’s discretion ‘does not mean that no legal standard governs that discretion . . . [Rather,] its judgment is to be guided by sound legal principles.’” Id. (quoting Martin v. Franklin Capital Corp., 546 U.S. 132, 139 (2005)). 13  In deciding whether to grant a stay pending appeal of a preliminary injunction, the court considers four factors: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Standard Havens Prods., Inc. v. Gencor Indus., Inc., 897 F.2d 511, 512 (Fed. Cir. 1990) (citing Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). But, each factor “need not be given equal weight,” and the factors can “effectively merge.” Id. at 512–13 (citing Providence Journal Co. v. FBI, 595 F.2d 889, 890 (1st Cir. 1979); E.I. DuPont De Nemours & Co. v. Phillips Petroleum Co., 835 F.2d 277, 278 (Fed. Cir. 1987) (“In considering whether to issue a stay [of an injunction] pending appeal, [the] court assesses movant’s chances for success on appeal and weighs the equities as they affect the parties and the public.”)). In sum, the four factors are analyzed using a “flexible approach.” Id. at 513. As to the first factor, to date the Government has not filed the Administrative Record in this case. See CFC Docket Sheet, attached hereto, as Court Exhibit A; see also CAFC Case No. 17-2155 Dkt. #12-1 n.5. Therefore, the court is not in a position to ascertain whether Alltran, the Government, or any other party would succeed on the merits of the underlying bid protest action. But, in light of the Government’s representation, as of May 19, 2017, that ED would issue “[n]otice of awards and notices of termination issued” on or before August 25, 2017, ECF No. 122 at 9, neither Alltran’s June 9, 2017 Motion To Stay The Preliminary Injunction nor Alltran’s July 24, 2017 Motion To Expedite Ruling On Pending Motion For Stay Pending Appeal made a “strong showing of the likelihood of success.” Standard Havens Prods., 897 F.2d at 512. In any event, if the most recent representation made to the court by the Government are true, Alltran’s entitlement to relief from the court’s May 2, 2017 Preliminary Injunction likely will be moot by ED’s corrective action. Id. As to the second and third factors, the Government is, and has been, in a position to eliminate any injury that the May 2, 2017 Preliminary Injunction imposed on ED and some of the parties, either by issuing short-term contracts, bridge contracts, or award-term extension (“ATE”) contracts—each of which ED advised the court is not a viable option—or by completing corrective action by August 25, 2017, as was represented to the court. ECF No. 122 at 9. Indeed, as the Government has advised the appellate court, on May 19, 2017, the court stated it was inclined to lift the preliminary injunction, if assurances could be made that ED would not assign any debt collection work to “dilute” work to which other parties may be entitled if they prevailed in this bid protest or otherwise be subject to corrective action. CAFC Case No. 17-2155, Dkt. #62-1 at 6 (citing Def. Ex. 6, Order May 19, 2017). The Government declined to do so. As to the fourth factor, the public interest lies in having ED administer student loan debt collection activities in compliance with applicable procurement law and regulations. ECF No. 87. Finally, the May 2, 2017 Preliminary Injunction was issued to maintain the status quo, as of March 28, 2017—the date the bid protest in this case was filed when a stay was pending at the GAO—to allow ED to take corrective action in response to the GAO’s March 27, 2017 Decision. 14 ECF No. 87; Gen. Revenue Corp., B–414220.2, Mar. 27, 2017, 2017 WL 1316186; see also Litton Systems, Inc. v. Sundstrand Corp., 750 F.2d 952, 961 (Fed. Cir. 1984). The court’s stated purpose in issuing the May 2, 2017 Preliminary Injunction was “not to micromanage ED’s debt collection efforts, but to protect the interest of all parties and afford the Government an opportunity to reach a global solution of the aforementioned cases.” ECF No. 87 at 3. III. CONCLUSION. For these reasons, the court has determined that the Government’s May 19, 2017 Motion To Vacate Preliminary Injunction, Alltran’s June 9, 2017 Motion To Stay Pending Appeal, and Alltran’s July 24, 2017 Motion To Expedite Ruling On Pending Motion For Stay Pending Appeal are denied. The court also orders the Government to advise the appellate court whether ED’s proposed corrective action may render pending motions, as well as the underlying appeal, moot, prior to the December 8, 2017 oral argument. IT IS SO ORDERED. s/ Susan G. Braden SUSAN G. BRADEN Chief Judge 15 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 97-4782 RODNEY FITZGERALD BRIGGS, Defendant-Appellant. Appeal from the United States District Court for the District of South Carolina, at Greenville. William B. Traxler, Jr., District Judge. (CR-97-128) Submitted: February 26, 1998 Decided: March 18, 1998 Before WILKINS, NIEMEYER, and HAMILTON, Circuit Judges. _________________________________________________________________ Affirmed by unpublished per curiam opinion. _________________________________________________________________ COUNSEL Renee R. Christina, Greenville, South Carolina, for Appellant. E. Jean Howard, OFFICE OF THE UNITED STATES ATTORNEY, Green- ville, South Carolina, for Appellee. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION PER CURIAM: Rodney Fitzgerald Briggs pled guilty to conspiracy to possess crack cocaine with intent to distribute, see 21 U.S.C. § 846 (1994), and was sentenced as a career offender to a term of 140 months imprisonment. See U.S. Sentencing Guidelines Manual § 4B1.1 (1995). His attorney has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), raising several issues but stating that in her view there are no meritorious issues for appeal. Briggs has filed a pro se supplemental brief raising several additional issues. After a review of the record, we affirm. In the Anders brief, Briggs' attorney first questions whether he was correctly sentenced as a career offender in light of Briggs' contention at sentencing that his two prior convictions for burglary of a dwelling were actually convictions for aiding and abetting burglaries. The dis- trict court properly held that the distinction did not affect Briggs' career offender status. A career offender is one who is at least eigh- teen years old at the time he commits an offense which is either a crime of violence or a drug trafficking offense, and who has two prior felony convictions for either a crime of violence or a drug trafficking offense. Burglary of a dwelling is defined as a crime of violence under the guideline and the term "crime of violence" includes aiding and abetting the commission of that offense. See USSG § 4B1.2(1)(ii), comment. (n.1). Briggs' attorney also challenges the extent of the district court's downward departure for substantial assistance, see USSG § 5K1.1, p.s., and its denial of a departure based on over-representation of Briggs' past criminal conduct. See USSG§ 4A1.3, p.s. We lack juris- diction to consider either claim. See United States v. Hill, 70 F.3d 321, 324-25 (4th Cir. 1995) (defendant may not appeal extent of downward departure); United States v. Bayerle , 898 F.2d 28, 31 (4th Cir. 1990) (refusal to depart generally not appealable). In his pro se supplemental brief, Briggs again challenges his career offender classification and the extent of the departure he received. He also argues that the court erred in not awarding him an adjustment for 2 acceptance of responsibility. See USSG § 3E1.1. This issue was not raised in the district court and is reviewed for plain error. See United States v. Olano, 507 U.S. 725, 731-32 (1993). Despite his guilty plea, in his interview with the probation officer Briggs denied selling crack and explained his presence in a crack house as just being in the wrong place at the wrong time. Because the presentence report contained information that Briggs worked for the crack dealer who ran the crack house and sold crack on at least ten occasions, the district court did not plainly err in withholding the adjustment. In accordance with Anders, we have examined the entire record in this case and find no reversible error. We therefore affirm the convic- tion and sentence. This court requires that counsel inform her client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from represen- tation. Counsel's motion must state that a copy thereof was served on the client. We dispense with oral argument because the facts and legal conten- tions are adequately presented in the record and briefs, and oral argu- ment would not aid the decisional process. AFFIRMED 3 

967 F.2d 593 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Timothy Herbert FRAZIER, Defendant-Appellant. 91-50310. United States Court of Appeals, Ninth Circuit. Submitted April 6, 1992.*Decided June 22, 1992.As Corrected July 1, 1992. Before BOOCHEVER, WILLIAM A. NORRIS and NOONAN, Circuit Judges. 1 MEMORANDUM** 2 Timothy Herbert Frazier appeals his conviction and sentence for being an inmate of a federal prison in possession of a knife in violation of 18 U.S.C. § 1791(a)(2). We affirm his conviction but vacate his sentence and remand for resentencing. FACTS 3 On June 20, 1988, Timothy Herbert Frazier was a prisoner at the United States Penitentiary at Lompoc, serving a 20 year sentence for armed bank robbery. At 2:50 p.m. that afternoon, Frazier walked from his prison job to the prison hospital for one of his regular medical appointments. Along the way, Frazier was required to undergo a search by prison officers. A hand-held metal detector, employed by prison officer Richard Chermak, was activated as it ran across Frazier's shoes. Frazier was asked to remove his left shoe. He was evasive, removing first one shoe liner and then another. Frazier was asked a third time to remove his shoe. He refused. Frazier was ordered to lift his left foot and Chermak removed Frazier's shoe. Chermak discovered in the sole of Frazier's shoe an eleven inch knife, fashioned from a large serving spoon. The spoon had been sharpened to a point and its handle had been broken off. A black string had been tied to the handle, as a lanyard. Frazier was then hancuffed and led to the duty lieutenant's office. 4 On June 23, 1988, Frazier waived his Miranda rights and was interrogated by FBI Special Agent Daniel Payne. Frazier told Payne that one of his friends--a "homeboy", in Frazier's language--was in trouble with a group of other prisoners, who suspected that Frazier's friend had stolen some of their possessions. Frazier was asked by his friend to watch his cell, for fear that it might be trashed or burned. In fact, the cell was burned, and both Frazier's friend and his threateners were sent to the segregation unit because of the incident. The threateners then turned their ire on Frazier, threatening him through intermediaries with various kinds of injury. 5 The bad blood continued. While watching television in a common area, Frazier was confronted by one of his friend's threateners, Willie "Green Eyes" Jackson. Jackson changed the channel and got into an argument with Frazier. Frazier returned to his cell; Jackson followed; a fight ensued. According to Frazier, Jackson swung first, but missed. Frazier struck second, and felled Jackson, who retreated but threatened to "get" Frazier. In fear because of these incidents, Frazier decided that he was "going to have to get the problem straightened out before it got out of hand". 6 Two days later, according to Frazier's statement to Payne, Frazier benefited from a convenient serendipity: while working at his prison job in the electronic cable shop, Frazier says he discovered a knife taped to the bottom of a press-type machine in the cable shop. He hid it in his shoe, hoping to use it as protection from those threatening him. According to Frazier, the knife was discovered by Chermak only a few hours after he had found and appropriated it. 7 On October 19, 1991, a federal grand jury returned an indictment charging Frazier with one count of being an inmate in possession of "an object designed or intended to be used as a weapon, namely, a sharpened metal serving spoon handle", in violation of 18 U.S.C. § 1791(a)(2). On January 3, 1991, the government filed a motion in limine seeking to preclude Frazier's use of a duress defense. After hearing arguments and considering certain materials in camera, the district court granted the government's motion. On February 15, 1991, Frazier entered a conditional guilty plea to the one-count indictment, reserving his right to appeal the district court's ruling precluding a duress defense. On May 20, 1991, Frazier was sentenced as a career offender under the Guidelines to 51 months in custody, consecutive to the sentence he was then serving, to be followed by three years of supervised release. This timely appeal followed. ANALYSIS 8 (I) 9 Frazier argues that the district court wrongly excluded a defense of duress to the charge of illegal possession of a weapon. The legal sufficiency of a proffered defense is a question of law and is therefore reviewed de novo. United States v. Charmley, 764 F.2d 675, 676 (9th Cir.1985). 10 It is well-established in federal common law that there are three elements to a duress defense: 11 (1) an immediate threat of death or bodily injury, (2) a well-grounded fear that the threat will be carried out, (3) no reasonable opportunity to escape the threatened harm. 12 United States v. Contento-Pachon, 723 F.2d 691, 693 (9th Cir.1984). A defendant must make a threshold showing as to each element of the defense: if the "testimony supporting one element is insufficient to sustain [an affirmative] defense even if believed, the trial court and jury need not be burdened with testimony supporting other elements of the defense." United States v. Bailey, 444 U.S. 394, 416 (1980). 13 Frazier's case is squarely governed by United States v. Wood, 566 F.2d 1108 (9th Cir.1977). Like Frazier, Wood was an inmate at Lompoc who was convicted of possessing a knife in prison. Wood claimed that he possessed the knife to protect himself from other inmates who had threatened him. Wood was denied a duress defense because he had made no effort to alert the authorities of his plight. The Wood court held that "transfer out of prison or into protective custody within the prison" provided reasonable but untried opportunities for Wood to escape his troubles. Id. at 1109. The court noted that to hold otherwise "would have the effect of giving an inmate like Wood a license to carry a knife within the prison." Id. 14 Frazier fails to distinguish his case from Wood's. Even if one accepts all of Frazier's proof that Lompoc's administrative detention is unsafe, Frazier offers nothing to explain why a transfer out of Lompoc would have failed to solve his troubles. Wood specifically held that a "transfer out of the prison" constituted a reasonable opportunity to escape within the meaning of a duress defense. Like Wood, Frazier never sought a transfer. It cannot be said that Frazier was ignorant of the possibility; he had been transferred to Lompoc from a federal prison in Indiana after a fight there. 15 Failing to pursue a transfer from Lompoc but persisting in a duress defense, Frazier is really seeking the same "license to carry a knife within the prison" that was denied Wood. But the requirement that those claiming duress or necessity must seek all reasonable opportunities to escape is firmly fixed in federal common law. "Under any definition of these defenses, one principle remains constant: if there was a reasonable, legal alternative to violating the law, 'a chance both to refuse to do the criminal act and also to avoid the threatened harm', the defense will fail." Bailey, 444 U.S. at 410 (quoting Lafave and Scott, Handbook on Criminal Law 379 (1972)). 16 A defendant's duty to pursue all reasonable, legal alternatives to a criminal act must be enforced with an especial vigor in the volatile context of prisons. Before a prisoner justifiably may turn to the self-help of homemade weapons, there must be proof that he contacted prison authorities about his troubles; was rebuffed or ignored; and so was truly alone in his struggle. See United States v. Michelson, 559 F.2d 567, 570 (9th Cir.1977) (acknowledging but not defining those "few and very limited circumstances", where an inmate who could not secure protection from prison officials might justifiably be forced to choose "fight or flight"). Anything less would give men like Frazier an excuse to travel armed through prison life. The district court made no error in prohibiting Frazier's duress defense from going to trial. 17 One puzzle remains. Frazier characterizes his defense as one of "duress". By its silence, the government appears to acquiesce in this characterization. This is odd. A duress defense works as an excuse for doing the (criminal) bidding of another: one usually claims that he was forced to commit a criminal act to further the coercer's own criminal designs. See e.g. United States v. Johnson, 956 F.2d 894 (9th Cir.1992) (claim of being forced to sell drugs for a kingpin); Contento-Pachon, 723 F.2d at 693 (forced to transport drugs for drug cartel). A basic element of duress is that one has been coerced to act for someone else's reasons. See Model Penal Code § 2.09, comment 3 ("The typical situation [of duress] is one in which the actor is told that unless he performs a particular criminal act a threatened harm will occur and he yields to the pressure of the threat, performing the forbidden act"). Frazier's threateners did not force him to carry a knife. His possession of the knife thwarted, not furthered, their criminal purposes. Properly characterized, Frazier is making a claim of self-defense. This court cannot participate in Frazier's mischaracterization. See Contento-Pachon 723 F.2d at 695 (noting that Contento-Pachon had "mischaracterized evidence of duress as evidence of necessity" and refusing to accept that mischaracterization). Those like Frazier who believe they must defend themselves face a desperate choice; but not all desperate choices are made under duress. 18 However, even if Frazier's defense had been properly characterized, it would also have been properly denied. The controlling case is United States v. Lemon, 824 F.2d 763 (9th Cir.1987), which upheld a district court's denial of a self-defense jury instruction for a charge of violating the felon in possession of a weapon statute. In order to establish a defense of self-defense to an illegal possession of a weapon charge, a defendant must demonstrate that: 19 (1) he was under unlawful and present threat of death or serious bodily injury; (2) he did not recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) he had no reasonable legal alternative; and (4) there was a direct causal relationship between the criminal action and the avoidance of the threatened harm. 20 Id. at 765 (emphasis added). The Lemon court went on to hold that to establish the absence of "reasonable, legal alternatives" to the illegal possession of a weapon, a defendant "must show that he actually tried the alternative or had no time to try it, or that a history of futile attempts revealed the illusionary benefits of the alternatives." d. (quoting United States v. Harper, 802 F.2d 115, 118 (5th Cir.1986)). Frazier cannot show that he "actually tried" seeking a transfer from Lompoc, or that he "had no time to try it", or that he had a "history of futile attempts" at getting such a transfer. However his defense is characterized, it was properly denied. Frazier's conviction is affirmed. 21 (II) 22 After Frazier's conviction, the district court found his crime was a felony constituting a "crime of violence", thereby laying the basis for application of the "career offender" provision of the Sentencing Guidelines. See U.S.S.G. § 4B1.1. Under that provision, a defendant is a career offender, and his sentence is to be enhanced, if he was at least 18 at the time of the instant offense; the instant offense is a felony that is either a crime of violence or a controlled substance offense; and he has at least two prior felony convictions of the same kind. Id. 23 Frazier appeals his sentence, claiming that possession of a knife is not a crime of violence within the meaning of the career offender provision and that he does not have two prior felony convictions. 24 In arguing that the illegal possession of a knife is a crime of violence, the government relies on United States v. O'Neal, 937 F.2d 1369, 1375 (9th Cir.1990), which held that under the definition of the phrase "crime of violence" in 18 U.S.C. § 16, which the Guidelines originally adopted as its own, possession of a firearm by a felon should be treated as a crime of violence under the Guidelines. However, a 1989 amendment to section 4B1.2 of the Guidelines deleted reference to 18 U.S.C. § 16 and redefined the phrase "crime of violence". See U.S.S.G.App. C (amendment 268). A subsequent amendment to the Application Notes of section 4B1.2 specifically says that the "term 'crime of violence' does not include the offense of unlawful possession of a firearm by a felon". In light of these two amendments, O'Neal has been supplanted. United States v. Sahakian, No. 91-10199, slip op. 5975 (9th Cir., filed May 26, 1992). The unlawful possession of a firearm is not a crime of violence. 25 If possession of a firearm is not a crime of violence within the meaning of the Guidelines, it follows a fortiori that possession of a knife is not a crime of violence. Frazier was wrongly sentenced as a career offender, and his sentence must be vacated and remanded for resentencing. 26 In attacking his sentence under the career offender provision, Frazier also argues that his prior convictions were "related cases" within the Guideline's broad meaning of that phrase. See § 4A1.2(2). The district court found that Frazier's prior convictions were not related cases. The court's finding had two distinct legal consequences: it rendered Frazier liable to an enhanced sentence under the career offender provision and it raised his criminal history score. The first consequence is obviated by our holding that Frazier was not convicted of a crime of violence. But that holding does not affect Frazier's criminal history score. Unless we consider Frazier's argument that his prior convictions are related cases within the meaning of the Guidelines, his criminal history score will again be calculated as if they were not related. Frazier's resentencing requires an authoritative answer to whether his prior convictions are related cases. Because the issue has been properly raised and fully briefed, we address its merits. 27 Frazier argues that his prior convictions are related cases because they "were part of a single common scheme or plan". § 4A1.2 (Application Note 3). In calculating a defendant's criminal history score, related cases are to be counted as one sentence. See § 4A1.2(a)(2). If Frazier's three prior convictions are related cases, his criminal history score would be reduced by six points. Under the standard announced in United States v. Houser, 929 F.2d 1385 (9th Cir.1991), a defendant's prior convictions are "part of a single scheme or plan" if the crimes were of a similar nature, occurred within a short period of time, were the result of a single investigation, and most importantly, "had been charged separately only because they had occurred in different jurisdictions". United States v. Chapnick, No. 91-50194, slip op. 4835 at 4841 n. 3 (9th Cir. filed April 29, 1992); United States v. Davis, 922 F.2d 1385, 1389-90 (9th Cir.1991); Houser, 929 F.2d at 1374. 28 First, it is obvious that Frazier's crimes, all bank robberies to support his drug habit, were "similar in nature". Second, all of the bank robberies occurred within three months of each other; this is a "short period of time". See Houser, 929 F.2d at 1373-74 (six weeks is a short period of time). Third, there is undisputed evidence that Frazier's convictions were the result of a consolidated investigation by state and federal authorities. Finally, and most importantly, Frazier both submitted evidence and made an offer of proof--the truth of which was not controverted by either the government or the district court--that the only reason he was charged by both state and federal authorities for the bank robberies was for jurisdictional reasons. It appears that had Frazier been an adult at the time of his earlier crimes, and had those crimes not been committed in two different federal jurisdictions, the federal government would have charged (and presumably convicted) Frazier of all the bank robberies in one trial. The federal government's kindness to Frazier as a juvenile should not be made to hurt him as an adult. Frazier's past convictions for bank robbery are related cases and may only be counted as one sentence in calculating his criminal history score. 29 Frazier's conviction is AFFIRMED; his sentence is VACATED and the case is REMANDED for resentencing. * The panel finds this case appropriate for submission without oral argument pursuant to Fed.R.App.P. 34(a) and Ninth Cir.R. 34-4 ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

66 F.2d 612 (1933) UNITED STATES v. LESSER et al. No. 487. Circuit Court of Appeals, Second Circuit. August 1, 1933. Morris Kamber, of New York City (Otho S. Bowling, of New York City, of counsel), for appellant Henry Lesser. Anthony P. Savarese, of Jamaica, L. I. N. Y., for appellant Forrest E. James. Alfred D. Van Buren, of New York City, for appellant Philip M. Lahn. Howard W. Ameli, U. S. Atty., of Brooklyn, N. Y. (Herbert H. Kellogg, Donald C. Strachan, and Emanuel Bublick, Asst. U. S. Attys., all of Brooklyn, N. Y., of counsel), for the United States. Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges. AUGUSTUS N. HAND, Circuit Judge. Henry Lesser, Forrest E. James, Philip M. Lahn, Walter E. Anderson, and Henry Henners were indicted for conspiring to violate section 2 of the Federal Food and Drugs Act of June 30, 1906 (21 USCA § 2). The indictment against Anderson was dismissed, and the jury found Henners was not guilty. Lesser, James, and Lahn were convicted and have all appealed. The indictment alleged that the defendants *613 conspired to "introduce, ship and deliver for shipment from one State to another State adulterated and misbranded foods and drugs" and to "sell, transport, deliver and introduce, ship and deliver for shipment from one State to another State, a large quantity of fluid extract of ginger * * * which was then and there adulterated in that it differed from the standard strength, quality and purity of fluid extract of ginger as determined by the tests laid down in the United States Pharmacopœia. * * *" The indictment also alleged that the defendants were doing business under the fictitious names of Jordan Brothers, S. A. Hall, and Charles M. Pomeroy, and that the conspiracy continued from June 1, 1929, to February 1, 1932. Section 2 of the Food and Drugs Act (21 USCA § 2) makes any person guilty of a misdemeanor who shall ship or deliver for shipment from any state to any other state "any article of food or drugs which is adulterated or misbranded, within the meaning of sections 1 to 15. * * *" The term "drug" is defined in the act as including "all medicines and preparations recognized in the United States Pharmacopœia or National Formulary for internal or external use." Section 7, 21 USCA. In section 8, 21 USCA, a drug is defined as adulterated if, when it "is sold under or by a name recognized in the United States Pharmacopœia or National Formulary, it differs from the standard of strength, quality, or purity, as determined by the test laid down in the United States Pharmacopœia or National Formulary official at the time of investigation." But it is provided that no drug shall be deemed to be adulterated "if the standard of strength, quality, or purity be plainly stated upon the bottle, box, or other container thereof although the standard may differ from that determined by the test laid down in the United States Pharmacopœia or National Formulary." We think that the government introduced evidence at the trial which justified the jury in finding that there was such a conspiracy as the indictment alleged and that all three of the defendants-appellants participated in it. The defendant Lesser was interested in a flavoring and fruit extract business, having its headquarters at 601 Bergen street, Brooklyn, N. Y., known as the Fulton Chemical Works. It manufactured and supplied fluid extract of ginger and various fruit extracts to customers in many parts of the United States, among others, California Extract Company, Los Angeles, Cal., of which Jacob Rosenbloom, the half-brother of Lesser, was the owner, K. & K. Drug Company, of Newport, Ky., owned by Sol Kauffman, Leo B. Dreyfoos, of Cincinnati, Ohio, and Prescott B. Burkett, who did business under the name of Valo Products Company, Kansas City, Lone Star Company, Dallas, Tex., and American Products Company, Kansas City. From the year 1925 on, Rosenbloom's concern purchased Jamaica ginger extract from the Fulton Chemical Works and in the latter part of 1930 and early part of 1931. Lesser went west to see his half-brother in the latter part of 1929. Just before Rosenbloom ceased to do business in the early part of 1931, the sales were made to him in the names of Jordan Brothers and S. A. Hall. The evidence identified the latter with Fulton Chemical Works. Some of the ginger shipped in the name of Jordan Brothers was found upon a chemical examination to have been adulterated. Sol Kauffman conducted business under the name of K. & K. Drug Company. He began doing business with the Fulton Chemical Works of 601 Bergen street about 1925 and 1926, and met James, Lesser, Lahn, and Henners at that place. He did business with the same concern in 1929 and the early part of 1930, when he ceased doing business. Fluid extract of ginger was sent to him under invoices of Fulton Chemical Works, Decker Ingraham & Smith, J. Carboy, and S. A. Hall, and he made his checks payable to the order of the person or concern named in the invoice. The orders, however, were given to the Fulton Chemical Works. An invoice dated February 13, 1930, was in the name of S. A. Hall. Kauffman discussed with Lesser the business of fruit extracts and extract of ginger and the prices of goods he had ordered from the Fulton Chemical Works (fol. 1713) during the latter part of the year 1929 when Lesser was in Cincinnati on business. Kauffman said that Lesser was connected with Fulton Chemical Works in 1929 and early in 1930 (fol. 1926). Dreyfoos, of Cincinnati, testified that he purchased fluid extract of ginger from Lesser, James, and Lahn in 1927, 1928, 1929, and up to the latter part of February, 1930; that he would give orders to Lesser, James or Lahn and, when he sent in written ones, would send them to 601 Bergen street, Brooklyn, the office of the Fulton Chemical Works. Merchandise would be shipped in the names of this company and of S. A. Hall and J. Carboy, and the check would be made out to the person named in the invoice, but the orders would be given to Fulton Chemical Works. *614 Lesser and James were at the Gibson Hotel in Cincinnati in the early part of 1930. Preston D. Burkett testified that he had had business relations with Lesser, James, and Lahn. He admitted making purchases from Lesser as the Fulton Chemical Works in 1924. He refused to disclose what they were on the ground that to answer might tend to incriminate him, but denied that he purchased extract of ginger from them in 1929 or 1930. On the same ground he refused to say whether he purchased it from S. A. Hall or Jordan Brothers in 1929 or 1930, and likewise refused to say whether he had any correspondence with James in 1929 and 1930. It was, however, shown by another witness named Darnell that he and Burkett, under the name of Valo Products, purchased adulterated ginger extract in 1930 and 1931 from Jordan Brothers and Pomeroy. There was evidence showing those persons were identified with Fulton Chemical Works. Various other witnesses testified to dealings with Lesser in connection with the Fulton Chemical Works but at dates prior to 1929. We think that the foregoing proof was sufficient to justify a jury in finding that Lesser continued in the business of the Fulton Chemical Works and of the individuals and concerns allied with it in the sale of fluid extract of ginger in interstate commerce. He offered no proof of severance from the association with the Fulton Chemical Works which had once existed and had continued for years. Though the earliest shipment of adulterated and misbranded fluid extract of ginger established was of the date of December 4, 1930, and the latest connection of Lesser with the conspiracy specifically shown was in February, 1930, it may reasonably be inferred that his proved relation continued in the absence of any evidence to the contrary. The "presumption of continuance," so called, justified the jury in believing that Lesser remained connected with Fulton Chemical Works throughout the period of the conspiracy during which the illegal shipments which were pleaded occurred. Commonwealth v. Fragassa, 278 Pa. 1, 122 A. 88; Easterday v. United States, 53 App. D. C. 387, 292 F. 664; Paterson v. Mobile Steel Co., 202 Ala. 471, 80 So. 855; Cooper & Peabody v. Dedrick, 22 Barb. (N. Y.) 516. The so-called "Jim" letters written by the defendant James to Preston D. Burkett not only show the connection of James with the conspiracy, but greatly re-enforce the case against Lesser. Exhibit 153, which is apparently dated January 15, 1931, says that Harry "suggested that you destroy all your records as understand they want to try and subpœna them for the cases which are coming up." In Exhibit 155, which is under date of March 24, 1931, is the statement: "Harry did not see his party Sat. but he talked to him by phone and was told not to worry. Have not heard from the Coast since I wrote to you last. They were supposed to be on trial yesterday in some small town and surely hope they come out O. K. If only they can smooth that thing out there is still some hope that the business will come back somewhere near normal and if it does we all will have to try our `darndest' to keep it clean." It is to be noted that prior to March 24, 1931, there had been a shipment of fluid extract of ginger in the name of Jordan Brothers to the California Extract Company which was found by the analysis of the chemists to be poisonous. In Exhibit 157, under date of March 28, 1931, we find the following: "Haven't heard a word from California so we have been unable to even guess what happened Monday. * * * Certainly will be glad when that matter is adjusted and naturally hope that they go no further than fines, and that they do not put an embargo on future shipments. * * * "Oh, well, why worry, they may have us down but so far we are not out and to use Harry's pet expression, `everything will be all right in the morning.'" In Exhibit 161, under date of May 27, the writer says: "Have been unable to make shipment of your two barrels because we have been out of merchandise and have been after Harry for 10 days to get some in, but he is so dizzy that I don't know what is going to happen. If I don't get something definite from him within a day or two I will go out myself and get some goods and see that your order is filled. He seems to think that the racket is about over and wants to close up shop and quit. * * *" On May 29 (Exhibit 162), James writes that: "Harry and I haven't gotten together regarding the future but I did not want to hold you up any longer so went ahead and handled everything myself. He is coming in Monday and we will then decide definitely whether we continue or whether he drops out and I carry along alone for awhile." *615 In Exhibit 163, dated June 5, 1931, James writes: "Had another long chat with Harry today at lunch and he thoroughly understands now that I am going ahead alone and try and get the four samples approved. * * * "Hated like the devil to break away from Harry because he certainly has been a wonderful friend but he has other things on his mind and did not want to follow along on my proposition so I just must follow along by myself. * * *" In Exhibit 164, dated June 11, 1931, James writes about a mistake in the last shipment and says: "Sorry about this but Harry had me going around in circles while he was trying to make up his mind what to do. When he finally decided to step out I rushed too fast and was depending on memory, hence the error." To this exhibit is appended a financial statement dated June 11, 1931, showing a payment on August 1, 1930, to H. L. of $1,153.80. "Harry" and "H. L." were evidently the defendant Lesser. The foregoing letters show that the defendant Lesser was closely identified with James in the shipments to California and to the companies with which P. D. Burkett was connected and that this relation continued until June, 1931. It is perhaps unnecessary to refer to other evidence than the "Jim" letters to show the participation of James in the conspiracy, but there was much other proof connecting him with the sales in interstate commerce of the Fulton Chemical Works and its adjuvants. Kauffman testified that he had had dealings with James as well as with Lesser and Lahn at the Fulton Chemical Works, that he did business with that concern in 1929 and 1930 and placed orders with it for fluid extract of ginger and received deliveries upon those orders, invoiced under the names of Fulton Chemical Works, S. A. Hall, Decker Ingraham & Smith, and J. Carboy. His conversations regarding the payment of the invoices were with James. James stayed with Lahn and Lesser at the Hotel Gibson in Cincinnati in 1929, and was there with Lesser in 1930. Dreyfoos likewise had conversations there with James and Lahn about fruit extracts and prices of merchandise. The insurance firm, of which James was a member, paid the rent of Jordan Brothers at No. 360 Furman street, Brooklyn, whence shipments in the name of Jordan Brothers were made. A dealer in essential oils, named Bolz, took orders from James on October 25, 1930, and at times thereafter. In January, 1931, this dealer received an order from Jordan Brothers. When they tendered their check for the purchase price, Bolz refused to accept it without some assurance that it was good. He was thereupon referred by Jordan Brothers to James, who telephoned that their check was all right. Proof connecting James with the conspiracy was ample. The evidence also established the participation of the defendant Lahn in the conspiracy. He was the bookkeeper of Fulton Chemical Works. He took orders for it from persons purchasing extracts, ordered letterheads printed both for it and for S. A. Hall, Decker Ingraham & Smith, and J. Carboy, and also ordered supplies of essential oils, including oleo resin of ginger. He directed the mail of S. A. Hall to be forwarded from No. 598 Atlantic avenue to 186 Joralemon street, care of James, and rented an office at 598 Atlantic avenue under the fictitious name of Slade. A check used to pay the Schwartz Laboratories for an analysis on March 4, 1931, for James, of fluid extract of ginger, and found to contain phenols of a harmful nature, was charged to the account of Lahn. It is evident from the above that Lesser, James, and Lahn were all associated in the business of Fulton Chemical Works and its various instrumentalities and were all engaged in shipping fluid extract of ginger in interstate commerce. Various shipments of ginger fluid extract were made in interstate commerce in the names of Jordan Brothers, S. A. Hall, and Charles M. Pomeroy, which, upon analysis, were found to be adulterated and to differ from the "standard of strength, quality, or purity" of fluid extract of ginger as "determined by the test laid down in the United States Pharmacopœia." Food and Drugs Act § 7 (21 USCA § 8). It is argued for the appellants that no "test" is laid down in the Pharmacopœia to determine the character of fluid extract of ginger and that consequently the act is not shown to have been violated. But the Pharmacopœia sets forth how a fluid extract of ginger is to be compounded, and the statute penalizes any person guilty of adulterating or misbranding. U. S. Pharmacopœia 10th Revision 1926, pp. 158, 159, and 175. To interpret the words "test laid down" as referring to a method of detecting nonconformity with the standard of the Pharmacopœia is to give the words an unnecessarily narrow meaning. They require conformity with the standard set up in the Pharmacopœia and make no attempt to prescribe a method of *616 ascertaining whether such conformity exists. The chemist Eaton testified that he subjected the California shipments to chemical tests and found that they contained more oil and less ginger solids than a normal product of fluid extract of ginger. He also found that they contained an "organic phosphorous compound of the type tricresyl phosphate," which is a poisonous ingredient, and were not the fluid extract of the United States Pharmacopœia. He said that the way to ascertain whether fluid extract of ginger complies with the United States Pharmacopœia is to make a ginger extract according to its teachings and then determine the various ingredients "like the solids, and the ash, and the phosphorous compound * * * and the alcohol," and find out "what they run on an average." The testimony of the chemist Reznek was to the same effect. The testimony of the chemist Maurice E. Smith related to specimens taken from shipments to California Extract Company and to Burkett's companies. He said that preparations purporting to be fluid extract of ginger contained a triorthocresyl phosphate, which was a poisonous ingredient. He tested the effect of the material upon chickens and the result of administering it was a partial paralysis, known to be caused by the presence of triorthocresyl phosphates. The basis for a finding by the jury that the shipments were adulterated and did not meet the standard of the United States Pharmacopœia was ample. There can be no doubt that enough was proved to justify an inference of guilty knowledge. The shipments failed to conform to lawful standards and were made in many cases by persons or concerns from whom they were not directly ordered. Lahn directed the post office to forward to James the mail of S. A. Hall, in whose name some of the shipments were made, and Lahn himself used the fictitious name of Slade when he rented an office at 598 Atlantic avenue for Hall. The "Jim" letters show that James and Lesser were aware of the illegality of the enterprise, and that Lesser abandoned it about June, 1931, after the shipments to California had come under investigation and danger was imminent. We think it evident that the business was conducted in a surreptitious way, and are satisfied that there was proof of guilty knowledge on the part of the appellants. It is argued that the indictment should have been dismissed at the opening. It is said that the allegation that the defendants conspired to "unlawfully introduce, ship and deliver for shipment from one state to another state adulterated and misbranded foods and drugs" having been made in the conjunctive, a conspiracy to ship food as well as drugs had to be shown, and that the specification of fluid extract of ginger as the subject-matter of the conspiracy makes it impossible to prove the broad allegation as to both food and drugs. But the allegation as to adulterated foods may be disregarded as surplusage where, as here, the indictment sufficiently states a crime conspiring to ship adulterated drugs. The contention that the indictment should have been dismissed for duplicity because it alleged generally a conspiracy to ship adulterated foods and drugs is trivial. As it specifies that the shipments to be made were of fluid extract of ginger there is in fact no duplicity. But in no event could the defendant be prejudiced by the inclusion of "foods" in the allegation. It is said that in case of an acquittal under this indictment where the only proof related to shipments of fluid extract of ginger, which is a drug, the defendants might still be subject to a new indictment for conspiring to ship adulterated foods. But it is well established that in case of a second prosecution resort may be had to parol evidence to establish the crime of which a defendant has in fact been convicted and that the sufficiency of a plea in bar must be tested in that way. Bartell v. United States, 227 U. S. 433, 33 S. Ct. 383, 57 L. Ed. 583. It is also argued that error was committed by the trial court in allowing the government's pharmacological expert Maurice I. Smith to testify about his experiments on chickens with the samples of the extracts shipped by the defendants and to show that the administration of the ingredients produced paralysis. Proof of the poisonous effect of the compounds shipped tended to fortify the chemical testimony that they were adulterated and contained tricresyl phosphate, which is known to produce a paralyzing effect. There is no reason to hold that the noncorrespondence of the extracts shipped with the standard of the Pharmacopœia must only be shown by chemical analyses. On the contrary, it may be established in any other logical and convincing way. Goodwin v. United States (C. C. A.) 2 F.(2d) 200; Columbus Const. Co. v. Crane Co. (C. C. A.) 98 F. 946, at page 957. Judgment affirmed.

269 B.R. 682 (2001) In re Lyle Dwight THORNTON and Cheri Eloise Thornton, Debtors. No. 01-61504. United States Bankruptcy Court, W.D. Missouri, Southern Division. November 19, 2001. *683 Kenneth P. Reynolds, Esq., Reynolds & Gold, Springfield, MO, for Debtors. Fred C. Moon, Esq., Springfield, MO, for trustee. MEMORANDUM OPINION ARTHUR B. FEDERMAN, Chief Judge. Chapter 7 debtors claimed a homestead exemption in 15.2 acres with a mobile home affixed, and they claimed a separate exemption in the mobile home. The Chapter 7 trustee objected to the claims of exemption. The debtors then filed a motion to compel abandonment of the mobile home and real estate, arguing that any dividend to the unsecured creditors would be de minimis. This is a core proceeding under 28 U.S.C. § 157(b)(2)(B) over which the Court has jurisdiction pursuant to 28 U.S.C. § 1334(b), 157(a), and 157(b)(1). The following constitutes my Findings of Fact and Conclusions of Law in accordance with Rule 52 of the Federal Rules of Civil Procedure as made applicable to this proceeding by Rule 7052 of the Federal Rules of Bankruptcy Procedure. *684 ISSUES PRESENTED (1) Debtors own 15.2 acres of real estate and live in a mobile home that sits on the real estate. They claimed an $8000.00 homestead exemption in the real estate and a $2000.00 exemption in the mobile home. The Chapter 7 trustee objected. Under Missouri law a debtor can claim a homestead exemption in a dwelling house intended as a homestead and a personal property exemption in a mobile home used as a principal residence. Is a debtor entitled to both exemptions? (2) Debtors scheduled $66,784.64 in general unsecured debt. If the Chapter 7 trustee sold the real estate, he would realize $1,119.51 in non-exempt equity for actual distribution to general unsecured creditors. The Bankruptcy Code provides that the Court may order the trustee to abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate. Is such a distribution administratively burdensome and of inconsequential value to the estate? DECISION (1) A debtor cannot live simultaneously in a dwelling house and a mobile home. Missouri law sets forth the steps required to convert a mobile home into a dwelling house. Once a mobile home is converted into a dwelling house, a debtor is not entitled to claim an exemption in a mobile home because the mobile home no longer exists. (2) A distribution of $1,119.51, with scheduled claims of $66,784.64, would be burdensome to the estate to administer. FACTUAL BACKGROUND On July 14, 2001, debtors filed a Chapter 7 bankruptcy petition. On Schedule C debtors claimed a homestead exemption in the amount of $8000.00 in 15.2 acres with a mobile home affixed, pursuant to section 513.475 of Missouri's Revised Statutes. Debtors also claimed an exemption in the mobile home in the amount of $2000.00, pursuant to section 513.430(6) of Missouri's Revised Statutes. On November 14, 2001, this Court held a hearing on both the trustee's objection and the debtors' motion to compel abandonment. As announced at the hearing, I find a plain reading of the exemption statutes in question reveals that the Missouri Legislature did not intend to enable debtors to claim both a homestead exemption and a mobile home exemption. DISCUSSION Section 513.475 provides that a dwelling house and appurtenances that are now being used, or soon to be used, as a homestead are exempt from attachment and execution.[1] Section 513.430.6 provides that a mobile home used as the principal residence, not to exceed one thousand dollars in value, is exempt from attachment and execution.[2] As stated in In re Kelly:[3] This Court is of the opinion that when the Missouri Legislature enacted 513.430(6) and 513.475.1 both in 1982, it must have intentionally distinguished between the terms "mobile home" and "dwelling house" used in the respective statutes. The bridge between the use of the term "mobile home" in 513.430(6) and the term "dwelling house" in 513.475.1 is bridged by the provisions of Section 700.110[4] wherein the Legislature describes how to convert a manufactured *685 home (mobile home) to real estate (dwelling house).[5] Thus, debtors are not entitled to claim that the same dwelling is both a mobile home, and a homestead affixed to the real estate. The issue, thus, becomes whether debtors have converted the mobile home to real estate, which entitles them to the larger homestead exemption, or whether it is still a mobile home, which entitles them to the smaller mobile home exemption. I find that debtors have converted the mobile home to real estate. Section 700.111 provides that the owner of a manufactured home may convert the home to real property by attaching the home to a permanent foundation and removing the transporting apparatus.[6] It is undisputed that the mobile home is on blocks with skirting around it. It is connected to a septic tank and its own well. The wheels and tires have been removed. I find that the removal of the wheels and tires, the installation of skirting, the placement of the structure on blocks, and the attachment of the structure to its own well and septic system all indicate an intent on the part of debtors to convert the mobile home to real estate. I, thus, find that debtors are entitled to claim a homestead exemption in the amount of $8,000.00. They are not, however, entitled to also claim a mobile home exemption. I, therefore, SUSTAIN IN PART the Chapter 7 trustee's objection to debtors' claim of exemption in a mobile home in the amount of $2000.00. Debtors filed a motion to compel the Chapter 7 trustee to abandon the estate's interest in the real estate. Debtors argue that any dividend to the unsecured creditors would be de minimis. I agree. The Court may order the trustee to abandon property that is of inconsequential value and benefit to the estate: (a) On request of a party in interest and after notice and a hearing, the court may order the trustee to abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate.[7] The trustee presented evidence to prove that the fair market value of the real estate is $27,000.00. The property is encumbered by a mortgage in the amount of $14,280. According to the evidence offered at the hearing, the cost to sell the real estate would include a five percent commission in the amount of $1350.00 and advertising costs of $600.00. The debtors are entitled to their homestead exemption in the amount of $8000.00, their head of household exemption in the amount of $850.00,[8] and their remaining wild card exemption in the amount of $427.32.[9] The non-exempt equity is, therefore, $1,492.68 ($27,000.00 minus $14,280.00 minus $1350.00 minus $600.00 minus $8000.00 minus $850.00 minus $427.32 equals $1492.68). In addition, the Chapter 7 trustee would be entitled to a 25 percent fee on the distribution.[10] After deducting the trustee's fee of $373.17, the trustee would have available for distribution the sum of $1,119.51. Given the fact that debtors scheduled general unsecured debt in the amount of $66,784.64, I find a potential distribution of $1,119.51 (1.7 percent) to be of inconsequential value to the estate, or de minimis. I, therefore, GRANT debtors' motion to compel abandonment of 15.2 acres of real estate. *686 An Order in accordance with this Memorandum Opinion will be entered this date. NOTES [1] Mo. Stat. Ann. § 513.475.1 (Supp.2001). [2] Id. at § 513.430.6. [3] 85 B.R. 832 (Bankr.E.D.Mo.1988). [4] Section 700.110 was repealed in 1989 and replaced by section 700.111. [5] 85 B.R. at 833. [6] Mo. Stat. Ann. § 700.111 (2000). [7] 11 U.S.C. § 554(b). [8] Mo. Stat. Ann. § 513.440 (Supp 2001). [9] Id. at § 513.430.3 (Supp.2001). [10] 11 U.S.C. § 326.

48 So.3d 170 (2010) DEPARTMENT OF REVENUE o/b/o Sharon M. SIMMONS, Appellant, v. Bryant WARDLAW, Appellee. No. 4D09-3656. District Court of Appeal of Florida, Fourth District. November 24, 2010. Bill McCollum, Attorney General, Tallahassee, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for appellant. Patricia Ireland of Phillips & Richard, P.A., Miami, for appellee. Prior report: 25 So.3d 80. PER CURIAM. The Department of Revenue (Department), on behalf of Sharon M. Simmons, appeals a circuit court's order vacating the Final Order of Paternity and Administrative Support issued by the Department against appellee, Bryant Wardlaw. The circuit court vacated the order upon its finding that the order was entered without proper notice and was thus void. Jurisdiction to judicially review administrative support orders rendered pursuant to section 409.2563, Florida Statutes (2009), lies with the district courts of appeal. Because the circuit court lacked jurisdiction to vacate the Final Order of Paternity and Administrative Support, we reverse the circuit court's order. See § 120.68, Fla. Stat. (2009); Dep't of Revenue v. Manasala, 982 So.2d 1257, 1259 (Fla. 1st DCA 2008) (holding that circuit courts do not have jurisdiction to enter an order either vacating or retroactively affecting an administrative support order); Dep't of Revenue v. Mohomed, 996 So.2d 900, 901 (Fla. 5th DCA 2008) (explaining that "jurisdiction to retroactively review a final administrative support order is vested in the district courts of appeal not in the circuit courts"). Reversed. TAYLOR, HAZOURI and CIKLIN, JJ., concur.

United States Court of Appeals FOR THE EIGHTH CIRCUIT No. 00-4005 United States of America, * * Plaintiff/Appellee, * v. * Appeal from the United States * District Court for the Southern Bradley Wayne Boswell, District of Iowa. * * Defendant/Appellant. * Submitted: May 15, 2001 Filed: October 16, 2001 Before WOLLMAN, Chief Judge, HANSEN, Circuit Judge, and SCHREIER,1 District Judge. SCHREIER, District Judge. Dr. Bradley Wayne Boswell appeals his conviction on two counts of making false statements to the government. Dr. Boswell raises three issues on appeal. First, 1 The Honorable Karen E. Schreier, United States District Judge for the District of South Dakota, sitting by designation. that the district court2 erred in admitting evidence of DNA test results involving the comparison of swine serum samples. Second, that the evidence was insufficient to support the conviction on grounds he falsified the number of swine he claimed to have bled. Third, that Dr. Boswell was denied due process because the refrigerated serum samples deteriorated while kept in storage. We affirm. Pseudorabies is a contagious air-transmitted disease that causes respiratory and reproductive problems in swine. The Pseudorabies Eradication Program is a joint federal, state, and swine industry project designed to eradicate the disease. The program pays veterinarians on a “fee-basis” to collect blood samples from swine on Iowa farms and submit the samples to the Iowa State University Diagnostic Laboratory. The veterinarians receive $20 for each farm visit and $4.50 per animal from which a blood sample is drawn. Dr. Bradley Boswell was a licensed veterinarian at the time of the events in question. Dr. Boswell’s license was reinstated after it had been revoked by the Iowa Board of Veterinarian Medicine in 1991, for submitting falsified test records, failing to properly supervise employees, and violating food and drug regulations regarding use of illegal animal drugs. Dr. Boswell agreed to work with the Animal Plant Health Inspection Service (APHIS) as a “Fee Veterinarian” under the Pseudorabies Control Agreement. Dr. Alison King, a field veterinarian employed by APHIS, asked Dr. Boswell in early 1998 to obtain serum samples from pigs on Thad Benskin’s farm. Dr. Boswell claims he bled some of the samples in February of 1998 with the assistance of Thad Benskin, and later returned to the farm and bled the rest of the animals with the help of his friend Bart Elder. In total, Dr. Boswell submitted one hundred and twenty samples 2 The Honorable Harold D. Vietor, United States District Judge for the Southern District of Iowa. -2- from the Benskin farm to the ISU laboratory. Some of the blood serum samples tested positive for psuedorabies. Dr. Boswell was surprised to learn that some of the samples had tested positive for pseudorabies. He then resubmitted allegedly identical samples to the ISU laboratory, claiming that he used the serum kept on reserve from the prior month’s bleeding. All of the resubmissions came back negative. Dr. Boswell also claims he decided to re-bleed and re-submit sixty samples from the Benskin farm. New samples arrived at the ISU lab on March 10 which also tested negative. Dr. King was suspicious that test results from the same animal could move from positive to negative. Based on this suspicion, King and a group of federal veterinarians re-tested some of the swine on the Benskin farm. The federal investigators drew blood from a random sample of thirty sows and approximately 40 percent of the thirty sows tested positive for pseudorabies. Dr. King then sent Dr. Boswell’s original and resubmitted samples to the National Veterinarian Service Laboratory (NVSL). A lab technician at NVSL concluded that the original and resubmitted samples appeared to be adulterated. NVSL was also skeptical of Dr. Boswell’s assertions that the sets of samples he submitted were from the same animal. NVSL sent some of the two sets of samples to Stormont Laboratories for additional testing. Stormont tested the DNA of Dr. Boswell’s submissions by using a process called polymerase chain reaction (PCR). Stormont concluded that the paired samples were not from the same animals. Dr. Boswell was charged by indictment with nine counts of making false statements and two counts of witness tampering. Count Two was dismissed at the government's request prior to trial. The district court entered a judgment of acquittal on the two counts of tampering with a witness and the jury acquitted Dr. Boswell of six counts of making a false statement. The jury convicted Dr. Boswell on two counts -3- of making false statements in violation of 18 U.S.C. § 1001 (Counts Four and Five). These two counts of conviction involved separate written representations Dr. Boswell made on separate official government Pseudorabies Serology Forms with respect to the Benskin swine herd. Count Four charged that Dr. Boswell's written statement on the February 1998 form that he had obtained the 120 blood samples from the Benskin herd in February 1998 was false because Dr. Boswell "well knew that he had bled less (sic) than 120 swine." Count Five charged that the form submitted in March 1998, with the thirty blood samples from serum that Dr. Boswell claimed were from the same hogs bled at the Benskin farm in February 1998, was false because he then "well knew these [thirty] specimens were not from the same swine, and that he had not submitted specimens in accordance with federal and state regulations and instructions issued by the Veterinarian-in-Charge." I. Dr. Boswell contends the district court abused its discretion by admitting into evidence DNA test results taken from swine serum samples Dr. Boswell submitted to ISU laboratories. A district court’s admission of DNA evidence is reviewed under an abuse of discretion standard. See United States v. Beasley, 102 F.3d 1440, 1445 (8th Cir. 1996), cert. denied, 520 U.S. 1246 (1996). This court must determine whether or not the district court made a clear error of judgment in weighing the facts on the basis of the record before it. See United States v. Bahema, 223 F.3d 797, 809 (8th Cir. 2000). The admission of scientific expert testimony is dependent upon the court’s determination that the proposed testimony constitutes (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). The district court serves as a “gatekeeper” for the admission of novel scientific evidence. See United States v. Martinez, 3 F.3d 1191, 1196 (8th Cir. 1993). -4- The district court must conduct a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning can be applied to the facts at issue. See Daubert, 509 U.S. at 591, 113 S. Ct. at 2796. The factors the district court may consider include: (1) whether a theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) whether the technique is generally accepted. Id. at 593-94, 113 S. Ct. at 2795-96. There is sufficient evidence that the district court was justified in permitting the admission of PCR test results of the swine DNA. First, the PCR process is approximately ten years old and it has undergone extensive testing. See United States v. Gaines, 979 F. Supp. 1429, 1435 (S.D. Fla. 1997). Numerous courts have recognized the multitude of scientific articles endorsing the use of PCR analysis for forensic purposes. See id. at 1436. This court previously found PCR testing to be an accurate method of analysis when a protocol that conforms to guidelines accepted by members of the forensic community are followed and controls are employed. See Beasley, 102 F.3d at 1446. While the Beasley analysis applied to PCR testing of human DNA, there is no evidence the district judge erred by extending the same analysis to PCR testing of swine blood. In fact, Michael Spencer, a scientist with a biotechnology company called Celera Aggen, testified that the method of PCR testing on swine DNA is an acceptable and recognized test in the DNA testing community. Dr. Boswell asserts that Michael Spencer’s “backhand (and incompetent) testimony” regarding the PCR method of DNA testing and the protocol at Stormont did not lay sufficient foundation for the admission of the lab results. The record does not support Dr. Boswell’s characterization of Mr. Spencer’s testimony. Mr. Spencer is a biochemist from the University of California, at Davis. After graduation Mr. Spencer was employed by the University of California, at Davis, in the department of biological chemistry at the School of Medicine. Mr. Spencer was later -5- employed at Stormont from 1992 until 1998 and was involved solely in animal DNA testing. Dr. Boswell also contends that even if the PCR method of DNA testing on swine blood is accepted in general, the results would still be inadmissible in this case because no protocol was followed. This assertion is not supported by the record. Although no written protocol for the analysis of swine blood at Stormont was introduced, Mr. Spencer did describe the method and procedures used to do the PCR analysis and, as mentioned above, verified that the procedure was an accepted one among DNA experts. Mr. Spencer testified that he performed the DNA tests on the blood samples submitted by Dr. Boswell and he detailed the reacting components he used in the process. Mr. Spencer also stated that the methodology he used is like a recipe where the amount of an ingredient may be varied, but the testing methodology has the same basic components. Dr. Boswell further argues that the test was not reliable given the condition of the samples. This assertion is contradicted by Mr. Spencer who stated that the samples were delivered in a sealed container by express courier and were then stored in a secure laboratory refrigerator. This court previously held that any alleged deficiencies must so alter the PCR methodology as to make the test results inadmissable. See Beasley, 102 F.3d at 1448. Dr. Boswell failed to prove that there were significant deficiencies in the protocol and procedure used by Stormont Laboratories. Consequently, the alleged deficiencies go to the weight to be given the DNA evidence, not its admissibility. See id.; United States v. Johnson, 56 F.3d 947, 953 (8th Cir. 1995). We, therefore, conclude that the district court did not abuse its discretion in admitting the government’s DNA evidence. -6-  II. Dr. Boswell claims there was insufficient evidence for a reasonable jury to have found that he falsified Pseudorabies Serology Forms by overstating the number of animals he bled. This court examines the evidence in the light most favorable to the government and provides the government with the benefit of all reasonable inferences. See United States v. Wilson, 49 F.3d 406, 409 (8th Cir. 1995). The jury’s verdict must be upheld if any interpretation of the evidence allows a reasonable jury to find guilt beyond a reasonable doubt. See United States v. Easley, 70 F.3d 65, 67 (8th Cir. 1995). Count Four of the indictment alleges that Dr. Boswell falsified the number of swine he claims to have bled at the Benskin farm. Dr. Boswell asserts that viewed in the light most favorable to the government, it must be concluded that Dr. Boswell bled forty-sixty pigs with Thad Benskin and later returned to the Benskin farm and bled “a lot” of pigs with Bart Elder. Dr. Boswell contends that based on this premise a reasonable jury could not have found a calculation that he bled 120 pigs was an overstatement. The court disagrees. First, there is evidence in the record that Mr. Elder never stepped foot on the Benskin farm, let alone bled pigs there. Second, even if this court were to accept this premise of Dr. Boswell, the conclusion that a reasonable jury must equate “a lot of pigs” with sixty to eighty pigs is wrong. We, therefore, conclude a reasonable jury could have determined that Dr. Boswell did not return to the Benskin farm with Mr. Elder, or that if he did visit the farm, he did not bleed sixty to eighty pigs. Dr. Boswell’s next assertion is that no reasonable jury could have reached the conclusion that when he submitted the serology form for the thirty samples of the resubmission, he knew they were not a resubmission of the thirty prior samples from the Benskin farm, as was alleged in Count Five. The first thirty samples that Dr. Boswell submitted were received by ISU laboratory on February 21, 1998, and -7- the second set of thirty samples were received on March 3, 1998. Dr. Boswell contends the samples were from the same swine and the same bleeding. Dr. Boswell’s assertion is contradicted by the scientists who received the submitted and resubmitted samples. The DNA tests conducted by Stormont provided evidence that the samples originally submitted by Dr. Boswell were not from the same animals as the second submission. We, therefore, conclude that a reasonable jury could have determined Dr. Boswell falsified the submissions. III. Dr. Boswell contends that Counts Four and Five should have been dismissed because the government knowingly allowed the swine serum samples to degrade. We defer to the district court’s factual findings with regard to the destruction of evidence. See United States v. Clark, 980 F.2d 1143 (8th Cir. 1992). A clearly erroneous standard of review must be applied to the district court’s determination that the government acted in good faith. See United States v. Ramos, 27 F.3d 65, 67 (3d Cir. 1994); United States v. Bohl, 25 F.3d 904, 909 (10th Cir. 1994). Dr. Boswell asserts that the government exhibited bad faith by knowingly allowing the swine serum samples to deteriorate. This presumption is contradicted by the affidavit of Dr. Boswell’s expert witness, Dr. Christopher Chase. Dr. Chase states that: “In order for the samples of blood or serum to remain in a condition which would accurately reflect the sample was in the same in vivo condition from the animal, the samples must remain either refrigerated or frozen.” The samples in question were preserved in such a manner for testing according to the policies of ISU laboratories and NVSL personnel, and despite these efforts the samples deteriorated naturally over the course of time. The Due Process Clause of the Fourteenth Amendment does not require that law enforcement agencies preserve samples in order to introduce the results at trial. -8- See California v. Trombetta, 467 U.S. 479, 491, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984). Unless the defendant can show bad faith on the part of law enforcement, “failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281 (1988). Dr. Boswell had the opportunity to raise the issue of the evaporated serum at trial and to impeach the reliability of the test results, and therefore had the opportunity to raise doubts in the mind of the jury. Furthermore, the immediate case is distinguishable from the case cited by Dr. Boswell, United States v. Bohl, 25 F.3d 904 (10th Cir. 1994). The government intentionally destroyed evidence in Bohl. There is no record of that occurring in this case. We conclude that Dr. Boswell was not deprived of his due process rights by the degradation of the swine samples. The judgment is affirmed. A true copy. ATTEST: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. -9- 

608 F.2d 1369 Sykesv.U. S. No. 79-2051 United States Court of Appeals, Second Circuit 7/19/79 1 E.D.N.Y. AFFIRMED

759 N.W.2d 813 (2008) IN RE MARRIAGE OF ROBERTS. No. 07-0515. Court of Appeals of Iowa. October 29, 2008. Decision without published opinion. Affirmed.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 01-2486 RONALD LEE COOK, Plaintiff - Appellant, versus NABISCO, INCORPORATED, and its successors, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, Senior District Judge. (CA-00-804-3) Submitted: April 18, 2002 Decided: April 25, 2002 Before MOTZ, TRAXLER, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Ronald Lee Cook, Appellant Pro Se. James V. Meath, King Fitchett Tower, WILLIAMS, MULLEN, CLARK & DOBBINS, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: In this employment discrimination action, Ronald Lee Cook appeals the district court’s orders granting summary judgment to Nabisco, Inc., and denying Cook’s motion for reconsideration. We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we affirm on the reasoning of the district court. See Cook v. Nabisco, Inc., No. CA-00-804-3 (E.D. Va. Nov. 6 & 29, 2001). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2 

138 N.J. Super. 44 (1975) 350 A.2d 242 PETER LUSARDI, PLAINTIFF-RESPONDENT, v. CURTIS POINT PROPERTY OWNERS ASSOCIATION, DEFENDANT-APPELLANT. Superior Court of New Jersey, Appellate Division. Argued October 6, 1975. Decided December 19, 1975. *46 Before Judges FRITZ, SEIDMAN and MILMED. Mr. Terrence P. Farley argued the cause for appellant (Messrs. Novins, Novins, Farley & Grossman, attorneys). Mr. Joseph M. Feinberg argued the cause for respondent (Messrs. Feinberg, Feinberg and Tritsch, attorneys). *47 Mr. Robert P. Corman, Assistant Deputy Public Advocate, argued the cause for amicus curiae The Public Advocate (Mr. Stanley C. Van Ness, Public Advocate, attorney). Mr. Morton Goldfein, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel). The opinion of the court was delivered by FRITZ, P.J.A.D. This is an appeal from an order eventuating on the hearing of a motion styled, quite improperly, as one seeking "an Order holding the defendant in contempt for failure to abide by the terms of an injunction issued out of this Court." (Emphasis added.) A countermotion by defendant sought an order "dissolving the injunction previously issued in this matter." A subsequent judgment, also quite improperly, "adjudged [defendant] guilty of contempt of this Court by violation of the aforesaid injunction." Further, it "reaffirmed" the injunction "with the same force and effect as heretofore." This entire end product was the result of a summary hearing on affidavits. Defendant appeals. We reverse and remand. The litigation commenced prior to July 3, 1965, on which date the judge sitting in the Chancery Division for Ocean County, at the behest of Peter Lusardi, whose successors in title are the real plaintiffs here, entered an order enjoining * * * the defendant, Curtis Point Club, its successors, assigns, officers, members, agents or other persons acting under authority or with permission of any of them [from the continued] use of Lot 7, Block 64 on the Brick Township Tax Map, as a bathing beach or recreation area, while the zoning laws of the State of New Jersey and Brick Township, affecting the subject matter of this cause, remain as they are at the time of entry of this judgment. On April 8, 1974 plaintiff filed a motion seeking an order of contempt. On May 9, 1974 defendant filed its motion *48 seeking to be relieved from the injunction, principally on the basis that the "public trust" doctrine pertaining to tidal lands (see Neptune City v. Avon-by-the-Sea, 61 N.J. 296 (1972)) excused it from the 1965 order by the very terms of that order which limited its operation to that period "while the zoning laws of the State of New Jersey and Brick Township, affecting the subject matter of this cause, remain as they are at the time of entry of this judgment." As noted above, the matter was determined on affidavits and argument, during which the attorney for the successors in title to plaintiff reiterated this to be "an action for contempt." At the conclusion of the argument the trial judge announced, "I feel that the plaintiff here, Mrs. Sisto, is entitled to an order enforcing the judgment [entered in 1965]." He concluded by saying: So, I'll grant the plaintiff's motion holding the defendant in contempt, and it should be merely to prevent the defendant or any of their members from using Lot 7, Block 64, in Brick Town as a recreational or bathing area. Now, if there is any question that some of these people were not the members of the club or were not actually parties to it, then you would have to serve, I think, a copy of this judgment on the individuals who have violated this, but as far as the defendant itself is concerned or its members I think this judgment of Judge Leonard, and my order, should prevent them from using this Lot 7, Block 64, as a recreational area. As far as the defendant's cross motion to vacate the injunction, I'm not satisfied from the affidavits that have been filed that it really raises any factual dispute, or there is any legal grounds to do this. And I will therefore deny the cross motion as submitted. I will make that without costs to either party. Several considerations mandate a reversal and remand for plenary trial. We begin with the procedural deficiencies. This is not in order to exalt technicality, but because matters of substance may well be directly affected. With reference to "contempt" of court, we have tried to distinguish sharply between (1) the public offense, i.e., "contempt," for which the court may punish the offender and (2) the injured litigant's *49 right to apply for relief to satisfy his private claim arising out of the same offending act or omission. New Jersey Department of Health v. Roselle, 34 N.J. 331 (1961); In re Application of Waterfront Comm. of N.Y. Harbor, supra, 39 N.J. at 466; In re Carton, 48 N.J. 9, 19-24 (1966); In re Buehrer, 50 N.J. 501, 515-516 (1967). The procedure and rights of the person concerned depend very much upon the purpose of the proceeding, and hence our rule of court prescribes the processes carefully to the end that he may know at once whether he is to meet a penal charge or the civil claim of a litigant, and may be afforded the rights appropriate to the proceeding. R. 1:10-1 to 5. [In re Zicarelli, 55 N.J. 249, 271 (1970), aff'd sub nom. Zicarelli v. Investigation Comm'n, 406 U.S. 472, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972)] We observe, for instance, that demonstration of a mens rea, wilful disobedience and lack of concern for the order of the court, is necessary for a finding of contempt, but irrelevant in a proceeding designed simply to enforce a judgment on a litigant's behalf. This message of the importance of the procedure, clearly set out in N.J. Dept. of Health v. Roselle, 34 N.J. 331 (1961), was not fully understood by counsel below, as is demonstrated by their indiscriminate use of the word "contempt" in pleadings and in argument when it may be — although we cannot be certain — that all the parties wanted was either enforcement of or relief from the 1965 judgment. In passing, we note our disapproval of contempt terminology in the event the only remedy truly being sought is the seeking of supplemental relief for a litigant. See Stephenson v. Stephenson, 112 N.J. Super. 531, 534 (Ch. Div. 1970). That the proceeding below was patently deficient for the purpose of a contempt citation and incapable of sustaining a judgment of contempt is manifest. N.J. Dept. of Health v. Roselle, supra, and R. 1:10-2. A contempt proceeding may only be instituted by the court "upon an order for arrest or an order to show cause specifying the acts or omissions alleged to have been contumacious." The action is not captioned in the civil cause but under its own entitlement which must name the person or persons charged. *50 The charge is prosecuted by one specially appointed by the court from a limited class. On the other hand, if the action was not in fact that which it was labelled, but was rather simply one seeking the aid of the court in the enforcement of litigant's rights under R. 1:10-5, with a countermotion attacking the prior judgment and seeking not only to excuse an apparent noncompliance but to vitiate the existing injunction in the light of new law, the order under review must still be set aside on account of insufficient findings of fact and inadequately detailed conclusions of law. Reiser v. Simon, 63 N.J. Super. 297, 300-301 (App. Div. 1960). Where the law (or changes therein) is an extraordinarily vital ingredient of the final determination, express reference to State or local legislation should appear. State in the Interest of J.M., 57 N.J. 442, 445 (1971). A general reference to the identity now and then of the zoning or to the "basis for his [the judge who signed the 1965 judgment] judgment" will not suffice. Inasmuch as the foregoing requires a remand, it becomes appropriate for us to express our opinion in two other areas. First, while our comment should not be deemed a suggestion that the situation is thus here, we note that circumstances can support both a charge of contempt under R. 1:10-2 and an application for aid to the litigant for enforcement of his private rights under R. 1:10-5. In such case the actions should not be tried together. In the first place, the integrity of the judicial process and the orders which emanate therefrom is so important to a government of laws that the righting of wrongs done to it should remain a unique and specially considered process. Beyond this, and as importantly, there are grave doubts whether a defendant's rights can adequately be protected in a "double-barrelled proceeding," where charges of both contempt and deprivation of private rights are tried in a common proceeding. In re Application of Waterfront Comm'n. of N.Y. Harbor, 39 N.J. 436, 466 (1963), mod. sub nom. Murphy v. Waterfront *51 Comm'n of New York, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed. 2d 478 (1964). Second, in a matter so important as this, involving as it does the emerging "public trust" doctrine and "a common law right of access to the ocean in all citizens of the state," Neptune City v. Avon-by-the-Sea, supra, 61 N.J. at 302, and quite properly attracting as intervenors before us both the Attorney General and the Public Advocate, we are satisfied that the matter should not be decided on affidavits. The rule is so even in simple cases on only a showing of contested issues of fact. Hallberg v. Hallberg, 113 N.J. Super. 205 (App. Div. 1971). A full and plenary record should be developed when important issues involving highly significant policy considerations are involved and where the ruling which is sought would, as here, reach far beyond the particular case. Jackson v. Muhlenberg Hospital, 53 N.J. 138 (1969); Bennett v. T & F Distributing Co., 117 N.J. Super. 439, 445-446 (App. Div. 1971), certif. den. 60 N.J. 350 (1972). Reversed and remanded for proceedings consistent with the foregoing in which the Attorney General and the Public Advocate should be permitted to intervene. In order that there may be no confusion on the remand with respect to the nature of the further proceedings and the relief sought, we suggest that the trial judge promptly hold a pretrial conference to be attended not only by the attorneys for the parties but also by the Attorney General and the Public Advocate or their representatives. Among other matters which should be there considered are (a) the nature of the action or actions contemplated, (b) provision for amendment or substitution of pleadings, if necessary, (c) a specific delineation of both factual and legal issues and a reduction of stipulated or agreed facts to written form and (d) a timetable for discovery, if any. We do not retain jurisdiction. No costs.

666 F.3d 631 (2012) AE, a minor, by and through his Guardian ad Litem, Maribel HERNANDEZ, Plaintiff-Appellant, v. COUNTY OF TULARE, Defendant-Appellee, Celeste Abarca, Defendant-Appellee, Patricia Negrette, Defendant-Appellee, *632 Prudence Morris, Defendant-Appellee, Soto, Doctor; Marie Focha; Miriam Sallam, Defendants-Appellees, and Tiffany Breen, Defendant, Family Builders Foster Care, Inc.; CWA Felix; Adrian Marquez, Defendants, Yadira Portillo, Defendant, Leticia Quezada; Helen Rue, Defendants, Tulare County Child Welfare Services; Tulare County Health and Human Services Agency; Tulare Youth Service Bureau, Inc.; Courtney Wampler; Heidi Wllliams, Defendants. No. 10-16116. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 13, 2011. Filed January 27, 2012. *633 Charles R. Chapman, Esq., Rodriguez & Associates, Bakersfield, CA, for the plaintiff-appellant. Kathleen Bales-Lange, County Counsel, and Judy Chapman, Deputy County Counsel (argued), Visalia, CA, for the defendants-appellees. *634 Before: SIDNEY R. THOMAS and JOHNNIE B. RAWLINSON, Circuit Judges, and CORMAC J. CARNEY, District Judge.[*] OPINION RAWLINSON, Circuit Judge: Plaintiff-Appellant AE, a minor, was sexually assaulted by his seventeen-year-old foster brother (Foster Brother) while living in a foster family home in Tulare County, California. AE contends that the County of Tulare (County) and its employee social workers (collectively, Defendants), failed to intervene prior to his sexual assault, despite their knowledge of the escalating threats and violence against him. AE brought a federal civil rights claim pursuant to 42 U.S.C. § 1983 and state negligence claims against Defendants. AE appeals the district court's dismissal with prejudice of all claims against the County. We conclude that the district court abused its discretion in dismissing AE's § 1983 and derivative liability claims without leave to amend. Accordingly, we reverse the district court's decision and vacate the judgment. I. BACKGROUND A. Factual Allegations of the First Amended Complaint The First Amended Complaint tells a tragic story of escalating threats and violence against AE, a nine-year-old boy, at the hands of his Foster Brother. In September, 2008, AE was removed from his mother's custody,[1] transferred to a foster family agency, and ultimately placed with foster care parents. According to the First Amended Complaint, Defendants knew or should have known that the Foster Brother, who was on probation, a dependent of the court, and on the caseload of a County social worker,[2] "was dangerous and posed a threat to [AE] and/or minors such as[AE]." On November 5, 2008, a "reporting party" informed Yadira Portillo (Portillo) and Courtney Wampler (Wampler), both County social workers, that the Foster Brother hit AE in the chest and left "a 3½ by 5 inch bruise on his left shoulder." That same date, AE informed "CWA Felix" (Felix), also a County social worker, that two weeks earlier his Foster Brother had "socked him in the face and threatened him" after AE had witnessed the Foster Brother stealing money from their foster parent. Portillo and Wampler photographed AE's bruise. Around the same time, a foster parent informed Portillo and Wampler that the Foster Brother was on probation and was a dependent of the court. Further, the foster parent reported that on November 4, 2008, the Foster Brother had cursed at her for wiggling the bathroom door knob because he believed she was AE. On November 20, 2008, AE's mother expressed concerns to Felix regarding AE's foster home placement. AE's mother requested that Felix have AE moved to a different foster home. On November 25, 2008, Dr. Soto called Prudence Morris, the "Team Leader" for *635 AE's foster care, to report that AE had told him during a recent evaluation that the Foster Brother regularly entered the bathroom while AE was showering, using the toilet, or brushing his teeth, to tell AE to "hurry up, and curse [him]." AE also informed Portillo and Wampler directly that his Foster Brother "would unlock the bathroom door using his nail and threaten[ ] to `kick [AE's] ass." AE told Portillo and Wampler that his foster parent knew of the Foster Brother's behavior, but had responded only by ordering AE to use the downstairs bathroom. On November 26, 2008, Portillo spoke with AE's therapist, Adrian Marquez, regarding what she had learned of AE's placement. Marquez responded that "there was a need to place more responsibility on the foster mother in supervising the actions of the children in the home ... [and] that he did not believe [AE] had been making allegations to seek attention, but was instead minimizing the behavior of [his Foster Brother]." On December 10, 2008, AE's foster parents reported to Portillo that AE had told them, approximately five days earlier, on December 5 or 6, that the Foster Brother "went into [AE's] bedroom and attempted to get into his bed and pull his pants down." On December 12, 2008, Portillo received two telephone calls regarding AE. A man describing himself as AE's uncle called to ask "what the agency was doing with his nephew." A County deputy sheriff also called to report that a man purporting to be AE's uncle had informed the police that "the agency was covering up an incident that occurred with his nephew and he wanted the Sheriff to pick up [AE] from foster care." That same day, Portillo contacted AE's mother, who told Portillo that she had requested that Felix remove AE from his current placement. Subsequently, Portillo and another social worker, joined by a County police officer, interviewed AE. AE told the police officer "that he had been sodomized and forced to do oral copulation by [his Foster Brother]." "On or about December 12 and/or 15, 2008," Portillo informed AE's mother that AE "had been assaulted, battered, sexually abused, sodomized and orally copulated by another dependent at the foster home ..." On approximately December 15, 2008, Portillo, a deputy district attorney, a County police detective, and a forensic interview specialist interviewed AE. AE described the sexual assault in detail. Following this interview, Portillo met immediately with her supervisor to reassess AE's foster placement, and AE was moved to a different foster home. AE alleged that at all relevant times, Portillo, Wampler, and Felix were County employees acting within the course and scope of their employment. AE further alleged that all Defendants performed their acts and omissions "under the ordinances, regulations, customs, and practices of Defendant COUNTY OF TULARE..." B. Procedural Background The First Amended Complaint alleged two causes of action relevant to this appeal, a claim under 42 U.S.C. § 1983 for deliberate indifference, and claims for negligence pursuant to California statutes.[3] Defendants moved to dismiss pursuant to FRCP 12(b)(6). The district court *636 granted AE leave to amend the claims against Portillo, Wampler, and Felix. The district court dismissed with prejudice all claims against the County and entered judgment in its favor pursuant to FRCP 54(b). AE filed a timely appeal. II. STANDARD OF REVIEW We review de novo the district court's dismissal of a complaint for failure to state a claim. See Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir.2010). In conducting this review, we accept the factual allegations of the complaint as true and construe them in the light most favorable to the plaintiff. See New Mexico State Invest. Council v. Ernst & Young LLP, 641 F.3d 1089, 1094 (9th Cir.2011). We review for abuse of discretion the district court's denial of leave to amend. See Telesaurus, 623 F.3d at 1003. A district court abuses its discretion by denying leave to amend unless amendment would be futile or the plaintiff has failed to cure the complaint's deficiencies despite repeated opportunities. See id. A district court also abuses its discretion when it commits an error of law. See Metrophones Telecomms., Inc. v. Global Crossing Telecomms., Inc., 423 F.3d 1056, 1063 (9th Cir.2005) ("An error of law is one form of an abuse of discretion.") (citation omitted). III. DISCUSSION A. Section 1983 Claim AE alleged claims against the County and individual County officials pursuant to 42 U.S.C. § 1983 for violations of the Due Process Clause of the Fourteenth Amendment, which "protects a foster child's liberty interest in social worker supervision and protection from harm inflicted by a foster parent." Tamas v. Dep't of Soc. & Health Servs., 630 F.3d 833, 842 (9th Cir.2010) (citations omitted).[4] AE argues that the district court erred in dismissing his § 1983 claim against the County. We agree with the district court that the First Amended Complaint failed to state a § 1983 claim against the County, but hold that the district court abused its discretion when it denied leave to amend. Section 1983 suits against local governments alleging constitutional rights violations by government officials cannot rely solely on respondeat superior liability. See Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir.2007); see also Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Instead, plaintiffs must establish that "the local government had a deliberate policy, custom, or practice that was the moving force behind the constitutional violation [they] suffered." Whitaker, 486 F.3d at 581 (citation and internal quotation marks omitted). In the past, our cases have not required parties to provide much detail at the pleading stage regarding such a policy or custom. "In this circuit, a claim of municipal liability under § 1983 is sufficient to withstand a motion to dismiss even if the claim is based on nothing more than a bare allegation that the individual officers' conduct conformed to official policy, custom, or practice." Id. (citation, alteration, and internal quotation marks omitted). AE contends that the First Amended Complaint met this minimalist standard, as it alleged that all Defendants performed *637 all acts and omissions regarding AE's foster care placement and supervision "under the ordinances, regulations, customs, and practices of Defendant COUNTY OF TULARE..." Citing Monell and City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), the First Amended Complaint also alleged that Defendants "maintained or permitted an official policy, custom or practice of knowingly permitting the occurrence of the type of wrongs" that it elsewhere alleged. The First Amended Complaint did not put forth additional facts regarding the specific nature of this alleged "policy, custom or practice," other than to state that it related to "the custody, care and protection of dependent minors...."[5] Our circuit precedent, articulated first in Shah v. County of Los Angeles, 797 F.2d 743, 747 (9th Cir.1986), and most recently in Whitaker, 486 F.3d at 581, requires plaintiffs in civil rights actions against local governments to set forth no more than a bare allegation that government officials' conduct conformed to some unidentified government policy or custom. The County argues that our precedent has been implicitly overruled by the reasoning of intervening Supreme Court decisions, including Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Yet briefing on this appeal was completed before our decision in Starr v. Baca, 652 F.3d 1202 (9th Cir.2011). There, we identified and addressed conflicts in the Supreme Court's recent jurisprudence on the pleading requirements applicable to civil actions. See id. at 1211-16 (addressing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)); Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam); and Iqbal. We held that: whatever the difference between [Swierkiewicz, Dura Pharmaceuticals, Twombly, Erickson, and Iqbal], we can at least state the following two principles common to all of them. First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation. Starr, 652 F.3d at 1216. This standard applies to Monell claims and should govern future pleadings in this case. The district court abused its discretion when it denied AE the opportunity to allege additional facts supporting the claim that Portillo's, Wampler's, and Felix's alleged constitutional violations were carried out pursuant to County policy or custom. AE's allegation of plausible facts supporting such a policy or custom could have cured the deficiency in the Monell claim. See Telesaurus, 623 F.3d at 1003 (explaining that a court abuses its discretion when *638 leave to amend is denied and amendment would not be futile); see also Moss v. U.S. Secret Service, 572 F.3d 962, 972 (9th Cir. 2009) ("[R]equests for leave [to amend] should be granted with extreme liberality.") (citation and internal quotation marks omitted).[6] B. State Law Claims We address AE's statutory negligence claims by "ascertain[ing] and apply[ing] the existing California law." Munson v. Del Taco, Inc., 522 F.3d 997, 1002 (9th Cir.2008) (citation omitted). California public entities are not subject to common law tort liability; all liability must be pursuant to statute. See Cal. Gov't Code § 815; see also Guzman v. Cnty. of Monterey, 46 Cal.4th 887, 897, 95 Cal.Rptr.3d 183, 209 P.3d 89 (2009). AE asserted two bases for the County's liability: (1) direct liability for breach of a mandatory duty, pursuant to California Government Code § 815.6; and (2) derivative liability for the negligent acts or omissions of County employees, pursuant to California Government Code § 815.2. The district court dismissed both the direct and derivative liability claims against the County with prejudice and without leave to amend. AE waived any challenge to the dismissal of his direct liability claim by failing to "specifically and distinctly" argue the issue in his opening brief. United States v. Ullah, 976 F.2d 509, 514 (9th Cir.1992) (citation omitted).[7] The district court erred, however, when it conflated AE's direct and derivative liability claims and dismissed the latter with prejudice. The court's legal error constitutes an abuse of discretion. See Metrophones, 423 F.3d at 1063. California public entities, including local governments, are derivatively liable for the negligent acts or omissions of public employees within the scope of their employment. See Cal. Gov't Code § 815.2(a). But if the employee successfully asserts immunity, the public entity is shielded from derivative liability. See id. § 815.2(b); see also Johnson v. State, 69 Cal.2d 782, 787, 73 Cal.Rptr. 240, 447 P.2d 352 (1968). Here, the district court granted AE leave to amend his negligence claims against Portillo, Wampler, and Felix. Because these County social workers remain as defendants in the case, the court erred when it dismissed all claims against the County with prejudice and certified judgment in the County's favor. As long as AE is permitted to allege that County employees were negligent, he must also be permitted to allege that the County is derivatively liable pursuant to California Government Code § 815.2(a). On appeal, the County argues that the dismissal was proper because AE's pleadings make an affirmative showing that Portillo, Wampler, and Felix are entitled to the "discretionary act immunity" set forth in California Government Code § 820.2. Caldwell v. Montoya, 10 Cal.4th 972, 42 Cal.Rptr.2d 842, 897 P.2d 1320 (1995) (in bank) (internal quotation marks omitted). We disagree. *639 California Government Code § 820.2 provides that "a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused." Two principles California courts consider to determine whether discretionary act immunity applies are particularly relevant here. See Barner v. Leeds, 24 Cal.4th 676, 684-85, 102 Cal.Rptr.2d 97, 13 P.3d 704 (2000). First, "not all acts requiring a public employee to choose among alternatives entail the use of `discretion' within the meaning of section 820.2." Id. (citation omitted). In other words, the California legislature did not intend to define discretion colloquially. See id. Instead, courts must distinguish between public employees' policy decisions and their operational, or ministerial, decisions. See id. at 685, 102 Cal.Rptr.2d 97, 13 P.3d 704. Quasi-legislative policy decisions are protected from judicial scrutiny pursuant to a separation of powers rationale. See id. "On the other hand, there is no basis for immunizing lower level decisions that merely implement a basic policy already formulated." Id. (citation omitted). Second, government defendants have the burden of establishing that they are entitled to immunity for an actual policy decision made by an employee who "consciously balanc[ed] risks and advantages..." Johnson, 69 Cal.2d at 795 n. 8, 73 Cal.Rptr. 240, 447 P.2d 352. "The fact that an employee normally engages in `discretionary activity' is irrelevant if, in a given case, the employee did not render a considered decision." Id. (citation omitted). The County relies on several California Court of Appeal decisions involving foster care. See, e.g., Cnty. of Los Angeles v. Superior Court, 102 Cal.App.4th 627, 643-46, 125 Cal.Rptr.2d 637 (2002) (Terrell R.) (holding that county social workers are entitled to discretionary act immunity for all negligent foster care placement decisions and negligent supervision of the child in that placement "unless the social worker fails to provide specific services mandated by statute or regulation") (citation omitted). However, these decisions are not controlling because they conflict with the principles consistently followed in California Supreme Court decisions since Johnson and most recently reaffirmed in Barner. See Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 889 (9th Cir.2010), as amended ("We are bound by pronouncements of the California Supreme Court on applicable state law ...") (citation omitted).; see also Austen L. Parrish, Avoiding the Mistakes of Terrell R.: The Undoing of the California Tort Claims Act and the Move to Absolute Governmental Immunity in Foster Care Placement and Supervision, 15 Stan. L. & Pol'y Rev. 267, 321 (2004) (proposing that the Terrell R. court erred by conflating direct and derivative liability claims and ignoring three decades of uniform Supreme Court precedent and the clear intent of the California legislature regarding discretionary act immunity). The Terrell R. court's analysis sharply departed from the principles outlined in California Supreme Court precedent. The holding that social workers are immune from liability for all nonmandatory acts erroneously conflated direct and derivative liability by interpreting "discretionary" literally rather than legally. This interpretation is inconsistent with the California Supreme Court's instruction to construe the scope of the discretionary act immunity as narrowly as possible to preserve the separation of powers, and its instruction to determine whether an act is discretionary *640 by distinguishing between the employee's operational and policy decisions. See Barner, 24 Cal.4th at 685, 102 Cal.Rptr.2d 97, 13 P.3d 704. The Terrell R. court also strayed by concluding that county social workers are entitled to discretionary act immunity for their allegedly negligent placement and supervision of foster children solely because, in the abstract, their job duties involve "complex task[s] requiring the consideration and balancing of many factors to achieve statutory objectives... [and] seem[ ] ... to be ... activit[ies] loaded with subjective determinations and fraught with major possibilities of ... erroneous decision[s]." Id. at 644, 125 Cal.Rptr.2d 637 (citation and internal quotation marks omitted). This conclusion conflicts with the California Supreme Court's admonishment that an employee's normal job duties are not determinative; the burden rests with government defendants to demonstrate that they are entitled to § 820.2 immunity for a specific policy decision made by an employee who consciously balanced the decision's risks and benefits. See Johnson, 69 Cal.2d at 795 n. 8, 73 Cal.Rptr. 240, 447 P.2d 352. Applying the holdings of the California Supreme Court, and taking the allegations in the Complaint as true, we conclude that the County was not entitled to a dismissal of AE's derivative liability claims on the basis of discretionary act immunity for the allegedly negligent placement and supervision of AE by Portillo, Wampler, and Felix. See Elton v. Cnty. of Orange, 3 Cal. App.3d 1053, 1058, 84 Cal.Rptr. 27 (1970) (explaining that the required showing of "balancing the risks and advantages" was not and could not have been made by the county at the demurrer stage).[8] It would be odd indeed if a plaintiff included in a Complaint allegations that would establish a basis for finding discretionary act immunity on the part of government defendants. The district court abused its discretion by dismissing the derivative liability claims against the County with prejudice and without leave to amend when it granted leave to amend as to the allegations regarding Portillo, Wampler, and Felix. The County's derivative liability is tied directly to the negligence of, or successful assertion of immunity by, its employees. See Cal. Gov't Code § 815.2. Nevertheless, the district court concluded that the County's "alleged liability [was] clear and distinct from claims against and liability of other defendants." This holding was contrary to California law. In sum, AE may have viable claims against the County under state law and under federal law. We express no view as to the ultimate disposition of those claims. The success of the state law claim hinges on the liability of the social workers who remain as defendants. And it remains to be seen whether AE can meet the pleading requirements set forth in Iqbal for his § 1983 claim. However, he must be given the opportunity to try to meet those requirements. CONCLUSION The district court's order dismissing the claims against the County without leave to amend is REVERSED and the entry of judgment in favor of the County is VACATED. The case is REMANDED for *641 further proceedings consistent with this opinion. NOTES [*] The Honorable Cormac J. Carney, District Judge for the U.S. District Court for Central California, Santa Ana, sitting by designation. [1] AE's mother, Maribel Hernandez, was appointed as his Guardian ad Litem for this case. [2] This social worker, Heidi Williams, was named as a defendant, but service subsequently was found to be defective. [3] The First Amended Complaint also named Family Builders Foster Care, Inc., and the Tulare Youth Service Bureau, Incorporated, as defendants. Those entities were dismissed by the district court and are not before us on appeal. [4] No principled basis exists to distinguish harm inflicted by a foster sibling in a foster parent's home. [5] Indeed, at several points the First Amended Complaint incorrectly refers to AE as the "Decedent" and alleges "policies, customs, and practices regarding the custody, care and protection of dependent minors ... so inadequate that the failure to correct them would result in ... the death of[ ] dependent minors, such as Plaintiff." These naked assertions make no sense in the context of this case. [6] The district court's error is made even more apparent by the fact that, at the time it denied AE leave to amend, our precedent required no more than the allegation that the government officials acted pursuant to an established policy or custom. See, e.g., Whitaker, 486 F.3d at 581. [7] It does not suffice that AE, in the "Statement of the Case" and "Statement of Facts" sections of his opening brief, recited—almost verbatim—the bare allegations contained in his First Amended Complaint. [8] We note that neither Terrell R. nor Becerra v. County of Santa Cruz, 68 Cal.App.4th 1450, 81 Cal.Rptr.2d 165 (1998), on which the County also relies, found immunity at the pleadings stage. Rather, both cases addressed appeals of orders resolving motions for summary judgment. See Terrell R., 102 Cal.App.4th at 633, 125 Cal.Rptr.2d 637; Becerra, 68 Cal.App.4th at 1454, 81 Cal.Rptr.2d 165. Indeed, the Terrell R. court distinguished Elton on the basis that "appeal ... followed a demurrer, not a summary judgment...." Terrell R., 102 Cal.App.4th at 645 n. 5, 125 Cal.Rptr.2d 637.

264 F.Supp. 810 (1966) Lloyd M. SEVITS, Plaintiff, v. McKIERNAN-TERRY CORPORATION (NEW JERSEY), McKiernan-Terry Corporation (Delaware), Radcom Division of Litton Industries, Inc., M. T. Liquidation Corporation and Litton Systems, Inc., Defendants. No. 65 Civ. 1804. United States District Court S. D. New York. August 2, 1966. *811 Lilly, Sullivan & Purcell, New York City, for plaintiff. Skadden, Arps, Slate, Meagher & Flom, New York City, for defendants McKiernan-Terry and Liquidation Corp. Townley, Updike, Carter & Rodgers, New York City, for defendant Litton Systems. CANNELLA, District Judge. Motion by the defendants McKiernan-Terry Corporation (Delaware) and Radcom Division of Litton Industries, Inc., pursuant to Rules 12(b) and 17(b) of the Federal Rules of Civil Procedure to dismiss the complaint, as amended, and quash the service of process as to said defendants on the grounds that said defendants are non-existent and cannot be sued in this action, and because attempted service of process upon these non-existing corporations was ineffectual, is granted. Motion by defendants McKiernan-Terry Corporation (Delaware), Radcom Division of Litton Industries, Inc. and Litton Systems, Inc. pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure to dismiss the third count of the complaint, as amended, on the ground that it fails to state a claim upon which relief can be granted, is denied. Plaintiff brings this action for injuries allegedly suffered by him on the high seas while he was performing his duties as a member of the United States Navy aboard the aircraft carrier U.S.S. Constellation. Plaintiff claims that his injuries were caused by the failure of an arresting engine (used in aircraft landings aboard the U.S.S. Constellation) manufactured by the defendants and sold by them to the U. S. Navy. With respect to the first motion, it is plaintiff's contention that there is much confusion about corporate relations of the defendants and the existence of some of the defendants, and to protect himself, he sued all of the defendants, since he was not sure where the ultimate liability rested. Plaintiff claims that the bringing of this motion is merely a dilatory tactic on the part of defendants Radcom and McKiernan-Terry Corp. (Delaware). The court after a perusal of the documentary evidence presented by the defendants, finds that such evidence clearly establishes that Radcom is a successor by change of name under Delaware law to McKiernan-Terry Corporation (Delaware). McKiernan-Terry Corporation (Delaware) was merely the former name of Radcom. The documentary evidence also clearly establishes that Radcom merged into Litton Systems, Inc. pursuant to Delaware and Maryland law and Litton was the sole surviving corporation. Corporate existence and the capacity of a corporation to be sued are determined by the law of the state of incorporation. Fed.R.Civ.P. 17(b). See Chicago T & T Co. v. Forty-One Thirty-Six Wilcox Bldg. Corp., 302 U.S. 120, 58 S.Ct. 125, 82 L.Ed. 147 (1937); Walder v. Paramount Publix Corp., 132 F.Supp. 912 (S.D.N.Y.1955); Newmark v. Abeel, 102 F.Supp. 993 (S.D.N.Y.1952). Delaware law is the applicable law and under Delaware law it is settled that the separate corporate existence of a constituent corporation ceases upon merger and the emerging corporation is the only corporation with capacity to be sued and process cannot be served on the constituent corporation. Delaware Gen. Corp.Law § 259. See Argenbright v. Phoenix Finance Co. of Iowa, 21 Del.Ch. *812 288, 187 A. 124 (1936). See also United States v. Borden Co., 28 F.Supp. 177 (N.D.Ill.) modified, 308 U.S. 188, 60 S. Ct. 182, 84 L.Ed. 181 (1939). Therefore, the separate corporate existence of Radcom ceased upon merger with Litton Systems, Inc. In view of the fact that Radcom and McKiernan-Terry Corp. (Delaware) had ceased to exist they could not properly be served with process. Fed.R.Civ.P. 12(b) (4) & (5); neither could the court have in personam jurisdiction over them. Fed. R.Civ.P. 12(b) (2). Further, the complaint, as amended, could not state a claim against Radcom and McKiernan-Terry Corp. (Delaware), since they had ceased to exist. Fed.R.Civ.P. 12(b) (6). In addition, both Radcom and McKiernan-Terry lacked capacity to be sued under Delaware law. Fed.R.Civ.P. 17(b). The second motion is made by defendants Radcom, McKiernan-Terry Corp. (Delaware) and Litton Systems, Inc.[1] It is directed at the third cause of action of the amended complaint only. This third cause of action pleads an implied warranty of fitness for use, allegedly running to the plaintiff, arising out of the sale of the engine by defendants to the Navy and pleads further that plaintiff's injuries resulted from defendants' breach of this implied warranty. Jurisdiction in this case is predicated on diversity of citizenship and therefore the law of the State of New York applies, Erie R. Co. v. Tompkins,[2] 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), including its conflict of law rules. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Since the alleged wrong occurred on the high seas, plaintiff's claim is for a maritime tort. Rogers v. City of New York, 46 Misc.2d 373, 259 N.Y.S.2d 604 (Sup.Ct.1965); cf. Weinstein v. Eastern Airlines, Inc., 316 F.2d 758 (3rd Cir. 1963). The validity of the claim is determined by the New York courts in accordance with the substantive law of admiralty (general maritime law). Rogers v. City of New York, supra. See also Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239 (1942); Chelentis v. Luckenbach Steamship Co., 247 U. S. 372, 38 S.Ct. 501, 62 L.Ed. 1171 (1918). Therefore, general maritime law must be applied to determine whether or not the third cause of action of the amended complaint will stand. The parties are in agreement that the general maritime law is applicable with respect to the third cause of action. The issue in controversy is whether or not the implied warranties of fitness and merchantability are recognized in admiralty for injuries sustained in a maritime tort, and if so, whether they run against a component part manufacturer. The New York law regarding the breach of implied or express warranties has undergone and is still undergoing significant changes. For present purposes, a brief summary of the development of the law in this area will be sufficient. It was quite clear at one time that an action for the breach of an implied warranty could not succeed absent privity between the plaintiff and the defendant. Chysky v. Drake Bros. Co., 235 N.Y. 468, 139 N.E. 576, 27 A.L.R. 1533 (1923). The same could be said with respect to express warranties. Turner v. Edison Storage Battery Co., 248 N.Y. 73, 161 N.E. 423 (1928). See also Pearlman v. *813 Garrod Shoe Co., 276 N.Y. 172, 11 N.E. 2d 718 (1937). The warranty was formerly looked upon as an incident of a contract of sale. Fairbank Canning Co. v. Metzger, 118 N.Y. 260, 23 N.E. 372 (1889). It did not run with the chattel. Nichols v. Clark, MacMullen & Riley, 261 N.Y. 118, 184 N.E. 729 (1933). Therefore, as to any merchandise or chattels, there was no implied warranty of merchantability or fitness, except as to the buyer. Ryan v. Progressive Grocery Stores, 255 N.Y. 388, 175 N.E. 105, 74 A.L.R. 339 (1931). However, in recent years, New York courts have chiseled away at the citadel of privity. In Greenberg v. Lorenz, 9 N.Y.2d 195, 213 N.Y.S.2d 39, 173 N.E.2d 773 (1961), there was a definite shift away from the technical requirement of privity. The New York Court of Appeals in Greenberg held that the implied warranty of fitness and merchantability, at least in the case of foodstuffs and other household goods, runs from the retailer to members of the purchaser's household, regardless of privity. The significance of privity was further lessened in Randy Knitwear, Inc. v. American Cyanamid Co., 11 N.Y.2d 5, 226 N.Y.S.2d 363, 181 N.E.2d 399 (1962), which concerned itself with an express warranty. The Court of Appeals concluded that in the light of present day commercial practices and the decision in Greenberg v. Lorenz, supra, the traditional privity limitation should be dispensed with "in an action for breach of express warranty by a remote purchaser against a manufacturer who induced the purchase by representing the quality of the goods in public advertising and on labels which accompanied the goods". Randy Knitwear, Inc. v. American Cyanamid Co., 11 N.Y.2d at 11, 226 N.Y.S.2d at 366, 188 N.E.2d at 401. The Greenberg and Randy Knitwear, Inc. cases extended the coverage of warranties in favor of noncontracting consumers. However, the New York Court of Appeals in Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N. Y.S.2d 592, 191 N.E.2d 81 (1963), extended the coverage much further and in doing so, in essence, caused the citadel of privity, already weakened by Greenberg and Randy Knitwear, Inc., to collapse completely. In Goldberg the Court of Appeals held that an airplane manufacturer's implied warranty of fitness of his airplane for the intended use ran in favor of airline passengers riding in such plane regardless of privity of contract. The court stated: "A breach of warranty, it is now clear, is not only a violation of a sales contract out of which the warranty arises but is a tortious wrong suable by a noncontracting party whose use of the warranted article is within the reasonable contemplation of the vendor or manufacturer. Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d at 436, 240 N.Y.S. 2d at 594, 191 N.E.2d at 82. Thus, warranties are no longer exclusively within the realm of contracts, but have taken on tortious overtones. The court further pointed out in relation to "things of danger" that "where an article is of such a character that when used for the purpose for which it is made it is likely to be a source of danger to several or many people if not properly designed and fashioned, the manufacturer as well as the vendor is liable, for breach of law-implied warranties, to the persons whose use is contemplated." Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 436, 437, 240 N.Y.S.2d at 594, 595, 191 N.E.2d at 83. It is quite clear therefore, that if the question of whether or not the implied warranty of merchantability and fitness is recognized in admiralty law, is answered in the affirmative, the plaintiff might properly plead a cause of action based on such warranty. The question of exactly against whom such cause of action can be directed will be discussed later. In support of their position, defendants cite a case decided by the District Court of Delaware, Noel v. United Aircraft Corp., 204 F.Supp. 929 (D.Del. 1962), which held that the implied warranties *814 of fitness and merchantability are not recognized in admiralty law. This court does not follow the line of reasoning presented in the Noel case. Instead, it follows the sound reasoning propounded in two cases in this District. In Middleton v. United Aircraft Corp., 204 F.Supp. 856 (S.D.N.Y.1960), the court while explicitly concerned with the privity problem, at least impliedly indicated that implied warranties might properly be invoked in admiralty law. In Montgomery v. Goodyear Tire & Rubber Co., 231 F.Supp. 447 (S.D.N.Y.1964), where the facts were somewhat similar to those present in the instant case[3] the court quite clearly held that "an action based on breach of implied warranty will lie in admiralty." Montgomery v. Goodyear Tire & Rubber Co., supra at 455. Thus, it is quite evident that there is a conflict of opinion between the district courts on the question of the recognition of implied warranties in admiralty. With due respect for the decision of the District Court of Delaware in the Noel case, this court adopts the holding of the court in the Montgomery case. There is no logical reason which justifies the position that implied warranties are not and should not be recognized in admiralty. If the plaintiff can make out an action based on implied warranty, the fact that admiralty law is involved should not be a bar to his recovery on that theory, if he can prove his case. The defendants contend that even assuming the implied warranties of fitness and merchantability are recognized in admiralty as propounded in the Montgomery case, there is no instance where they have been applied to the manufacturer of component parts, nor should they be. In the Montgomery case, as well as in the Goldberg v. Kollsman Instrument Corp., supra, whose reasoning the court in Montgomery felt constrained to apply, although not bound to do so, the action against the component part manufacturers were dismissed. The reason for such dismissal in both cases stemmed from the fact that the manufacturer of the airplane in Kollsman and of the dirigible in Montgomery could quite properly be sued and there was no necessity to allow the plaintiff to sue a component part manufacturer. As stated by the New York Court of Appeals in the Kollsman case: "However, for the present at least we do not think it necessary so to extend this rule as to hold liable the manufacturer * * * of a component part. Adequate protection is provided for the passenger by casting in liability the airplane manufacturer which put into the market the completed aircraft." Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d at 437, 240 N.Y.S.2d at 595, 191 N.E.2d at 83. The instant case can be distinguished on this point since the plaintiff has no right to sue the manufacturer of the entire ship since it is the United States Government and being a member of the United States Navy, he is not in a position in this particular case to sue the Government on the theory of an implied warranty. Thus, if he is forbidden to sue the manufacturer of the component part which allegedly caused the injury, the theory of implied warranty which he has a right to assert under admiralty law would become entirely meaningless. This court finds that in the interest of justice and fairness, the plaintiff has a right to assert the theory of implied warranty against the manufacturer of the component part which allegedly caused the injury, viz, the aircraft arresting engine. The court is well aware that it is treading on new grounds by allowing plaintiff to do this, but in the opinion of this court, the present trend of the law *815 dictates such a finding.[4] It should be kept in mind that the decision in this case has application only where from the very outset, it is not possible to bring suit against the manufacturer of the completed object, be it a ship or anything else. Thus, the gates are not opened in every instance, to suits against manufacturers of component parts which allegedly caused an injury. So ordered. NOTES [1] In view of the fact that the entire complaint, as amended, has been dismissed with respect to defendants Radcom and McKiernan-Terry Corp. (Delaware), the disposition of this second motion will have relevancy only insofar as defendant Litton Systems, Inc. is concerned. [2] "In essence, the intent of that decision was to insure that, in all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court." Guaranty Trust Co. of N. Y. v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 1470, 89 L.Ed. 2079 (1945). [3] In Montgomery the court was concerned with a libel in admiralty against the manufacturer of a naval dirigible and manufacturer of an electric warning bell device built into the dirigible. The dirigible crashed, causing the death of servicemen on active duty aboard the dirigible. [4] It is clearly the function of this court to apply the state law (New York, in this case), where jurisdiction is based on diversity of citizenship. If there is an area not covered by state law, "an effort must be made to find a solution which accords with the tendencies inherent in the opinions of such [state] courts in the past." United States Fidelity and Guaranty Co. v. Anderson Construction Co., 260 F.2d 172, 176 (9th Cir. 1958). It is this court's duty to choose a rule which it believes the state courts will eventually adopt in the future, based on its knowledge of the methods such courts use in arriving at their decisions.

455 So.2d 152 (1984) James W. JOHNSTON, alias v. STATE. 4 Div. 159. Court of Criminal Appeals of Alabama. April 10, 1984. Rehearing Denied May 8, 1984. Certiorari Denied July 20, 1984. *154 Allen Edward Cook and Benton Persons, Andalusia, for appellant. Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for appellee. Alabama Supreme Court 83-888. TYSON, Judge. James W. Johnston was indicted for the capital murder of one Mildred Hart in violation of § 13A-5-40(a)(8), Code of Alabama 1975. The jury found the appellant guilty as charged in the indictment and after a hearing on aggravating and mitigating circumstances he was sentenced to life imprisonment in the penitentiary without the benefit of parole. This case arose out of a homicide which occurred on May 15, 1982, in Andalusia, Alabama. The morning of May 15, Mrs. Hart had been to the grocery store and to visit a friend, Mary Braxton, before returning home. The record shows that Mrs. Hart left Mary Braxton's home at sometime around eleven o'clock. The record *155 shows that as Mrs. Hart was entering her home to unload her groceries she was attacked. The perpetrators of the crime tied electrical cord around her wrists and ankles, tied her to the corner posts of her bed, and raped her. She subsequently suffered death by ligature strangulation. Mrs. Hart was carried from her bedroom to the bathroom and placed face down in a bathtub half-full of water. Dr. Thomas Gilchrist of the Alabama Department of Forensic Sciences established the time of death to be within four hours either before or after twelve noon on May 15, 1982. Early Sunday morning, May 16, 1982, Mary Braxton became worried about Mrs. Hart since she had not heard from her that morning. She testified that they made a regular practice of calling one another every morning to make sure everything was all right. She telephoned Mrs. Hart several times and there was no answer. She then telephoned a neighbor of Mrs. Hart and asked the neighbor to meet her at Mrs. Hart's home. As the two women were walking through the garage of the Hart residence they noticed a bag of groceries in Mrs. Hart's car. They called for Mrs. Hart, then when they did not get a response opened the door of the home and stepped into the kitchen. Upon entering they saw groceries littering the floor and noticed a broken window in the kitchen. They immediately left the home and called the police. Due to an error in the trial of the case, all issues of error except the following have been pretermitted from discussion. I The appellant contends that three pre-arrest statements made by him to police officers were improperly admitted at trial for consideration by the jury due to several reasons. (A) The appellant first contends that these statements were made at a time when the appellant was in unlawful custody and thus they are inadmissible. The record shows that on the afternoon of May 16, 1982, the day the murder was discovered, Investigator Treadaway observed the appellant make approximately eight trips past the Hart residence while the investigation was in progress, several times venturing inside an area roped off for police personnel only. Treadaway talked to the appellant at one point and the appellant stated that he had not seen anyone strange in the neighborhood. Later the same afternoon Treadaway went to the boarding house where appellant lived to talk with the appellant. When the appellant appeared, Treadaway asked him if he could talk with him, and at that point the appellant immediately and spontaneously said that he did not rape the woman, he did not kill her, and he did not drag her to another room. (R. 167, 392, 402) At this point the appellant was not in custody, under arrest, nor restrained of his freedom in any way. (R. 166) The appellant was read his rights at this point, which he stated he understood, and agreed to go downtown for fingerprinting after being cautioned that he did not have to go. (R. 168) The appellant made a second statement that he did not rape that woman and he did not kill her (R. 402) on the way to the police station. This statement was also spontaneous, voluntary, and not prompted by interrogation. (R. 393) The appellant made a third statement while being fingerprinted. This statement was also spontaneous, voluntary, and not prompted by any interrogation. The appellant stated that he did not rape the woman, did not kill her, and did not drag her to the closet. (R. 402) In order to deem a pre-arrest statement inadmissible we must determine whether the challenged statement was made pursuant to a custodial interrogation or custodial setting. A custodial interrogation has been defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda v. Arizona, *156 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). The procedural safeguards outlined in Miranda do not apply to "traditional investigatory functions (such) as general on-the-scene questioning." Hall v. State, 399 So.2d 348 (Ala.Cr.App.1981). The facts of each case must be examined in order to determine whether the defendant was questioned merely as part of a general investigation or was subjected to a custodial interrogation. See Cork v. State, 433 So.2d 959 (Ala.Cr. App.1983); Hall, supra. Moreover, a voluntary, spontaneous statement made by a defendant to police officers, before any questions have been asked, is admissible against the defendant even though he has not been given his Miranda warnings. Jelks v. State, 411 So.2d 844 (Ala.Cr.App. 1981); Ervin v. State, 399 So.2d 894 (Ala. Cr.App.), cert. denied, 399 So.2d 899 (Ala. 1981); Terry v. State, 397 So.2d 217 (Ala. Cr.App.), cert. denied, 397 So.2d 223 (Ala. 1981). In the present case the appellant was not subject to any interrogation by law enforcement personnel. He voluntarily agreed to go to the police station after being cautioned that he did not have to go. He voluntarily and spontaneously made the statements. He was read his Miranda warnings which he stated he understood. Furthermore, after having made the three statements, none of which were prompted by police questioning, he was taken back to his place of residence. After reviewing the totality of the circumstances involved in this case, we find no element of coercion or custody present. Therefore, the statements were properly admitted by the trial court. (B) The appellant also contends that these statements should not have been admitted due to the appellant's defective mental condition. The mental subnormality of a defendant does not in and of itself render a statement involuntary. Shorts v. State, 412 So.2d 830 (Ala.Cr.App.1981); Ellis v. State, 398 So.2d 402 (Ala.Cr.App.1981) and cases cited therein. The totality of the circumstances under which the statement of the appellant was given clearly shows that it was voluntarily given after a knowing and voluntary waiver of rights despite the fact that the appellant had a full scale I.Q. of sixty-seven and was classified as borderline mentally retarded. See Jackson v. State, 375 So.2d 1271 (Ala.Cr.App.), cert. denied, 375 So.2d 1274 (Ala.1979); Rhine v. State, 360 So.2d 1056 (Ala.Cr.App.), cert. denied, 360 So.2d 1060 (Ala.1978); Twymon v. State, 358 So.2d 1072 (Ala.Cr.App.1978). There was no interrogation of the appellant whatsoever in this case. His statements were purely spontaneous and voluntary, which distinguishes this case from others in which this court has held statements to be inadmissible due to mental defects. See Hines v. State, 384 So.2d 1171 (Ala.Cr. App.), cert. denied, 384 So.2d 1184 (Ala. 1980); Garrett v. State, 369 So.2d 833 (Ala. 1979). Moreover, this court has held statements to have been voluntarily given after a knowing waiver of rights in other cases in which the defendant had a much lower I.Q. than in the present case. See Shorts, supra; Brown v. State, 393 So.2d 513 (Ala. Cr.App.1981). II The appellant argues that the arrest warrant was insufficient as being conclusory and therefore his subsequent arrest was invalid. In connection with this argument the appellant contends that a statement made by the appellant subsequent to his arrest was not admissible. (A) An affidavit which is conclusory on its face and an arrest pursuant to such warrant will be deemed invalid. However, this court has held that in such instances the affidavit may be cured by oral testimony of the issuing magistrate at trial. The testimony should be such that the magistrate testifies that the officer to whom the *157 warrant was issued recited sufficient reason for the issuance of the warrant. Malone v. State, 51 Ala.App. 19, 282 So.2d 367 (Ala.Cr.App.), cert. quashed, 282 So.2d 371 (Ala.1973); Morrison v. State, 398 So.2d 730 (Ala.Cr.App.1979), reversed on other grounds, 398 So.2d 751 (Ala.1981). In this case Eleanor Rowell, the issuing clerk, was called to the stand to testify and although she stated that she did not recall if Officer Treadaway recited any independent facts sufficient to establish probable cause for arrest, the trial judge ruled that such cause was presented through testimony. We agree with the trial judge on this matter. There was sufficient evidence of probable cause presented to justify the issuance of the arrest warrant. (B) Moreover, in this case there was sufficient probable cause to arrest the appellant without a warrant pursuant to § 15-10-3(3), Code of Alabama 1975. This section states that an officer may arrest without a warrant when a felony has been committed and he has reasonable cause to believe that the suspect committed the act. In this case Officer Treadaway knew of the statements made by the appellant on May 16; he had in his knowledge that Mrs. Hart had been harassed by the appellant in the recent past; he saw the appellant make more than eight trips past the Hart residence while the investigation was in progress, several times venturing inside the roped off area for police personnel only; the investigation had revealed several reddish-brown facial hairs found in the Hart residence and the appellant had a beard which matched the color. Therefore, under these circumstances, the officer had reasonable cause to arrest the appellant and the subsequent arrest was valid. (C) The appellant contends that a statement made by the appellant after his arrest should not have been admitted due to the invalidity of arrest and therefore demands reversal of the judgment. We have held the arrest to have been validly made, therefore we will consider whether the appellant's statement was admissible as being a voluntary statement. The record shows that when the appellant was arrested he was advised of his Miranda warnings and taken to the hospital to obtain fingernail scrappings, blood tests, nasal sample, and hair samples. Investigator Don Tucker of the Alabama Bureau of Investigation testified that while at the hospital the appellant made a statement to him. He testified that the statement took place approximately one hour after the time of arrest; that no one offered the appellant any reward or hope of reward to make a statement; that no one threatened the appellant; that the statement was not subject to any interrogation and was freely and voluntarily given. He further testified that when he entered the examining room where the appellant was waiting on the doctor, that the appellant asked him who he was, if he was the one that arrested him. When Investigator Tucker told the appellant who he was the appellant stated, "Well, I'm your man. It took you three days to get me, but you'll never convict me because they say I'm crazy." (R. 447) This court has held on numerous occasions that voluntary statements, which are not the object of any threat or duress are admissible. It is a well settled rule of law in Alabama that a statement made subsequent to arrest is prima facie involuntary and inadmissible at trial, and that the State must demonstrate voluntariness and a Miranda predicate in order to get admission of the statement. Thomas v. State, 373 So.2d 1167 (Ala.1979); Eakes v. State, 387 So.2d 855 (Ala.Cr.App.1978); Lewis v. State, 295 Ala. 350, 329 So.2d 599 (Ala.1976). The voluntariness of a statement is, however, a question of law to be determined by the trial court upon preliminary proof and that court's decision will not be disturbed on appeal unless it appears contrary to the great weight of evidence, *158 or is manifestly wrong. Balentine v. State, 339 So.2d 1063 (Ala.Cr.App.) cert. denied, 339 So.2d 1070 (Ala.1976); Daniels v. State, 53 Ala.App. 666, 303 So.2d 166 (Ala.Cr.App.1974); Stewart v. State, 49 Ala.App. 681, 275 So.2d 360 (Ala.Cr.App. 1973). There is ample evidence whereby the court could have determined that appellant's statement was voluntarily given. Thus, the trial court's decision on this issue must be upheld. III The final issue to be determined on this appeal is whether or not the trial court erred to reversal in allowing the prosecution to introduce a prior inconsistent statement of a defense witness. The appellant argues that the prosecution failed to lay a proper predicate to introduce the prior inconsistent statements of defense witness William C. Metcalf, the owner of the boarding house where the appellant lived at the time the crime was committed. Mr. Metcalf testified as follows on direct examination (R. 633, 634): "Q All right, sir. Now do you remember the Saturday before they found her body on Sunday? "A Yes, sir. "Q All right, sir. Was J.W. living at your boarding house then? "A Yes, sir. "Q All right, sir. What time do ya'll serve lunch at your boarding house? "A Eleven-thirty. "Q And did you serve at eleven-thirty on May the 15th? "A Yes, sir. Now I couldn't say that it was exact, but eleven-thirty was our time to serve lunch and it was approximately eleven-thirty. It might have varied five minutes one way or the other, but it was approximately eleven-thirty. "Q All right. And did J.W. Johnston eat lunch at the boarding house on that Saturday, May the 15th? "A J.W. Johnston ate lunch there that day. "Q All right, sir. Now, what time did you serve supper or the evening meal? "A Four-thirty. "Q All right. On Saturday, May the 15th, did J.W. Johnston eat supper at your boarding house? "A He ate supper, yes, sir." On cross-examination Mr. Metcalf testified as follows (R. 637, 638): "Q Okay. And it is your testimony that he was at the boarding house for lunch on the 15th, which was at eleven-thirty, is that correct? "A That's correct." This was the only exchange that took place on cross-examination concerning the appellant's eating lunch at the boarding house or whether or not Mr. Metcalf had made a prior statement about this to police officers. After the defense rested their case, the State called two rebuttal witnesses— Officer Treadaway and Investigator Tucker. The following exchange took place upon the direct examination of Officer Treadaway (R. 650-652): "Q Billy, do you recall having a conversation with—first of all, do you know Mr. William C. Metcalf? "A Yes, sir. "Q Where does he live or where did he live back on May the 16th and May the 17th of 1982? "A He lived on Watson Street, just below the Hart residence. "Q And did you have a conversation with Mr. William Metcalf back on May the 16th of 1982? "A Yes, sir, I did. "Q Did you go to the Metcalf Boarding Home on that occasion? "A Yes, sir, I did. "Q Do you recall during the course of that conversation, asking Mr. Metcalf whether the Defendant, J.W. Johnston, had eaten lunch there at the boarding house? "A Yes, sir.... *159 "MR. COOK: Wait a minute now. That's—the predicate hadn't been laid for this. He didn't ask Mr. Metcalf about that. He would first have to ask him. The predicate hadn't been laid for what they.... "THE COURT: Mr. Metcalf said he did eat there. "MR. COOK: Wait a minute. But he . . . . "THE COURT: Take the jury out. "MR. LANIER: I think the State is entitled to have a witness to come forward to testify as to the conversation he did have with Mr. Metcalf. "MR. COOK: He didn't ask Mr. Metcalf, Mr. Metcalf.... "THE COURT: He didn't, but .... "MR. COOK: I know, but.... "THE COURT: ... you did. "MR. COOK: Well, but on cross, he was supposed to say, Mr. Metcalf, didn't you tell Officer Treadaway that—whatever it is and Metcalf say, No, I didn't do that. Then they come in to prove that he did. They haven't got their little act—hadn't taken each step in sequence and we object to it. "THE COURT: Well, you want to go ahead with it? "MR. LANIER: Yes, sir. "THE COURT: Okay. Overrule the objection, then. "MR. PERSONS: We respectfully except. "THE COURT: Bring them back in. (continued direct examination) "Q I believe I ask you if you had a conversation with Mr. Metcalf on May the 16th, 1982.... "A Yes, sir. "Q And during the course of that conversation, do you recall hearing Investigator Tucker ask Mr. Metcalf, `Did Bell and Johnston eat there on Saturday?' "A Yes, sir. ". . . . "Q And do you recall Mr. Metcalf stating that, `They did not eat lunch there?' "A He said he did not believe they eat lunch there, but he knowed they eat supper there." After cross-examination of Officer Treadaway, the State called Investigator Tucker to the stand. He recited the same facts as Officer Treadaway, to which the defense again objected and was again overruled. We must agree with the appellant's argument on this issue. The trial court did err in overruling his objection to this prior inconsistent statement. Generally, a witness, who on cross-examination denies that he made a statement out of court which is inconsistent with his testimony on direct examination, may be impeached by use of another witness to whom the inconsistent statement was made. However, a witness cannot be impeached by proof of contradictory statements made by him, whether oral or in writing, without first asking him whether he made such declarations, specifying with reasonable certainty the time when, the place where, the person to whom such statement was made and the substance of such statement. Scrafford v. State, 414 So.2d 179 (Ala.Cr. App.1982); Junior v. State, 411 So.2d 850 (Ala.Cr.App.1982); Starling v. State, 398 So.2d 337 (Ala.Cr.App.), writ denied, 398 So.2d 342 (Ala.1981); Walker v. State, 369 So.2d 814 (Ala.Cr.App.1978), reversed, 369 So.2d 825 (Ala.1979), on remand, 369 So.2d 826 (Ala.Cr.App.1979); Gamble, McElroy's Alabama Evidence, § 157.01(1) (3rd Ed. 1977). This error could have easily been cured by recalling to the stand all of the necessary witnesses, and if the impeached witness denied having made the contradictory statement then any predicate error is cured. Gamble, McElroy's Alabama Evidence, § 157.01(8, 9) (3rd Ed.1977). This testimony was prejudicial to the appellant. Earlier testimony by Dr. Thomas Gilchrist had established the time of death to be within four hours, before or after, twelve noon on May 15, 1982. Mary Braxton had earlier testified that the victim, *160 Mrs. Hart, had left Ms. Braxton's home at approximately eleven o'clock that same morning. The trial court's allowing the prior inconsistent statement to be admitted served to destroy the appellant's only evidence of alibi. After reviewing the applicable law and authority, we must hold that the trial court was in error on this issue. Therefore, the judgment of the trial court is due to be and is hereby reversed and remanded. REVERSED AND REMANDED. All the Judges concur. TAYLOR, J., concurs in result only.

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 20 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ERICK OSWALDO ALVAREZ ARIAS, No. 15-73038 Erick O. Alvarez, AKA Erick Oswaldo Alvarez, Agency No. A043-279-804 Petitioner, MEMORANDUM* v. JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 18, 2017** Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges Erick Oswaldo Alvarez Arias, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying cancellation of removal, asylum, and * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review de novo whether an offense qualifies as an aggravated felony. Carlos-Blaza v. Holder, 611 F.3d 583, 587 (9th Cir. 2010). We deny the petition for review. Alvarez Arias’ conviction for possession of marijuana for sale under California Health and Safety Code § 11359 is categorically an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). See Roman-Suaste v. Holder, 766 F.3d 1035, 1039 (9th Cir. 2014) (holding conviction under statute to be a categorical aggravated felony after considering Moncrieffe v. Holder, 569 US 184 (2013)). Accordingly, the agency did not err in finding him ineligible for cancellation of removal and asylum. See 8 U.S.C. §§ 1158(b)(2)(A)(ii), (b)(2)(B)(i); 1229b(a). PETITION FOR REVIEW DENIED. 2 15-73038 

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS August 27, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court CHARLES F. BERNARD, Petitioner-A ppellant, No. 07-7017 v. Eastern District of Oklahoma C HA RLES R AY , (D.C. No. CIV-05-507-FHS) Respondent-Appellee. OR DER DENY ING CERTIFICATE O F APPEALABILITY * Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges. Charles F. Bernard, Sr., a state prisoner proceeding pro se, seeks a certificate of appealability (“COA”) that would allow him to appeal from the district court’s order denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A). Because w e conclude that M r. Bernard has failed to make “a substantial showing of the denial of a constitutional right,” we deny his request for a COA, and dismiss the appeal. Id. § 2253(c)(2). * This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.  Background On January 24, 2001, a M cAlester, Oklahoma, police officer pulled over M r. Bernard’s El Cameno after observing a traffic violation— namely, a seatbelt hanging out the car door. The officer had been on the lookout for the car because he had previously received from the FBI a tip that an individual named Chuck Bernard would be traveling through M cAlester in an off-W hite El Cameno w ith a large amount of marijuana. The FBI had acquired this information from a confidential informant. After issuing M r. Bernard a citation for the seatbelt violation, the officer asked if he could search the vehicle. M r. Bernard consented. The search revealed a false compartment which held clear plastic bags containing a brown, leafy substance. At this point, the police obtained a search warrant and impounded the vehicle. The subsequent search revealed that the car contained 84.5 pounds of marijuana. An Oklahoma jury convicted M r. Bernard of trafficking in marijuana and recommended thirty years imprisonment, a sentence which the judge subsequently imposed. After losing challenges on direct appeal and in state collateral proceedings, M r. Bernard challenged the execution of his sentence by filing a habeas corpus petition under 28 U.S.C. § 2254 in the United States D istrict Court for the Eastern District of Oklahoma. He alleged that the search of his vehicle violated the Fourth Amendment, that his appellate counsel was ineffective for -2- failing to argue that the confidential informant did not actually exist, and that failure to allow discovery on the issue of the informant denied him a fair trial. The district court denied his petition and M r. Bernard now applies for a COA. Discussion The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed only if the district court or this Court first issues a COA. 28 U.S.C. § 2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). In order to make such a showing, a petitioner must demonstrate that “reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). M r. Bernard raises tw o claims in his COA petition: (1) that appellate counsel was ineffective because he failed to raise on appeal the issue concerning the existence of the confidential informant and, (2) that the trial court did not hold a full and fair Franks hearing on the issue of the existence of the same informant. See Franks v. Delaware, 438 U.S. 154, 155–56 (1978). A. Ineffectiveness of Appellate Counsel Claim M r. Bernard argues that counsel was ineffective for failing to raise on appeal the issue of whether the trial court erred in its “refusal . . . to confirm the -3- existence of a confidential informant.” Appellant’s Br. 1. 1 To show ineffectiveness of counsel a petitioner must show that counsel’s performance was both deficient and prejudicial to his defense. Strickland v. W ashington, 466 U.S. 668, 687 (1984). The Strickland standard applies to appellate as well as trial counsel. Evitts v. Lucey, 469 U.S. 387, 393–400 (1985); United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995). In analyzing the strategic decision to omit an issue on appeal, we grant deference to the professional judgment of the appellate attorney. Cargle v. M ullin, 317 F.3d 1196, 1202 (10th Cir. 2003). “W e examine the merits of the omitted issue,” and if it “is w ithout merit, counsel’s failure to raise it does not constitute constitutionally ineffective assistance.” Cook, 45 F.3d at 392–93 (internal citation and quotation marks omitted). The government has long had the authority to withhold the identity of informants in “the furtherance and protection of the public interest in effective law enforcement.” Rovario v. United States, 353 U.S. 53, 59 (1957). This authority was granted to recognize the civic duty citizens have to inform the police of illegal activity, and to encourage that cooperation by shielding informants’ identities. Id. at 59. W hile this ability to prevent the accused from confronting an informant is not unlimited, see id. at 60, “[d]isclosure of an 1 In his petition below, M r. Bernard further explains this claim: “[Counsel] refused to present the claim that there was never an informant and that fact could have been used to impeach the credibility of all of the State’s w itnesses.” R. Vol. I, Doc. 1, at 7. -4- informant is not required where the information sought from him or her would be merely cumulative, or where the informant is not a participant in or a witness to the crime charged.” United States v. M oralez, 908 F.2d 565, 567 (10th Cir. 1990). Seemingly in recognition of the wide latitude we give the government on this issue, M r. Bernard is not challenging the concealment of the informant’s identity. Rather, he challenges the actual existence of the informant. Essentially, he asks us to overrule the trial court’s determination that the informant was a real person. Paul W atson, an F.B.I. Agent, testified as to the existence of the confidential informant in this case. Based on this testimony, the trial judge found that the confidential informant was real. In order to obtain a further evidentiary hearing on this issue at trial, M r. Bernard would have had to make a “substantial . . . showing” that a statement in the affidavit supporting the search warrant was (1) false, (2) made knowingly and intentionally or with reckless disregard for the truth, and (3) necessary to the finding of probable cause. Franks, 438 U.S. at 155–56, 171–72. M r. Bernard has not satisfied these requirements. He has offered no evidence to show that anyone lied about the existence of the confidential informant. Any hearing on the matter would be based on rank speculation. “Nothing in the Due Process Clause of the Fourteenth Amendment requires a state court judge . . . to assume the arresting officers are committing perjury.” M cCray v. Illinois, 386 U.S. 300, 313 (1967). Additionally, even if the -5- FBI invented the informant from whole cloth, the seatbelt violation furnished the M cAlster police with independent reasonable suspicion to stop M r. Bernard. See Whren v. United States, 517 U.S. 806, 811–14, 819 (1996). M r. Bernard’s consent to the search and the subsequent uncovering of a false compartment containing what appeared to be marijuana then furnished the police with independent grounds to support a search warrant. Consequently, the informant issue had no potential merit on appeal and counsel’s failure to raise it did not constitute deficient performance. No reasonable jurist could dispute the district court’s resolution of this issue and M r. Bernard’s application for a COA on this ground fails. B. Disclosing the Existence of a Confidential Inform ant In a similar vein, M r. Bernard argues that the trial court erred by not holding a hearing or allowing discovery on the issue of the existence of the informant. M r. Bernard failed to present this argument on direct appeal to the Oklahoma Court of Criminal Appeals. Consequently, the state court refused to entertain the argument in M r. Bernard’s state post-conviction relief proceedings. Claims that are defaulted in state court on adequate and independent state procedural grounds will not be considered by a habeas court unless the petitioner can show cause and prejudice or a fundamental miscarriage of justice. Smith v. M ullin, 379 F.3d 919, 925 (10th Cir. 2004). In this case, the default rule is an adequate and independent procedural ground, and M r. Bernard cannot -6- demonstrate cause and prejudice or a fundamental miscarriage of justice. To the extent M r. Bernard attempts to show cause by pinning the failure to raise the issue on the ineffective assistance of his counsel, we have already concluded that the omission of this meritless claim on appeal did not constitute faulty performance. Again, no reasonable jurist could dispute the district court’s resolution of this issue. Accordingly, we D EN Y M r. Bernard’s request for a COA and DISM ISS this appeal. Entered for the Court, M ichael W . M cConnell Circuit Judge -7- 

Roco G.C. Corp. v Bridge View Tower, LLC (2018 NY Slip Op 08164) Roco G.C. Corp. v Bridge View Tower, LLC 2018 NY Slip Op 08164 Decided on November 28, 2018 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on November 28, 2018 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. JEFFREY A. COHEN SYLVIA O. HINDS-RADIX ANGELA G. IANNACCI, JJ. 2017-05262 (Index No. 6672/09) [*1]Roco G.C. Corp., plaintiff-appellant, vBridge View Tower, LLC, respondent, et al., defendants; Michael Tam, nonparty-appellant. Foster & Wolkind, P.C., New York, NY (Peter B. Foster of counsel), for appellants. Yan Wang Law Group, P.C., New York, NY (James Anthony Wolff of counsel), for respondent. DECISION & ORDER In an action, inter alia, to recover damages for breach of contract, the plaintiff and the nonparty Michael Tam appeal from an order of the Supreme Court, Kings County (Johnny Lee Baynes, J.), dated April 6, 2017. The order, insofar as appealed from, granted those branches of the motion of the defendant Bridge View Tower, LLC, which were for leave to serve and file an amended answer asserting a counterclaim sounding in fraud against the nonparty Michael Tam, and increasing the ad damnum clause for the counterclaims from the sum of $750,000 to the sum of $25,000,000, and denied the cross motion of the plaintiff and the nonparty Michael Tam to strike an amended answer and counterclaim filed by the defendant Bridge View Tower, LLC, on December 20, 2016, without leave of court. ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the motion of the defendant Bridge View Tower, LLC, which were for leave to serve and file an amended answer asserting a counterclaim sounding in fraud against the nonparty Michael Tam, and increasing the ad damnum clause for the counterclaims from the sum of $750,000 to the sum of $25,000,000 are denied, and the cross motion of the plaintiff and the nonparty Michael Tam to strike the amended answer and counterclaim filed by the defendant Bridge View Tower, LLC, on December 20, 2016, is granted. This dispute arose from the construction of an 18-story residential condominium building by the defendant Whing Shing Construction, Inc. (hereinafter Whing Shing), on premises owned by the defendant Bridge View Tower, LLC (hereafter Bridge). On May 12, 2006, the plaintiff and Whing Shing entered into a written contract for a total contract price of $1,197,850.50 for plumbing and fire protection work. The contract stated that "[a]ll work must be completed by 12/31/06." The contract was signed by "Mike Tam" as president of the plaintiff, and by the president of Whing Shing. The plaintiff claims that it was ordered off the job on December 13, 2007, after completing 95% of its work, and was paid the sum of $794,892.53, leaving the sum of $402,957.97 unpaid. The plaintiff commenced this action in March 2009. The complaint, among other things, asserted a cause of action to recover damages for breach of contract. In April of 2009, Bridge served a joint answer with Whing Shing, asserting a counterclaim to recover damages for breach of contract arising from the plaintiff's alleged delay in performance. The ad damnum clause of the counterclaim demanded damages in the sum of $750,000. In 2016, the parties appeared for preliminary conferences, and Bridge filed an amended answer on its own behalf on December 20, 2016, without leave of court. In January 2017, Bridge moved for leave to serve and file the amended answer in its capacity as a third-party beneficiary of the contract between the plaintiff and Whing Shing. Bridge reasserted the original counterclaim to recover damages for breach of contract and sought to add an additional counterclaim against the plaintiff and against a new party—the plaintiff's president, Michael Tam—alleging fraud. The additional counterclaim is based on the alleged false representation by the plaintiff and Tam to both Bridge and Whing Shing that they were licensed by the New York City Department of Buildings as a master plumber and/or fire suppression contractor, and the alleged deficiencies in their work related to the lack of proper licenses. Bridge claimed that the fraud cause of action was timely asserted against Tam because Tam and the plaintiff were united in interest. Bridge also sought to raise the amount of damages demanded from the sum of $750,000 to the sum of $25,000,000. The plaintiff and Tam (hereinafter together the cross movants) cross-moved to strike the amended answer and counterclaim, asserting that the cause of action sounding in fraud was time-barred. The cross movants further alleged that the relation-back doctrine did not apply because the cross movants were not united in interest, and Tam had no reason to believe that but for a mistake by Bridge as to the identity of the proper parties, Tam would have been joined in the action in 2009. The cross movants further noted that no basis was asserted for increasing the ad damnum clause. The order appealed from, without explanation, granted Bridge's motion and denied the cross motion. The cross movants appeal from so much of the order as denied the cross motion and granted those branches of Bridge's motion which were for leave to serve and file an amended answer asserting a counterclaim sounding in fraud against Tam, and increasing the ad damnum clause for the counterclaims to the sum of $25,000,000. Amendment of a pleading without leave of court is generally only permitted early in a case (see CPLR 3025[a]). In this case, Bridge filed an amended answer without leave of the Supreme Court nearly seven years after issue was initially joined, and subsequently sought leave to serve and file the amended answer. CPLR 3025(b) states that "[a] party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just." "In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit" (Mirro v City of New York, 159 AD3d 964, 967). An amendment that seeks to add a cause of action which is time-barred by the applicable statute of limitations is patently devoid of merit (see Grant v Brooklyn Ctr. for Rehabilitation & Residential Health Care, LLC, 153 AD3d 798; Jenal v Brown, 80 AD3d 727; Ricca v Valenti, 24 AD3d 647). In this case, the statute of limitations for the new counterclaim sounding in fraud is six years from the alleged fraud in 2006, or two years from when the adverse party discovered the fraud or should have discovered the fraud with the exercise of due diligence (see Celestin v Simpson, 153 AD3d 656, 657). Since the plaintiff ceased work on the project in 2007, and the alleged deficiencies should have been apparent to Bridge by then, the statute of limitations had run and the counterclaim for fraud contained in Bridge's amended answer was without merit. " The relation-back doctrine allows a party to be added to an action after the expiration of the statute of limitations, and the claim is deemed timely interposed, if (1) the claim arises out of the same conduct, transaction, or occurrence, (2) the additional party is united in interest with the original party, and (3) the additional party knew or should have known that but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against the additional party as well'" (Eriksen v County of Suffolk, 154 AD3d 721, 722, quoting Bumpus v New York City Tr. Auth., 66 AD3d 26, 35; see Buran v Coupal, 87 NY2d 173, 178). The original counterclaim asserted against the plaintiff alleged that plaintiff breached contractual obligations for which Tam—an officer of the corporation—was not individually liable (see Sargoy v Wamboldt, 183 AD2d 763). "There is no legal theory of vicarious liability for breach of contract" by "an agent of a disclosed principal" (id. at 765). Tam, when signing the contract in issue, did so as president of the plaintiff, and not individually. Therefore, the cross movants are not united in interest. Further, since Tam signed the contract, Bridge was aware of Tam's identity at the time the original answer was served. Therefore, failure to join Tam cannot be attributable to a mistake as to the identity of [*2]the proper parties (see Somer & Wand v Rotondi, 251 AD2d 567). Thus, the addition of Tam as a party to this action was improper. No cognizable explanation was provided for the increase in the ad damnum clause. Accordingly, we disagree with the Supreme Court's determination granting those branches of the motion which were for leave to serve and file an amended answer asserting a counterclaim sounding in fraud against Tam, and increasing the ad damnum clause for the counterclaims from the sum of $750,000 to the sum of $25,000,000, and denying the cross motion to strike the amended answer and counterclaim filed on December 20, 2016, without leave of court. MASTRO, J.P., COHEN, HINDS-RADIX and IANNACCI, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

IN THE COURT OF APPEALS OF THE STATE OF IDAHO Docket No. 44536 In the Matter of the DOE CHILDREN, ) Children Under Eighteen Years of Age. ) IDAHO DEPARTMENT OF HEALTH ) 2017 Opinion No. 3S and WELFARE, ) ) Filed: February 23, 2017 Petitioner-Respondent, ) ) Stephen W. Kenyon, Clerk v. ) ) SUBSTITUTE OPINION JANE DOE (2016-43), ) THE COURT’S PRIOR OPINION ) DATED JANUARY 13, 2017, IS Respondent-Appellant. ) HEREBY WITHDRAWN ) Appeal from the Magistrate Division of the District Court of the Second Judicial District, State of Idaho, Nez Perce County. Hon. Kent J. Merica, Magistrate. Judgment terminating parental rights, affirmed. Knowlton & Miles, PLLC; Mackenzie Jo Welch, Lewiston, for appellant. Mackenzie Jo Welch argued. Hon. Lawrence G. Wasden, Attorney General; Marcy J. Spilker, Deputy Attorney General, Boise, for respondent. Marcy J. Spilker argued. ________________________________________________ GUTIERREZ, Judge Jane Doe appeals from the magistrate’s judgment terminating Jane’s parental rights to her three minor children. This Court first considered Jane’s appeal on the grounds that the magistrate erred procedurally by failing to issue written findings of fact and conclusions of law. As we further elaborate in our decision below, we remanded the case to the magistrate for issuance of written findings. The case is before us again after the magistrate issued its written findings of fact and conclusions of law and a corresponding amended termination order. Thus, having cured the procedural defect, we now also consider the merits of the magistrate’s decision to terminate Jane’s parental rights. For the reasons set forth below, we affirm. 1  I. CASE HISTORY Jane Doe and her husband, John Doe, have an extensive history of drug abuse and have been involved in child protection proceedings in the past. In February 2015, the Department of Health and Welfare (Department) received reports indicating that neither Jane nor John were in compliance with the terms of their probations and that the three children in Jane and John’s care were unsafe. These three children are the biological children of Jane, but only two are the biological children of John; the biological father of Jane’s oldest child is unknown. On February 20, 2015, the Department filed a petition asking the magistrate to determine whether the children were within the jurisdiction of the Child Protection Act, alleging the children were neglected and lacking a stable home environment. Additionally, the petition asked the magistrate to remove the children from Jane and John’s home and place the children into the temporary legal custody of the Department. The magistrate entered an order granting the Department’s requests, and the children were immediately removed from Jane and John’s care and placed in shelter care. The children remained in shelter care until an adjudicatory hearing was held, at which point the magistrate found it was in the children’s best interests to remain in shelter care. The Department prepared a written case plan for both Jane and John, and the magistrate approved the proposed plan on April 29, 2015. In June 2015, Jane was arrested for various probation violations. The district court then sentenced Jane to serve out the remainder of her underlying sentence. 1 In August 2015, the magistrate held a permanency hearing on the child protection case, at which time the Department requested the approval of a modified case plan to pursue relative adoption rather than reunification. In its subsequent permanency plan order, the magistrate ordered the Department to file a petition to terminate parental rights within thirty days. The Department then filed a petition to terminate both Jane and John’s parental rights to the children in September 2015, followed by an amended petition approximately two weeks later. The magistrate scheduled the termination trial for December 2015. For reasons unclear from the record, the parties stipulated to postponing the December trial until February 2016. Then, the parties again stipulated to postponing the February schedule 1 The indeterminate portion of this sentence does not end until January 2018. 2 as Jane was pregnant at the time and the trial would be too close to her due date. The magistrate rescheduled the termination trial for May 2016. In February 2016, Jane gave birth to a child fathered by John. The Department filed an amended petition under the Child Protection Act to add the new baby to the existing child protection order. The baby was placed in shelter care with the other three children. The magistrate then held the appropriate shelter care and adjudicatory hearings. Ultimately, in May 2016, after the magistrate approved the Department’s proposed case plan regarding the baby, the parties stipulated to sever the baby’s and the children’s child protection proceedings. Jane and John’s parental rights to the baby are not at issue in this appeal. Meanwhile, in March 2016, the Department filed a second amended petition for termination of the parent-child relationship between the three older children and both Jane and John. This amended petition alleged that both parents neglected the children and divided the grounds for termination into four separate counts. Count I: The children are neglected as defined in [I.C. §§ 16-1602(31)(b)];[2] 16-2002(3)(a) and 16-2005(1)(b) because they lack proper support or parental care necessary for their health, morals, and well-being, to-wit: [John and Jane] have shown the inability to maintain safe and stable [sic] for their children. Neither parent is able to demonstrate the ability to safely parent their children when they are abusing substances, and it appears that they are still unable to maintain control of their addictions despite all the services they have been offered and that they have completed throughout the past five (5) years of Child Protection Involvement. Count II: The children are neglected as defined in I.C. §§ 16-2002(3)(b) and 16- 2005(1)(b). The parents have failed to comply with the Court’s orders or the case plan in a Child Protective act case. Count III: The parents have neglected the children. The children are neglected as they are without the proper parental care and control, or subsistence, education, medical or other care and control necessary for their well- being because of the conduct or omission of their parents, guardian, or other custodian or their neglect or refusal to provide them as follows: [Jane and John] have a significant substance abuse history. [Jane and John] have not engaged in any support services recommended by Department staff that has been identified to help them successfully establish a safe life to parent [the children]. 2 Although the petition cited to I.C. § 16-1602(28)(b), this code provision has since been renumbered to I.C. § 16-1602(31)(b). 3  Count IV: The parent, [Jane], is unable to discharge parental responsibilities and such ability will continue for a prolonged indeterminate period and will be injurious to the health, morals, or well-being of the children, to-wit: [Jane] has been sentenced to a prison term to the . . . Prison, and the Idaho Department of Corrections website reflects a parole eligibility date of March 9, 2017. The trial for terminating the parental rights of Jane and John as to the children commenced on May 10, 2016. On the following day, when the trial was not concluded, the magistrate scheduled its continuation for July 2016. The trial then continued from July 6 until July 8. During the five days of trial, the magistrate heard testimony from numerous individuals involved in various aspects of the case plan, the children’s lives, or the parents’ lives. These individuals included the children’s foster parents; the guardian ad litem; the parents’ probation officer; a police officer; teachers and administrators from treatment facilities; as well as Department employees including visitation supervisors, social workers, and both current and past case managers. These individuals testified regarding the parents’ history of drug abuse and relapse; the parents’ participation in drug treatment programs; observations of the parents’ home; opinions regarding the parents’ ability to discipline and supervise the children; the children’s extensive behavioral and developmental issues; and the ongoing needs of the children. At the conclusion of trial, the parties were instructed to file their closing arguments by August 12. The magistrate then held a hearing on October 3, 2016. At this hearing, the magistrate expressed that he had experienced software failure resulting in the permanent loss of a significant amount of his written work. The magistrate indicated he would instead enter his findings of fact and conclusions of law orally on the record. He stated, “This will constitute the only record of the same. The court will not reduce the following to writing, and I’m doing that in the--for the sake of expediency for the parties.” The magistrate proceeded to verbally pronounce detailed findings of facts and conclusions of law from the bench. On the same day, the magistrate entered a written judgment terminating the parent-child relationships between Jane and John and the children. In this written judgment, aside from stating that “it is in [the children’s] best interests for the parental rights . . . to be terminated,” the judgment did not include any specific findings of fact or conclusions of law. Then, two days after entry of this written judgment, the magistrate entered an order titled, “Amended Findings of Fact, Conclusions of Law, and Order.” This order concluded by stating that Jane and John’s parental rights were being terminated based upon (1) their failure to follow and complete the 4 case plan, as alleged in Count II, and (2) their conduct which resulted in the children being without proper parental care and control, as alleged in Count III. The magistrate found that the Department did not demonstrate that the parents were unable to discharge their parental responsibilities, as alleged in Count I, and did not terminate on this basis. The order did not address Count IV of the termination petition. The magistrate entered a corresponding amended judgment reiterating its conclusion that termination was in the children’s best interests and that the parent-child relationships were terminated. Although the magistrate treated the termination petition of both parents as a consolidated case, Jane and John each separately appealed the magistrate’s judgment. In Jane’s appeal, she argued that the magistrate erred both procedurally and on the merits. We were persuaded by Jane’s argument that the magistrate erred in failing to issue written findings of fact and conclusions of law, as required by statute. We reiterate our consideration of that issue in the section below. II. PROCEDURAL DEFICIENCY AND CORRESPONDING REMAND Jane argued the magistrate violated Jane’s right to due process by terminating her parental rights without complying with statutory procedural requirements. Specifically, she argued that the magistrate violated the statutory mandate in I.C. § 16-2010(1) by not issuing a written order containing the findings of fact and conclusions of law. The statute at issue, I.C. § 16-2010(1), states, in relevant part, that “every order of the court terminating the parent and child relationship . . . shall be in writing and shall recite the findings upon which such order is based, including findings pertaining to the court’s jurisdiction.” (Emphasis added.) The interpretation of a statute is an issue of law over which we exercise free review. Aguilar v. Coonrod, 151 Idaho 642, 649-50, 262 P.3d 671, 678-79 (2011). Such interpretation must begin with the literal words of the statute; those words must be given their plain, usual, and ordinary meaning; and the statute must be construed as a whole. Verska v. Saint Alphonsus Reg’l Med. Ctr., 151 Idaho 889, 893, 265 P.3d 502, 506 (2011). It is well established that where statutory language is unambiguous, legislative history and other extrinsic evidence should not be consulted for the purpose of altering the clearly expressed intent of the legislature. Id. “Where statutes are not ambiguous, it is the duty of the court to follow the law as written.” Anstine v. Hawkins, 92 Idaho 561, 563, 447 P.2d 677, 679 (1968). 5  Regarding the plain language of I.C. § 16-2010(1), we considered the phrase “every order of the court” to be inclusive of any court order terminating a parent-child relationship. Further, the phrases stating that the order “shall be in writing” and “shall recite the findings” establish the two attributes required of every order. See State v. Owens, 158 Idaho 1, 4, 343 P.3d 30, 33 (2015). The word “recite” means that the findings must be “state[d] formally.” MERRIAM- WEBSTER DICTIONARY 1895 (3d ed. 1993). Thus, the plain language of I.C. § 16-2010(1) contains an unambiguous directive requiring courts to issue written findings as part of the termination order. Such written findings must include formal statements of the findings upon which it relied in terminating the parent-child relationship. Neither the magistrate’s original judgment nor the amended judgment and corresponding order were in compliance with the statutory mandate of I.C. § 16-2010(1). The original judgment, which effectuated the termination and stated that it was in the best interests of the children to terminate Jane’s rights, was statutorily deficient because it did not include a recitation of the facts upon which the court was relying. The amended judgment and corresponding findings and order were also statutorily deficient. In the order, the magistrate attempted to incorporate its oral pronouncements by reference. Idaho Code Section 16-2010(1) requires a court’s order to recite the findings upon which the court relied in terminating the parent’s rights. Because of the statute’s specificity in requiring written recitation of findings, we do not consider an order’s “incorporation by reference” to be the functional equivalent of a written recital. Further, although the order did specify that Jane’s rights were being terminated pursuant to the charges in Counts II and III, it did not recite any specific findings of fact supporting termination on those grounds. Similarly, the amended judgment recited no facts but instead merely concluded that it was in the children’s best interests to terminate Jane’s parental rights. The court reporter’s transcription of the oral proceedings did not constitute a written order of the court sufficient to satisfy the statutory requirement. Therefore, because none of the magistrate’s orders complied with the statutory mandates of I.C. § 16-2010(1), we remanded both cases back to the magistrate with instructions to enter written findings of fact and conclusions of law and a corresponding amended judgment. 6  III. POST-REMAND CONSIDERATION Following the order on remand, the magistrate court entered substantial written findings of facts and conclusions of law in conformance with the statutory mandate of I.C. § 16-2010(1). The subsequent written findings of fact and conclusions of law reiterated the magistrate’s previous oral findings that the children were neglected pursuant to Counts II and III of the second amended petition termination. The magistrate entered a second amended judgment terminating Jane and John’s parental rights to their children. All parties were given an opportunity to submit supplemental briefing for this Court’s consideration. We now consider the merits of Jane’s appellate argument that the magistrate erred in terminating Jane’s parental rights. A parent has a fundamental liberty interest in maintaining a relationship with his or her child. Troxel v. Granville, 530 U.S. 57, 65 (2000); Doe v. State, 137 Idaho 758, 760, 53 P.3d 341, 343 (2002). This interest is protected by the Fourteenth Amendment to the United States Constitution. State v. Doe, 144 Idaho 839, 842, 172 P.3d 1114, 1117 (2007). Implicit in the Termination of Parent and Child Relationship Act is the philosophy that, wherever possible, family life should be strengthened and preserved. I.C. § 16-2001(2). Therefore, the requisites of due process must be met when terminating the parent-child relationship. State v. Doe, 143 Idaho 383, 386, 146 P.3d 649, 652 (2006). Due process requires that the grounds for terminating a parent-child relationship be proved by clear and convincing evidence. Id. Because a fundamental liberty interest is at stake, the United States Supreme Court has determined that a court may terminate a parent-child relationship only if that decision is supported by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 769 (1982). See also I.C. § 16-2009; In re Doe, 146 Idaho 759, 761-62, 203 P.3d 689, 691-92 (2009); Doe, 143 Idaho at 386, 146 P.3d at 652. On appeal from a decision terminating parental rights, this Court examines whether the decision is supported by substantial and competent evidence, which means such evidence as a reasonable mind might accept as adequate to support a conclusion. Doe v. Doe, 148 Idaho 243, 245-46, 220 P.3d 1062, 1064-65 (2009). The appellate court will indulge all reasonable inferences in support of the trial court’s judgment when reviewing an order that parental rights be terminated. Id. The Idaho Supreme Court has also said that the substantial evidence test requires a greater quantum of evidence in cases where the trial court’s finding must be supported 7 by clear and convincing evidence than in cases where a mere preponderance is required. Doe v. Doe, 143 Idaho 343, 346, 144 P.3d 597, 600 (2006). Clear and convincing evidence is generally understood to be evidence indicating that the thing to be proved is highly probable or reasonably certain. In re Doe, 143 Idaho 188, 191, 141 P.3d 1057, 1060 (2006). Further, the magistrate’s decision must be supported by objectively supportable grounds. Doe, 143 Idaho at 346, 144 P.3d at 600. Idaho Code Section 16-2005 permits a party to petition the court for termination of the parent-child relationship when it is in the child’s best interests and any one of the following five factors exist: (a) abandonment; (b) neglect or abuse; (c) lack of a biological relationship between the child and a presumptive parent; (d) the parent is unable to discharge parental responsibilities for a prolonged period that will be injurious to the health, morals, or well-being of the child; or (e) the parent is incarcerated and will remain incarcerated for a substantial period of time. Each statutory ground is an independent basis for termination. Doe, 144 Idaho at 842, 172 P.3d at 1117. A. Finding of Neglect Here, the magistrate terminated Jane’s parental rights on the basis of neglect, finding that termination was in the best interests of the children. Specifically, the magistrate found clear and convincing evidence that Jane neglected her children pursuant to the allegations in Counts II and III of the second amended termination petition. Because we conclude that Jane neglected her children pursuant to the grounds alleged in Count III, we need not address Jane’s contentions regarding the other grounds considered by the magistrate. 3 See State, Dep’t of Health & Welfare v. Doe, 149 Idaho 409, 413, 234 P.3d 733, 737 (2010). Count III alleged that Jane neglected her children by failing to provide the “proper parental care and control, or subsistence, medical or other care or control necessary for his or her well-being because of the conduct or omission of his or her parents, guardian, or other custodian or their neglect or refusal to provide them.” Because this language tracks with I.C. § 16- 3 Accordingly, we do not address Jane’s argument regarding the amount of time the children were in the Department’s legal custody for purposes of Idaho Code Section 16- 2002(b)(3). 8 1602(31)(a), 4 the magistrate considered whether there was clear and convincing evidence of neglect pursuant to this provision. The magistrate found that Jane neglected her children due to her extensive history of drug abuse and relapse, including drug use while pregnant; repeated law and probation violations; failure to provide stable housing; failure to engage in and maintain counseling and treatment; failure to complete her case plan; and failure to maintain consistent employment. It is well-settled that a court may properly consider the history of the family both prior to and at the time of State intervention in determining whether clear and convincing evidence of neglect exists. State v. Doe, 144 Idaho 839, 843, 172 P.3d 1114, 1118 (2007). A court is not constrained to considering only the conditions as they exist at the time of the hearing. Id. A court may also consider a parent’s performance on a case plan when considering whether that parent has neglected their children pursuant to I.C. § 16-2002(3)(a). In re Doe, 151 Idaho 356, 365, 256 P.3d 764, 773 (2011). Jane’s primary argument on appeal is that the magistrate failed to take into consideration all of the relevant evidence and assign that evidence the proper weight. Jane first contends the magistrate improperly considered whether Jane completed tasks on her case plan as a basis for finding neglect. She argues that she was only given a short period of time to comply before she was incarcerated. While the magistrate did consider Jane’s compliance with the case plan before she was incarcerated, the magistrate did not use this consideration as the sole basis of its finding of neglect. The magistrate considered the totality of Jane’s conduct, both before and after the child protection case was initiated. Jane next contends there is no showing that the magistrate considered evidence regarding her accomplishments toward reunification after her incarceration. A trial court is not free to ignore relevant evidence that has been admitted. In re Doe, 157 Idaho 765, 770, 339 P.3d 1169, 1174 (2014). However, when making findings of fact and conclusions of law, a trial judge is not required to recite every piece of evidence it considered or relied upon in reaching its decision. Id. 4 Idaho Code Section 16-1602(31)(a) provides, in relevant part: “‘Neglected’ means a child . . . [w]ho is without proper parental care and control, or subsistence, medical or other care or control necessary for his well-being because of the conduct or omission of his parents . . . or their neglect or refusal to provide them.” 9  Here, Jane’s assertion is disproven both expressly and implicitly by the magistrate’s written findings. The magistrate made clear in his opinion that he considered Jane’s progress while incarcerated, noting “she is to be commended for that.” The magistrate specifically acknowledged that since being incarcerated, Jane has “completed cognitive behavioral intervention, substance abuse treatment, Thinking For a Change, Moral Reconation Therapy, completed two (2) parenting classes, completed a program entitled ‘Darkness to Light,’ and ‘Strengthening Families.’” Although the magistrate might not have specifically written each accomplishment that Jane suggests is relevant, it is nevertheless clear that the magistrate considered all the relevant evidence in reaching its decision. What the magistrate makes clear from the written opinion is that despite Jane’s recent progress, her longstanding history of drug abuse is hard to ignore. With relapses in 2005, 2008, 2012, 2014 and 2015, the magistrate was not persuaded that Jane’s recent short-term progress outweighed her history of neglectful conduct. Turning to Jane’s other arguments on appeal, Jane effectively challenges whether there was clear and convincing evidence to support the magistrate’s finding of neglect. She itemizes each case plan task and argues why the magistrate’s finding was erroneous. First, she contends that certain findings of the magistrate are blatantly incorrect. For example, regarding the magistrate’s finding that Jane failed to provide stable housing for the children, Jane argues that it is significant that she was never actually evicted from her housing and that she had never had problems securing new housing in the past. And, regarding the magistrate’s finding that Jane visited the casino numerous times, Jane argues that she merely admitted that she had “been going to the casino,” not that she went multiple times. Jane also contends that the magistrate mischaracterized the parents’ trip to Las Vegas, which occurred in March not January, and mischaracterized the incident during the supervised visit where individuals were locked out of the building. These alleged errors take issue with facts that are immaterial to the magistrate’s finding of neglect. Even if these findings were clearly erroneous, they are not so material as to outweigh the other substantial evidence supporting the magistrate’s finding of neglect. See Doe I v. Doe, 138 Idaho 893, 906, 71 P.3d 1040, 1053 (2003) (“Even if a finding of fact is in error, this Court should disregard such error unless it affects the substantial rights of the parties.”). Next, Jane contends that the magistrate should not have believed certain testimony, as it was either unproven or contradicted. For example, Jane points to her probation officer’s 10 testimony regarding multiple probation violations, missed urinalysis tests and continued drug use, arguing that none of those allegations had accompanying definitive evidentiary proof. Jane’s arguments not only ignore other relevant information in the record, but they also ask this Court to reassess the credibility of witnesses. Jane also points to the magistrate’s finding that Jane used drugs until June 2015, arguing that the probation officer never testified as such. However, this argument specifically ignores Jane’s own admission that she considers her sober date to be June 10, 2015. Jane’s arguments not only ignore evidence in the record at times, but they consistently ask this Court to reweigh the evidence already considered by the magistrate and reach a different conclusion. This Court does not reweigh evidence, but instead defers to the magistrate’s “unique ability to accurately weigh the evidence and judge the demeanor of the witnesses and take into account the trial court’s superior view of the entire situation.” In re Doe, 156 Idaho 103, 108, 320 P.3d 1262, 1267 (2014) (internal quotations and citations omitted). The magistrate’s findings will be deemed competent, despite possibly conflicting evidence, so long as they are supported by substantial evidence. Id. After careful review of the record, we conclude that substantial and competent evidence supports each of the magistrate’s findings regarding Jane’s failure to provide the proper care and control necessary for her children’s well-being. During the termination trial, there was substantial evidence presented as to Jane’s longstanding difficulties with drug abuse and extensive history of involvement with the Department dating back to 2006. The children at issue in this appeal began their involvement with the Department as early as 2011 after one of the children was seriously injured in an automobile accident due to Jane driving while under the influence. There was also substantial evidence of Jane’s drug use while pregnant or while the children were in Jane’s care. Not only did one of her children test positive for methamphetamine at birth, but Jane admitted to using drugs as late as June 2015. Regardless of whether Jane has ever been evicted, there was substantial and competent evidence to support the magistrate’s finding that Jane had failed to provide housing for her children that was both stable and safe. Next, Jane argues that the magistrate improperly weighted the testimony of the foster parents--who are biased--and the case workers--who are self-serving--over the testimony of the parents and their witnesses. Jane’s argument suggests that the nature of a party’s interest influences the party’s credibility and ability to remain objective. Even if we were to accept 11 Jane’s arguments that the foster parents are biased and the case workers self-serving, we cannot believe that the parents and their witnesses are somehow disinterested parties. Jane’s argument that the magistrate should be wary of testimony from involved individuals is not only unsupported by authority, but defies common logic. Finally, we are not persuaded by Jane’s argument that the magistrate should have assigned more weight to Jane’s parole eligibility date of January 2017. Even if Jane was granted parole in January 2017, her longstanding history of neglectful conduct is not erased by recent efforts. The Idaho Supreme Court has often held that where a parent’s improvements in a child protection case begin only after the initiation of termination proceedings, such efforts are often too late. See, e.g., Doe, 151 Idaho at 366, 256 P.3d at 774; Idaho Dep’t of Health & Welfare v. Doe, 155 Idaho 145, 153, 306 P.3d 230, 238 (Ct. App. 2013). In this instance, the magistrate found, and we agree, that Jane “has never been a consistent presence in the children’s lives. She’s been absent because of drug usage, absent because the care of the children was overwhelming to her, and absent because of incarceration.” Therefore, we conclude that the cumulative testimony before the magistrate constituted substantial and competent evidence demonstrating that Jane neglected her children as defined by I.C. § 16-1602(31)(a). Thus, the magistrate did not err in finding neglect pursuant to I.C. § 16-2002(3)(a). B. Best Interests Where the magistrate finds a statutory ground for termination, the magistrate must also find that it is in the best interests of the children to terminate the parent-child relationship. I.C. § 16-2005(1). When considering the best interests of the child, a trial court may consider numerous factors including the improvement of the child while in foster care, the parent’s continuing problems with the law, the parent’s efforts to improve his or her situation, the stability and permanency of the home, unemployment of the parent, and the financial contribution of the parent to the child’s care after the child is placed in protective custody. Doe, 156 Idaho at 111, 320 P.3d at 1270. “The best interest analysis takes into account the reality that children need stability and certainty.” Doe, 157 Idaho at 772, 339 P.3d at 1176 (internal quotation omitted). Here, the magistrate focused its inquiry on the improvement of the children while in foster care. The magistrate considered evidence that since being in foster care, the children have improved educationally, emotionally, and developmentally. The magistrate also considered that 12 the children would suffer in each of those areas each time they were removed from the foster home. The magistrate also focused on the children’s need for stability. Recognizing that Jane was not a consistent presence in the children’s lives due to drug use, incarceration or inability to parent, the magistrate found that the foster family was better suited to provide the stability needed by the children. During the termination trial, there was substantial and competent evidence that the children have improved while in foster care. Before entering foster care, the children did not have their emotional, educational, or physical needs met. The children were experiencing emotional disturbances and were developmentally and educationally deficient. After entering foster care, the children began consistently participating in educational programs and counseling services and have experienced significant progress in each of those areas. Evidence demonstrated that Jane did not routinely maintain these services for her children, even though those services were made available to them. There is also substantial and competent evidence that Jane did not take efforts to improve her situation prior to being incarcerated. She admitted to using drugs up until the time she was incarcerated in June 2015. At that time, the termination proceeding was well underway and the case plan had already been implemented. Jane’s history of drug use, beginning in 2006, demonstrates her inability to refrain from methamphetamine use. Despite her improvements since incarceration, her continued stability is unpredictable. The magistrate opined, and we agree, that the children deserve stability, permanency, and finality. The magistrate did not err in finding that termination of Jane’s parental rights was in the best interests of the children. IV. CONCLUSION There was clear and convincing evidence that Jane neglected her children by failing to provide the proper parental care and control for their well-being and that termination of Jane’s parental rights was in the children’s best interests. Accordingly, we affirm the magistrate’s judgment terminating Jane’s parental rights to her three minor children. Chief Judge GRATTON and Judge MELANSON CONCUR. 13 

578 N.E.2d 774 (1991) In the matter of the Involuntary Termination of the Parent-Child Relationship of Christopher Tucker and His Mother Sherri E. Tucker. Sherri E. Tucker, Appellant-Respondent, v. SHELBY COUNTY DEPARTMENT OF PUBLIC WELFARE, Appellee-Petitioner. No. 73A04-9101-CV-23. Court of Appeals of Indiana, Fourth District. September 30, 1991. *775 Robert D. Jones, Shelbyville, for appellant-respondent. Jeffrey M. Linder, Shelbyville, Amy Good, Shelbyville, for appellee-petitioner. CONOVER, Judge. Respondent-Appellant Sherri E. Tucker appeals the trial court's judgment terminating her parental rights in her minor child, Christopher Tucker. The petition for termination was filed by the Shelby County Department of Public Welfare (DPW). *776 We affirm. Tucker raises the following restated and consolidated issues for our review: 1. whether there was clear and convincing evidence to support termination of Sherri's parental rights; 2. whether the trial court's judgment violated Indiana statutes and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution; and 3. whether termination of parental rights was in Christopher's best interest. Sherri is the mother of two children, Christopher, born September 7, 1983, and Allen, a younger son. On August 22, 1989, the DPW filed a petition to terminate Sherri's parental rights in Christopher. The trial court granted the petition on October 8, 1990. In granting the petition, the trial court made specific findings of fact and conclusions of law. The pertinent factual findings are: 1. The child has been removed from his parent for a continuous period of at least six months under a dispositional decree of the Shelby Superior Court No. 1, dated January 11, 1989, Cause Number 73D01-8812-JC-26. 2. There is a reasonable probability that the conditions resulting in the removal of the child from the parent's home will not be remedied in that: a. Mother cannot control the child's behavior. b. Counseling services for mother are not helpful to change her behavior. c. The mother is now separated and divorced from her husband thus reducing her financial and mental stability. d. The mother is suffering from Mixed Personality Disorder and Borderline Personality Disorder which is chronic with a poor prognosis if in treatment. Medication is not appropriate. e. This limits her ability to parent a child successfully. f. The child was removed at the mother's request with the child displaying signs of self-abuse due to emotional upset. g. The child improved in counseling and his developmental delays were improving. h. Mother blamed the emotional upset in her life and marriage breakup on Christopher. i. Child expressed no sense of loss over removal from mother indicating the lack of bonding between mother and child. j. Counseling cannot resolve this mother-child relationship with the physical and emotional detachment being a long-standing problem. k. The mother has a long history of counseling, medication and other contacts with mental health professionals. Her condition has worsened over time with little real improvement. l. The mother exaggerates the child's misbehavior which was not observed in foster care. m. The mother's visits with the child tended to focus on the mother's problems and not the child's concerns. 3. Termination is in the best interest of the child in that the mother's condition will not likely improve and she will continue to be unable to parent the child. 4. The county department of welfare has a satisfactory plan for the care and treatment of the child which is foster care and adoption. (R. 87-88).[1] Sherri first contends the termination of her parental rights was not supported by clear and convincing evidence. She contends the evidence does not support the court's findings. She strongly contends the findings, even if accepted as true, do not support the judgment as a matter of law. In order to effect the termination of the parent-child relationship, the DPW must present clear and convincing evidence to support the elements of IND. CODE 31-6-5-4. See, Matter of D.B. (1990), Ind. *777 App., 561 N.E.2d 844, 847. IC 31-6-5-4 requires proof that: (1) the child has been removed from the parent for at least six months under a dispositional decree; (2) there is a reasonable probability that the conditions that resulted in the child's removal will not be remedied; (3) termination is in the best interests of the child; and (4) there is a satisfactory plan for the care and treatment of the child.[2] On appeal of a termination of parental rights, this Court will not reweigh the evidence, nor judge the credibility of the witnesses. Rather, we will consider only the evidence most favorable to the judgment and the reasonable inferences drawn therefrom. Griffin v. Bartholomew County Dept. of Public Welfare (1989), Ind. App., 542 N.E.2d 1385, 1388. Further, where the trial court enters findings of fact and conclusions of law, we apply a two-tier standard of review ... first, we will determine whether the evidence supports the findings; second, we will determine whether the findings support the judgment. The trial court's findings and conclusions will be set aside only if they are clearly erroneous, that is, that the record contains no fact or inferences supporting them. Keystone Square v. Marsh Supermarkets, Inc. (1984), Ind. App., 459 N.E.2d 420, 422. Id. The evidence presented at the termination hearing established that because of her tragic childhood, which included repeated beatings by her mother and sexual molestations by her father, Sherri developed severe mental disorders. Therapist Alfred Barrow of Campion and Associates, who conducted approximately fifty-five counseling sessions with Sherri, testified she has schizophrenic symptoms with strong paranoia, and she is unable to develop a close relationship with Christopher and unable to develop parental bonds. At times during the counseling period, Sherri showed signs of improvement, only to regress back to a crying, uncontrollable state in which she would become dirty and disheveled. When Christopher would be removed from her home, she would restabilize. Barrow also testified that it was just a matter of time before Christopher would begin to model Sherri's behavior by developing further emotional difficulties, depression, and neurotic characteristics. Michael Parker, an employee of Gallahue Mental Health Center, testified that Sherri suffered from a Mixed Personality Disorder. He opined it was possible, but not probable, that Sherri would in the future be able to parent Christopher. Susan Watson, a therapist who administered tests to Sherri, also testified Sherri's prognosis for mental health was very poor given the long-standing nature of the problem despite extensive counseling. Watson stated the only hope of recovery for Sherri would be years of inpatient treatment called "characterological transformation", a treatment plan with a very poor success rate. David Esary, a pediatrician who examined Christopher and his medical records, testified the records indicated Sherri could have Munchausen's Syndrome by Proxy, a condition in which a mother operates under the delusion that seeking medical attention for a child is a positive indication of her parental abilities. This condition can be harmful to a child because it results in the parent giving the child too much medication. Three times Sherri requested the DPW to place Christopher in foster care because she was unable to control his behavior. The first placement occurred from July, 1985, to February, 1986. Placement stemmed from an episode where a kitchen stove fell upon Christopher and injured him. After emergency technicians informed the DPW of the injury, a DPW county homemaker visited the home to investigate. She found Christopher, who *778 was not yet two, running rampant through the house. Sherri claimed that Christopher was trying to kill her and the rest of the family, and she could not control him. Sherri also requested county wardship. After both Christopher and Allen were placed in foster care, the DPW set up counseling services, developed visitation schedules, and provided transportation for visits. When the two children were returned to Sherri's care in February of 1986, DPW monitored Sherri's progress. Home visits revealed the kids were frequently medicated and in bed sleeping at odd times of the day. Even though DPW employees could detect no signs of illnesses, Sherri insisted on giving the children medicines such as Dimetapp and Co-Tylenol. In March of 1986, about five weeks after the children were returned to her custody, a DPW employee visited the home and found Sherri shaking and crying and proclaiming that Christopher was uncontrollable. Sherri also claimed that Christopher had begun setting fires. She asked DPW to take custody of Christopher. During the time Christopher was in foster care, Sherri was allowed visitation with him in her home. During a number of the visits, Sherri gave medication to Christopher even though there were no indication of illness. Upon his return from visits with his mother, Christopher would exhibit self-abuse, such as biting himself and picking the skin off his nose until it became bloody. Christopher was returned to Sherri's custody in March of 1987. In July of 1988, Christopher was accidentally given an overdose of Dilantin by Sherri.[3] The overdose required a visit to the hospital. In November of 1988, Sherri took Christopher into the DPW's offices and insisted they again take wardship of Christopher. She again claimed he was uncontrollable. As she spoke, Christopher began biting himself, beating his head against the floor, and beating his face with his knees. Sherri insisted this behavior was a regular occurrence. The DPW referred both Sherri and Christopher to counseling. Sherri told the therapist that Christopher set fires, was prone to tantrums and self-abuse, and that he was a "monster" who should be hospitalized. (R. 378-380). In a session with only the therapist and Christopher present, Christopher acted out aggressions by beating a "mother" doll and pretending to call the police on the mother. On December 21, 1988, Christopher was once again placed in foster care. Again, Christopher and Sherri received counseling, Sherri attended parenting classes, and transportation services were provided.[4] Christopher's anger and wildness subsided, with reoccurrences after visits with his mother. He did not exhibit any self-abuse after being established in foster care. The court's factual findings are clearly supported by the evidence presented at the termination hearing. The question of whether the findings support the judgment remains. The time-honored right of parents to establish a home and raise their children is protected by the Fourteenth Amendment to the United States Constitution. Pierce v. Society of Sisters (1925), 268 U.S. 510, 534-535, 45 S.Ct. 571, 573, 69 L.Ed. 1070; Meyer v. State of Nebraska (1923), 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042. Children should not be removed from the custody of their parents just because there is a better place for them, but because the situation while in the custody of their parents is wholly inadequate for their very survival. Matter of Miedl (1981), Ind., 425 N.E.2d 137, 141; J.K.C. v. Fountain County Dept. of Public Welfare (1984), Ind. App., 470 N.E.2d 88, 93. This is a graduated yardstick according to which the particulars of a case must be measured. In so doing, the trial court must subordinate the interests of the parent to those *779 of the children involved. J.K.C., supra.[5] Two recent Indiana cases have discussed the impact of mental limitations upon termination proceedings. In Dull v. Delaware County Dept. of Public Welfare (1988), Ind. App., 521 N.E.2d 972, reh. denied, a divided panel of this court affirmed the termination of parental rights of two mildly retarded parents who showed an inability to improve parenting skills. The parents' limitations resulted in severe behavioral and developmental difficulties in their two children. The court held the mental deficiencies of parents alone do not justify termination if there is no evidence of harm or possible future harm to the child(ren). However, the court further held that mental limitations may be considered as a factor if there are other reasons which would support the termination decision. Id., at 976. The court also quoted from In re J.L.B. (1979), 182 Mont. 100, 594 P.2d 1127, 1136, to emphasize that in some cases the parents' inability to provide adequate emotional support is sufficient to warrant termination because the parents are "incompetent to handle the problems presented to parents by children in their advancing years." Id. In a dissent to Dull, Judge Sullivan contended termination was actually a prohibited value judgment that there was a "better" place for the children than their parents' home. He warned against encouragement of government interference in parental rights based solely on what social agencies and judicial systems deemed acceptable. 521 N.E.2d, at 977. More recently, in Egly v. Blackford County Dept. of Public Welfare (1991), Ind. App., 575 N.E.2d 312, a divided panel of this court reversed the trial court's termination of parental rights of two mentally impaired parents on the basis the evidence of harm to their children was not clear and convincing. The majority noted the evidence established only that the children would be better off somewhere else, not that the children's survival was threatened. The majority also noted the Eglys, even though mentally impaired, had shown they were capable of resolving problems with the assistance of DPW workers, family, and friends. The majority distinguished Dull on the basis the future survival of the children was threatened in Dull. Judge Baker dissented on the basis the majority was impermissibly reweighing the evidence. Judge Baker listed evidence which supported the judgment and noted there was no reason to wait until the children were further socially, emotionally, and intellectually disturbed before terminating parental rights. This case is similar to Dull and Egly in that the Sherri's mental and emotional condition has resulted in emotional and developmental damage to her child. The case differs from Egly, however, in that the chance of Sherri ever resolving the problems which led to the damage to her child is virtually nonexistent. This is not a case where the trial court terminated parental rights merely because it determined, as a representative of government, that Christopher would be simply "better off" in a more "acceptable" home. The trial court's determination was not based upon a "bias that treats the natural parents' poverty and lifestyle as prejudicial to the best interests of the child." Smith v. Organization of Foster Families for Equality & Reform (1977), 431 U.S. 816, 97 S.Ct. 2094, 2105, 53 L.Ed.2d 14 (citing, Rein, Nutt & Weiss, Foster Family Care: Myth and Reality, in Children and Decent People 24, 25-29 (A Schorr ed. 1974)). Our examination of the record shows the trial court heard days of testimony by health care providers who testified that over a period of years Sherri could not give emotional support to Christopher, that she was unable to form any kind of bond with him, that he was prone to self-abuse while in her care, and that all attempts to improve the situation had failed. Furthermore, the trial court heard testimony that the situation would never change. This evidence supports the agonizingly *780 difficult decision by the trial court to terminate Sherri's parental rights. Sherri contends termination of her parental rights by reason of her status is not authorized by IC 31-6-5-1 et seq. She further contends termination based upon status is only allowed under IC 31-3-1-6(g)(5). Sherri's contentions are based on the assumption her parental rights were terminated solely because of her mental illness. As discussed above, her mental illness was not the sole reason for termination. Therefore, we find termination under IC 31-6-5-1 et seq. was proper. Sherri also contends termination was in violation of the equal protection clause of the United States Constitution. She contends the statute warrants termination based exclusively upon her classification as a mentally ill individual. Indiana's termination statute, as interpreted by case law, does not allow termination simply on the basis of mental illness. It does not classify all mentally ill parents as unfit solely upon their status. Under the statute, as interpreted, mental illness is merely one factor to be considered by the court in its determination. See, Dull, at 976.[6] Finally, Sherri contends the trial court erred in finding termination was in Christopher's best interest. She further contends the DPW's stated intent to place him for adoption is too vague. Evidence presented at the termination hearing showed Christopher's emotional state improved dramatically when he was in foster care, and his abusive behavior disappeared. Evidence also established that foster care was the norm for him because of Sherri's inability to raise him. Termination provides him with a chance for permanent placement. This evidence is sufficient to support the court's finding that the DPW's plan is acceptable. Furthermore, the DPW is not required to designate the specific home to which Christopher will be placed. See, Miedl, supra, at 141; J.K.C., supra, at 93. Affirmed. CHEZEM and BUCHANAN, JJ., concur. NOTES [1] We read Finding 2(c) as an indicator of the level of instability in Sherri's home. The trial court was not saying termination was proper because Sherri was divorced and poor. [2] These are the requirements of the statute at the time of termination. The statute has since been amended. [3] Dilantin was prescribed for Christopher's seizures. [4] Sherri complains that the parenting classes were ineffective because they were specifically geared to the parents of teenagers. [5] The best interests of the child determination is made after a determination of unfitness is made. The best interests determination is not an independent determination that the child is better off somewhere else. [6] See also, Annotation, Validity Of State Statute Providing For Termination Of Parental Rights, 22 A.L.R.4th 774 (1983).

NOTE: This order is nonprecedential United States Court of AppeaIs for the Federal Circuit ASTRAZENECA PHARMACEUTICALS LP, ASTRAZENECA AB, IPR PHARMACEUTICALS INC., AND THE BRIGHAM AND WOMEN’S HOSPITAL, INC., Plaintiffs~Appello:nts, 4 v. APOTEX CORP., Defendan,t-Appellee, and AUROBINDO PHARMA LIMITED, Defendant-Appellee, and COBALT PHARMACEUTICA.LS INC. AND COBALT LABORATORIES INC., Defen,dan,ts-Appellees, § and GLENM.ARK GENERICS INC. USA, Defenclan,t-Appellee, and MYLAN PHARMACEUTICALS INC., Defen.dant-Appellee, and PAR PHARMACEUTICALS, INC., ASTRAZENECA PI-lARMA V. APOTEX CORP 2 Defendcmt-Appellee, and SUN PHARMACEUTICAL INDUSTRIES, LTD., Defendcmt-Appellee, and TEVA PHARMACEUTICALS USA, INC., Defen,dan,t-Appellee, and 4 TORRENT PHARMA INC. AND TORRENT PHARMACEUTICALS LTD., Defendcmts. 2011-1182, -1183, -1}.84, -1185, -1186, -1187, -1188, -1189, -1190 Appeals from the United States District Court for the District of De1aWare in case nos. 10-CV-0338, 10-CV-0339, 10-CV-034O, 10-CV-0341, 10-CV-0342, 10-CV-O343, 10- CV-O345, 10-CV-0346, and 10-CV-0584, Judge Robert B. Kug1er. ON MOTION ORDER Upon consideration of the motion to withdraw Dutch Chung as principal counsel for Par Phar1naceutica1s, Inc., IT IS ()RDERED THAT: (1) The motion is granted 3 ASTR.AZENECA PHA.RMA V. A.POTEX CORP (2) New principal counsel for Par Pharmaceutica1s, Inc. must promptly enter a new entry of appearance FoR THE CoURT HAY 1 0 2011 /S/ Jan H0rba1y Date J an Horbaly CC. S Mary W. Bourke, Esq. Francis J. Murphy, Jr., Esq. R0bert B. Breisb1att, ESq. Shane A. Brunner, Esq. Steven A. Maddox, Esq. H. Keeto Sabharwa1, Esq. Wi1liam A. Rakoczy, Esq. Dutch Chung, Esq. Nic0le W. Stafford, Esq. Ja1nes F. Hurst, Esq. Jeff`ry M. Nicho1s, Esq. Clerk F u.s. count i)'FEi=)PEALs FOR THE FEoERAL c1RcuzT l“|AY 10 2011 gin mem citrus

786 F.2d 1166 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.DONALD SMITH, Petitioner-Appellantv.CALVIN EDWARDS; U.S. PAROLE COMMISSION, Respondent-Appellee. 85-1793 United States Court of Appeals, Sixth Circuit. 2/18/86 1 E.D.Mich. AFFIRMED ORDER 2 BEFORE: KEITH and MARTIN, Circuit Judges and WEBER, District Judge.* 3 This case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the documents filed in the record and the appellant's brief, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure. Included in appellant's notice of appeal was a request for appointment of counsel. 4 The district court denied appellant's petition for writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 2241 and denied his motion for reconsideration filed pursuant to Rule 60(b), Federal Rules of Civil Procedure. In the district court, appellant alleged that: 1) he was unable to challenge adverse information in his files at his parole revocation hearing; 2) he did not knowingly or intelligently waive counsel at the revocation hearing; and 3) he is entitled to credit for the time spent on parole. 5 Upon review of the matter, it does not appear that the district court abused its discretion. The first two issues presented to the district court are conclusory and without merit. The third issue of entitlement to credit for time spent while on parole under 18 U.S.C. Sec. 4210(b)(2) is also without merit. In light of appellant's intervening criminal convictions, the denial of credit did not violate any provisions of the Constitution. United States v. Newton, 698 F.2d 770 (5th Cir. 1983); Harris v. Day, 649 F.2d 755 (10th Cir. 1981); United States ex rel. Del Genio v. U.S. Bureau of Prisons, 644 F.2d 585 (7th Cir. 1980), cert. denied, 449 U.S. 1084 (1981). Cf. Canavari v. Richardson, 419 F.2d 1287 (9th Cir. 1969). 6 It is ORDERED that the motion for appointment of counsel be denied and the judgment of the district court affirmed. Rule 9(d)(3), Rules of the Sixth Circuit. * The Honorable Herman J. Weber, U.S. District Judge for the Southern District of Ohio, sitting by designation

RECORD IMPOUNDED 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-2969-17T3 NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. L.D., Defendant-Appellant, and D.D. and L.M., Defendants. ___________________________ IN THE MATTER OF THE GUARDIANSHIP OF DY.D. and DA.D., Minors. ____________________________ Submitted January 31, 2019 – Decided February 22, 2019 Before Judges Simonelli and O'Connor.  On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0229-17. Joseph E. Krakora, Public Defender, attorney for appellant (Albert M. Afonso, Designated Counsel, on the briefs). Gurbir S. Grewal, Attorney General, attorney for respondent (Jason W. Rockwell, Assistant Attorney General, of counsel; Jaclyn D. Parks, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Meredith A. Pollock, Deputy Public Defender, of counsel; Joseph H. Ruiz, Designated Counsel, on the brief). PER CURIAM Defendant L.D. (mother) is the biological mother of Dy.D. (David), presently age eighteen, and Da.D (Dina), presently age thirteen. 1 The mother appeals from the February 14, 2018 judgment of guardianship terminating her parental rights to David and Dina. 2 On appeal, she asserts two issues for our consideration. 1 We use initials or pseudonyms to protect the mother's and the children's privacy. 2 David's biological father died in 2003. On August 23, 2017, Dina's biological father executed a general surrender of his parental rights to her. A-2969-17T3 2  First, the mother contends that, because the children had relatives willing to provide a home for them, the Division of Child Protection and Permanency (Division) wrongfully filed and pursued an action to terminate her parental rights, warranting a reversal of the judgment of guardianship. We decline to consider this contention because the mother did not raise this issue before the trial court. "Generally, an appellate court will not consider issues, even constitutional ones, which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012). Even if this issue had been raised, the trial judge did not address this question in his opinion and, thus, we decline to do so in the first instance. See Duddy v. Gov't Emps. Ins. Co., 421 N.J. Super. 214, 221 (App. Div. 2011). Second, the mother contends the Division failed to prove by clear and convincing evidence the third prong of the four-prong standard codified by the Legislature in N.J.S.A. 30:4C-15.1(a).3 After reviewing the record and 3 These four prongs are: (1) The child's safety, health, or development has been or will continue to be endangered by the parental relationship; (2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the A-2969-17T3 3 applicable legal principles, we reject this argument and affirm the judgment as it pertains to Dina, for substantially the same reasons expressed by Judge James R. Paganelli in his comprehensive written decision dated February 14, 2018. As David reached the age of eighteen while the mother's appeal was pending and is no longer a minor, the mother's challenges to those provisions of the judgment pertaining to David are moot. We will not recite in detail the history of the Division's involvement with the family or the evidence the Division presented at trial in support of terminating the mother's parental rights. Instead, we incorporate by reference Judge Paganelli's factual findings, because they are well supported by competent evidence presented at trial. See N.J. Div. of Youth & Family Servs. delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child; (3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and (4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a).] A-2969-17T3 4 v. F.M., 211 N.J. 420, 448-49 (2012). However, we highlight some of the key evidence. In 2005, the Division became involved with this family because the mother abused substances. In June 2007, the children's maternal grandmother (grandmother) was granted kinship legal guardianship of the children. Although the mother was permitted visitation with the children, she chose not to see them for the next three years. In 2010, the mother resumed visitation until 2013, when visitation ceased. The children did not see their mother again until 2016, when the grandmother died. Just weeks before the grandmother's death in April 2016, David and Dina moved into their maternal uncle's home, although Dina moved into her maternal aunt's home shortly thereafter. Upon learning of the grandmother's failing health, Division staff investigated the children's welfare and interviewed the mother. On April 18, 2016, the court vacated the kinship legal guardianship order and granted the aunt temporary legal custody of Dina and the uncle temporary custody of David. Dina told Division staff she wanted to live with her aunt and her aunt 's husband and did not want to see or even speak to her mother. The mother, who claimed she was no longer abusing substances, advised the Division she A-2969-17T3 5 wanted to be reunified with the children and was willing to abide by any recommendations made by the court and the Division in order to achieve that goal. The Division filed a complaint and order to show cause for the care and supervision of the children, as well as for their legal custody, which the court granted. The Division sought such relief so that it could oversee the children 's care while providing the mother with services to enable her to be reunited with the children. The mother did submit to a substance abuse evaluation and the evaluator determined she did not require any treatment. She also submitted to a psychological evaluation. The psychologist recommended the mother complete various services, and stressed the mother had to demonstrate a commitment to her children. The psychologist observed an important part of demonstrating that commitment was to follow through with the psychologist 's recommendations, which included, among other things, individual therapy, parenting classes, and domestic violence counseling. However, despite her expressed desire to be reunited with her children, the mother declined to engage in any of these services. The mother also failed to submit to a bonding evaluation. Dina, her aunt, and her aunt's husband did participate in a bonding evaluation, during A-2969-17T3 6 which Dina stated her mother "has not been there for me my whole life" and that she wanted to stay with her aunt and her aunt's husband. The aunt advised she and her husband want to adopt Dina. Mark Singer, Ed.D., testified Dina has a close relationship with her aunt and her husband and views them as her psychological parents. Singer opined that, if removed from their care, Dina would experience significant and enduring harm. The mother did not introduce any evidence at trial. Judge Paganelli thoroughly reviewed the evidence presented at the trial and made factual findings as to each prong of N.J.S.A. 30:4C-15.1(a); however, the mother challenges only the judge's findings on the third prong of the statute. Our review of the record reveals the Division proved by clear and convincing evidence it made reasonable efforts to provide those services necessary to help the mother reunify with Dina, and also considered alternatives to the termination of parental rights. Through no fault of the Division, the mother declined to avail herself of services designed to facilitate reunification. The mother's arguments to the contrary are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). The State has a strong public policy that favors placing children in a permanent, safe, and stable home. See In re Guardianship of K.H.O., 161 N.J. A-2969-17T3 7 337, 357-58 (1999). At the time of trial, the mother could not provide Dina permanency. Meanwhile, Dina has bonded with her resource parents, who wish to adopt her. If removed from their care, Dina will suffer significant and enduring harm. Accordingly, we affirm substantially for the reasons Judge Paganelli expressed in his cogent written opinion. Affirmed. A-2969-17T3 8 

187 F.2d 753 SHINSAKU NAGANO,v.McGRATH, Atty. Gen. No. 10005. United States Court of Appeals, Seventh Circuit.Feb. 26, 1951.Rehearing Denied April 4, 1951. C. Lysle Smith, Edward R. Johnston, Chicago, Ill., for appellant. Harold I. Baynton, Department of Justice, Office of Alien Property, Washington, D.C., Otto Kerner, Jr., U.S. Atty., Chicago, Ill., James L. Morrisson, Geo. B. Seals, Attys., Department of Justice, Washington, D.C., for appellee. Before DUFFY, FINNEGAN and LINDLEY, Circuit Judges. LINDLEY, Circuit Judge. 1 Plaintiff, a Japanese alien resident of the United States since 1906, appeals from a judgment dismissing his action brought under Section 9(a) of the Trading with the Enemy Act, 50 U.S.C.A.Appendix, Sec. 9(a), for the return of 8780 shares of the common stock of The Fuji Trading Company, an Illinois corporation. The stock had been seized by the Alien Property Custodian on February 2, 1943, pursuant to authority conferred on him by the aforementioned Act and Executive Order No. 9095, 50 U.S.C.A.Appendix, § 6 note, 7 F.R. 1971, on the basis of his finding that the shares were the property of plaintiff's wife, Kaku Hagano, whom he found to be a national of a designated enemy country, i.e., Japan. The complaint was drawn on the theory that plaintiff was entitled, as owner, to recover 3105 of the 8780 shares seized, and, as bailee for his wife, to have returned to his possession the remaining 5675 shares. This appeal, however, involves only plaintiff's right to the shares which he claims as his own property, for his right to the possession of the balance of the stock as bailee for his wife is totally dependent on her rights as owner, and those rights have been made the subject of a separate appeal from the dismissal of her independent action for the return of the stock owned by her, decision upon which accompanies this opinion. 2 Plaintiff was admitted to the United States as a permanent resident in 1906 and has resided continuously since that date in Chicago, where he has engaged in the manufacture and sale of oriental food products. Though in 1912, he caused to be incorporated The Fuji Trading Company, he continued to conduct his business as an individual proprietorship until 1920, at which time it was transferred to the corporation, which has become one of the leading companies in its field. In 1914, the plaintiff visited Japan and was there married. Mrs. Nagano did not immediately return with him to the United States but remained in Japan until after the birth of their daughter, Masako, and then, in 1915, came to the United States, entering as a permanent resident and joining her husband in Chicago, where their son, Shigeo, was born in 1916. A second daughter, Takako, was born in Japan while the Naganos were there on a visit in 1919. 3 With the passage of the Immigration Act of 1924, 43 Stat. 153, 8 U.S.C.A. § 145 et seq., which made it impossible for plaintiff's daughters, born in Japan and never previously admitted to the United States as permanent residents, to join their parents in this country, it was decided that plaintiff's wife should go to and remain in Japan to care for the daughters, their grandmother, with whom they were then lodged, having become ill, until such time as their marriages could be arranged, and, at the same time, to supervise the schooling of their son, plaintiff being of the opinion that a Japanese education was essential in preparing the son for management of the business which would eventually be his. Plaintiff, meanwhile, remained in Chicago, although he made annual visits to Japan to see his family and to arrange for the importation of supplies and materials to meet the needs of his company during the succeeding year. 4 In the years subsequent to plaintiff's transfer of the business to The Fuji Trading Company, the corporation's issued stock was from time to time increased until, at the beginning of 1932, there were 10,000 shares outstanding, 6210 owned by plaintiff, 3780 by his wife, and 10 by Mrs. Nagano's brother, Miya, the company's production manager. On January 3, 1932, the corporation declared a 50% stock dividend, directing that 5000 shares be distributed to the stockholders of record in proportion to their respective holdings. This would have entitled plaintiff to a distribution of 3105 additional shares, his wife to 1890 shares and Miya to 5 shares, thus increasing their holdings to 9315, 5670 and 15 shares respectively. The stock was not, however, issued in accordance with the terms of the resolution,but plaintiff, who dominated the corporation to such an extent that the trial court found that 'The corporation was for all practical purposes the alter ego of the plaintiff,' caused a single certificate for 5000 shares to be issued in the name of his wife, who was then in Japan, thus making her the record owner of 8780 shares. The certificate was never actually delivered to the wife, but was kept by plaintiff, at first in his office safe and later in his safe deposit box. Mrs. Nagano was never informed of the issuance of the certificate and testified that she never knew of its existence. In 1936, the corporation declared a cash dividend of 20 cents per share and, in conjunction with the dividend, the company's journal reflects the payment to Mrs. Nagano of $1756 (20 cents per share on 8780 shares). Her income tax return for 1936 reported the receipt of that amount, but plaintiff testified that the dividend was actually paid in one $3000 check which he deposited in his personal bank account. 5 At the time of the outbreak of the war with Japan, Mrs. Nagano having not yet returned to this country, the Alien Property Custodian vested the 8780 shares of stock of which she was the record owner, these shares representing the majority of the company's outstanding stock. The vesting order was issued subsequent to plaintiff's filing of an application for a license for the transfer to him of the 5000 shares represented by the certificate issued in his wife's name in 1932. 6 At the trial, plaintiff testified that, in 1932, he had no intention of making an immediate gift to his wife of the shares represented by the stock certificate issued in her name and argued that the fact that the certificate had never been delivered to his wife was further evidence that there had been no completed gift to her, but the court, relying on the rule announced in Chicago Title & Trust Co. v. Ward. 1928, 332, Ill. 126, 163 N.E. 319, held that the issuance of the certificate in the wife's name constituted effective delivery and, rejecting plaintiff's testimony on the question of donative intent, concluded that plaintiff had made an effective gift of the 3105 shares he now claims as his own. The court further indicated that, because there were discrepancies in certain statements made by plaintiff in his affidavit submitted in connection with his application to the Treasury Department for transfer of the shares issued in his wife's name and the position he has taken in this litigation, it was of the opinion that he should be denied relief. Finally, the court concluded that plaintiff had no right to the possession of the shares admittedly owned by his wife,- a conclusion which, in view of the wife's assertion of her own claim and plaintiff's abandonment, on oral argument, of his claim asserted as bailee for her, we need now review on this appeal. 7 While it is true that the Illinois court, in Chicago Title & Trust Co. v. Ward, 332 Ill. 126, 134, 163 N.E. 319, 322, stated that 'So far as the question has been considered, this court is committed to the doctrine that a transfer of shares on the books of the corporation passes the legal title to the person named in the stock certificate,' it should be noted that the Ward case, although decided more than ten years after the adoption in Illinois of the Uniform Stock Transfer Act, Smith-Hurd Ann. St. Ch. 32, Sec. 416 et seq. (1917), involved a transfer which had taken place in 1895, long prior to the passage of the Act, and that the decision, which contains not a single reference to the statute, does not purport to be one under the Act. And while there is, apparently, no authoritative decision considering the statute's effect on the doctrine of the Ward case1 the plain language of the statute itself makes it obvious, we think, that the rule announced in that case is no longer the law of Illinois. Section 1 of the Act provides that title to a certificate of stock and to the shares represented thereby can be transferred only by delivery of the certificate properly endorsed or by delivery of the certificate and a separate written assignment or power of attorney, and these provisions are declared to be applicable even though the corporation's articles or by-laws expressly provide that the shares are transferable only on the books of the corporation. Section 10 provides that an attempted transfer of title to a certificate or to the shares represented thereby, without delivery of the certificate, shall have the effect only of a promise to transfer, the enforceability of which is to be determined by the law of contracts. These provisions of the Act are utterly irreconcilable with the statement, in the Ward case, that 'a transfer of shares on the books of the corporation passes the legal title to the person named in the stock certificate'; to hold otherwise,- to say that a transfer on the books of the corporation constitutes a delivery within the contemplation of the Act,- would be to render meaningless the statutory requirement that there be a delivery even in the case where the corporation has expressly provided that its shares are transferable on its books and by no other method. 8 The court below, however, though apparently recognizing that the statute requires delivery as well as, and in addition to, endorsement, assignment or transfer on the books of the corporation, was of the opinion that the statute was not applicable to the transaction with which we are concerned. After stating that the statute 'designates the methods by which a person whose name appears on a stock certificate as owner may transfer title to the certificate and to the shares of stock represented thereby,' it continued: 'But the case at bar is not concerned with whether the plaintiff has transferred title to a stock certificate and the shares bearing his name. The question involved in this case is the legal effect of the issuance by the corporation, at the direction of the plaintiff, of a stock certificate in the name of his wife, which certificate represents in part shares originally owned by the plaintiff. In other words, we are not concerned here with the first step in the transfer of stock ownership, namely, the indorsement or assignment of the certificate to be the owner of the shares. It is this step to which Section 1 of the Uniform Stock Transfer Act applies, and requires delivery as well as indorsement or assignment. This case, however, involves the last step in the transfer of stock ownership, namely, the execution by the corporation of a new stock certificate in the name of the transferee.' 85 F.Supp. 368,370.) 9 The court's conclusion that the statutory requirement of delivery is not applicable because this case is one involving the issuance of a stock certificate by a corporation rather than the transfer of such a certificate from one individual to another overlooks, we think, the dual nature of the crucial transaction in the case at bar. The 5000 shares represented by the single certificate issued in Mrs. Nagano's, name exist by virtue of the dividend declaration of January 3, 1932, by the terms of which plaintiff was entitled to 3105 and Mrs. Nagano to 1890 shares. With respect to the 1890 shares to which Mrs. Nagano was thus entitled, the court's conclusion that the statutory requirement of delivery is inapplicable is clearly correct, for her title to those shares arose out of her ownership of the stock which produced them. However, as to the 3105 shares to which the plaintiff was entitled by virtue of his stock ownership and the express provisions of the stock dividend, Mrs. Nagano had no right, title or interest, absent a transfer to her from the plaintiff of his title thereto. Consequently, it becomes clear that, insofar as those 3105 shares are concerned, this case is one involving a transfer of title to shares, to which the provisions of the Stock Transfer Act are applicable. It follows that, irrespective of the trial court's finding that plaintiff intended to make a gift of those shares to his wife, the 'attempted transfer of title,' i.e., the registration of the stock and the issuance of the certificate in Mrs. Nagano's name, 'to the shares represented thereby without delivery of the certificate' had the effect only of a 'promise to transfer,' a promise which is enforceable, if at all, by Mrs. Nagano, not by the Alien Property Custodian, and, thus, that there has been no completed gift of the shares to which the plaintiff was entitled by the terms of the dividend declaration of January 3, 1932. 10 Having determined that there was under the Illinois statute, no completed gift by plaintiff to his wife of the 3105 shares here in issue, we turn to the lower court's conclusion that 'apart from the gift issue, the plaintiff should be denied relief in equity' and 'left in the position where his own actions have placed him.' In reaching this conclusion, the court stated that 'the fact that plaintiff took income tax advantage in 1936 of the fact that a gift had apparently been made should estop him from now denying the legal effect of what he appeared to have done in 1932 * * * .' The court continued: 'In connection with estoppel, it should be noted that this action under Section 9(a) of the Trading with the Enemy Act is designated as a suit of equity. Equity traditionally demands that a suitor show clean hands and good faith as a condition to relief. In addition to the fact that the plaintiff was willing to take income tax advantage of the situation, there is a striking discrepancy between the position which he has taken in this case * * * and the position which he took in the affidavit filed with the Treasury Department in 1942,' an affidavit which, the court stated, 'was made to induce the Treasury Department to allow the plaintiff to receive the entire 5,000 shares * * * and not merely the portion of such shares representing plaintiff's part of the 1932 stock dividend * * * .' 11 Before proceeding to determine whether the court below correctly concluded that the plaintiff should be denied relief because of an estoppel or on the basis of the clean hands doctrine, it might well be observed that the position of defendant herein is not one appealing strongly to the conscience of a Chancellor. Defendant enjoys no such status as would plaintiff's wife, in a suit to procure the delivery to her of the stock certificate representing the 5000 shares, or as would a creditor of the wife who, having extended credit to her in reliance on the registration of the stock in her name on the books of the corporation, was seeking to reach the stock to satisfy his claim against her. His right to the stock is wholly dependent on whether that stock is, in the language of Section 6 of the Trading with the Enemy Act, 'property * * * due or belonging to an enemy, or ally of enemy,' for the statute provides for the forfeiture of only such property as falls within that category. Obviously a court of equity should be most reluctant in view of equity's often expressed abhorrence of forfeitures, to raise an estoppel which would work a forfeiture of the property of one who is neither an enemy nor an ally of an enemy, within the meaning of the Act. 12 This court has recognized that, as a general rule, the doctrine of equitable estoppel 'is applicable only where the party sought to be estopped is guilty of such conduct as amounts to fraud or misrepresentation upon which the other party has relied to his detriment.' Universal Gas Co. v. Central Illinois Service Co., 7 Cir., 102 F.2d 164, 169. Here, conceding arguendo that plaintiff's 1936 income tax return misrepresented ownership of the stock in controversy, we find no sound basis for estoppel, for defendant, if he did, in fact, rely upon any of these misrepresentations, has suffered no legal detriment as a result thereof; nor will he suffer any such detriment if the stock is returned to the plaintiff, for he has no right to the stock, apart from the statutory authorization 'to receive all money and property * * * due or belonging to an enemy, or ally of enemy,' and it has never been contended that plaintiff is either an enemy or an ally thereof. Furthermore, whereas the alleged inconsistency between plaintiff's statement in the Treasury Department proceeding (in which he asked for the transfer to him of the entire 5000 shares represented by the certificate issued in his wife's name) that he had exchanged 5000 shares of stock for the certificate which bore Mrs. Nagano's name and the position he has taken in this suit might well be the basis for an estoppel against him if he had successfully maintained the claim made in the prior proceeding, it has been held that it will not have that effect where, as here, the prior claim was rejected. Asher v. Martin, 100 Cal.App. 217, 279 P. 810, 812. 13 The unclean hands doctrine differs from that of equitable estoppel in that it is concerned not so much with the effect of the party's past acts or conduct as with the intent with which the acts were performed. McAllister v. McAllister Coal Co., 120 N.J.Eq. 394, 184 A. 716, 717. The doctrine, which applies only to willful as distinguished from negligent misconduct, is not, however, applicable to every inconsistent act of a party but to conduct which is 'unconscionable' or 'morally reprehensible.' An expression of public policy, the clean hands maxim is not an inexorable rule, but will be relaxed where public policy would be better served by so doing; and it will not be applied in such a manner as to work injustice or wrong. 30 C.J.S., Equity, Sec. 95, p. 482, Sec. 98, pp. 488-490. In the case at bar, whether the alleged misrepresentations were willful or, as plaintiff insists, merely inadvertent,2 they cannot, we conclude, in the light of all the pertinent facts, be termed 'unconscionable' or 'morally reprehensible.' Moreover, to apply the doctrine in this case would be to work a forfeiture of plaintiff's property, something which equity is always reluctant to do, and to deprive him of control of the business which he founded and to which, as an American resident he has devoted his life; it would, in short, result in an injustice out of all proportion to the $75 tax advantage which he is said to have secured in 1936. 14 The judgment is reversed and the cause remanded with directions to enter judgment for plaintiff for the recovery of the 3105 shares in controversy. On Petition for prehearing 15 Defendant, in his petition for rehearing, contends that it was error upon our part to direct entry of a judgment for plaintiff for recovery of 3105 shares of stock of the Fuji Trading Company, for the reason, as he says, that, at the trial, he introduced evidence that the plaintiff's wife was legally entitled to the shares, on the basis of consideration paid by her. Inasmuch as the District Court made no finding on this issue, defendant insists that it remains open and should be disposed of. 16 We have examined the record carefully and find that it contains no substantial evidence to support an affirmative finding upon this issue and nothing upon which a trial court could base such a finding. 17 The petition for rehearing is denied. 1 In Nolan v. American Tel. & Tel. Co., 326 Ill.App. 328, 61 N.E.2d 876, where a father had 100 shares of A.T. & T. stock transferred to his daughter's name and a new certificate was issued in her name but never delivered to her, the Appellate Court refused to apply the principle, broadly stated in the Ward case, that 'a transfer of shares on the books of the corporation passes the legal title' to the transferee, but held instead that where, as in the case before it, the evidence of record negatived the presence of any donative intent on the part of the alleged donor, title to the stock did not pass by virtue of the transfer on the corporate books. The obvious inconsistency between the two decisions was, however, sought to be explained on the premise that, in the Ward case, the court was concerned only with the question of constructive delivery and not with donative intent. The opinion in the Nolan case, like that in the Ward case, contains no reference to the pertinent provisions of the Stock Transfer Act 2 Plaintiff urges that the misstatements contained in the affidavit are attributable to the fact that the corporate books, from which the relevant facts could have been accurately ascertained, were not in his possession but were in the custody of the government at the time he made his affidavit

NO. 12-19-00143-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS WILLIE JAMES GREEN, JR., § APPEAL FROM THE 241ST APPELLANT V. § JUDICIAL DISTRICT COURT THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS MEMORANDUM OPINION PER CURIAM This appeal is being dismissed for want of jurisdiction. Willie James Green, Jr., acting pro se, filed a notice of appeal regarding trial court cause number 241-0255-16. Under the rules of appellate procedure, the notice of appeal must be filed within thirty days after the sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order; or within ninety days if the defendant timely files a motion for new trial. See TEX. R. APP. P. 26.2(a). Rule 26.3 provides that a motion to extend the time for filing a notice of appeal must be filed within fifteen days after the deadline for filing the notice of appeal. TEX. R. APP. P. 26.3. In this case, sentence was imposed on August 8, 2016. Appellant filed his notice of appeal on April 15, 2019, long after the time for filing a notice of appeal under Rule 26.2(a) or for seeking a motion to extend under Rule 26.3. On April 15, this Court notified Appellant that the information received failed to show the jurisdiction of the Court, i.e., there was no notice of appeal filed within the time allowed by Texas Rule of Appellate Procedure 26.2 and no timely motion for extension of time to file same as permitted by Texas Rule of Appellate Procedure 26.3. The notice informed Appellant that the appeal would be dismissed unless the information was amended on or before April 25 to show this Court’s jurisdiction. The deadline passed without a response from Appellant.  “[I]n Texas, appeals by either the State or the defendant in a criminal case are permitted only when they are specifically authorized by statute.” State ex rel. Lykos v. Fine, 330 S.W.3d 904, 915 (Tex. Crim. App. 2011). This Court is not authorized to extend the time for perfecting an appeal except as provided by the Texas Rules of Appellate Procedure. 1 See TEX. R. APP. P. 26.2, 26.3; see also Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). In the present case, Appellant’s appeal is untimely. Accordingly, we dismiss Appellant’s appeal for want of jurisdiction. See TEX. R. APP. P. 43.2(f). All pending motions are overruled as moot. Opinion delivered April 30, 2019. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J. (DO NOT PUBLISH) 1 Only the court of criminal appeals has jurisdiction to grant an out-of-time appeal. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991); see also Kossie v. State, No. 01-16-00738-CR, 2017 WL 631842, at *1-2 (Tex. App.—Houston [1st Dist.] Feb. 16, 2017, no pet. h.) (mem. op., not designated for publication) (dismissing for lack of jurisdiction because appellant could not pursue out of time appeal without permission from court of criminal appeals); see TEX. CODE CRIM. PROC. ANN. art 11.07 § 3(a) (West 2005). 2  COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT APRIL 30, 2019 NO. 12-19-00143-CR WILLIE JAMES GREEN, JR., Appellant V. THE STATE OF TEXAS, Appellee Appeal from the 241st District Court of Smith County, Texas (Tr.Ct.No. 241-0255-16) THIS CAUSE came on to be heard on the appellate record, and the same being considered, it is the opinion of this Court that it is without jurisdiction of the appeal, and that the appeal should be dismissed. It is therefore ORDERED, ADJUDGED and DECREED by this Court that this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision be certified to the court below for observance. By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J. 

120 Cal.App.3d 963 (1981) 174 Cal. Rptr. 835 UNITED SERVICES AUTOMOBILE ASSOCIATION, Plaintiff and Appellant, v. GEORGE A. MARTIN, SR., et al., Defendants and Respondents. Docket No. 59917. Court of Appeals of California, Second District, Division Five. June 25, 1981. *964 COUNSEL Yusim, Cassidy, Stein & Hanger and Charles L. Fonarow for Plaintiff and Appellant. Martin B. Berman for Defendants and Respondents. OPINION ASHBY, J. Plaintiff United Services Automobile Association appeals from an order of dismissal following the sustaining of a demurrer, without leave to amend, to plaintiff's first amended complaint for declaratory relief. According to the allegations of the first amended complaint: Plaintiff is an automobile liability insurer who issued a policy to Ivanhoe Jackson whereby plaintiff agreed to defend and indemnify Jackson for liability arising out of the use of a certain automobile. On March 18, 1978, Jackson was involved in an automobile accident in which defendants George A. Martin, Sr., Mercedes Martin, George A. Martin, Jr., and Janice Martin claim to have suffered injuries as a result of Jackson's negligence. Defendants Martin instituted an action for personal injuries against Jackson, Los Angeles Superior Court case No. SOC 51563, which is presently pending. Plaintiff is defending such action on behalf of Jackson. In the present action for declaratory relief, plaintiff contends there is an actual controversy between plaintiff and defendants in that defendants *965 claim to be third party beneficiaries to the insurance contract and plaintiff contends that plaintiff has no obligations under the contract. The basis for plaintiff's claim of nonliability is that the insured, Jackson, has breached the cooperation clause of the policy.[1] Jackson "has refused to assist in the defense of said action, has refused to consult with counsel, has refused to answer interrogatories, give deposition testimony, or testify at the trial, thereby making it impossible for plaintiff to properly defend defendant Jackson in said action, ..." Plaintiff seeks a declaration that it has no duty to defend or indemnify Jackson, nor any liability to defendants as third-party beneficiaries to the insurance contract. The trial court sustained the general demurrer to the first amended complaint, and dismissed the action.[2] DISCUSSION (1) Plaintiff contends that it has alleged a proper cause of action for declaratory relief and that the trial court erred in sustaining the demurrer. We find this contention without merit. As against the injured person an insurer may assert a defense based on breach by the insured of the cooperation clause of the policy. (O'Morrow v. Borad (1946) 27 Cal.2d 794, 800 [167 P.2d 483, 163 A.L.R. 894]; Hall v. Travelers Ins. Companies (1971) 15 Cal. App.3d 304, 308 [93 Cal. Rptr. 159].) However, in order to prevail on such a defense, the insurer must satisfy its burden of showing that it has been prejudiced by the failure to cooperate. (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 881-881 [151 Cal. Rptr. 285, 587 P.2d 1098].) That is, the insurer "must establish at the very least that if the cooperation clause had not been breached there was a substantial likelihood the trier of fact would *966 have found in the insured's favor." (Billington v. Interinsurance Exchange (1969) 71 Cal.2d 728, 737 [79 Cal. Rptr. 326, 456 P.2d 982]; State Farm Fire & Cas. Co. v. Miller (1970) 5 Cal. App.3d 837, 840 [85 Cal. Rptr. 288]; Hall v. Travelers Ins. Companies, supra, 15 Cal. App.3d 304, 309.) Logically, the required showing of prejudice cannot be made while the main tort action is still pending, its outcome uncertain, and therefore declaratory relief against the injured persons at this stage is inappropriate. (Nationwide Mutual Insurance Company v. Browning (1968) 11 Mich. App. 632, [162 N.W.2d 94, 95].) To permit speculation at this stage as to whether the insurer may or will be prejudiced in the main tort action would be inconsistent with the requirement laid down by our Supreme Court that the insurer must prove prejudice in order to assert the insured's lack of cooperation as a defense against the injured persons. (Billington v. Interinsurance Exchange, supra, 71 Cal.2d at p. 737.)[3] The order of dismissal is affirmed. Kaus, P.J., and Stephens, J., concurred. NOTES [1] Condition 5 of the insurance policy states: "`The insured shall cooperate with the company and upon the company's request, assist in making settlements, and in the conduct of suits and enforcing in any rights of contribution or indemnity against any person or organization who may be liable to the insured because of bodily injury, property damage or loss with respect to which insurance is afforded under this policy; and the insured shall attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses.'" [2] Also named in the first amended complaint were Jackson and several other persons injured in the accident. The instant dismissal was as to defendants Martin only, and the other defendants are not parties to this appeal. [3] At oral argument we were informed the main action has now been settled. Because the availability of declaratory relief in this situation is of continuing interest to those involved in insurance litigation, we do not dismiss the instant appeal as moot. (In re William M. (1970) 3 Cal.3d 16, 23-25 [89 Cal. Rptr. 33, 473 P.2d 737].)

536 F.Supp. 538 (1982) Samuel P. GODDARD, Art Hamilton, and Jones Osborn, Plaintiffs, San Carlos Apache Tribe, Ned Anderson, Herbert Edwards, Leo Natsyn, and Phillip Cassadore, Intervenors-Plaintiffs, v. Bruce BABBITT, Governor of Arizona; and Rose Mofford, Secretary of State of Arizona, Defendants, Thomas J. Pappas, Intervenor-Defendant. No. CIV-81-1497-PHX-CAM. United States District Court, D. Arizona. April 2, 1982. *539 John P. Frank, David J. Cantelme and Kevin Olson, Lewis & Roca, Paul Eckstein, Craig W. Soland, Ana Maria Martel and Douglas Gerlach, Brown & Bain, for plaintiffs. Warner Lee, Ryley, Carlock & Ralston, Steven J. Silver, Sp. Asst. Atty. Gen., Campana & Horne, Phoenix, Ariz., for Rose Mofford. Andrew D. Hurwitz, Phoenix, Ariz., for Babbitt. Bruce Babbitt, pro se. Joe P. Sparks, Sparks & Siler, Scottsdale, Ariz., for intervenors-plaintiffs San Carlos Apache Tribe, Ned Anderson, Herbert Edwards, Leo Natsyn and Phillip Cassadore. John E. Herrick, Knollmiller, Herrick & Brown, Tempe, Ariz., for intervenor-defendant Pappas. Before WALLACE, Circuit Judge, MUECKE, Chief Judge, and CORDOVA, District Judge. FINDINGS OF FACT AND CONCLUSIONS OF LAW I. ACTION A. Description of Action Plaintiffs, by this action, seek a declaration that the reapportionment of the Arizona Legislature (House Bill 2001) and redistricting of the congressional districts of Arizona (House Bill 2002), by the Arizona Legislature, are unconstitutional under Article I, Section 2, and Fourteenth and Fifteenth Amendments to the United States Constitution. Intervenor-plaintiffs seek to have the legislation declared unconstitutional under the Fourteenth and Fifteenth Amendments to the United States Constitution, and 42 U.S.C. § 1983. Intervenor Pappas seeks to have House Bill 2001 declared unlawful on the basis of the violation of the Voting Rights Act of 1965 as determined by the Department of Justice and seeks to have House Bill 2002 declared unlawful on the basis of the violation of the one man, one vote rule. B. Parties Plaintiffs are Samuel P. Goddard, Representative Art Hamilton, and Senator Jones Osborn. Plaintiff Hamilton is the minority leader in the Arizona House of Representatives. Plaintiff Osborn is the minority leader in the Arizona Senate. Plaintiff Goddard is the Chairman of the Democratic Party of the State of Arizona. Intervenor-plaintiff San Carlos Apache Tribe is a dependent sovereign Indian nation, and a federally recognized Indian tribe with over 8,000 members, all of whom have an interest in political representation through legislative districts and congressional districts in elections held in the State of Arizona. Intervenors-plaintiffs Ned Anderson, Herbert Edwards, Leo Natsyn, and Phillip Cassadore are American Indians, enrolled members of the San Carlos Apache Tribe, are over 18 years of age, and maintain their permanent legal residence within the San Carlos Apache Reservation. Ned Anderson is the Chairman of the San Carlos Apache Tribe elected by popular vote of the tribe and, as such, is the chief executive officer of the San Carlos Apache tribe. Herbert Edwards and Leo Natsyn are members of the San Carlos Apache Tribal Council. *540 Defendants are Bruce E. Babbitt and Rose Mofford. Defendant Babbitt is the Governor of the State of Arizona. Defendant Mofford is the Secretary of State of the State of Arizona. Intervenor-defendant Thomas J. Pappas is the Chairman of the Republican Party of the State of Arizona. II. STATEMENT OF JURISDICTION The allegations in plaintiffs' and intervenor-plaintiffs' complaint raise claims under Article I, Section 2, and the Fourteenth and Fifteenth Amendments to the United States Constitution; the Civil Rights Act, 42 U.S.C. §§ 1983 and 1988. This Court has jurisdiction under 28 U.S.C. §§ 1331, 1343(3) and (4), 1357, and 1362; and 42 U.S.C. §§ 1983 and 1988. III. FACTS A. Background Information About Arizona 1. Arizona is a state containing 14 counties, whose total land area is 113,909 square miles. 2. There are 19 Indian tribes in Arizona. 3. At the time of the 1980 elections, there were 30 legislative districts in Arizona, each of which elected one State Senator and two State Representatives. 4. At the time of the 1980 elections, there were four congressional districts in Arizona. B. Facts About The San Carlos Apache Tribe 1. The San Carlos Apache Reservation population has historically been within a single legislative district and a single congressional district. It is the strong desire of the Tribe to remain in one legislative district and one congressional district in the future. 2. The San Carlos Apache Tribe is a dependent-sovereign Indian nation which has several executed treaties with the United States, including those of 1852 and 1853. The San Carlos Apache Reservation was established in 1871 by Executive Order as a permanent Tribal homeland for the San Carlos Apache. The boundaries of the San Carlos Apache Reservation pre-date the establishment of the State of Arizona. 3. The San Carlos Apaches are a distinct minority group and have extensive social, historical and cultural bonds which contribute to the strong community of interest among the Tribal members. The San Carlos Apaches speak their own language, enjoy a unique Indian culture and history and constitute a separate political subdivision in Arizona. The Tribe has its own constitution and government, its own police authority, health department, utility services and the Tribe exercises governmental taxing authority. 4. The San Carlos Apache Reservation comprises less than 2½% of the total land area within the boundaries of Arizona. The Reservation is a unified minority community of interests of approximately 8,000 residents, constituting 1.47% of an ideal congressional district. C. Results of 1980 Census 1. Under the 1980 census, Arizona had grown from a total 1970 state population of 1,772,482 to a total state population of 2,717,866. 2. Under the 1980 census, Arizona is entitled to five United States congressmen. Accordingly, dividing Arizona's total population by the number of congressmen to which it is entitled, the ideal congressional district would contain 543,573 persons. 3. Dividing the State's 1980 population by the number of legislative districts, 30, the ideal legislative district would consist of 90,596 persons. 4. According to the 1980 census, Arizona's Hispanic population comprises 16.2% of the total population of Arizona; American Indians comprise 5.6% of the total population; and Blacks comprise 2.8% of the total population of Arizona. 5. 1982 is an election year for all members of the Arizona Legislature. *541 6. Each candidate for legislative office must file a nominating petition containing a set number of signatures in order to qualify to run in the primary election. The number of signatures required is based on election results in prior elections from precincts constituting the district in which the candidate proposes to run. 7. Nominating petitions may be filed as early as May 25, 1982, and no later than June 26, 1982. 8. House Bill 2003, passed by the Arizona Legislature on December 1, 1981 directs the board of supervisors of each county to designate which precincts constitute legislative and congressional districts in accordance with legislation passed and maps submitted by the legislature to the Secretary of State. 9. Until the precincts constituting a district have been determined, the requisite number of signatures required for nomination of a candidate for the Arizona Legislature cannot be determined, and potential candidates are unable to determine in which districts they reside. D. Adoption of House Bills 2001 and 2002. 1. The legislatively adopted congressional and legislative plans were adopted by the Arizona Legislature on December 1, 1981 as House Bills 2002 and 2001, respectively. On December 5, 1981, Governor Bruce E. Babbitt vetoed House Bill 2001 and House Bill 2002. On December 7, 1981, both the Arizona House of Representatives and Arizona State Senate overrode Governor Babbitt's veto. 2. Under House Bill 2002, the largest district, CD 3, contains 547,498 persons, and the smallest district, CD 1, contains 539,599 persons. This yields a total population variance of 7,899 persons, or 1.4%. 3. On January 6, 1981, the State of Arizona, pursuant to Section 5 of the Voting Rights Act of 1965 (42 U.S.C. § 1971, et seq.), submitted to the United States Department of Justice for pre-clearance approval, House Bill 2001 and House Bill 2002. 4. On March 8, 1982, the Attorney General of the United States, pursuant to his authority under the Voting Rights Act of 1965, as amended, pre-cleared the Arizona congressional redistricting plan (House Bill 2002), but objected to the Arizona state legislative reapportionment plan (House Bill 2001) on the grounds that the division of the San Carlos Apache Tribe into three legislative districts violated the Voting Rights Act of 1965, as amended, stating, "... the manner in which the San Carlos Indian Reservation has been fragmented into different legislative districts raises concerns which will not allow us to conclude that the legislative plan does not have a discriminatory purpose or effect." 5. As a result of House Bill 2001 and House Bill 2002, the San Carlos Apache Reservation is divided into three legislative districts and three congressional districts. 6. The legislature was put on notice before enactment and prior to the override of the Governor's veto that the effect of the legislation would be to divide the Reservation into three districts. This is demonstrated by Exhibits 26, 32, 39, 41, 85, 86, and others which have been admitted into evidence. 7. The division of the San Carlos Apache Reservation into three legislative and three congressional districts was not necessary to achieve compactness and, as nearly as practicable, population equality. Such division has the effect of diluting the San Carlos Apache Tribal voting strength and dividing the Apache community of interest. E. Trial of This Matter 1. On March 8, 1982, a pretrial order was entered by the court, in which certain legal and factual issues were raised as to both the congressional and legislative plans, only two of which are relevant to the Court's conclusion and judgment in this matter: (a) Whether the population variations in the congressional plan violate Article I, Section 2 and the Fifteenth Amendment to the United States Constitution. *542 (b) Whether the division of the San Carlos Apache Reservation into Legislative Districts 4, 7, and 8 violates the Fourteenth and Fifteenth Amendments to the United States Constitution by impermissibly diluting the voting strength of the San Carlos Apache Indians. 2. Trial on this matter commenced on March 10, 1982. Evidence was received as relevant to the issues raised in the pretrial order as to the congressional plan and as relevant to issues raised in the pretrial order as to the legislative plan, as they related to the good faith of the legislature and any discriminatory effect or purpose of the plans. 3. Plaintiffs called four witnesses: Senator Jones Osborn, Representative Art Hamilton, Senator Alfredo Gutierrez, and Harland Carey. The witnesses were examined by all parties, and plaintiffs rested. 4. Intervenor-plaintiffs presented their case, based on the issues set forth above, and called two witnesses, Representative Edward Guerrero and Tribal Chairman Ned Anderson. These witnesses were examined by the parties and intervenor-plaintiffs rested. 5. Defendants began presentation of their case on March 11, 1982, and continued presentation until March 12, 1982, when the trial was recessed by the Court. Defendants called three witnesses: Representative Sam A. McConnell, and Representative Michael E. Morales and Martin Willett. All parties examined witnesses McConnell and Morales, but the cross-examination of Martin Willett had not concluded when the trial was recessed. 6. According to testimony of witnesses for plaintiffs, intervenor-plaintiffs and defendants, preservation of the status quo by keeping the San Carlos Apache Reservation in one legislative district and one Congressional district would require only minor readjustments in the district boundaries under H.B. 2001 and H.B. 2002. 7. Legislators of both parties testified that the San Carlos Apache Reservation should not have been divided. 8. Defendants contend that the division of the San Carlos Apache Reservation into three Legislative and three Congressional districts was not an action motivated by a racially discriminatory purpose. 9. On March 22, 1982, the parties to this action resolved their disputes by agreeing to submit to the court certain changes stipulated revisions to the legislative and congressional plans. 10. The Court was notified of the proposed resolution of the matter on March 23, 1982. 11. Counsel have avowed to the Court that the majority and minority leadership of the Arizona Senate and House of Representatives, speaking on behalf of their respective causes, have informed them and authorized them to represent to the Court that the Arizona Legislature intends to take no further action on this matter, and because of the exigent circumstances set forth in paragraphs 5-9 of Section C, they are desirous of this Court approving and ordering into effect the stipulated revisions to the legislative and congressional plans as agreed to on March 22, 1982, and the Court so finds. 12. The parties stipulate and represent that House Bill 2002 failed to achieve numerical equality as nearly as practicable. F. Effect of Stipulated Revisions on Legislative and Congressional Districts 1. The Congressional Plan a) Population Variance: Under the stipulated revisions to the congressional plan, the largest district, CD 5, contains 543,775 people and the smallest district, CD 2, contains 543,367 people. This yields a total population variance of 408 people, or 0.075%. *543 b) Racial and Ethnic Impact: Under the stipulated revisions to the congressional plan the percentage of racial and ethnic minorities within four of the five districts remains consistent with the percentage of population that these groups constitute in the existing congressional districts. New Congressional District 2 contains a minority population constituting 47.21% of the total district population. This is an increase of 17.21% over the highest percentage of minority population in the existing congressional districts. 2. The Legislative Plan a) Population Variance: Under the stipulated revisions to the legislative plan, the largest district, LD 4, contains 94,084 people and the smallest district, LD 9, contains 86,470 people. This yields a total population variance of 7,614 people, or 8.4%. b) Racial and Ethnic Impact: Under the stipulated revisions to the legislative plan the percentage of racial and ethnic minorities within the 30 legislative districts remains consistent with the percentage of population that these groups constitute in the existing 30 legislative districts. In revised LD's 4 and 7 the total percentage of racial and ethnic minorities is increased by 6% and 2%, respectively. IV. CONCLUSIONS OF LAW A. House Bill 2001, as adopted, is unenforceable because on March 8, 1982 the Department of Justice refused to preclear that bill; accordingly, pursuant to Section 5 of the Voting Rights Act, there is no valid legislative reapportionment plan in existence at this time. B. Based upon the stipulated facts and the representation of the parties, House Bill 2002, as adopted, violates Article I, Section 2 of the United States Constitution by failing to achieve numerical equality as nearly as practicable between congressional districts. C. The legislative plan, as modified by the stipulated revisions and in the form represented in Exhibits 100, 100a-d, does not violate the Fourteenth and Fifteenth Amendments to the United States Constitution by diluting racial and ethnic minority voting strength. D. The population variances in the stipulated revision of the legislative plan do not violate the Fourteenth Amendment to the United States Constitution. E. The congressional plan, as modified by the stipulated revisions and represented in Exhibits 99, 99a-e, 1, does not violate Article I, Section 2 and the Fifteenth Amendment to the United States Constitution by diluting racial and ethnic minority voting strength. F. The population variances in the stipulated revision of the congressional plan do not violate Article I, Section 2 and the Fifteenth Amendment to the United States Constitution. G. The San Carlos Apache Tribe contends that their reservation should have been placed in a single congressional district, and by entering this order we are approving such placement. Because H.B. 2002 is unconstitutional under Article I, Section 2 of the U. S. Constitution, as contended by Plaintiffs and Intervenor-Plaintiffs, the San Carlos Apache Tribe, it is unnecessary for this court to reach the issue of whether the division of the San Carlos Apache Reservation into congressional districts 2, 4, and 5 violates the 14th and 15th Amendments to the U. S. Constitution. However, based on Finding of Fact numbers B1-4, D5-7, and E6-8, above which are unique to the San Carlos Apache Tribe and the record before the court, it is the opinion of this court that the congressional plan adopted by this court, which places the San Carlos Apache Reservation in a single congressional district, resolves any constitutional issues. *544 JUDGMENT In light of the evidence and record before this Court, the stipulation of the parties and the findings of fact and conclusions of law, IT IS ORDERED, ADJUDGED AND DECREED: 1. The legislative and congressional plans passed by the Arizona Legislature on December 1, 1981 as House Bills 2001 and 2002, are invalid and of no further force or effect. 2. a) Commencing with the thirty-sixth legislature, the senate shall consist of thirty members and the house of representatives shall consist of sixty members. b) One member of the senate and two members of the house of representatives shall be elected from each of the thirty legislative districts established in subsection (c) below. c) For the thirty-sixth legislature and until changed by the legislature, the legislative districts shall be as provided in this subsection. There shall be thirty legislative districts described by enumeration districts, census tracts, blocks and block numbering areas as utilized by the United States Bureau of the Census for its enumeration of population conducted on April 1, 1980, as set forth on Exhibit A attached hereto and by this reference made a part hereof. 3. For the purpose of selection by and from districts the number of representatives in congress to which this state is entitled, and until changed by the legislature, the geographical area of the congressional districts, described by the enumeration districts, census tracts, blocks and block numbering areas as utilized by the United States Bureau of the Census for its enumeration of population conducted on April 1, 1980, shall be as set forth on Exhibit B attached hereto and by this reference made a part hereof. 4. While it is represented by the parties that the legislature will not enact any further legislative reapportioning or congressional redistricting legislation, the teachings of the United States Supreme Court dictate that appropriate deference should be made to the legislative bodies in these cases. Such deference provides the legislature the opportunity to act first as well as to allow the legislature to be a forum for any expression by the public. Therefore, this judgment becomes effective ten (10) days from this date if no new law is enacted within that time reapportioning the Arizona legislature and redistricting the congressional districts of Arizona. EXHIBIT "A" Legislative Districts Districts Description 1 Mohave county Enumeration districts 23 through 25, 33 through 37, 46 through 86, 87A, 87B, 87C and 88 through 138. Yavapai county Block numbering areas 9901 and 9902. Enumeration districts 454A, 454B, 455, 456, 459, 460, 462 through 477, 478A, 478B, 478C, 479A, 479B, 484 through 486, 488 through 491, 492A, 492B, 493 through 506, 507A, 507B, 508 through 512, 513A, 513B, 514 through 516, 517A, 517B, 517C, 518, 519, 520A, 521 through 525, 526A and 527 through 541. 2 Coconino county Block numbering areas 9901, 9902, 9903, 9904 and 9905. Enumeration districts 128 through 130, 134 through 141, 142A, 142C, 143 through 149, 150A, 151 through 179, 5097 through 5099, 5101, 5102, 7060 through 7064, 7858 and 7859. Gila county Block numbering area 9901. Enumeration districts 450 through 457 and 463. Mohave county Block numbering areas 9901 and 9902. Enumeration districts 29 through 32 and 38 through 45. Navajo county Enumeration districts 386, 389, 399, 7000 through 7040 and 7826. Yavapai county *545 Enumeration districts 450 through 453, 457, 458, 461A, 461B, 480 through 482 and 487. 3 Apache county Enumeration districts 3500 through 3583, 3585 through 3587, 3589 through 3630, 3649 through 3682 and 3702 through 3759. Coconino county Enumeration districts 100 through 113, 114A, 114B, 114C, 115 through 121, 125 through 127, 131 through 133, 5000 through 5096, 5100, 5103 through 5105, 5107 through 5127, 5129 through 5131, 5133 through 5142, 5800 through 5805, 5807, 5808, 7848 through 7857 and 7860 through 7872. Mohave county Enumeration districts 1 through 22 and 26 through 28. Navajo county Enumeration districts 4500 through 4549, 4551 through 4581, 4601 through 4651, 4800 through 4839, 7800 through 7825 and 7827 through 7833. Yavapai county Enumeration district 483. 4 Apache county Enumeration districts 552 through 562, 563A, 563B, 563C, 564, 565A, 565B, 565C, 565D, 566A, 566B, 567 through 576 and 3000 through 3035. Gila county Enumeration districts 458 through 462, 464 through 486, 487A, 487B, 488A, 488B, 488C, 489, 490, 491A, 491B, 492A, 492B, 492C, 493A, 493B, 494 through 496, 497A, 497B, 498A, 498B, 498C, 498D, 499 through 509 and 6000 through 6035. Graham county Enumeration districts 50 through 56. Greenlee county Enumeration districts 1 through 15 and 17. Navajo county Enumeration districts 375 through 385, 387, 388, 390 through 398, 400 through 423, 424A, 424B, 425, 426A, 426B, 427 through 434 and 4000 through 4081. Pinal county Census tract 2, enumeration districts 6 and 11. Census tract 4, enumeration districts 1 through 5 and 17. Census tract 6, enumeration districts 83A and 83B. 5 Yuma county Census tracts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115 and 116. 6 Maricopa county Census tracts 612, 613, 614, 822.01 and 822.02. Census tract 1165, blocks 102, 103, 105 through 117, 201 through 210, 215, 216, 302 through 310, 313 through 317, 409 and 410. Census tract 1166.01, blocks 101 through 108, 110, 116 through 119, 124 through 130, 201 through 217, 219, 301 through 313 and 903 through 930. Census tracts 1166.02, 1167.02, 1167.03, 1167.04, 1167.05 and 1167.06. Census tract 5227.02, blocks 101 and 102. Census tracts 6232 and 7233. Pima county Census tracts 49 and 50. Pinal county Census tracts 1, 12, 13, 14, 15, 16 and 17. 7 Gila county Enumeration districts 510 through 512, 513A, 513B and 514. Pima county Census tracts 42 and 43.04. Census tract 43.05, enumeration districts 261 and 262. Census tracts 44.04 and 44.05. Census tract 46.06, blocks 402, 408 through 413, 419, 420 and 544. Census tract 48. Pinal county Census tract 2, enumeration districts 12 through 14. Census tracts 3 and 5. *546 Census tract 6, enumeration districts 76 through 78, 82T, 82U and 84 through 88. Census tracts 7, 8, 9, 10, 11, 18, 19, 20 and 21. Santa Cruz county Block numbering area 9901, blocks 201 through 232. Block numbering area 9902, blocks 211 through 214 and 301 through 329. Enumeration district 17A. 8 Cochise county Block numbering areas 9901 and 9902. Block numbering area 9904, blocks 101 through 137, 202 through 212, 218, 301 through 326 and 401 through 438. Block numbering areas 9905, 9906 and 9907. Enumeration districts 50 through 53, 54A, 55A, 56, 58A, 59 through 76, 79 through 81, 82A, 82B, 83, 86 through 92, 93A, 94 through 103, 105, 106 and 112. Graham county Enumeration districts 57 through 74, 75A, 75B, 75C, 75D, 76, 77A, 77B, 78A, 78B and 79 through 87. Greenlee county Enumeration districts 16, 18 through 21. 9 Cochise county Block numbering area 9903. Block numbering area 9904, blocks 201 and 213 through 217. Enumeration districts 77, 78, 84, 85 and 107 through 111. Pima county Census tracts 40.12 and 40.13. Census tract 40.15, blocks 101, 102, 201 through 204, 501 through 504 and 511 through 515. Census tract 40.18, blocks 106 through 120, 202 through 211, 213, 215 through 229, 302 through 320 and 322 through 345. Census tract 40.19. Census tract 40.21, blocks 401 through 415, 417 through 423 and 512 through 515. Census tract 40.22, blocks 101 through 113, 201 through 210, 301 through 304, 310 through 327 and 401 through 410. Census tract 41.02, blocks 212 through 216, 225 through 235, 240, 241 and enumeration districts 238 through 243. Census tract 43.03. Census tract 43.05, enumeration districts 254 through 260 and 334. Santa Cruz county Block numbering areas 9901, blocks 102 through 111, 113, 115 through 117, 121 through 139 and 145 through 151. Block numbering area 9902, blocks 101, 102, 108 through 122, 201 through 210, 215, 216 and 220 through 225. Enumeration districts 1 through 12, 13A, 14A, 14C, 15A and 16. 10 Pima county Census tract 1, blocks 108 through 118, 201 through 214, 218 through 222, 403 and 404. Census tract 5, blocks 112, 113, 201 through 213, 301 through 315, 706 through 711 and 801 through 811. Census tract 6, blocks 516 through 521 and 601 through 617. Census tract 7, blocks 116, 117, 201 through 217, 268, 301, 302, 309, 311 through 318, 353, 358, 401 through 408, 411 through 415, 459, 502 through 517 and 601 through 615. Census tracts 8 and 9. Census tract 10, blocks 109 through 115, 119 through 123, 167, 207, 209, 210, 212, 213, 215 through 221, 251, 253, 303 through 307, 311, 314 through 317, 351, 352 and 362. Census tracts 20, 21, 22 and 23. Census tract 24, blocks 101 through 114, 201 through 213, 215 through 220, 301 through 314, 401 through 412, 501 through 513, 515, 564, 565, 601 through 605, 609 through 612, 614, 656, 701, 702, 709 through 712, 714, 715 and 763. Census tract 35.01, blocks 201 through 209, 301 through 303, 401 through 409, 501 through 505, 601 through 607, 701 through 707, 801 through 805, 808, 901 and 902. Census tracts 37.01, 37.02 and 37.03. *547 Census tract 38, blocks 101 through 115, 201 through 208, 210, 259, 260, 302 through 309, 316, 367, 401 through 417, 501 through 515, 601 through 614 and 701 through 715. Census tract 39, blocks 410 through 412, 417 through 419, 506 through 511 and 514. Census tract 41.02, blocks 102 through 116, 151 through 153, 167 through 169, 201 through 204, 902 through 908, 917, 919, 920, 927 through 931, 933 through 937, 951, 959, 960, 968, 969, 971, 973, 982, 983, 988 and 989. Census tracts 41.03 and 41.04. 11 Pima county Census tract 1, blocks 102 through 107, 301 through 303, 315 through 323, 401 and 402. Census tracts 2, 3 and 4. Census tract 5, blocks 101 through 105, 401, 406 through 412, 452, 501 through 507, 510 through 514, 558, 601 through 612, 618 and 701 through 705. Census tract 6, blocks 402 through 407, 410 through 415, 417 through 419, 501 through 515, 620 through 622, 701 through 703, 706 through 711, 714 through 720 and 801 through 816. Census tract 10, blocks 214 and 308 through 310. Census tracts 11 and 12. Census tract 13.01, blocks 104, 105, 115, 116, 204 through 206, 516 through 518, 602 through 607, 610 through 617, 619, 702 through 705, 709 through 722, 756, 757, 767, 801 and 802. Census tract 13.02. Census tract 14, blocks 109 through 119, 201 through 221, 301 through 320, 401 through 414 and 501 through 518. Census tract 15, blocks 206 through 220, 301 through 320, 403 through 418, 451, 501 through 503, 506 through 512, 514 through 520, 554 and 601 through 615. Census tract 16, blocks 203 through 220, 223, 224, 301 through 318, 359 and 401 through 404. Census tract 24, blocks 607, 608 and 703 through 708. Census tracts 25.01 and 25.02. Census tract 26.01, blocks 105, 213 and 305 through 311. Census tract 38, blocks 211 through 215, 301 and 310 through 315. Census tract 39, blocks 101 through 119, 201 through 212, 301 through 315, 401 through 409, 413 through 416, 501 through 505, 512, 513, 901 and 902. Census tracts 43.01, 44.01, 44.03, 45.04 and 45.05. Census tract 45.08, blocks 106 and 107. 12 Pima county Census tract 13.01, blocks 101 through 103, 106 through 114, 117 through 119, 201 through 203, 207 and 208. Census tract 14, blocks 101 through 108 and 519 through 524. Census tract 15, blocks 101 through 120, 201 through 205, 616 through 618 and 701 through 720. Census tract 16, blocks 405 through 408, 412 through 419, 459, 470 and 503 through 520. Census tract 17. Census tract 18, blocks 701 through 711, 762 and 763. Census tract 26.01, blocks 101 through 104, 201 through 212, 214 through 217, 301 through 304 and 312 through 315. Census tracts 26.02 and 27. Census tract 28, blocks 504 through 506 and 513. Census tracts 45.06 and 45.07. Census tract 45.08, blocks 101 through 105, 201 through 205 and 301 through 314. Census tracts 45.09, 46.03, 46.04 and 46.05. Census tract 46.06, blocks 101 through 120, 122, 201 through 230, 232 through 242, 244 through 269, 280, 298, 299, 302 through 311, 313 through 327, 329 through 337, 339 through 366, 417, 639 and enumeration district 235a. Census tract 47.03. Census tract 47.06, blocks 101 through 114, 201 through 216, 218 through 220, 301 through 307, 401 through 422, 501 and 504 through 516. Census tract 47.07. 13 Pima county *548 Census tract 6, blocks 101 through 120, 201 through 221, 301 through 321, 401, 408, 409 and 416. Census tract 7, blocks 101 through 109, 111 through 113, 115 and 160. Census tract 16, blocks 101 through 119, 201, 202 and 321 through 324. Census tract 18, blocks 103 through 114, 151, 201 through 217, 301 through 316, 401 through 415, 501 through 514, 601 through 605, 607 through 613, 656, 657, 713 and 714. Census tract 19. Census tract 28, blocks 101 through 116, 201 through 214, 301 through 317, 401, 403 through 406, 408 through 416, 452, 453, 457, 458, 501 through 503 and 507 through 512. Census tracts 29.01, 29.03, 29.04, 30.01, 30.02, 31.01, 31.02 and 32. Census tract 33.01, blocks 401, 402, 404 through 409, 411 through 414, 453, 501 through 511 and 513 through 518. Census tract 34. Census tract 35.01, blocks 101 through 114. Census tract 40.16, blocks 101 through 112, 114, 115, 117, 119 through 151, 201 through 206, 210 through 222, 224, 247, 250, 303 through 317, 325 through 334, enumeration districts 232 and 233. Census tracts 47.04 and 47.05. Census tract 47.06, blocks 310, 312 through 315 and 320 through 322. 14 Pima county Census tract 33.01, blocks 101 through 107, 110 through 114, 158 through 160, 169 through 172, 201 through 213 and 301 through 312. Census tract 33.02. Census tract 35.01, blocks 806, 807 and 903 through 906. Census tracts 35.02, 35.03, 35.04, 36, 40.01, 40.04, 40.08, 40.09, 40.10, 40.11 and 40.14. Census tract 40.15, blocks 301 through 303, 401 through 407, 505 through 510, 516 and 517. Census tract 40.16, blocks 225 through 228, 230 through 234, 238 through 240, 242, 243, 245, 246, 248, 249, 251 through 256, 320 through 323, 335 through 342 and 401 through 417. Census tract 40.17. Census tract 40.18, blocks 101 through 105. Census tract 40.20. Census tract 40.21, blocks 101 through 113, 115 through 121, 201 through 211, 301 through 315, 501 through 510, 516 and 517. Census tract 40.22, blocks 305 through 308. 15 Maricopa county Census tracts 405.01, 405.02, 506, 507, 608, 609, 610.01, 610.02, 611, 716, 717, 718, 820.01, 820.02, 820.03, 820.04, 821 and 1096.01. Census tract 1096.02, blocks 204 through 209, 215 through 218, 221, 222, 224, 225, 233 and 301 through 335. Census tract 1097. 16 Maricopa county Census tract 923.02, blocks 301 through 315, 318 through 327, 401 through 413 and 501 through 508. Census tracts 923.03 and 924. Census tract 930, blocks 102, 103, 208 through 216, 220, 221 and 302 through 305. Census tracts 1042.02, 1042.03 and 1042.04. Census tract 1042.05, blocks 301 through 303 and 305 through 324. Census tracts 1042.06 and 1042.08. Census tract 1042.10, blocks 223 through 236 and 239. Census tracts 1042.11 and 1042.12. Census tract 1042.13, blocks 301 through 318, 401 through 424, 501 through 505, 917 and 918. Census tracts 1057, 1058 and 1070. 17 Maricopa county Census tract 715.01, blocks 409 and 910. Census tracts 715.02, 715.03, 715.04 and 715.05. Census tract 719.01, blocks 201 through 206, 401 through 403, 405 through 409, 906, 907 and 911. *549 Census tract 719.02. Census tract 923.01, blocks 223 through 229 and 907 through 909. Census tract 923.02, blocks 414 through 424, 426 through 432 and 701 through 712. Census tracts 925, 926, 927.01, 927.02, 927.03, 928, 929, 931.02. Census tract 1094, blocks 201 through 211, 223 through 233, 301 through 310 and 322 through 332. Census tract 1095. Census tract 1096.02, blocks 101 through 116, 201 through 203 and 401 through 411. Census tract 1098. Census tract 1099, blocks 201 through 204, 206 through 226. 18 Maricopa county Census tract 1036.02, blocks 201 through 246, 248 and 250. Census tract 1037, blocks 204 through 207, 211, 212, 215 through 220, 222 through 227 and 229 through 235. Census tract 1038. Census tract 1039, blocks 203 through 215. Census tract 1042.05, blocks 101 through 110 and 201 through 213. Census tracts 1044, 1045, 1046 and 1047. Census tract 1051.02, block 409. Census tracts 1052, 1053, 1054 and 1055. Census tract 1056, blocks 101 through 110, 121 through 130, 301 and 305 through 314. Census tract 1060, blocks 101 through 116. Census tracts 1061, 1062, 1063, 1066, 1067, 1074 and 1075. 19 Maricopa county Census tracts 303.02, 303.03 and 303.04. Census tract 303.07, blocks 801 through 822. Census tracts 303.08 and 303.09. Census tract 303.10, blocks 101 through 106, 109 through 113, 199, 201 through 206, 216, 301 through 324, 401 through 442, 444 through 469, 472, 477 through 481, 486, 487, 495 and 690, enumeration districts 353 and 354A. Census tracts 303.11, 303.12 and 303.13. Census tract 715.01, blocks 101 through 136, 201 through 212, 301 through 307 and 401 through 408. Census tract 719.01, blocks 101 through 121, 910 and 912. Census tract 923.01, blocks 201, 202, 204 through 211 and 213 through 222. Census tract 1036.02, blocks 101 through 117. Census tract 1036.03. Census tract 1039, blocks 103, 106 through 110, 112 through 123, 125 through 135 and 217. Census tracts 1040, 1041, 1042.07 and 1042.09. Census tract 1042.10, blocks 201 through 222, 237, 238 and 401 through 413. Census tract 1042.13, blocks 920 through 925. Census tract 1043. 20 Maricopa county Census tract 930, blocks 106 through 119, 201, 202, 204 through 207 and 217 through 219. Census tract 931.01. Census tract 1056, blocks 201 through 210, 231 through 240 and 315 through 318. Census tract 1059. Census tract 1060, blocks 209 through 216, 218 through 230, 232 through 235, 301 through 318 and 320. Census tracts 1068, 1069, 1071, 1072 and 1073. Census tract 1090, blocks 102, 104 through 112, 115 through 117, 122 through 124, 126 through 131, 201 through 213 and 301 through 308. Census tracts 1091, 1092 and 1093. Census tract 1094, blocks 101 and 103 through 118. Census tract 1099, blocks 101 through 115. Census tracts 1100, 1101, 1102 and 1103. Census tract 1120, blocks 311 through 318, 320 through 333, 401 through 404, 406 and 407. 21 Maricopa county Census tract 101, enumeration district 175. Census tract 202. *550 Census tract 1112.02, blocks 305 through 307, 309, 310, 312 through 318, 901, 904 through 906, 909 and 912. Census tract 1138, blocks 119, 127 and 128. Census tract 2181. Census tract 2182, blocks 110 through 113, 117, 209 through 215 and 301 through 310. Census tracts 3184, 3185.01, 3185.02, 3186, 3187 and 3188. Census tract 3197.04, blocks 103 through 112, 601 through 603 and 605 through 608. Census tracts 4201.01, 4201.02, 4201.03, 4202.01, 4202.02, 4202.03, 4203 and 4204. Census tract 4206.01, blocks 101 through 103, 105 through 122, 125 and 126. Census tracts 4206.02, 4207.01 and 4207.02. Census tract 4211.01, blocks 201 and 203 through 210. Census tract 4212.01. Census tract 4212.02, blocks 301 through 304. Census tract 4217. Census tract 4226.01, blocks 115, 116, 120, 121, 201 through 230, 240, 430 through 438 and 499. Census tracts 4226.03, 4226.04, 4226.05 and 4226.06. 22 Maricopa county Census tract 1120, blocks 113 through 126, 201 through 207, 209 through 213 and 501 through 505. Census tracts 1121, 1122, 1123, 1124, 1125.02, 1125.03, 1125.04, 1126, 1127 and 1128. Census tract 1129, blocks 301 through 322. Census tracts 1143, 1144, 1145, 1146, 1147, 1148, 1155, 1156 and 1157. Census tract 1166.01, block 902. 23 Maricopa county Census tract 1129, blocks 101 through 128, 201 through 227 and 401 through 432. Census tracts 1130, 1131, 1132, 1133, 1134 and 1135. Census tract 1136, blocks 111 and 201 through 233. Census tract 1138, blocks 105 through 107, 109 through 115, 117, 118, 120, 125, 126, 201, 204 through 207, 210, 212, 215 through 223, 318 through 327 and 401 through 427. Census tracts 1139, 1140, 1141, 1142, 1149, 1150, 1151, 1152, 1153, 1154, 1158, 1159, 1160, 1161, 1162.02, 1162.03, 1162.04, 1163 and 1164. Census tract 1165, blocks 401 through 408. 24 Maricopa county Census tract 101, enumeration district 176. Census tracts 303.05 and 303.06. Census tract 303.07, blocks 101 through 107, 201 through 204, 401 through 407, 501 through 514, 601 through 620, 701 through 715, 901 through 920 and 945 through 952. Census tract 303.10, blocks 493, 494, 496, 497, 682 through 687, 692, 695, 921, enumeration districts 352, 355A and 356A. Census tract 304. Census tract 1032.04, blocks 301 through 309, 401 through 413, 501 through 504 and 506 through 517. Census tracts 1032.05 and 1032.08. Census tract 1032.09, blocks 101 through 114 and 212. Census tracts 1033.02, 1033.03, 1033.04, 1034, 1035.01, 1035.02 and 1036.01. Census tract 1037, blocks 101, 102, 104 through 111, 113 through 125, 129 and 130. Census tracts 1048.01, 1048.02 and 1049. Census tract 1050.01, blocks 114 through 124, 213 through 222, 501, 503 through 507 and 509 through 515. Census tract 1051.01. Census tract 1051.02, blocks 402 through 408, 410 through 418, 420, 421 and 423 through 425. Census tract 1051.03, blocks 101 through 106, 114, 201 through 209, 211 through 217 and 219 through 221. 25 Maricopa county Census tracts 1064, 1065, 1076, 1077, 1078, 1084, 1085, 1086, 1087, 1088 and 1089. Census tract 1090, blocks 101, 113, 114 and 119 through 121. *551 Census tracts 1104, 1105 and 1106. Census tract 1107, blocks 101 through 107, 109, 111 through 129, 303 through 319, 404 through 425 and 430. Census tract 1108, blocks 301 through 317 and 401 through 409. Census tract 1116, blocks 301 through 326 and 401 through 409. Census tracts 1117, 1118 and 1119. 26 Maricopa county Census tract 1050.02. Census tract 1051.03, blocks 302 through 307, 309 through 311 and 313 through 319. Census tracts 1079, 1080, 1081, 1082 and 1083. Census tract 1107, blocks 201 through 206, 210 through 218 and 220 through 222. Census tract 1108, blocks 104, 105, 107 through 122, 201 through 210 and 213 through 221. Census tracts 1109, 1110, 1111, 1112.01. Census tract 1112.02, block 913. Census tracts 1113, 1114 and 1115. Census tract 1116, blocks 101 through 124 and 201 through 223. Census tract 1136, blocks 101 through 110. Census tract 1137. Census tract 2169, block 213. Census tract 2170.01, blocks 312 and 323 through 325. Census tract 2172.01, blocks 101 through 123 and 130 through 134. Census tracts 2173, 2174, 2175 and 2180. 27 Maricopa county Census tracts 3189, 3190, 3191, 3192, 3194.01, 3194.02, 3194.03, 3195, 3196, 3197.02 and 3197.03. Census tract 3197.04, blocks 205 through 212, 301 through 313, 401 through 403, 501 through 510 and 512 through 518. Census tracts 3198, 3199.02, 3199.03, 3199.04, 3199.05, 3199.06, 3199.07, 3199.08, 3200.01 and 3200.02. Census tract 5227.02, blocks 315, 316, 501 and 505 through 508. 28 Maricopa county Census tract 1032.04, blocks 101 through 117, 201 through 219 and 801. Census tracts 1032.06 and 1032.07. Census tract 1032.09, blocks 201, 202, 205, 206, 208 through 211 and 213 through 234. Census tract 1050.01, blocks 101 through 103, 105 through 113, 125, 201 through 204, 206 through 212, 226, 237, 301, 302, 304 through 325, 516 through 519 and 521 through 525. Census tracts 2168.02, 2168.03, 2168.04 and 2168.05. Census tract 2169, blocks 101, 103 through 119, 121 through 127, 201 through 205 and 207 through 212. Census tract 2170.01, blocks 307, 308, 310, 311, 314 through 317, 319, 320, 327 through 343 and 345 through 350. Census tracts 2170.02, 2171.01 and 2171.02. Census tract 2172.01, blocks 202 through 222, 303, 304, 309, 310, 313 through 315 and 321 through 328. Census tracts 2172.02, 2176, 2177, 2178 and 2179. Census tract 2182, blocks 101, 103 through 109, 115, 204 through 208, 216 through 218 and 311 through 315. Census tract 2183. 29 Maricopa county Census tract 3193. Census tract 3194.04, blocks 101 through 118. Census tract 4205. Census tract 4206.01, blocks 201, 203 through 208, 210 through 213 and 215 through 243. Census tracts 4208, 4209.01, 4209.02 and 4210. Census tract 4211.01, blocks 301 through 309. Census tract 4211.02. Census tract 4212.02, blocks 102 through 115, 202 through 208, 210 through 212 and 214 through 219. Census tracts 4213.01, 4213.02, 4214, 4215.01, 4215.02, 4216.01, 4216.02, 4218.01, 4218.02, 4219.01, 4219.02, 4220.01, 4220.02, 4221.01, 4221.02, 4221.03 and 4221.04. 30 Maricopa county *552 Census tract 3194.04, blocks 201 through 211 and 213. Census tracts 4222.01, 4222.02, 4222.03, 4222.04, 4222.05, 4222.06, 4223, 4224 and 4225. Census tract 4226.01, blocks 401 through 416, 418 through 428, 496 through 498, 501, 502, 918 and enumeration district 188. Census tracts 4226.02 and 5227.01. Census tract 5227.02, blocks 103, 104, 106, 107, 109 through 123, 125 through 132, 301 through 314, 399, 599 and enumeration district 197. Census tracts 5228, 5229, 5230.01, 5230.02, 5231.01 and 5231.02. EXHIBIT "B" Congressional Districts District 1 Description Maricopa county Census tracts 1082, 1083, 1084 and 1085. Census tract 1086, blocks 206 through 220, 401, 402 and 405 through 407. Census tract 1087. Census tract 1088, blocks 208 through 221, 301 through 306 and 308 through 317. Census tract 1105, blocks 101 through 103, 108 through 111, 114, 116, 117, 401, 402, 404, 405, 407, 408, 411, 412 and 501 through 504. Census tracts 1106, 1107, 1108, 1109, 1110, 1111, 1112.01, 1112.02, 1113, 1114, 1115, 1116, 1133, 1134, 1135, 1136, 1137, 1138, 1139, 1151 and 1152. Census tract 1153, blocks 101 through 119. Census tracts 1160, 1161, 1162.02, 1162.03, 1162.04 and 1163. Census tract 1167.06, blocks 101 through 127, 201 through 215, 302 through 305, 399, 401, 403 and enumeration district 2A. Census tracts 2172.01, 2174, 2175, 2176, 2177, 2178, 2179, 2180, 2181, 2182, 2183, 3184, 3185.01, 3185.02, 3186, 3187, 3188, 3189, 3190, 3191, 3192, 3193, 3194.01, 3194.02, 3194.03, 3194.04, 3195, 3196, 3197.02, 3197.03, 3197.04, 3198, 3199.02, 3199.03, 3199.04, 3199.05, 3199.06, 3199.07, 3199.08, 3200.01, 3200.02, 4201.01, 4201.02 and 4201.03. Census tract 4202.01, blocks 102 through 112, 114 through 133, 196 through 199, 202 through 218, 225, 226 and 301 through 339. Census tracts 4202.02, 4202.03, 4203, 4204, 4205, 4206.01, 4206.02, 4207.01, 4207.02, 4208, 4209.01, 4209.02, 4210, 4211.01, 4211.02, 4212.01, 4212.02, 4213.01, 4213.02, 4214, 4215.01, 4215.02, 4216.01, 4216.02, 4217, 4218.01, 4218.02, 4219.01, 4219.02, 4220.01, 4220.02, 4221.01, 4221.02, 4221.03, 4221.04, 4222.01, 4222.02, 4222.03, 4222.04, 4222.05, 4222.06, 4223, 4224, 4225, 4226.01, 4226.02, 4226.03, 4226.04, 4226.05, 4226.06, 5227.01, 5227.02, 5228, 5229, 5230.01, 5230.02, 5231.01 and 5231.02. District 2 Description Maricopa county Census tracts 1089, 1090, 1091, 1092, 1093 and 1094. Census tract 1098, blocks 119, 121, 122, 125, 126, 206 through 222, 301, 302 and 307 through 313. Census tracts 1099, 1100, 1101, 1102, 1103 and 1104. Census tract 1105, blocks 118, 119, 204 through 207, 210 through 218, 301 through 312, 314, 403, 406, 409, 410, 505 through 508 and 601 through 609. Census tracts 1106, 1117, 1118, 1119, 1120, 1121, 1122, 1123, 1124, 1125.02, 1125.03, 1125.04, 1126, 1127, 1128, 1129, 1130, 1131, 1132, 1140, 1141, 1142, 1143, 1144, 1145, 1146, 1147, 1148, 1149 and 1150. Census tract 1153, blocks 201 through 204 and 207 through 209. Census tracts 1154, 1155, 1156, 1157, 1158, 1159, 1164, 1165, 1166.01, 1166.02, 1167.02, 1167.03, 1167.04 and 1167.05. Census tract 1167.06, block 501 and enumeration district 1. Census tracts 6232 and 7233. Pima county Census tracts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13.01, 13.02, 14 and 15. *553 Census tract 16, blocks 116 through 119, 201 through 224, 301 through 312, 315 through 318, 359, 404, 405, 415, 416, 506, 507 and 520. Census tract 19, blocks 111, 112, 114 through 116, 201 through 203, 206 through 218, 254, 255, 301 through 314, 413 through 420 and 501 through 505. Census tract 20. Census tracts 21, 22, 23, 24, 25.01 and 25.02. Census tract 26.01, blocks 201 through 217 and 301 through 315. Census tract 26.02, blocks 118 through 121, 203 through 212 and 301 through 312. Census tract 27, blocks 301 through 323, 339, 343 through 345, 401 through 405 and 407 through 409. Census tracts 37.01, 37.02, 37.03, 38 and 39. Census tract 41.02, blocks 110 through 116, 167, 168, 902 through 904, 907 and 951. Census tract 41.03, blocks 101 through 104, 106 through 125, 127 through 132, 134 through 161 and 201 through 215. Census tract 41.04, blocks 101 through 141. Census tracts 42, 43.01 and 43.04. Census tract 43.05, enumeration districts 259 through 262. Census tract 44.01, blocks 202 through 205, 208, 210 through 224, 251 through 255, 259, 302 through 304, 306 through 313, 351, 355, 356, 901 through 903 and 905. Census tract 44.03, blocks 401 through 408, 414 through 428, 437 and 501. Census tract 44.05, blocks 315 through 318, 320 through 322, 501, 504, enumeration districts 267A, 267B and 269 through 277. Census tract 45.04, blocks 201, 202, 301 through 309 and 408 through 413. Census tract 45.05, blocks 201 through 207, 301 and 302. Census tracts 48, 49 and 50. Pinal county Census tracts 1 and 18. Santa Cruz county Block numbering areas 9901 and 9902. Enumeration districts 15A and 17A. Yuma county Census tracts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13. Census tract 109, blocks 101 through 104, 150, 151, enumeration districts 248 through 250, 252, 254, 330 and 331. Census tracts 110 and 111. Census tract 112, enumeration districts 228, 229 and 240. Census tracts 113, 114, 115 and 116. District 3 Description Coconino county Block numbering areas 9901, 9902, 9903, 9904 and 9905. Enumeration districts 100 through 113, 114A, 114B, 114C, 115 through 121, 125 through 141, 142A, 142C, 143 through 149, 150A, 151 through 179, 5000 through 5105, 5107 through 5127, 5129 through 5131, 5133 through 5142, 5800 through 5805, 5807, 5808, 7060 through 7064 and 7848 through 7872. Maricopa county Census tract 303.09. Census tract 303.10, blocks 101 through 106, 111, 113, 201 through 206, 216, 302 through 324, 401 through 407, 410 through 413 and 416. Census tracts 303.11, 303.12, 303.13, 405.01, 405.02, 506, 507, 608, 609, 610.01, 610.02, 611, 612, 613, 614, 715.01, 715.02, 715.03, 715.04, 715.05, 716, 717, 718, 719.01, 719.02, 820.01, 820.02, 820.03, 820.04, 821, 822.01, 822.02, 923.01, 923.02, 923.03, 924, 925, 926, 927.01, 927.02, 927.03, 928, 929, 930, 931.01 and 931.02. Census tract 1042.02, blocks 201 through 207, 301 through 318 and 401 through 417. Census tracts 1042.03 and 1042.04. Census tract 1042.05, blocks 301 through 303 and 305 through 324. Census tract 1042.06. Census tract 1042.08, blocks 201 through 219. *554 Census tracts 1042.09, 1042.10, 1042.11, 1042.12, 1042.13, 1057, 1058, 1070, 1071, 1095, 1096.01, 1096.02 and 1097. Census tract 1098, blocks 101 through 106, 109, 117, 118, 123, 303 through 306, 314 and 401 through 409. Mohave county Block numbering areas 9901 and 9902. Enumeration districts 1 through 86, 87A, 87B, 87C and 88 through 138. Yavapai county Block numbering areas 9901 and 9902. Enumeration districts 450 through 453, 454A, 454B, 455 through 460, 461A, 461B, 462 through 477, 478A, 478B, 478C, 479A, 479B, 480 through 491, 492A, 492B, 493 through 506, 507A, 507B, 508 through 512, 513A, 513B, 514 through 516, 517A, 517B, 517C, 518, 519, 520A, 521 through 525, 526A and 527 through 541. Yuma county Census tracts 101, 102, 103, 104, 105, 106, 107 and 108. Census tract 109, enumeration districts 244 through 247, 255 and 256. Census tract 112, enumeration district 239. District 4 Description Apache county Enumeration districts 552 through 562, 563A, 563B, 563C, 564, 565A, 565B, 565C, 565D, 566A, 566B, 569, 572, 573, 3000 through 3035, 3500 through 3583, 3585 through 3587, 3589 through 3630, 3649 through 3682 and 3702 through 3759. Gila county Block numbering area 9901. Enumeration districts 450 through 486, 487A, 487B, 488A, 488B, 488C, 489, 490, 491A, 491B, 492A, 492B, 492C, 493A, 493B, 494 through 496, 497A, 497B, 498A, 498B, 498C, 498D, 499 through 512, 513A, 513B, 514 and 6000 through 6035. Graham county Enumeration districts 50 through 56. Maricopa county Census tracts 101, 202, 303.02, 303.03, 303.04, 303.05, 303.06, 303.07 and 303.08. Census tract 303.10, blocks 109, 110, 112, 199, 301, 408, 409, 414, 415, 417 through 442, 444 through 469, 472, 477 through 481, 486, 487, 493 through 497, 682 through 687, 690, 692, 695, 921, enumeration districts 352, 353, 354A, 355A and 356A. Census tracts 304, 1032.04, 1032.05, 1032.06, 1032.07, 1032.08, 1032.09, 1033.02, 1033.03, 1033.04, 1034, 1035.01, 1035.02, 1036.01, 1036.02, 1036.03, 1037, 1038, 1039, 1040 and 1041. Census tract 1042.02, blocks 101 through 119. Census tract 1042.05, blocks 101 through 110 and 201 through 213. Census tract 1042.07. Census tract 1042.08, blocks 101 through 108. Census tracts 1043, 1044, 1045, 1046, 1047, 1048.01, 1048.02, 1049, 1050.01, 1050.02, 1051.01, 1051.02, 1051.03, 1052, 1053, 1054, 1055, 1056, 1059, 1060, 1061, 1062, 1063, 1064, 1065, 1066, 1067, 1068, 1069, 1072, 1073, 1074, 1075, 1076, 1077, 1078, 1079, 1080 and 1081. Census tract 1086, blocks 101, 102, 106, 108 through 115, 118 through 126, 301 through 313 and 315 through 323. Census tract 1088, blocks 101 through 106, 113 through 116, 201 through 207 and 320 through 324. Census tracts 2168.02, 2168.03, 2168.04, 2168.05, 2169, 2170.01, 2170.02, 2171.01, 2171.02, 2172.02 and 2173. Census tract 4202.01, enumeration district 182. Navajo county Enumeration districts 375 through 423, 424A, 424B, 425, 426A, 426B, 427 through 434, 4000 through 4081, 4500 through 4549, 4551 through 4581, 4601 through 4651, 4800 through 4839, 7000 through 7040 and 7800 through 7833. Pinal county Census tract 6, enumeration districts 83A and 83B. *555 District 5 Description Apache county Enumeration districts 567, 568, 570, 571 and 574 through 576. Cochise county Block numbering areas 9901, 9902, 9903, 9904, 9905, 9906 and 9907. Enumeration districts 50 through 53, 54A, 55A, 56, 58A, 59 through 81, 82A, 82B, 83 through 92, 93A, 94 through 103 and 105 through 112. Graham county Enumeration districts 57 through 74, 75A, 75B, 75C, 75D, 76, 77A, 77B, 78A, 78B and 79 through 87. Greenlee county Enumeration districts 1 through 21. Pima county Census tract 16, blocks 101 through 115, 313, 314, 321 through 324, 401 through 403, 406 through 408, 412 through 414, 417 through 419, 459, 470, 503 through 505 and 508 through 519. Census tracts 17 and 18. Census tract 19, blocks 101 through 110, 163, 164, 315, 316, 350, 351, 367, 368, 401 through 412 and 506 through 519. Census tract 26.01, blocks 101 through 105. Census tract 26.02, blocks 101 through 117, 201 and 202. Census tract 27, blocks 101 through 105, 107 through 118, 156 through 158, 201 through 220, 406, 410 through 415 and 466 through 469. Census tracts 28, 29.01, 29.03, 29.04, 30.01, 30.02, 31.01, 31.02, 32, 33.01, 33.02, 34, 35.01, 35.02, 35.03, 35.04, 36, 40.01, 40.04, 40.08, 40.09, 40.10, 40.11, 40.12, 40.13, 40.14, 40.15, 40.16, 40.17, 40.18, 40.19, 40.20, 40.21 and 40.22. Census tract 41.02, blocks 102 through 109, 151 through 153, 169, 201 through 204, 212 through 216, 225 through 235, 240, 241, 905, 906, 908, 917, 919, 920, 927 through 931, 933 through 937, 959, 960, 968, 969, 971, 973, 982, 983, 988, 989 and enumeration districts 238 through 243. Census tract 41.03, blocks 301 through 316 and 401 through 415. Census tract 41.04, blocks 201 and 301 through 303. Census tract 43.03. Census tract 43.05, enumeration districts 254 through 258 and 334. Census tract 44.01, blocks 102 through 107, 112, 114 through 120, 151 through 155, 158 through 166, 171 through 174, 314 through 320, 368 through 371, 906 through 908, 910, 959 and 961 through 969. Census tract 44.03, blocks 101, 102, 105 through 109, 126 through 128, 201 through 237, 269, 303 through 320, 350, 409 through 413, 429 through 436, 602 through 604, 695 through 699, 904, enumeration districts 236 and 237. Census tract 44.04. Census tract 44.05, blocks 101 through 108, 110 through 124, 126 through 128, 135 through 139, 202 through 232, 234 through 243, 245 through 247, 288, 301 through 312, 401 through 431, 610 through 613, enumeration districts 265, 266 and 268. Census tract 45.04, blocks 101, 102, 104 through 106 and 401 through 407. Census tract 45.05, blocks 101 through 110. Census tracts 45.06, 45.07, 45.08, 45.09, 46.03, 46.04, 46.05, 46.06, 47.03, 47.04, 47.05, 47.06 and 47.07. Pinal county Census tracts 2, 3, 4 and 5. Census tract 6, enumeration districts 76 through 78, 82T, 82U and 84 through 88. Census tracts 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19, 20 and 21. Santa Cruz county Enumeration districts 1 through 12, 13A, 14A, 14C and 16.

Case: 15-10445 Date Filed: 12/14/2015 Page: 1 of 17 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 15-10445 Non-Argument Calendar ________________________ Agency No. 13-0821 FLORIDA LEMARK CORPORATION, Petitioner, versus SECRETARY, U.S. DEPARTMENT OF LABOR, Respondent. ________________________ Petition for Review of a Decision of the Occupational Safety and Health Review Commission ________________________ (December 14, 2015) Before TJOFLAT, WILSON, and ROSENBAUM, Circuit Judges. PER CURIAM: This is a petition for review of a final order of the Occupational Safety and Health Review Commission (“Commission”) finding that Petitioner Florida  Case: 15-10445 Date Filed: 12/14/2015 Page: 2 of 17 Lemark Corporation (“Florida Lemark”) violated its general duty to keep its worksite free of hazards. On appeal, Florida Lemark contends that the finding of a worksite hazard is not supported by substantial evidence in the record. Florida Lemark also argues that it did not have constructive knowledge of the hazard, pursuant to this Court’s decision in ComTran Group, Inc. v. U.S. Department of Labor, 722 F.3d 1304 (11th Cir. 2013), because the hazard was created by supervisor misconduct. After careful review, we deny the petition and affirm the Commission’s decision. I. This case arises out of a tragic incident involving the partial collapse of a nearly finished, six-story parking garage under construction on Miami Dade College’s campus in Doral, Florida, on October 10, 2012. 1 The collapse killed four employees of three different employers and injured several others, including a Florida Lemark employee. It is undisputed that the collapse occurred due to catastrophic structural failure of one of the garage’s supporting columns. The garage was a “precast” structure, meaning the structural pieces of the building were manufactured off-site and erected on-site. After the foundation was poured on-site, precast columns were moved into position on the foundation by a 1 See, e.g., 2 People Dead, 1 Person Remains Trapped in Garage Collapse at Miami Dade College’s West Campus: Officials, NBC Miami, http://www.nbcmiami.com/news/Garage- Collapse-Reported-at-Miami-Dade-Colleges-West-Campus-Officials-173509351.html (last visited Nov. 20, 2015). 2  Case: 15-10445 Date Filed: 12/14/2015 Page: 3 of 17 crane. The columns were placed on metal shims—small pieces of metal used to adjust the elevation of the column—and then bolted to the foundation with four anchor bolts through a metal base plate embedded in the bottom of the column. This process left a two- to three-inch gap between the bottom of the column and the foundation. The gap was then filled with grout cement, which has a greater weight-bearing capacity than concrete. The shim stacks and anchor bolts could support the weight of only the column itself, but were insufficient to support the weight of the other structural pieces placed on the column later in construction. To address this situation, the grout was to allow the column to transfer weight more effectively to the foundation and to hold the subsequent loads. The engineering drawings for the parking garage required grout to be placed no later than forty- eight hours after each column was erected. The construction of the parking garage was managed by Ajax Building Corp. (“Ajax”). Other companies were hired to complete specific parts of the project, including (a) MEP Structural Engineering and Inspection, Inc. (“MEP”), which inspected construction and ensured compliance with construction plans; (b) Solar Erectors, Inc. (“Solar”), which erected the precast pieces at the construction site; and (c) Florida Lemark, the petitioner in this case, which grouted the various pieces that made up the structure. 3  Case: 15-10445 Date Filed: 12/14/2015 Page: 4 of 17 Following the collapse of the parking garage, the Occupational Safety and Health Administration (“OSHA”) investigated the worksite and then issued Florida Lemark, among others, a citation alleging that it failed to keep its worksite free of hazards. OSHA specifically alleged a “serious” violation of the “general duty clause,” which requires employers to keep their worksites “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to their employees. See 29 U.S.C. § 654(a)(1). According to the citation, Florida Lemark exposed its employees to a recognized hazard—being struck by and caught in between collapsing pre-cast structural members—by not performing grouting on the bases of two columns, identified as columns “B3” and “A3.3.” II. The Occupational Safety and Health Act (the “Act”), 29 U.S.C. § 651, et seq., gives the Secretary of Labor (“Secretary”), and by extension OSHA, the authority to commence enforcement actions against employers to ensure compliance with the Act. The overarching purpose of the Act is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.” 29 U.S.C. § 651(b). Once OSHA issues a citation to an employer, the employer may contest the citation and request a hearing before an administrative law judge (“ALJ”). See generally ComTran Grp., Inc., 722 F.3d at 1306-07 (explaining the statutory and regulatory scheme under the Act). 4  Case: 15-10445 Date Filed: 12/14/2015 Page: 5 of 17 Florida Lemark contested its citation, and an ALJ held an evidentiary hearing to resolve the contest. The ALJ heard testimony from OSHA investigators and various persons involved in the construction of the parking garage. Notably, the ALJ heard from the following persons: Mohammad Ayub, who headed OSHA’s investigation into the collapse; MEP’s director of engineering, who testified about MEP’s inspection records; and Ajax’s director of risk management, who indicated that an engineering firm hired by Ajax found evidence of grout under column B3. Ayub, an expert in the field of forensic structural engineering, testified about his investigation of the worksite for OSHA and his conclusions that columns B3 and A3.3 had not been grouted. He explained that the lack of grout under column B3 led to that column’s failure and the partial collapse. He also stated that the lack of grout under column A3.3 posed a similar risk of collapse, though it was not the cause of the collapse in this case. MEP’s director of engineering testified about MEP’s inspection records, which indicated that MEP inspected column B3 after it was erected on September 13, 2012. The report prepared for that inspection noted that grouting would be inspected at a future date, which meant, according to the director, that grout was “not present” at the time of the inspection. The director also testified that he could find no inspection report showing that column B3 had been grouted. 5  Case: 15-10445 Date Filed: 12/14/2015 Page: 6 of 17 Ajax’s director of risk management, Marc Reeves, testified that he was privy to emails discussing the work of an engineering firm that Ajax had hired to investigate the collapse. According to Reeves, the engineering firm’s testing had indicated the presence of grout under column B3. The firm purportedly determined that the grout had a high water content, which potentially could have caused the collapse. The purported engineering report was not introduced at the hearing, nor did someone with the engineering firm testify about the report. Following the hearing, the ALJ issued a decision affirming the citation and assessing a penalty of $6,300.00. The ALJ conducted a five-step analysis to determine whether the Secretary had met its burden of showing a violation of the general duty clause. First, the ALJ found that an activity or condition at the site constituted a “hazard” under the Act. Crediting Ayub’s testimony, the ALJ found that the Secretary had proved by a preponderance of the evidence that columns B3 and A3.3 had not been grouted. According to the ALJ, no other credible evidence contradicted Ayub’s conclusions and testimony. For example, no witness testified that either column had been grouted. The only evidence contradicting Ayub’s testimony, the ALJ stated, was “unreliable hearsay statements testified to by Mr. Reeves,” whose testimony the ALJ explicitly did not credit. Second, the ALJ found that the possibility of structural collapse due to the failure to grout supporting columns was a condition known to be hazardous by 6  Case: 15-10445 Date Filed: 12/14/2015 Page: 7 of 17 Florida Lemark and the precast concrete construction industry. Third, the ALJ found that the hazard was likely to cause death or serious physical harm. Florida Lemark does not challenge the ALJ’s findings on these two points. Fourth, the ALJ found that feasible means existed to eliminate or materially reduce the hazard. Specifically, Florida Lemark could have followed the construction plans and ensured that columns were grouted within forty-eight hours of being erected. The ALJ found that Florida Lemark had no rule or procedure for tracking or determining when grouting had been done. Rather, Florida Lemark relied on others both to inform it both when grouting was necessary and if there were any deficiencies in the grouting. The ALJ found that Florida Lemark could have undertaken measures to ensure that inspections of its grouting were complete before a column was loaded. Finally, the ALJ determined that Florida Lemark had constructive knowledge of the condition, despite its lack of actual knowledge. In other words, the ALJ concluded that Florida Lemark could have discovered the condition with the exercise of due diligence. According to the ALJ, Florida Lemark knew which elements were being erected each day and had supervisors on-site on a regular basis, but Florida Lemark conducted no routine inspections of the work its employees performed, nor did it keep track of the columns it had grouted. Instead, Florida Lemark relied on Solar and MEP to conduct inspections. Thus, the ALJ 7  Case: 15-10445 Date Filed: 12/14/2015 Page: 8 of 17 found that Florida Lemark did not have an effective safety program because it failed to take reasonable steps to monitor compliance with safety requirements. The ALJ also rejected Florida Lemark’s reliance on this Court’s decision in ComTran Group. The ALJ found that ComTran Group concerned the special circumstance of a hazard created by the unforeseeable misconduct of a supervisor, whereas this was “the ordinary case” where the hazard was created by subordinate employees and should have been discovered by a supervisor through the exercise of due diligence. Florida Lemark sought discretionary review of the ALJ’s decision before the Commission. See 29 C.F.R. § 2200.91(b). The Commission declined review, and Florida Lemark now brings this petition for review.2 See 29 U.S.C. §§ 660(a) & 661(j). III. We review findings of fact by the ALJ to determine whether they are supported by substantial evidence on the record as a whole. 3 29 U.S.C. § 660(a) 2 We asked the parties a jurisdictional question regarding the timeliness of Lemark’s petition for review. See 29 U.S.C. § 660(a) (providing that a petition for review must be filed with an appropriate court of appeals within sixty days of the date of the final order). Having reviewed the parties’ responses to our question, we are satisfied that the petition was timely filed and that we have jurisdiction over Lemark’s petition. 3 Because the Commission declined review, the ALJ’s order became the final order of the Commission. See 29 U.S.C. § 661(j). Therefore, we review the ALJ’s decision under the same standards as we would a decision issued by the Commission. See Safeway, Inc. v. Occupational Safety & Health Review Comm’n, 382 F.3d 1189, 1192-93 (10th Cir. 2004). 8  Case: 15-10445 Date Filed: 12/14/2015 Page: 9 of 17 (“The findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive.”); J.A.M. Builders, Inc. v. Herman, 233 F.3d 1350, 1352 (11th Cir. 2000). “Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion. J.A.M. Builders, Inc., 233 F.3d at 1352 (quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)). “[T]he legal determinations of an agency like the [Commission] are to be overturned only if they are ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with [the] law.’” Fluor Daniel v. Occupational Safety & Health Review Comm’n, 295 F.3d 1232, 1236 (11th Cir. 2002). IV. To show a violation of the general duty clause, the Secretary must prove five things: (1) a hazard existed; (2) the employer or the industry recognized the hazard; (3) the hazard was likely to cause death or serious physical harm to employees; (4) a feasible means existed to mitigate or eliminate the hazard; and (5) employer knowledge of the hazard. See Safeway, Inc. v. Occupational Safety & Health Review Comm’n, 382 F.3d 1189, 1195 (10th Cir. 2004); cf. ComTran Grp., Inc., 722 F.3d at 1307. Florida Lemark challenges only whether a hazard existed and, if it did, whether it had knowledge of the hazard. We address each contention separately. 9  Case: 15-10445 Date Filed: 12/14/2015 Page: 10 of 17 A. Substantial evidence supports the ALJ’s determination that a hazard existed at the worksite because no grout was placed under columns B3 and A3.3. The ALJ reasonably relied on Ayub’s testimony in concluding that columns B3 and A3.3 had not been grouted. Ayub was an expert in the field of forensic structural engineering4 who had investigated approximately seventy-nine prior structural collapses, including ten parking garages using precast concrete. Ayub explained that he conducted a thorough, two-day search for any trace of grout at the base of column B3 but could find none. Based on visual inspection and comparison with other columns that had been grouted, he concluded that neither column B3 nor A3.3 had been grouted. In crediting Ayub’s testimony, the ALJ also reasonably relied on the lack of credible evidence contradicting it. No witness with knowledge testified that those columns had been grouted, and no documentary evidence, such as inspection reports, indicated that the columns had been grouted. Florida Lemark contends that Ayub’s testimony fails to establish the existence of a hazard because he examined the column’s base after the site had been cleaned up, he conducted no testing of the material under column B3, and he “recanted” his testimony about the presence of grout under column B3 when 4 Forensic structural engineers investigate and determine the causes of structural failure. 10  Case: 15-10445 Date Filed: 12/14/2015 Page: 11 of 17 shown a pre-clean-up photograph of the bottom of the collapsed column. We disagree. First, substantial evidence supports the ALJ’s determination that Ayub, as an expert with considerable expertise, would have been able to make a visual inspection to determine the presence of grout even after the clean-up. Ayub testified without contradiction that he would have been able to see signs of grout on the underside of the column base plates, which were still intact, despite the clean-up, and without the need for testing. Ayub also explained that grout looks different than precast concrete, that column B3 had been carefully hand-cleaned with brush and broom, and that he compared columns A3.3 and B3 with other columns that had been grouted. Second, Ayub did not “recant” his testimony regarding the absence of grout under column B3, as Florida Lemark contends. During cross-examination by Florida Lemark’s counsel, counsel presented Ayub with a photograph of the bottom of column B3 before clean-up. Ayub acknowledged that he could not “rule out the possibility” that darker material in the photograph was grout, but he then clarified that he did not think it was grout, and at no point did he indicate that the picture changed his conclusions regarding the lack of grout under column B3. In sum, the ALJ permissibly relied on Ayub’s testimony as evidence of the lack of grouting. 11  Case: 15-10445 Date Filed: 12/14/2015 Page: 12 of 17 Florida Lemark also contends that the ALJ ignored or improperly discredited other evidence indicating that grout was present under column B3. Again, we disagree. The ALJ gave good reasons for her decision to discredit Reeves’s testimony that the engineering firm found the presence of grout, as it was based on hearsay statements regarding an unreleased and unfinished report. Moreover, no evidence was presented to the ALJ that substantiated the purported conclusion of the report, such as documentation or live testimony from an engineer with the firm. 5 In making her credibility determination, the ALJ also relied on Reeves’s demeanor, finding that he was a “reluctant” witness. Consequently, substantial evidence supports the ALJ’s decision to discredit Reeves’s testimony. In addition, evidence that no one at the construction site noticed or was aware that column B3 had gone ungrouted does not compel an inference that grout was present. Indeed, the fact that column A3.3 was not grouted—a finding Florida Lemark does not challenge—supports the ALJ’s decision not to infer the presence of grout from the fact that the lack of grouting went unnoticed for over twenty days. Assuming it would have been permissible for the ALJ to find in Florida Lemark’s favor on this point, there is sufficient evidence to support the ALJ’s 5 The fact that OSHA earlier was made aware of the same purported engineering report is not significant because the record reflects that OSHA was never provided a copy of the report or some other documentation to substantiate the report’s conclusions. 12  Case: 15-10445 Date Filed: 12/14/2015 Page: 13 of 17 contrary determination that grout was not present under column B3. See Fluor Daniel, 295 F.3d at 1241. Finally, Florida Lemark makes a cursory challenge to the finding of a hazard with respect to column A3.3, claiming that the load on the column was of “little significance.” However, a “hazard” refers to the risk of injury as a result of the condition, not the proximate cause of the accident in this case. See Safeway, Inc., 382 F.3d at 1195 n.5. Here, Ayub testified that the risk of collapse is present once workers start loading ungrouted columns and that the lack of grout under column A3.3 posed “great risk of collapse.” And there is no dispute that column A3.3 had been loaded or that collapsing columns posed a hazard to employees. Thus, although column A3.3 did not in fact collapse, substantial evidence supports the ALJ’s finding that the lack of grout under column A3.3, like the lack of grout under column B3, was a hazard. In sum, the ALJ’s decision to credit Ayub’s testimony is supported by substantial evidence, and his testimony, in addition to other record evidence, provides sufficient evidence to support the ALJ’s finding of a hazard due to the lack of grouting under columns B3 and A3.3. B. The Act imposes liability on the employer for a serious violation “only if the employer knew, or ‘with the exercise of reasonable diligence, [should have known] 13  Case: 15-10445 Date Filed: 12/14/2015 Page: 14 of 17 of the presence of the violation.’” W.G. Yates & Sons Construction Co., Inc. v. Occupational Safety & Health Review Comm’n, 459 F.3d 604, 607 (5th Cir. 2006) (quoting 29 U.S.C. § 666(k)). Thus, the Secretary must show either that the employer had actual knowledge or constructive knowledge of the violation. ComTran Grp., Inc., 722 F.3d at 1307-08. There is no evidence of actual knowledge in this case. Therefore, the Secretary needed to show constructive knowledge—that Florida Lemark could have discovered the hazard with the exercise of reasonable diligence. We have identified two ways in which the Secretary can show constructive knowledge. First, constructive knowledge may be shown “where the supervisor may not have directly seen the subordinate’s misconduct, but he was in close enough proximity that he should have.” Id. at 1308. Second, “the Secretary can show knowledge based upon the employer’s failure to implement an adequate safety program, with the rationale being that—in the absence of such a program— the misconduct was reasonably foreseeable.” Id. (citation omitted). The employer can avoid liability by showing that the violation was the result of “unpreventable or unforeseeable employee misconduct.” Id. Here, substantial evidence supports the ALJ’s determination that Florida Lemark had constructive knowledge of the hazard because it failed to take reasonable steps to monitor compliance with safety requirements. See id.; N.Y. 14  Case: 15-10445 Date Filed: 12/14/2015 Page: 15 of 17 State Elec. & Gas Corp. v. Sec’y of Labor, 88 F.3d 98, 105-06 (2d Cir. 1996) (“[C]onstructive knowledge may be predicated on an employer’s failure to establish an adequate program to promote compliance with safety standards.”). The record establishes that Florida Lemark knew which elements were being erected each day but that it conducted no routine inspections of the work its employees performed, nor did it kept track of the columns it had grouted or train its employees what to do if a column went ungrouted. Nothing prevented Florida Lemark from taking steps to ensure that grouting was inspected, and therefore completed, before columns were loaded. Consequently, substantial evidence supports the ALJ’s determination that Florida Lemark failed to implement an adequate safety program to ensure that grouting was performed before columns were loaded. Florida Lemark’s reliance on ComTran Group is misplaced.6 ComTran Group concerns when knowledge of a supervisor can be imputed to the employer for purposes of establishing employer knowledge. In the “ordinary case,” a supervisor’s knowledge is imputed to the employer. ComTran Grp., Inc., 722 F.3d at 1308 & n.2. However, the “ordinary case” is distinct from one where the supervisor is the “actual malfeasant” who creates the hazard. Id. at 1308 n.2. 6 ComTran Group expressly did not concern proving “constructive employer knowledge based on the employer’s inadequate safety program.” 722 F.3d at 1311. For that reason alone, Lemark’s arguments are misguided. 15  Case: 15-10445 Date Filed: 12/14/2015 Page: 16 of 17 Recognizing that distinction, we held in ComTran Group that showing misconduct by a supervisor alone is not sufficient to prove employer knowledge. Id. at 1316. Rather, “employer knowledge must be established, not vicariously through the violator’s knowledge, but by either the employer’s actual knowledge, or by its constructive knowledge based on the fact that the employer could, under the circumstances of the case, foresee the unsafe conduct of the supervisor [that is, with evidence of lax safety standards].” Id. at 1316. Here, even assuming that the hazard was created by a Florida Lemark supervisor’s failure to follow the erection guidelines, that unsafe conduct would still have been reasonably foreseeable to Florida Lemark. As we have noted, Florida Lemark had no rule or procedure in place for tracking or determining when grouting had been done or ensuring that it had been inspected. As a result, the supervisor’s failure to track what grouting had been performed and whether it had been inspected followed naturally from the lack of rule or procedure. Therefore, constructive knowledge was established because the alleged misconduct was reasonably foreseeable. See id. at 1308 & n.3. In its reply brief, Florida Lemark argues that the measures identified by the ALJ are not reasonable means to monitor compliance with safety standards. We decline to consider this belated argument because it was raised for the first time in Florida Lemark’s reply brief. See United States v. Levy, 379 F.3d 1241, 1244 (11th 16  Case: 15-10445 Date Filed: 12/14/2015 Page: 17 of 17 Cir. 2004) (“[T]his Court . . . repeatedly has refused to consider issues raised for the first time in an appellant’s reply brief.”). V. Overall, substantial evidence supports the ALJ’s determinations that a hazard existed due to Florida Lemark’s failure to grout columns B3 and A3.3 and that Florida Lemark had constructive knowledge of the hazard as a result of its lack of an adequate program to monitor compliance with safety requirements. Therefore, we DENY Florida Lemark’s petition for review and AFFIRM the ALJ’s decision finding that Florida Lemark committed a serious violation of the general duty clause, 29 U.S.C. § 654(a)(1). 17 

48 F.3d 1228NOTICE: 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. PEOPLE OF the TERRITORY OF GUAM, Plaintiff-Appellant,v.Enrique B. TAIMANGLO, Defendant-Appellee. No. 94-10168. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 13, 1995.Decided Feb. 28, 1995. Before: REINHARDT, THOMPSON, and KLEINFELD, Circuit Judges. 1 MEMORANDUM* 2 On June 26, 1984, Enrique B. Taimanglo was convicted of one count each of burglary, second-degree robbery, and possesion and use of a deadly weapon in the commission of a felony. At the conclusion of trial, the presiding judge, Judge Abbate, used the "hesitate to act" definition to instruct the jury on the meaning of reasonable doubt.1 In Guam, however, the definition of reasonable doubt is proof to a "moral certainty" or any term that adequately conveys this concept. Guam Criminal Procedure Code Sec. 90.23(a); see People of Guam v. Yang, 850 F.2d 507, 512 (9th Cir.1988) (en banc) ("Yang II "). Neither Taimanglo nor the prosecution requested Guam's statutory definition of reasonable doubt or objected to the "hesitate to act" definition at the time of trial. The Appellate Division reversed Taimanglo's conviction and remanded for a new trial, on the ground that the "hesitate to act" instruction given at trial required reversal. We affirm. 3 The parties agree that the instruction given conflicts with Guam law. The sole question on appeal is whether the erroneous instruction requires reversal. While acknowledging that the instruction given was erroneous, the People argue that the error had no effect on the verdict and, therefore, should be deemed harmless error. 4 We conclude that our decisions in Yang II and People of Guam v. Ibanez, 880 F.2d 108 (9th Cir.1989) require reversal of Taimanglo's conviction. As a general rule, we review jury instructions that are not objected to for plain error. People of Guam v. Borja, 983 F.2d 914, 919 (9th Cir.1992); Yang II, 507 F.2d at 512 n. 8. No showing of plain error is required, however, where a "wall of authority" precludes objection. Id. 5 In Yang II, the trial judge (Judge Abbate, the same judge who presided over this case) used the "hesitate to act" instruction instead of the "moral certainty" instruction. Although the defendant had requested the "moral certainty" instruction, he did not object to the instruction given by Judge Abbate. We held not only that the "hesitate to act" instruction failed adequately to convey the meaning embodied in the statute, id. at 512, but also that it was "substantially at odds with the the meaning of the statutory definition." Id. at 513. In particular, we noted that the instruction that Judge Abbate used defined "reasonable doubt" in terms of a reasonable person's behavior, instead of the state of mind of a person without reasonable doubt. Id. at 513. We then held that the use of the "hesitate to act" instruction was reversible error, despite the failure to object. Id. at 513. Because a "binding wall of authority" rendered contemporaneous objection to the erroneous definition futile, plain error analysis was inapplicable and the defendant's conviction was reversed. Id. at 512 n. 8, 513-14.2 In Ibanez, we extended Yang II by reversing in a case in which the defendant did not request a "moral certainty" instruction. Ibanez, 880 F.2d at 111-13. 6 This case is indistinguishable from Ibanez and Yang II. The same judge who presided in those cases used the same incorrect definition of reasonable doubt. Although Taimanglo did not raise a contemporaneous objection, a "binding wall of authority" existed at the time of trial.3 In these circumstances, both Yang II and Ibanez mandate reversal. Yang, 850 F.2d at 513-14; Ibanez, 880 F.2d at 113. 7 We reject the government's argument that the use of the "hesitate to act" instruction should be deemed harmless error. The harmless error rule, Fed.R.Crim.P. 52(a), was codified by Guam in 8 G.C.A. Sec. 130.50(a). Under Guam law, an error "which does not affect substantial rights shall be disregarded." We cannot conclude that the jury instruction error did not affect substantial rights. The jury was permitted to convict if the jurors would not "hesitate to act" in the most important of their personal affairs. They should have been permitted to convict only if they were persuaded to a "moral certainty." Some people might not hesitate to act in the most important of their personal affairs, such as choosing a spouse, job, or place to live, despite uncertainty about facts, because of the difficulty and delay of acquiring full information and the need to take risks in future-oriented decisions. See Federal Judicial Center, Pattern Criminal Jury Instructions FJC 18-19 (1987). 8 The Supreme Court's recent decision in Victor v. Nebraska, 114 S.Ct. 1239 (1994) does not alter our conclusion. Citing Victor, the People argue that the instruction given here is harmless because it is at least as favorable to the defendant as the instruction required by Guam law. We disagree. Like the court in Yang II, the majority and concurring opinions in Victor expressed some reservations about the instruction required by California and Guam law. Id. at 1248; id. at 1251 (Kennedy, J. concurring); id. at 1252 (Ginsburg, J. concurring). Nevertheless, the Court upheld the constitutionality of the instruction. Nothing in the Court's opinion supports the People's assertion that the "hesitate to act" instruction offered here is as favorable to defendants as the "moral certainty" instruction required by Guam law. 9 Finally, we note that the instruction given here would require reversal if given in a California trial court. When resolving questions concerning the interpretation of Guam statutes derived from California statutes, reliance on California law is appropriate. Yang II, 850 F.2d at 513. As the Yang II court noted, California courts use a definition of reasonable doubt "virtually identical" to that chosen by the Guam legislature. Id. If a California trial court gave the "hesitate to act" instruction instead of the "moral certainty" instruction, reversal would be required. Id. (citing People v. Bemmerly, 25 P. 266 (1890)). Although the Yang II court expressed some reservations about the "moral certainty" definition of reasonable doubt, it acknowledged the Guam legislature's authority to require that definition in its courts. Respect for this authority requires reversal of the defendant's conviction. Id. at 513-514; see also Ibanez, 880 F.2d at 113. 10 We cannot conclude that the trial court's use of the "hesitate to act" instruction, in place of the "moral certainty" instruction required by Guam law, was harmless error. We therefore affirm the reversal of Taimanglo's conviction. 11 AFFIRMED. * This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3 1 The actual instruction given reads in relevant part: Now as far as the burden as the burden of proof and reasonable doubt,.... It is not required that the Government prove their case beyond all possible doubt. The test is one of "reasonable doubt." And reasonable doubt is a doubt that is based upon common sense and reason, and it is a kind that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his or her own affairs. 2 This "wall of authority" was erected by (1) an unpublished Ninth Circuit opinion affirming an unpublished Guam opinion that upheld use of the "hesitate to act" definition;" see Guam v. Ignacio, Cr.App. No. 79-00036A (D.Guam App.Div), aff'd, 673 F.2d 1339 (9th Cir.1982); (2) Guam's practice of relying on unpublished Ninth Circuit opinions as binding; and (3) the fact that the presiding judge in the affirmed Guam opinion was also the judge in the case at bar. Yang II, F.2d at 512 n. 8 3 Our decision in People of Guam v. Borja, 983 F.2d 914 (9th Cir.1992), is not to the contrary. Borja reaffirmed Ibanez 's holding that the erroneous "hesitate to act" instruction requires reversal where a "wall of authority" exists, but found no such "wall of authority" in the circumstances presented. In Borja (unlike Yang II, Ibanez, and the instant case), at the time of trial: (1) the case permitting use of the "hesitate to act instruction" had been vacated and was pending rehearing en banc; and (2) a different judge presided over the trial. The Borja court reasoned that, in these circumstances, making an objection would not have been futile. The wall of authority that excepts the failure to object from the plain error standard did not exist at the time the jury instruction in Borja was given

989 F.2d 1450 1993 A.M.C. 1217, 61 USLW 2590,Prod.Liab.Rep. (CCH) P 13,649 Creighton E. MILLER, Administrator of the Estate of MauriceJ. Moline, Plaintiff-Appellee,v.AMERICAN PRESIDENT LINES, LTD., on its own behalf and assuccessor in interest to American Mail Lines; MatsonNavigation Company, Inc., on its own behalf and as successorin interest to the Oceanic Steamship Company; PacificAtlantic Steamship Company; Isbrandtsen Lines; West CoastShipping Company, Defendants-Appellants,Foster Wheeler Corporation; General Electric Company; T &N, PLC; Westinghouse Electric Corporation; Owens-CorningFiberglas Corporation; Keene Corporation; Owens-Illinois,Inc., Defendants-Appellees. Nos. 91-3602, 91-3837. United States Court of Appeals,Sixth Circuit. Argued June 11, 1992.Decided March 23, 1993.Rehearing and Rehearing En Banc Denied May 10, 1993. Leonard C. Jaques (argued and briefed), Jaques Admiralty Law Firm, Detroit, MI, Robert Swickle, Pittsburgh, PA, for Creighton E. Miller. Harold W. Henderson (argued and briefed), Richard C. Binzley, Russell W. Gray, Thomas A. Heffernan, Thompson, Hine & Flory, Cleveland, OH, Henry N. Ware, Jr. (argued), McGuire, Woods, Battle & Boothe, Richmond, VA, for American President Lines, Ltd. David G. Davies (briefed), Ray, Robinson, Hanninen & Carle, Cleveland, OH, for amici curiae. James W. Bartlett, III (argued and briefed), Wilson, Elser, Moskowitz, Edelman & Dicker, Baltimore, MD, Martin J. Fallon, Kevin O. Kadlec, William D. Bonezzi, Jacobson, Maynard, Tuschman & Kalur, Cleveland, OH, for Foster Wheeler Corp. Arlene C. Erlebacher, John A. Heller (briefed), Sidley & Austin, Chicago, IL, Michael R. Gallagher (argued), Gallagher, Sharp, Fulton & Norman, Cleveland, OH, Alton L. Stephens, Jr., Timothy T. Brick, Gallagher, Sharp, Fulton & Norman, Cleveland, OH, for General Elec. Co. Randall L. Solomon (briefed), Thomas H. Shunk, Wade A. Mitchell (argued), Elizabeth A. McNellie, Baker & Hostetler, Cleveland, OH, for T & N, PLC. Donald A. Powell, Buckingham, Doolittle & Burroughs, Akron, OH, Scott S. Cairns (briefed), McGuire, Woods, Battle & Boothe, Richmond, VA, for Westinghouse Elec. Corp. Michael D. Eagen, Cincinnati, OH, for Keene Corp. Susan Healy Zitterman (briefed), Kitch, Saurbier, Drutchas, Wagner & Kenney, Detroit, MI, Robert A. Bunda, Theresa R. DeWitt, Bunda, Stutz & DeWitt, Toledo, OH, for Owens-Corning Fiberglas Corp. John C. Stewart (briefed), Richard A. Papurt, Bunda, Stutz & DeWitt, Toledo, OH, for Owens-Illinois Inc. Before: MERRITT, Chief Judge; MILBURN, Circuit Judge; and PECK, Senior Circuit Judge. MERRITT, Chief Judge. 1 This is an asbestos case, an appeal from a judgment, following a jury verdict, holding defendant shipowners liable for the wrongful death of a seaman on theories of negligence and unseaworthiness, and from the dismissal of defendant shipowners' third party claims for indemnity and contribution from certain asbestos suppliers and manufacturers. 2 The case is one of twenty seaman's cases drawn from the Maritime Asbestos Docket to go to trial in the Northern District of Ohio on an accelerated schedule. The trial was divided into three phases: Phase I considered whether the plaintiff suffered an asbestos related disease and, if so, the amount of compensatory damages; Phase II dealt with liability and punitive damages; Phase III considered the shipowners' claims for indemnity and contribution against asbestos manufacturers and suppliers. The Phase I jury found that the plaintiff suffered from an asbestos related disease, and was due $166,000 in compensatory damages. The Phase II jury found the shipowners liable for the compensatory damages under negligence and unseaworthiness, and imposed punitive damages of $50,000 against each defendant for a total amount of punitive damages of $650,000. In Phase III, the District Court dismissed the shipowners' third party claims against the asbestos manufacturers and suppliers. 3 Defendant shipowners challenge the award of punitive damages; the denial of indemnification or contribution; the sufficiency of the evidence on the element of causation; the admission of testimony by certain of plaintiff's witnesses of whom the defendants had little notice; and the District Court's handling of a jury request for a written copy of the jury instructions. We conclude that punitive damages are not available in this case, and that the issue of indemnity and contribution should be analyzed in terms of comparative fault rather than under the active-passive negligence doctrine applied by the District Court. On all other issues we affirm the judgment of the District Court. I. Facts 4 This action was originally brought by Maurice Moline, a retired seaman, based upon his exposure to asbestos and other toxic chemicals as a crew member on defendants' ships. He alleged negligence under the Jones Act, 46 U.S.C.App. § 688, and unseaworthiness under general maritime law. Upon his death in 1989, the action was assumed by his personal representative. 5 Moline was employed on defendants' ships from 1944-1951 and from 1953-1969. A number of witnesses testified that asbestos was used extensively on the ships on which Moline worked. It was used as insulation in the engine rooms, on ventilation ducts, and on steam pipes running through crews' quarters. The pounding of the ships on the ocean and the normal deterioration of this insulation created asbestos dust everywhere the insulation was used. Crew members asleep in their quarters would wake to find themselves coated with a thin layer of asbestos dust, and in times of bad weather the crew was forced to cover kitchen pots to keep them from being covered in asbestos dust. Asbestos was used in gaskets, as packing on ship valves, in fire brick mortar, in refrigeration units, in floor and ceiling tiles, as insulation cement, as spackling and joint cement, and in winches. 6 Moline performed a variety of jobs on board defendants' ships, including those of maintenance reefer, oiler, electrician and wiper. His jobs were all connected with the engine room and all involved work with asbestos. Asbestos was particularly common in the engine room where it was used on boilers to insulate and to prevent leaks. Asbestos blankets, boards and gloves were used to facilitate work on hot engine parts. Moline's work as an electrician required him to remove asbestos insulation to reach hidden wires and junction boxes. This was done with a hacksaw or other tool, and caused a good deal of asbestos dust. When replacing or repairing asbestos insulation, crew members would take asbestos powder from bags or cans, scooping it out by hand or with a coffee can, and mix the powder with water to make a bonding compound. As a wiper, Moline's job was to clean up after electricians and engine room workers. 7 Individual seamen and their union representatives made complaints about the high levels of asbestos dust, but remedial measures were minimal. They filed grievances about the presence of asbestos in the food and about seamen having to handle the substance. Complaints by union representatives about the prevalence of asbestos dust in the air sometimes resulted in efforts to clean out vents with shop vacuums, but more often were ignored. Whether defendants knew or should have known of the dangers of asbestos exposure at the time of these complaints is unclear. 8 The trial testimony did, however, make clear to the jury the dangers of extensive asbestos exposure. Expert testimony indicated that seamen faced risks of asbestos related disease comparable to insulation workers. Although all crew members were exposed to asbestos, the most dangerous area was the engine room. There was also medical testimony that exposure to asbestos can cause scarring of the lungs or lung lining. It is undisputed that Moline died of mesothelioma, an asbestos related disease which can arise from a relatively brief exposure to asbestos. II. Availability of Punitive Damages 9 Defendant shipowners first challenge the award of punitive damages, arguing that punitive damages are not available as a matter of law in a wrongful death action brought under the Jones Act and general maritime law. Defendants rely primarily upon a recent Supreme Court case, Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990), which held that certain nonpecuniary damages are not available in a wrongful death action brought under the Jones Act and general maritime law. The specific issue in Miles was whether the unavailability under the Jones Act of damages for loss of society and lost future income precludes recovery of these damages under a general maritime law unseaworthiness claim. The Court found that it does. 10 The district court declined to apply Miles, holding that because the Supreme Court did not address the specific question of punitive damages, Miles was not controlling. The district court refused, therefore, to "dismantle the longstanding availability of punitive damages in general maritime tort claims based on unseaworthiness" by extending Miles. For many years prior to Miles, punitive damages had been recognized as an appropriate remedy under general maritime law. See The Amiable Nancy, 16 U.S. (3 Wheat.) 546, 4 L.Ed. 456 (1818); Protectus Alpha Navigation Co. v. North Pacific Grain Growers, 767 F.2d 1379, 1385 (9th Cir.1985); United States Steel Corp. v. Fuhrman, 407 F.2d 1143 (6th Cir.1969). The Fifth Circuit has specifically held that punitive damages are available in a general maritime law unseaworthiness action for the wrongful death of a seaman. In re Merry Shipping Inc., 650 F.2d 622, 626 (5th Cir. Unit B 1981). 11 The Miles decision is not, however, so easily dismissed because its reasoning, if not its holding, seems to cover the type of damages before us. Nonpecuniary damages also had a long history of acceptance in general maritime law before Miles held them unavailable in a seaman's wrongful death action. Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 589-90 n. 25, 94 S.Ct. 806, 817 n. 25, 39 L.Ed.2d 9 (1974). Miles addressed the same general question before this court, "the preclusive effect of the Jones Act for deaths of true seamen." Miles, 498 U.S. at 32, 111 S.Ct. at 325. The question before us is whether the unavailability of punitive damages under the Jones Act precludes recovery of punitive damages under a general maritime law unseaworthiness claim for the wrongful death of a seaman. Our analysis of this question must be guided by the reasoning of the Supreme Court in Miles. 12 The Miles analysis begins with an evaluation of the historical development of the maritime wrongful death action. Prior to the passage of the Death on the High Seas Act and the Jones Act, there was no maritime wrongful death action under federal statutory law or general maritime law. See Moragne v. States Marine Lines, 398 U.S. 375, 393-94, 90 S.Ct. 1772, 1783-84, 26 L.Ed.2d 339 (1970). An injured sailor could bring an action for unseaworthiness or negligence, but his survivors had no remedy if he were killed. In 1920, Congress sought to remedy this situation by passing the Death on the High Seas Act and the Jones Act. The Death on the High Seas Act provided wrongful death actions in unseaworthiness and negligence to anyone killed more than three miles from shore.1 The Jones Act provided seamen a wrongful death action in negligence.2 Nonseamen killed in state territorial waters were left to rely upon state wrongful death statutes. 13 In 1970, the Supreme Court supplemented these remedies by creating a general maritime law cause of action for wrongful death. Moragne, 398 U.S. 375, 90 S.Ct. 1772. Moragne involved a longshoreman killed in Florida territorial waters. His death was found to be the result of the unseaworthiness of the ship, but not of negligence. Because he was not a seaman he had no Jones Act claim, and because he was killed in state territorial waters the Death on the High Seas Act did not apply. The Florida wrongful death statute did not provide for an unseaworthiness action, so the plaintiff was left without a remedy. 14 The Court found that this result could not have been anticipated by Congress and was contrary to the intent of the Jones Act and the Death on the High Seas Act. At the time the Acts were passed, unseaworthiness was an obscure and little used cause of action. Miles, 498 U.S. at 25, 111 S.Ct. at 322. It became the primary source of recovery years later when the Supreme Court transformed unseaworthiness into a strict liability cause of action in Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944). Miles, 498 U.S. at 25, 111 S.Ct. at 322. 15 The change in the law of unseaworthiness emphasized certain inconsistencies in maritime wrongful death law: 16 First, in territorial waters, general maritime law allowed a remedy for unseaworthiness resulting in injury, but not for death. Second, DOHSA allowed a remedy for death resulting from unseaworthiness on the high seas, but general maritime law did not allow such recovery for a similar death in territorial waters. Finally, in what Moragne called the "strangest" anomaly, in those States whose statutes allowed a claim for wrongful death resulting from unseaworthiness, recovery was available for the death of a longshoreman due to unseaworthiness, but not for the death of a Jones Act seaman. 17 Id. The Moragne court found that these inconsistencies could not have been anticipated by Congress, id., and were contrary to the intent of Congress that the Jones Act contribute to "uniformity in the exercise of admiralty jurisdiction." Moragne, 398 U.S. at 401, 90 S.Ct. at 1788 (quoting Gillespie v. United States Steel Corp., 379 U.S. 148, 155, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964)). Further, the Court found that nothing in the Act or its legislative history showed any intent to foreclose nonstatutory federal remedies that might effectuate Congress' original intent. Id. 398 U.S. at 400, 90 S.Ct. at 1787. 18 Having found no affirmative congressional intent to preempt a general maritime law action for wrongful death, the Court examined the justification for the common law rule against recovery for wrongful death in admiralty cases. The Court found that the rule was an anomaly based upon the old English rule of felony-merger, and that it had never had a strong basis in the law of the United States. Id. at 384-86, 90 S.Ct. at 1779-80. The Court then looked at Congress' provision of wrongful death remedies under the Federal Employers' Liability Act, the Jones Act, the Death on the High Seas Act, and the Federal Torts Claims Act, and concluded that "there is no present public policy against allowing recovery for wrongful death." Id. at 390, 90 S.Ct. at 1782. These enactments were to be given their "appropriate weight not only in matters of statutory construction but also in those of decisional law." Id. at 391, 90 S.Ct. at 1782. The Court therefore approved a general maritime law wrongful death cause of action for unseaworthiness. 19 The details of this new cause of action were to be worked out through future litigation. Id. at 408, 90 S.Ct. at 1791. The Court contemplated that federal maritime wrongful death statutes would play an important role in this development. For example, in applying the doctrine of laches courts could look to the Death on the High Seas Act limitations period, "just as they have always looked for analogy to appropriate state or foreign statutes." Id. at 406, 90 S.Ct. at 1791. Of particular relevance to the present inquiry is the Court's statement that in deciding subsidiary issues "such as particular questions of the measure of damages, the courts will not be without persuasive analogy for guidance" in the Death on the High Seas Act and state wrongful death acts. Id. at 408, 90 S.Ct. at 1791. 20 Following Moragne, the Miles court addressed the question of the availability of certain forms of nonpecuniary damages by looking to the federal maritime wrongful death statutes for guidance. Of primary importance were the Jones Act, Miles, 498 U.S. at 36, 111 S.Ct. at 328 ("Because this case involves the death of a seaman, we must look to the Jones Act."), and the Death on the High Seas Act. Id. at 29, 111 S.Ct. at 324 (characterizing the Moragne action as an "extension of the DOHSA wrongful death action to territorial waters"). The Miles court was especially sensitive to the limits set by these statutes, explaining that the statutes could be supplemented in order to further "uniform vindication" of statutory policies, but that the Court must "keep strictly within the limits imposed by Congress." Id. at 27, 111 S.Ct. at 323. In the Death on the High Seas Act and the Jones Act, Congress had limited recovery to pecuniary losses. Id. at 31, 111 S.Ct. at 325. Because the plaintiff was a seaman, the Court relied primarily upon the Jones Act, holding that "[i]t would be inconsistent with our place in the constitutional scheme were we to sanction more expansive remedies in a judicially-created cause of action in which liability is without fault than Congress has allowed in cases of death resulting from negligence." Id. at 32, 111 S.Ct. at 326. The decision was also based upon the Court's desire to "restore a uniform rule applicable to all actions for the wrongful death of a seaman, whether under DOHSA, the Jones Act, or general maritime law." Id. 21 Under Miles, then, the goal of this court is to articulate a uniform rule regarding the availability of punitive damages in all actions for the wrongful death of a seaman. We are to be guided primarily by the congressionally enacted plan of maritime tort law. Id. at 27-28, 111 S.Ct. at 323. The centerpieces of this plan are the Jones Act and the Death on the High Seas Act. The Jones Act incorporates the substantive recovery provisions of the Federal Employers' Liability Act, including the judicial gloss. Id. at 31-32, 111 S.Ct. at 325. It has been the unanimous judgment of the courts since before the enactment of the Jones Act that punitive damages are not recoverable under the Federal Employers' Liability Act. See Kozar v. Chesapeake and Ohio Ry., 449 F.2d 1238, 1240-43 (6th Cir.1971). Punitive damages are not therefore recoverable under the Jones Act. Kopczynski v. The Jacqueline, 742 F.2d 555, 560-61 (9th Cir.1984); cf. Miles, 498 U.S. at 32, 111 S.Ct. at 325 ("Incorporating FELA unaltered into the Jones Act, Congress must have intended to incorporate the pecuniary limitation on damages as well."). The Death on the High Seas Act explicitly limits recovery to pecuniary losses, and does not provide for punitive damages. Bergen v. F/V St. Patrick, 816 F.2d 1345, 1347 (9th Cir.1987). 22 Moragne relied upon four federal statutes in concluding that there was no present public policy against allowing recovery for wrongful death: the Federal Employers' Liability Act, the Jones Act, the Death on the High Seas Act, and the Federal Tort Claims Act. Moragne, 398 U.S. at 390, 90 S.Ct. at 1782. As shown above, the first three of these statutes do not allow recovery for punitive damages. The Federal Tort Claims Act also explicitly excludes punitive damages. 28 U.S.C. § 2674. Another relevant statute, enacted after the Moragne decision, is the Longshore and Harbor Worker's Compensation Act. 33 U.S.C. §§ 901-950. This statute creates a worker's compensation scheme for certain maritime workers which is exclusive of other remedies and does not provide for punitive damages. If it had been in force at the time of the Moragne decision, the Moragne plaintiff would have been foreclosed by the statute from bringing a general maritime law cause of action. Miles, 498 U.S. at 27-28, 111 S.Ct. at 323. These statutes, taken together, indicate that there is a general congressional policy disfavoring awards of punitive damages in maritime wrongful death actions. 23 Allowing punitive damages would create two major inconsistencies in federal maritime wrongful death law. First, punitive damages would be available for some deaths occurring in territorial waters but not for deaths occurring on the high seas.3 Second, punitive damages would be available for seamen's deaths occurring in territorial waters due to unseaworthiness but not for those due to negligence.4 The Moragne action was created to remedy similar anomalies, and no court should reintroduce inconsistencies into federal maritime wrongful death law without strong policy reasons. See Moragne, 398 U.S. at 405, 90 S.Ct. at 1790 (arguing that public faith in the judiciary would be enhanced by the Court's decision to reject a rule which "produces different results for breaches of duty in situations that cannot be differentiated in policy"). To permit recovery of punitive damages in this case would only serve to irrigate what has been called the "Serbonian bog that is the law relating to a seaman's recovery for death and injury."5 24 While we recognize that punitive damages have long been available under general maritime law, and that "admiralty courts have always shown a special solicitude for the welfare of seamen and their families," Miles, 498 U.S. at 36, 111 S.Ct. at 327, we are bound by the reasoning of Miles. "We sail in occupied waters. Maritime tort law is now dominated by federal statute, and we are not free to expand remedies at will simply because it might work to the benefit of seamen and those dependent upon them." Id. 25 The only Supreme Court maritime wrongful death case to allow damages beyond those available under the Jones Act and the Death on the High Seas Act is Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). Like Moragne, Gaudet involved a longshoreman killed in territorial waters. He was not, therefore, covered by the Death on the High Seas Act or the Jones Act. The issue was whether nonpecuniary damages were available under general maritime law when they were not available under the federal statutes. Relying on Moragne, the Court held that "the new maritime wrongful-death remedy [must] be guided by the principle of maritime law that 'certainly it better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy, when not required to withhold it by established and inflexible rules.' " Gaudet, 414 U.S. at 583, 94 S.Ct. at 814 (quoting The Sea Gull, 21 F.Cas. 909 (C.C.Md.1865)). Because the Death on the High Seas Act and the Jones Act did not directly apply, the Court held that the longshoreman's widow could recover for the nonpecuniary loss of society. 26 Although Gaudet has never been overruled, its holding has been limited over the years to the point that it is virtually meaningless. The first case to limit Gaudet was Mobile Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978). Higginbotham involved a wrongful death action based on negligence, brought under the Death on the High Seas Act and general maritime law. The issue was whether the plaintiff could recover nonpecuniary damages under general maritime law when such damages were not available under the Death on the High Seas Act. The Court recognized that Gaudet was "broadly written," and could be read to authorize nonpecuniary damages for wrongful deaths on the high seas. Id. at 622-23, 98 S.Ct. at 2013-14. Nevertheless, the Court limited Gaudet to coastal waters, id. at 623, 98 S.Ct. at 2014, sacrificing uniformity for adherence to congressional policy. The Court held that, "[a]s Moragne itself implied, DOHSA should be the courts' primary guide as they refine the nonstatutory death remedy, both because of the interest in uniformity and because Congress' considered judgment has great force in its own right." Id. at 624, 98 S.Ct. at 2014. 27 Miles further limited Gaudet, holding that it "applies only in territorial waters, and it applies only to longshoremen." Miles, 498 U.S. at 31, 111 S.Ct. at 325. In other words, Gaudet was strictly limited to its facts. Murray v. Anthony J. Bertucci Constr. Co., 958 F.2d 127, 130 (5th Cir.1992). But as Miles itself recognized, after the passage of the Longshore and Harbor Workers' Compensation Act, Gaudet is no longer applicable on its facts. Miles, 498 U.S. at 30 n. 1, 111 S.Ct. at 325 n. 1. The case has therefore been condemned to a kind of legal limbo: limited to its facts, inapplicable on its facts, yet not overruled. 28 Accordingly, we reject the reasoning of Gaudet, and follow instead the course set by Moragne, Higginbotham, and Miles. Looking primarily to the federal maritime wrongful death statutes for guidance, we hold that punitive damages are not available in a general maritime law unseaworthiness action for the wrongful death of a seaman. III. Indemnity and Contribution Claims 29 We now address the shipowners' claim that the District Court erred in finding that the shipowners were not entitled to indemnity or contribution from the asbestos manufacturers. The District Court, adopting the active-passive negligence theory articulated by the Fourth Circuit in Vaughn v. Farrell Lines, Inc., 937 F.2d 953 (4th Cir.1991), held that because the jury found the shipowners guilty of active negligence under the Jones Act, and awarded punitive damages requiring willful and wanton misconduct under the general maritime law of unseaworthiness, they were not entitled to indemnity. The District Court also determined that the finding of willful and wanton misconduct was the equivalent of a finding of intentional wrongdoing, so the shipowners were not entitled to a right of contribution from the asbestos manufacturers and other third parties. 30 The District Court held that an "active" tortfeasor may never obtain indemnification, but that a tortfeasor classified by the court as "passive" may obtain indemnification from an active co-tortfeasor. Applying the active-passive theory to this case, the court dismissed the shipowners' cross-claims for indemnification from the third party asbestos manufacturers and other product manufacturers because the jury found that the shipowners were "guilty of active negligence under the Jones Act and willful, wanton, and reckless misconduct in maintaining an unseaworthy vessel under the general maritime law of unseaworthiness." 31 The active-passive negligence theory is doctrinally inconsistent with the general system of comparative fault in maritime law and we reject this approach. Instead we adopt a comparative causation approach to apportioning damages between tortfeasors which will satisfy the equitable goals of comparative fault while at the same time providing shipowners and maritime products manufacturers and suppliers with the proper incentives for safety. 32 A review of the historical roots of indemnity in maritime law reveals a continuing evolutionary process in which new forms of damage apportionment have been adopted to alleviate the harshness of older forms in an ongoing quest to make damage apportionment more closely reflect the relative culpability of each defendant. The active-passive analysis used by the District Court is inconsistent with this evolution. 33 Indemnity is an all-or-nothing remedy that shifts the entire amount of a loss from one party to the other. The law has long recognized the right of parties to make contractual agreements to compensate one another for anticipated losses or liability, and thus express contractual indemnity provisions are usually enforced. Gorman, Indemnity and Contribution Under Maritime Law, 55 Tul.L.Rev. 1165, 1171 (1981). While a contractual agreement is clear evidence of a right to indemnification, "proof of a promise to reimburse ... [is] not required." I G. Palmer, The Law of Restitution § 1.5(d) (1978). Indemnity arose as an equitable means of correcting unjust enrichment in cases where, "without the express creation of [an indemnity contract], the liability of one party is seen to be secondary to that of another, giving rise to a right of restitution when he discharges his liability." Id. This "restitution indemnity" requires a comparison of the negligence of each tortfeasor. Gorman at 1171. 34 Noncontractual indemnity was recognized in general maritime law to escape the harsh effects of the ancient maritime rule of divided damages. Yeates, Dye and Garcia, Contribution and Indemnity in Maritime Litigation, 30 S.Tex.L.Rev. 215, 224 (1989). The divided damages rule, or rule of moiety ('the half of anything'), was an English maritime rule that divided damages equally between two parties when it was felt that both parties were at fault. Id. at 217-18. Although originally adopted by American courts as a "more equal distribution of justice" than the common law rule "which, at the time, precluded contribution among joint tortfeasors and permitted the plaintiff to force one of the wrongdoers to bear the entire loss," id. at 218, the divided damages rule was harsh when applied to a party that was only slightly at fault in causing a loss. Id. at 224. In response, the courts adopted the major-minor fault rule, which later became the active-passive negligence rule, to allow a negligent tortfeasor who was only "passively" negligent to recover indemnity from a tortfeasor whose "active" negligence caused the plaintiff's loss. Id. 35 In Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956), the Supreme Court recognized a form of indemnity in maritime law that did not depend on the express provisions of a contract. The Court held that even absent a formal contract or express indemnity agreement, a stevedoring company that agreed to perform all stevedoring operations required by a shipowner was obligated to indemnify the shipowner for damages caused by the stevedore's unsafe stowage of the ship's cargo. Because the shipowner and stevedore had a stevedoring contract, the Court "did not meet the question of a noncontractual right to indemnity." Id. at 133, 76 S.Ct. at 237. The Court did, however, note that the equitable question of balancing the "respective responsibilities" of the parties had been discussed elsewhere in terms of "concepts of primary and secondary or active and passive tortious conduct." Id. 36 The Supreme Court dealt the divided damages rule a final blow in United States v. Reliable Transfer Co., Inc., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975). There the Court adopted a comparative fault rule for maritime cases, noting that, "the rule of divided damages has continued to prevail in this country by sheer inertia rather than by reason of any intrinsic merit." Id. at 410, 95 S.Ct. at 1715. The Court held that maritime liability "is to be allocated among the parties proportionately to the comparative degree of their fault, and that liability for such damages is to be allocated equally only when the parties are equally at fault or when it is not possible fairly to measure the comparative degree of their fault." Id. at 411, 95 S.Ct. at 1716. 37 While some courts still apply the active-passive negligence doctrine, see, e.g., Vaughn v. Farrell Lines, Inc., 937 F.2d 953 (4th Cir.1991), the introduction of a comparative fault system in maritime law has led many to question the need for the simplified active-passive distinction. In Loose v. Offshore Navigation, Inc., 670 F.2d 493 (5th Cir.1982), the Fifth Circuit rejected the active-passive negligence doctrine as inequitable in a comparative fault system. The court reasoned that 38 comparative fault seeks the same objective [as the active-passive negligence indemnity rule] both more persuasively and more accurately. A comparative fault system ... apportions fault among joint tortfeasors in accordance with a precise determination, not merely equally or all-or-none.... While the active-passive concept is more equitable than strict nonapportionment, there have never been satisfactory distinctions between the definition of "active" and "passive." 39 Id. at 501-02. The Loose court "emphasize[d] what other courts have said before us: The concepts of active and passive negligence have no place in a liability system that considers the facts of each case and assesses and apportions damages among joint tortfeasors according to the degree of responsibility of each party." Id. at 502. See also, Elk Corporation of Arkansas v. Builders Transport, Inc., 862 F.2d 663, 666 (8th Cir.1988) (commenting that the active-passive approach to indemnity "finds little favor" today, and approving of the Fifth Circuit's analysis in Loose); D. Owen & J. Moore, Comparative Negligence in Maritime Personal Injury Cases, 43 La.L.Rev. 941, 954 (1983) (suggesting the comparative fault approach to indemnity). Apportionment of damages on the basis of comparative fault more nearly approaches the goal of placing the liability for maritime injuries on the party or parties whose acts or omissions really caused the harm than does the rough active-passive indemnity approach. Thus, a party held liable for a maritime injury may seek contribution from co-tortfeasors whether it is "actively" or "passively" negligent. 40 A comparative fault system requires a comparison of the fault of one tortfeasor with the fault of others and assigns a percentage fault to each. These maritime asbestos cases, and other cases where co-tortfeasors' cross-claims may depend on theories of strict products liability, present a conceptual problem in applying comparative fault principles to forms of liability that are commonly understood as "no-fault." While it would seem illogical to compare the liability of a blameworthy party with that of a nonblameworthy party, the terms "fault" and "no-fault" are misleading as descriptions of the basis for liability. It is not conceptually impossible, or even impractical, to compare liability based on negligence with strict products liability under a comparative fault system. We are not comparing "apples and oranges" or "mixing oil and water," the images used by some. See, e.g., Daly v. General Motors Corp., 20 Cal.3d 725, 144 Cal.Rptr. 380, 385, 575 P.2d 1162, 1167 (1978). 41 While negligence is often thought of as "fault-based," this reference can be misleading because "much of the liability imposed for ... negligently interfering with legally protected interests is liability without moral fault." Keeton, Prosser and Keeton on Torts § 75 at 534 (5th ed. (1984)). Similarly, references to strict liability as liability "without fault," ignore the notion of fault that is inherent in the concept of strict liability. See, e.g., M. Shapo, The Law of Products Liability, § 22.03[a] (1987) (citing Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150, 406 A.2d 140, 146-47 (1979)). As Dean Wade has said of strict products liability: 42 In the case of products liability, the fault inheres primarily in the nature of the product. The product is "bad" because it is not duly safe ... [S]imply maintaining the bad condition or placing the bad product on the market is enough for liability ... One does not have to stigmatize conduct as negligent in order to characterize it as fault. 43 Wade, Products Liability and Plaintiff's Fault--The Uniform Comparative Fault Act, 29 Mercer L.Rev. 373, 377 (1978). "[I]t may be questioned whether 'fault,' with its popular connotation of personal guilt and moral blame, and its more or less arbitrary legal meaning, which will vary with the requirements of social conduct imposed by the law, is of any real assistance ... except perhaps as a descriptive term." Keeton, supra § 75 at 537. 44 Courts and jurors are fully capable of weighing the relative responsibility of strictly liable defendants against that of negligent defendants. National Can Co. v. Vinylex Corp., 687 F.Supp. 375, 380 (N.D.Ill.1988). Requiring juries to compare negligence with strict liability under a comparative fault system is not very different from what juries normally do under such a system, particularly in maritime law cases. In Seas Shipping Co. v. Sieracki, the Supreme Court described the concept of unseaworthiness as "essentially a species of liability without fault." 328 U.S. 85, 94, 66 S.Ct. 872, 877, 90 L.Ed. 1099 (1946). Shortly thereafter, the Court decided in Pope & Talbot, Inc. v. Hawn that a plaintiff's own negligence should be considered to determine the amount of his recovery in an unseaworthiness action. 346 U.S. 406, 408-409, 74 S.Ct. 202, 204-205, 98 L.Ed. 143 (1953). Since then courts have applied comparative fault to strict liability unseaworthiness claims. See Chotin Transportation, Inc. v. United States, 819 F.2d 1342, 1354 (6th Cir.) (Milburn, J. concurring in part and dissenting in part) (citing cases), cert. denied, 484 U.S. 953, 108 S.Ct. 344, 98 L.Ed.2d 371 (1987). This application appears to have posed little problem in cases tried by juries. Daly, 144 Cal.Rptr. at 388, 575 P.2d at 1170 (citing Price v. Mosler, 483 F.2d 275, 277-78 (5th Cir.1973)). 45 In addition to unseaworthiness claims, comparative fault applies to maritime personal injury actions under the Jones Act, the Death on the High Seas Act, and to longshoremen's suits against vessels under the Longshore and Harbor Workers' Compensation Act. The Death on the High Seas Act, for example, specifically provides that the court "shall take into consideration the degree of negligence attributable to the decedent and reduce the recovery accordingly." 46 U.S.C.App. § 766. Refusing to apply comparative fault principles to maritime products liability claims might "balkanize [the] uniformity and generality" that is a hallmark of maritime law. Lewis v. Timco, Inc., 716 F.2d 1425, 1428 (5th Cir.1983). To allow indemnity only for claims based on strict products liability while all other maritime claims are subject to contribution based on comparative fault would cause seamen to "attempt to escape the comparative fault of the traditional theory of unseaworthiness and label their case (sic) products cases." Id. at 1429. This could lead to forum shopping by seamen seeking to obtain recovery under products liability theories without reduction for their own contributory fault. Id. 46 The application of comparative fault to claims against product manufacturers liable on the basis of strict liability should not reduce incentives for safety. Strict liability for unreasonably unsafe products arises when the seller is "engaged in the business of selling such a product," and the product "is expected to and does reach the user or consumer without substantial change in the condition in which it is sold," even though "the seller has exercised all possible care," and the "user has not bought the product from or entered into any contractual relationship with the seller." Restatement (Second) of Torts § 402A. The policy underlying strict liability is to place the burden of preventing the harm on the party best able to prevent the harm. See, e.g., East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 866, 106 S.Ct. 2295, 2299, 90 L.Ed.2d 865 (1986). The manufacturer bears the burden of its unsafe products rather than the injured consumers who are said to be "powerless to protect themselves." Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 701, 377 P.2d 897, 901 (1963) (in bank). 47 The consumer protection effect of strict products liability is not diminished by comparative fault because plaintiffs are still relieved of the burden of proving negligence on the part of the manufacturer and plaintiffs' recovery is reduced only to the extent that their lack of reasonable care contributed to the injury. Lewis v. Timco, 716 F.2d at 1431 (citing Daly, 144 Cal.Rptr. at 386, 575 P.2d at 1168). Furthermore, manufacturers cannot assume that users of defective products will be contributorily negligent, so their incentive to produce a safe product will not be lessened. Id. (citing Daly, 144 Cal.Rptr. at 387, 575 P.2d at 1169). As the Daly and Lewis courts noted, the application of comparative fault principles to strict liability may actually provide more protection for consumers by relieving the inequities associated with absolute defenses such as contributory negligence that "provide windfalls to manufacturers." Id. 48 Applying comparative fault principles to strict liability does not abrogate indemnity in all situations. Indemnity is still available in cases where parties have made express contractual indemnification agreements, and in cases of purely vicarious liability. It is also available for a nonnegligent tortfeasor upon whom the law imposes responsibility--under a theory of constructive liability or imputed fault--from a co-debtor that is guilty of actual fault. Hardy v. Gulf Oil Corp., 949 F.2d 826, 833 & n. 12 (5th Cir.1992) (quoting Marathon Pipe Line Co. v. Drilling Rig ROWAN/ODESSA, 761 F.2d 229, 236 (5th Cir.1985)). As the Hardy court said, "[a]n ordinary defendant ... is adequately protected under the comparative negligence system. If the jury determines that an ordinary defendant is not negligent, then the defendant does not owe the plaintiff damages and has no need to pursue an indemnity action...." Id. at 833. 49 Other Circuits that have considered the question of the applicability of comparative fault to maritime products liability actions have reached the same conclusion we reach today. See Pan-Alaska Fisheries, Inc. v. Marine Construction & Design Co., 565 F.2d 1129 (9th Cir.1977); Lewis v. Timco, 716 F.2d 1425 (5th Cir.1983). Thus we reverse the ruling of the District Court enforcing an active-passive rule and declining to allow contribution based on comparative fault. 50 IV. Sufficiency of Evidence to Show Causation 51 Defendants argue on appeal there was insufficient evidence presented at trial to create a jury question regarding causation. They challenge the finding of causation on two bases: first, plaintiff failed to present sufficient evidence regarding the extent of exposure to satisfy the requisite proximate cause standard of tort liability; second, plaintiff failed to establish a causal link between Moline's death and any exposure associated with a particular defendant. 52 Under the Jones Act, a plaintiff need only show that the defendant's negligence, however slight, contributed in some way toward causing the plaintiff's injuries. Gosnell v. Sea-Land Service, Inc., 782 F.2d 464, 467 (4th Cir.1986). Plaintiff below also recovered under the general maritime action of unseaworthiness, which carries a higher causation requirement: "A plaintiff must prove that the unseaworthy condition played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness." Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1354 (5th Cir.), cert. denied, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 533 (1988). See generally 1B Benedict on Admiralty § 28, at 3-159 to 163 (7th Ed.1991).6 Since we find the higher standard of causation under unseaworthiness was met, it is unnecessary for us to address the lesser Jones Act requirement. 53 Defendants unsuccessfully urged below and assert again in their brief on appeal that the proper proximate cause standard for unseaworthiness is a "frequency, regularity, intensity, duration" test. They further assert that the district court recognized a lack of evidence satisfying this test during a conference in chambers concerning the jury charge (Brief of Defendant-Appellants APL and Matson at 23). A closer inspection of the record, however, reveals that Judge Lambros actually determined that such a showing was not required:I'll let you argue that frequency, regularity and intensity, but I'm not going to charge it because it will ... permit them to infer that the judge has suggested that the disease only be caused if there is a frequent exposure, as regular exposure, and intense exposure. And there is no evidence in this case that that's required. 54 Tr. vol. 12 at 1068-69 (emphasis supplied). We affirm the district court's holding that the correct standard for a finding of proximate cause is the "substantial factor" test. 55 Applying this test to the facts adduced at trial, we must find the evidence sufficient to support the jury's verdict "unless, when viewed in the light of those inferences most favorable to the non-movant, there is either a complete absence of proof on the issues or no controverted issues of fact upon which reasonable persons could differ." Monette v. AM-7-7 Baking Company, Ltd., 929 F.2d 276, 280 (6th Cir.1991). The record is full of evidence concerning the presence of asbestos dust throughout the ships on which Moline lived and worked for prolonged periods, from the engine rooms where he labored as a wiper, reefer and electrician to the crew's living quarters. Asbestos-lined pipes ran inches from crew members' bunks and blanketed them with dust that vibrated free overnight during rough weather. Crew members complained more than once of asbestos dust in their food. There was sufficient evidence for a reasonable jury to conclude that repeated and heavy exposure to asbestos was not only possible but inescapable. 56 The shipowners also assert that the testimony of plaintiff's two expert witnesses was insufficient to establish a nexus between any asbestos exposure and the decedent's death. Their argument is based on two premises: first, that in any case involving asbestos-related disease, the plaintiff must present expert medical testimony to establish the causal relationship between the asbestos exposure and his injury; and second, the evidence plaintiff presented at trial was insufficient to satisfy this standard. They rely especially on two state court decisions, Money v. Manville Corp. Asbestos Disease Compensation Trust Fund, 596 A.2d 1372 (Del.1991), and Sholtis v. American Cyanamid Co., 238 N.J.Super. 8, 568 A.2d 1196 (Ct.App.Div.1989). In Money, the court expressly held that "to make a prima facie showing with respect to the cause of an asbestos-related disease, a plaintiff must introduce direct competent expert medical testimony that a defendant's asbestos product was a proximate cause of the plaintiff's injury," because "the causal nexus between exposure to an asbestos product ... and a particular asbestos-related disease is not a matter of common knowledge." Money, 596 A.2d at 1377. The Sholtis court refrained from setting down an ironclad rule, writing that "[e]xpert proof would usually be required to establish, even inferentially, that the exposures caused or exacerbated plaintiffs' eventual injuries." Sholtis, 568 A.2d at 1207 n. 16 (emphasis supplied). 57 We are not persuaded by these authorities. Although we express no opinion on the correctness of the results reached in Money and Sholtis, we are not prepared to require expert medical testimony to establish causation in every case concerning asbestos-related disease.7 While we recognize that defendants should not be subjected to open-ended liability based solely on a jury's inexpert speculation concerning proximate cause, we do not believe that the jury in this case was forced to make such an unreasonable conjectural leap to find for the plaintiff. Here the other evidence concerning harmful exposure to asbestos dust was strong, and plaintiff's evidence on causation was bolstered by the probative testimony of two medical expert witnesses at trial. In Phase I of the trial, Dr. Steven Levin testified that seamen faced risks of asbestos-related disease similar to insulation workers, except that their exposure could be as much as triple that of the insulators because of the 24-hour per day nature of their job. This testimony was read to the jury in Phase II. Dr. Howard Ayres, an industrial hygienist, also testified concerning the harmful effects of asbestos dust. We hold that the evidence was sufficient to support the jury's conclusion that the asbestos aboard defendants' ships was a substantial factor in Moline's death. 58 Plaintiff asserts that defendants' claims of error concerning the sufficiency of the evidence were not preserved for appeal under Rule 50(a), Fed.R.Civ.P. However, at the close of the evidence in this trial, the district court summarily denied the motions for directed verdict: 59 THE COURT: Any argument? 60 MR. HEFFERNAN: Who goes first? 61 MR. KRISPIN: Certainly, there will be--your Honor, it's up to the Court's discretion in how the Court wishes to discuss this issue. 62 THE COURT: I have been in here with all of you two weeks. I heard the evidence. I am satisfied there is sufficient evidence on all of the issues of negligence and unseaworthiness to submit the case to the jury. And I am going to overrule all the motions, exceptions noted, I have. 63 Tr. Vol. 11-A, p. 1030 (emphasis supplied). 64 As plaintiff admits in his brief, defendants moved for directed verdict three times. On the first two occasions, the district court did not permit argument. At the close of the plaintiff's rebuttal evidence the district court overruled the motions summarily. Judge Lambros apparently considered himself sufficiently apprised of the moving parties' positions. We find that the "particular purpose" of the Rule was served, and that the proceedings below do not bar us from considering defendants' claim on appeal. See Riverview Investments v. Ottawa Community Improv. Corp., 899 F.2d 474, 477 (6th Cir.), cert. denied, 498 U.S. 855, 111 S.Ct. 151, 112 L.Ed.2d 117 (1990) (judgment notwithstanding the verdict permitted where the trial court had indicated to the parties that the technical requirements of Rule 50 had been met, even though the movants in that case had not renewed their motion at the close of all the evidence; application of the Rule "should be examined in the light of the accomplishment of its particular purpose as well as in the general context of securing a fair trial for all concerned in the quest for truth," quoting Boynton v. TRW, Inc., 858 F.2d 1178, 1185 (6th Cir.1988)). V. Trial By Ambush 65 Defendants assert that they were prevented from sufficiently preparing to meet the testimony of plaintiff's witnesses because the identities and subject matter of several of these witnesses were not disclosed prior to trial, in violation of the pretrial procedures instituted by Judge Lambros.8 They claim that the district court's decision to permit these undisclosed witnesses to testify (over defendants' strenuous objections) amounted to a "trial by ambush" constituting reversible error. They request a new trial. 66 To support their claim, defendants point out that of the 111 crew members listed by plaintiff as possible witnesses in Phase I of the trial, only two were called, and three other crew members were allowed to testify who did not appear on the list. Furthermore, of the three medical experts on plaintiff's witness list, none were called to testify, and two experts not on the list, Drs. John Burrows and Stephen Levin, were permitted to testify (over defendants' objections). Defendants were not permitted to depose Burrows, and were only allowed to depose Levin the morning before his afternoon testimony. Finally, in Phase II, retired U.S. Coast Guard captain Clarence Hall and industrial hygienist Howard Ayres, M.D., were permitted to testify even though they did not appear on plaintiff's witness list, and defendants assert they were not informed of the subject matter of the testimony in a timely fashion. 67 We start with the established rule that "the trial judge has broad discretion in the matter of the admission or exclusion of expert evidence, and his action is to be sustained unless manifestly erroneous." Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313 (1962). In particular, this court has held that where a judge has determined that testimony is otherwise admissible, the mere fact that the party seeking its introduction has not fully complied with pretrial orders does not mandate its exclusion: 68 The trial judge must be permitted wide latitude in guiding a case through its preparatory stages. His decision as to the extent that pretrial activity should prevent the introduction of otherwise competent and relevant testimony at trial must not be disturbed unless it is demonstrated that he has clearly abused the broad discretion vested in him.... 69 Davis v. Duplantis, 448 F.2d 918, 921 (5th Cir.1971). 70 Defendants bear a heavy burden in seeking a new trial. Discovery matters "come within the discretion of the trial court and do not amount to reversible error unless there is an abuse of discretion and substantial prejudice." International Union, UAW v. Michigan, 886 F.2d 766, 771 (6th Cir.1989). "In order to prevail on his motion for a new trial, plaintiff must show that he was prejudiced and that failure to grant a new trial is inconsistent with substantial justice." Erskine v. Consolidated Rail Corp., 814 F.2d 266, 272 (6th Cir.1987). Applying this standard to the facts in this case, we hold that the district court did not commit reversible error by allowing the witnesses to testify. 71 This is a bitterly contested lawsuit. In their roles as zealous advocates, counsel for both sides have been uncooperative. While we do not condone the practices engaged in by plaintiff of which defendants complain, we find similar conduct on both sides. 72 The unnecessarily antagonistic relationship continued throughout Phase II of the trial. Both sides persisted in refusing to identify their witnesses. The following excerpt from court proceedings on May 1, 1991 is illustrative: 73 THE COURT: Let's go home. 74 MR. HEFFERNAN (for defendants): Once again I just want to mention that I have--not only do I not have a report of what this expert is going to say, I don't even know the identity of the expert. Here we are less than 48 hours before his appearance. And so I will claim when he goes on the stand some prejudice. I can't even prepare a counter defense to a witness whose identity I do not know, and not one iota except for what we talked about here today as to what he is going to testify here by hook and jab. 75 MR. KRISPIN (for plaintiff): Part of my response to Mr. Heffernan, had I been provided those persons within APL who possessed knowledge that this person would testify to, I wouldn't need to bring in an independent witness. 76 MR. HEFFERNAN: Hook and jab. 77 THE COURT: Well, it's clear and apparent that what counsel has got to agree upon, and I'm hopeful that it will be the product of this lawsuit, and the previous lawsuit, that you people are going to come up and [ ] agree on a pecking order in the management and putting together [of] these cases. The issue doesn't have to be knocked [sic] down drag out fight. 78 . . . . . 79 MR. KRISPIN: Along that same vein, your Honor, can I get Mr. Heffernan to identify the number of and type of witnesses he expects to be calling by Friday a.m.? 80 THE COURT: Why don't you-- 81 MR. HEFFERNAN: As soon as he gets me the name of the doctor. 82 Tr. vol. 5 at 225-26. Under the circumstances, it is understandable that Judge Lambros would have minimal sympathy for either side's complaint of a lack of cooperation from opposing counsel. 83 Furthermore, defendants have failed to demonstrate actual prejudice. As Judge Lambros pointed out shortly before Dr. Ayers took the stand: 84 I realize that Dr. Ayers was not on the witness list, and in that regard, there was no opportunity for discovery that is usually associated with persons who are known to give expert testimony, scientific testimony. 85 Their special training, background and knowledge is the reason for the calling of a witness to address certain issues. Nonetheless, I am mindful that both sides are well aware of the nature of asbestos-related injuries, the dynamics of the litigation process, have an awareness of the science and knowledge that is available in this particular area. 86 I really don't know where it will seriously hamper the Defense.... 87 Tr. vol. 8 at 563. Our examination of the record reveals no point in the proceedings where defense counsel appeared genuinely surprised or otherwise prejudiced by the tactics of plaintiff's counsel. 88 Again, we do not condone the tactics of counsel on either side of this case. The Federal Rules of Civil Procedure upon which the pretrial orders of Judge Lambros were based are intended "to make a trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent." Brown Badgett, Inc. v. Jennings, 842 F.2d 899, 902 (6th Cir.1988). However, "[e]very trial judge is charged with the primary responsibility of ensuring that the judicial proceedings over which he presides are carried out with decorum and dispatch and thus has very broad discretion in ordering the day-to-day activities of his court." CBS, Inc. v. Young, 522 F.2d 234, 241 (6th Cir.1975). On the record before us, we are unable to find that the district court abused his very broad discretion. We therefore decline to substitute our own judgment for his by remanding the case for a new trial on the grounds of "trial by ambush." VI. Ex Parte Response to Jury Request 89 Defendants also assert error in the district court's handling of a written request from the jury. Judge Lambros set out the facts in a post-trial order dated June 25, 1991, and defendants do not challenge his account of the facts. The jury, after receiving the oral charge in open court, retired to consider its verdict. Soon thereafter, they sent a note requesting a written copy of the instructions. The court reporter was out to lunch, but upon her return, she began transcribing the charge. Upon her completion of 14 of the 26 pages, Judge Lambros sent those pages to the jury with a note promising the remaining pages as soon as the entire transcription was done. Before the transcription could be completed, the jury reached its verdict. 90 Defendants assert that the court erred in not notifying the parties of the inquiry, in responding to the inquiry, and in not preserving the written inquiry for the record. In support of their position, defendants cite two Supreme Court cases, Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 39 S.Ct. 435, 63 L.Ed. 853 (1919), and Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975), neither of which is in point. In each case, the Supreme Court reversed a jury verdict reached after the trial court issued supplementary instructions to the jury in response to their written request. In Fillippon, the jury sent a detailed written question to the trial judge concerning contributory negligence, to which the judge responded in equal detail with a supplementary instruction to which the parties had no opportunity to object. In Rogers, the jury wrote the judge asking if they might return a verdict of "Guilty as charged with extreme mercy of the Court," to which the judge responded in the affirmative. In each case, the judge gave the jury an added instruction in which the substantive rights of the defendant were directly affected. He did so without giving the parties adequate notice and an opportunity to respond. 91 In this case, however, the district court merely provided a transcript of the charge delivered earlier in open court. The court wrote in its Order of June 25, 1991: 92 No supplementary instructions were given to the jury. The written charge that was provided to the jury did not add to, nor did it interpret, the oral charge presented in open court in the presence of counsel. The written transcript provided to the jury was a verbatim replica of that oral charge. There was no communication from the judge to the jury other than in writing granting their request. The communication was purely administrative and not supplementary ... 93 Id., p. 3. 94 This court has held that "messages from a jury should be answered in open court with an opportunity for counsel to be heard before the court responds," but we have also qualified this rule by stating that "a court's ex parte communication with the jury will not require reversal where substantive rights of parties have not been adversely affected." Petrycki v. Youngstown & Northern Ry. Co., 531 F.2d 1363, 1367 (6th Cir.1976). Defendants have presented no evidence to contradict the district court's findings as presented in its order of June 25, 1991. We find that it was error for the district court to respond to a written request from the jury after it had retired for its deliberations without notice to counsel and without retaining the communication for the record. But the defendants have presented nothing more than speculation concerning any possibility of prejudice to the defendants. 95 Defendants cite this court's holding in Standard Alliance Ind. v. Black Clawson Co., 587 F.2d 813 (6th Cir.1978), cert. denied, 441 U.S. 923, 99 S.Ct. 2032, 60 L.Ed.2d 396 (1979), that ex parte contact between judge and jury raises a presumption of reversible error, and that under the circumstances of this case, as in Standard Alliance, the presumption cannot be rebutted. However, in Standard Alliance there was literally no record of the court's ex parte contact through the court's law clerk; "the length and nature of the law clerk's contact with the jury is unknown." Id. at 828. Here, the record is not so devoid of information. We have in the record before us the district court's description of precisely what transpired: The jury made a written request for a typed copy of the charge. The judge complied. Defendants' speculative charges of jury confusion are not sufficient. VII. Conclusion 96 For the forgoing reasons we VACATE the punitive damages award, and REMAND the case for consideration of defendants' claims for indemnity and contribution. In all other respects we AFFIRM the judgment of the District Court. 1 46 U.S.C.App. § 761 reads in part: Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued. 2 46 U.S.C.App. § 688 reads in part: [I]n case of the death of any seaman as a result of any [personal injury in the course of employment] the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. 3 The Death on the High Seas Act directly addresses the question of the availability of punitive damages in an action for wrongful death on the high seas, precluding recovery under general maritime law. Cf. Mobile Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978) 4 The Jones Act directly addresses the question of the availability of punitive damages in a negligence action for the wrongful death of a seaman, precluding recovery under general maritime law. Cf. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 5 Karvelis v. Constellation Lines S.A., 806 F.2d 49, 51 (2d Cir.1986) (quoting John Milton, Paradise Lost, Book II, line 592 (1667) ("that Serbonian bog ... where armies whole have sunk")). The reference is to the marshy Lake Serbonis in Egypt in which, according to the ancient Greek historian Herodotus, whole armies were engulfed. Judge Mulligan was once asked why he would use a term as obscure as "Serbonian bog" in his opinions. He answered, "[nobody knows] what it means, but they know it's not good." Feerick, Remarks Delivered on the Occasion of the Presentation of the Fordham-Stein Award to the Honorable William Hughes Mulligan, 59 Fordham L.Rev. 479, 483 (1991) 6 A few courts have equated the burden of causation for Jones Act and unseaworthiness claims. See, e.g., Farnarjian v. American Export Isbrandtsen Lines, Inc., 474 F.2d 361, 363 (2d Cir.1973) ("defendant would be liable if its negligence or the unseaworthiness of the vessel was a proximate cause, in whole or in part, of plaintiff's fall"); Peymann v. Perini Corp., 507 F.2d 1318, 1324 (1st Cir.1974) ("the Jones Act expressly imposes liability upon the employer to pay damages for injury or death due in whole or in part to its negligence ... [b]ut so does the law of unseaworthiness") (citations omitted). We have adopted the majority view. Daughenbaugh v. Bethlehem Steel Corp., 891 F.2d 1199, 1207 n. 3 (6th Cir.1989) (plaintiff's unseaworthiness claim failed under traditional proximate cause analysis, but her Jones Act claim withstood more liberal causation standard unique to Jones Act and FELA.) 7 Our holding is consistent with the decisions of other circuit courts. The Fourth Circuit did not require medical testimony in Roehling v. Nat'l Gypsum Co. Gold Bond Bldg. Products, 786 F.2d 1225 (4th Cir.1986), holding that when a plaintiff can establish that she was in a vicinity in which asbestos dust from defendants' products was inhaled, "a jury can reasonably infer therefrom that plaintiff was injured by defendants' products." Id. at 1228 (defendant asbestos manufacturers not entitled to summary judgment on basis of plaintiff's failure to directly prove exposure to individual manufacturer's products). The Fifth Circuit followed similar reasoning in Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1094 (5th Cir.1973) (where plaintiff establishes that he contracted an asbestos-related disease from inhaling asbestos dust and that he was exposed to the products of defendant manufacturers on many occasions, the jury may infer from strong circumstantial evidence that each defendant was the cause in fact of plaintiff's injury) 8 To facilitate discovery in the multi-party, multi-case MARDOC litigation, Judge Lambros devised a Case Management Plan that utilized Consolidated Discovery Requests ("CDRs") in lieu of standard interrogatories. The witness lists were included in these CDRs

705 So.2d 1072 (1998) Bruce J. BENENFELD, Appellant, v. Amy BENENFELD, Appellee. No. 97-0407. District Court of Appeal of Florida, Fourth District. February 25, 1998. Shelly M. Mitchell, Fort Lauderdale, for appellant. Mayer Gattegno of Law Offices of Mayer Gattegno, Coral Springs, for appellee. FARMER, Judge. In this appeal, the husband attacks an award of permanent alimony, contending that only rehabilitative alimony should have been granted, and further that the amount of the alimony is excessive. We affirm the trial court's decision to make alimony permanent rather than rehabilitative but reverse the amount as excessive. *1073 The husband has a net annual income of $48,000. The trial court ordered him to pay $2,000 per month in basic alimony and also required that he pay the full cost of health insurance for the wife as well as the yearly deductible in the amount of $10,000 and all outstanding medical and pharmacy bills not covered by insurance as a result of her hospitalization. The basic alimony award and the insurance deductible together constitute nearly 80% of the husband's net income. See Ginsburg v. Ginsburg, 610 So.2d 655, 656 (Fla. 1st DCA 1992) (law is clear that husband cannot be required to pay alimony that exceeds his financial ability). From these numbers it is irrefutable that the basic alimony alone is at the outer edges of his ability. Adding the deductible, the insurance cost and all unreimbursed medical expenses on top of that surely place the amount of this award well over the top by any measure. We reverse and remand with instructions to readjust the amount to meet his ability to pay. WARNER and KLEIN, JJ., concur.

565 P.2d 37 (1977) W.B. OLDFIELD, and Frances Oldfield, Appellees, v. R.L. DONELSON, Jr., and Fannie Donelson, Appellants. No. 46949. Supreme Court of Oklahoma. May 31, 1977. Matthew J. Kane, Matthew Kane, Jr., Pawhuska, for appellees. Robert P. Kelly, Bruce W. Gambill, Pawhuska, for appellants. *39 DAVISON, Justice. On Monday, November 13, 1972, the Board of County Commissioners of Osage County adopted a resolution opening the south half of the section line between sections 28 and 29 in Township 26 North and Range 5 East in Osage County, as a county section line road. In opening the road, the Board of Commissioners declared that the road was necessary and that the road shall be built and maintained by the parties concerned. The parties concerned were W.B. and Frances Oldfield, who requested that the section line be declared a part of the county road system so that they could obtain access to the Northwest quarter of section 28, which they had recently acquired and which was landlocked. The section line designated in the resolution dissected the land of Appellants, R.L. and Fannie Donelson, the owners of the Southeast quarter of section 29 and the Southwest quarter of section 28. The southern boundary of both sections 28 and 29 runs parallel to U.S. Highway 60. A fence had been constructed by the Donelsons along the southern boundary of their land, with a gate located at or almost at the location of the section line, declared to be part of the county road system. In attempting to survey the land and make preparations to construct the road along the designated section line, the Oldfields encountered difficulty in obtaining access to the section line, as the Donelsons kept the gate on the south boundary of the section line locked. Being unable to obtain satisfactory relief, the Oldfields brought an action in the District Court of Osage County seeking injunctive relief against the Donelson's interference with the construction and use of a road along the section line. At the conclusion of trial, the District Court granted injunctive relief, permanently enjoining the Donelsons from interfering with the Oldfields' surveying and improving of the public road along the section line. The District Court specifically enjoined the Donelsons from placing a lock upon the gate at or near the section line. Appellants Donelson appeal from the order of the District Court raising the following objections: 1. The court erred in holding that the section line involved was a public road, as the resolution of the Board of County Commissioners is a nullity insofar as it purports to create a public road. 2. Under the scheme established by the Oklahoma Statutes, section lines become public roads only when governing authorities construct and maintain such as a part of the public road system. 3. You cannot have a public road for the use of one individual. Sections 629 and 1201 of Title 69[1] provide that County Commissioners shall, at the time of establishing a public road, make an order fixing the width of the road — the resolution in question however, did not establish the width of the road to be constructed along the section line. Appellants Donelson assert that by reason of the Board's failure to designate the width of the road, the resolution opening the section line is a nullity. We do not agree. *40 The Osage Allotment Act of 1906, 34 United Statutes at Large, Sess. I, Ch. 3572, Section 10, provides: "That public highways or roads, two rods in width, being one rod on each side of all section lines, in the Osage Indian Reservation, may be established without any compensation therefor." [Emphasis added]. In Article 16, Section 2, of the Constitution of Oklahoma, the State of Oklahoma accepted all reservations of land for public highways, including those under the Osage Allotment Act.[2] Because the resolution made no provision for the acquisition of land which had not already been granted to the State, we hold that the Board of Commissioners intended that only the easement, which existed by virtue of the Osage Allotment Act and Article 16, Sec. 2, of the Oklahoma Constitution, was to be used for the newly created section line road. In so ruling, we hold that when a resolution creating a county section line road does not specifically designate the width of the road, the width of the road shall be the width of the existing easement, in this case, two rods, created by grant and accepted by the State by virtue of Article 16, Section 2, of the Oklahoma Constitution. Appellants Donelson next contend that because the section line road would almost be exclusively used by the Oldfields and guests of the Oldfields, the road does not constitute a public road, for there cannot be a public road for the use of one individual. This Court's holding in St. Louis & S.F. Ry. Co. v. Smith, 41 Okl. 163, 137 P. 714 (1913), answers the objection. In that case, we held that a public road, as distinguished from a private road is one which is open to the travel of the public, and that it is the right to travel upon the road by all the world, and not the exercise of the right which makes it a public highway. In the case before us, the Board of County Commissioners by resolution opened the section line road as a public road, thereby giving all the world the right to travel upon it. The fact that few will exercise the right to travel on the road is immaterial. Appellants Donelson also argue that under the scheme established by the Oklahoma Statutes, section lines become public roads only when governing authorities construct and maintain such as a part of the public road system. Under the provisions of 69 O.S. 1971, § 601, the Boards of County Commissioners of various counties have "exclusive jurisdiction" over the designation, construction, maintenance and repair of all of the county highways and bridges.[3] When the Legislature vested the Boards of County Commissioners with "exclusive jurisdiction" over the designation, construction *41 and maintenance of county highways, the Legislature mandated that the Board of County Commissioners must exercise considerable official discretion in the exercise of their jurisdictional powers. This Court will not interfere with the exercise of such discretion except in rare cases.[4] If the Board of County Commissioners of Osage County had appropriated funds to construct and maintain the road in question, a possible abuse of discretion might be present, for Boards of County Commissioners have a duty to construct and maintain as county highways those roads which best serve the most people of the county.[5] Although in building and maintaining county highways, the Boards must consider which highways will best serve the most people in the county, no such restriction is put upon the Board's designation of section lines as highways, where the highways are to be constructed and maintained by the citizens who will receive the most benefit from the road. There being no such restriction, we see no grounds upon which to hold that the Board abused its discretion in exercising its exclusive jurisdiction in designating the section line in question as a county road. Lastly, we consider appellants' contention that the easement along the section line was abandoned. There being no evidence in the record that any official action was ever taken to abandon the road, and no evidence to demonstrate that the terrain was so impassible as to give rise to a presumption of abandonment, we dismiss appellants' argument. Indeed, the record indicates that the land in question was uncommonly level. The fact that a small bridge will have to be constructed to cross a ditch does not make the terrain impassible. Having found that the resolution adopted by the Board of Commissioners effectively designated the section line in question as a county road, and finding that the Commissioners acted within their authority and did not abuse their discretion in opening the road and designating that the interested parties would construct and maintain the road, we hold that the Oldfields had a right to proceed with construction, and that the trial court did not exceed its powers in enjoining the Donelsons from interfering with the construction and maintenance of the road. Accordingly, we affirm the action of the trial court. AFFIRMED. All the Justices concur. NOTES [1] 69 O.S. § 629 provides: "The Board of County Commissioners shall at the time of establishing public roads make an order fixing the width thereof and definitely describing such roads." 69 O.S. § 1201 provides: "All section lines in the State are hereby declared public highways. The width thereof shall be as set by the appropriate authority." [2] Article 16, Section 2, of the Constitution of Oklahoma provides: "The State of Oklahoma hereby accepts all reservations and lands for public highways made under any grant, agreement, treaty, or act of Congress: Provided, This section shall not be construed to prejudice the vested rights of any tribe, allottee, or other person to any such land." In Mills v. Glasscock, 26 Okl. 123, 110 P.2d 377 (1910), this Court held that the provisions of Article 16, Section 2, of the Constitution of Oklahoma constituted an acceptance of the Congressional Grant of highway lands granted in Section 10 of the Osage Allotment Act. We further held that the acceptance of that grant by the State became operative by virtue of the constitutional provision, and did not require additional legislation. [3] 69 O.S. 1971 § 601 provides: "The County Highway System shall be composed of all public roads within any county, less any part of any road or roads which may be taken over as a State highway by the Commission. It shall be the duty of the Board of County Commissioners in each county to construct and maintain as county highways those roads which best serve the most people of the county. For this purpose the Board of County Commissioners is authorized to use any funds which are in the County Highway Fund, subject to statutory restrictions on the use of any of such funds, together with any money derived from any agreement entered into between the Commission and the Federal Government, any county or any citizen or group of citizens who have made donations for that purpose. The Boards of County Commissioners of the various counties shall have exclusive jurisdiction over the designation, construction and maintenance and repair of all of the county highways and bridges therein." [Emphasis added] [4] See, e.g., Town of Chouteau v. Blankenship, 194 Okl. 401, 152 P.2d 379 (1944); Lutes v. Thompson, 193 Okl. 331, 143 P.2d 135 (1943); and Opinion of the Attorney General, No. 69-146 (August 19, 1969). [5] 69 O.S. 1971 § 601, supra.

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS ********************* ARLENE DOREGO, * No. 14-337 V * Petitioner, * Special Master Moran * v. * Filed: April 4, 2016 * SECRETARY OF HEALTH * Attorneys’ fees, failure of Secretary AND HUMAN SERVICES, * to object * Respondent. * ********************* Ronald Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for Petitioner; Julia McInerny, United States Dep’t of Justice, Washington, DC, for Respondent. PUBLISHED DECISION ON ATTORNEYS’ FEES AND COSTS1 After successfully prosecuting her claim for compensation in the Vaccine Program, Arlene Dorego filed an application for attorneys’ fees and costs. The Secretary did not interpose any objection to the number of hours requested. Ms. Dorego is awarded $26,491.86. ATTORNEYS’ FEES IN THE VACCINE PROGRAM Under the Vaccine Act, a special master or a judge of the United States Court of Federal Claims shall award reasonable attorneys’ fees and costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1); Sebelius v. Cloer, 133 S. Ct. 1886, 1893 (2013). To determine a reasonable amount of attorneys’ fees and costs under the Vaccine Act, special masters follow the lodestar approach, which involves a two-step process. Avera v. Sec’y of 1 The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the document posted on the website. Health & Human Servs., 515 F.3d 1343, 1347-48 (Fed. Cir. 2008). First, the judicial officer determines an “initial estimate . . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the judicial officer may make an upward or downward departure from the initial calculation of the fee award based on specific findings. Id. at 1348. Counsel must submit fee requests that include contemporaneous and specific billing entries indicating the task performed, the number of hours expended on the task, and who performed the task. See Savin v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316-18 (Fed. Cl. 2008). Counsel must not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work done.” Id. Furthermore, the special master may reduce fees sua sponte, apart from objections raised by respondent and without providing petitioners notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 208-09 (Fed. Cl. 2009). A special master need not engage in a line-by-line analysis of petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). In the Vaccine Program, compensation is “paid out from a federal trust fund supported by an excise tax levied on each dose of certain covered vaccines.” Sebelius, 133 S.Ct. at 1891 (citing 26 U.S.C. §§ 4131, 4132, 9510; 42 U.S.C. § 300aa−15(f)(4)(A)). This federal trust fund is also the source of payment of attorneys’ fees and costs. Bruesewitz v. Wyeth, 562 U.S. 223, 229 (2011). PROCEDURAL HISTORY Ms. Dorego claimed that the measles-mumps-rubella vaccine caused her to suffer thrombocytopenia purpura. See Pet., filed Apr. 23, 2014. The parties informally resolved that claim. Ms. Dorego received $50,000 in compensation. Decision, issued July 13, 2015. With the merits of Ms. Dorego’s case resolved, the parties turned to the issue of attorneys’ fees and costs. This case is another example of recent litigation between the law firm representing Ms. Dorego — Conway, Homer, & Chin- Caplan, P.C. (“CHCC”) — and the government. 2  By way of background, in 2006, the parties’ counsel reached an agreement on the hourly rates for CHCC attorneys, paralegals, and law clerks based upon prevailing rates in the Boston area. See Carr v. Sec’y of Health & Human Servs., No. 00-778V, 2006 WL1073032, at *1-4 (Fed. Cl. Spec. Mstr. Mar. 29, 2006). Two years later, the Federal Circuit changed the way special masters determined a reasonable hourly rate. The Federal Circuit determined that special masters should use the forum rate, i.e., the District of Columbia rate, in determining an award of attorneys’ fees. Avera, 515 F.3d at 1348. At the same time, the Federal Circuit adopted the Davis County exception to prevent windfalls to attorneys who work in less expensive legal markets. Id. at 1349 (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). The Carr rates, which were periodically updated, facilitated the resolution of attorneys’ fees in CHCC cases. Although special masters were required to resolve some disputes about the reasonable number of hours billed by CHCC attorneys and staff, these occasions were very infrequent. And, in those cases rare cases in which the parties disputed the number of hours, the parties still agreed upon the hourly rate. In the vast majority of CHCC fee applications, the parties did not present any dispute for the special master to resolve.2 This cooperative process greatly benefitted the Vaccine Program because judicial resources were not consumed in attorneys’ fees disputes. See Hensley, 461 U.S. at 437 (disputes regarding attorneys’ fees should not produce major litigation); see also Guidelines for Practice under the National Vaccine Injury Compensation Program, at 69-70 (Office of Special Masters, United States Court of Federal Claims, January 2016) 2 Trial attorneys from the Department of Justice have advised special masters that they lack the authority to “agree” to any particular amount for attorneys’ fees and costs. In other words, trial attorneys from the Department of Justice cannot contractually bind the United States. This authority is reserved to supervising officials within the Department of Justice. See Tompkins v. United States, 117 Fed. Cl. 713, 722 (2014). However, trial attorneys from the Department of Justice possess the authority “not to object” to particular amounts for attorneys’ fees and costs. In line with these representations, special masters have attempted to refrain from saying that the government agreed to an amount of attorneys’ fees. One additional clarification must be added. Some petitioners’ attorneys, but not attorneys from CHCC, include the amount of attorneys’ fees and costs in the stipulation that resolves the petitioner’s claim. Under this procedure, a Department of Justice official with the authority to bind the United States in a contract (the stipulation) does agree to pay a certain amount of attorneys’ fees. But, these true agreements happen relatively rarely. 3 (Vaccine Guidelines) (describing informal method for resolving applications for attorneys’ fees). At some point in 2015, the agreement between CHCC and the government unraveled. In more than 30 cases, divided among multiple special masters, the parties presented evidence and arguments about a reasonable amount of attorneys’ fees and costs for CHCC. Among this group, the first decision to determine a reasonable hourly rate for CHCC was McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). Although McCulloch is not binding precedent, other special masters, including the undersigned, have found its analysis sound. Ericzon v. Secʼy of Health & Human Servs., No. 10-103V, 2016 WL 447770 (Fed. Cl. Spec. Mstr. Jan. 15, 2016); Avchen v. Secʼy of Health & Human Servs., No. 14-279V, 2015 WL 9595415 (Fed. Cl. Spec. Mstr. Dec. 4, 2015); Houck v. Secʼy of Health & Human Servs., No. 11-509V, 2015 WL 9259889 (Fed. Cl. Spec. Mstr. Nov. 25, 2015); Tomlinson v. Secʼy of Health & Human Servs., No. 13-736V, 2015 WL 7068558 (Fed. Cl. Spec. Mstr. Oct. 23, 2015). In the present case, Ms. Dorego submitted a motion for attorneys’ fees and costs on November 20, 2015. The total, which includes an amount for costs that Ms. Dorego bore personally, is $26,491.86. On December 7, 2015, the Secretary filed her response. With respect to the reasonable hourly rate, the Secretary asserted she “stands by the arguments and evidence she put forth in McCulloch. Nevertheless, in light of the decision in McCulloch, while respondent disagrees with the analysis and findings in that decision, respondent has determined that her resources are not wisely used by continuing to litigate the issues addressed in that decision.” Resp’t’s Resp. at 1-2 (full citation to McCulloch omitted). With respect to the reasonable number of hours, the Secretary provided no analysis. Instead the Secretary “defer[red] to the special master’s discretion in determining a reasonable fee award.” Id. at 2. In a footnote, the Secretary added the following clarification of her position: “Nothing contained in this response should be construed as an admission, concession, or waiver by respondent as to any of the matters raised by the instant Fee Application, including, but not limited to, the hourly rates requested, the number of hours requested, and other litigation-related costs.” The Secretary also attempted to instruct the special master in what the decision should say: “The special master’s decision should not represent that respondent did not object to the 4 amounts sought, but rather deferred to the special master to determine what constitutes a reasonable award in this case.” Resp’t’s Resp. at 2 n.1. Ms. Dorego did not file a reply. This matter is now ripe for adjudication. DISCUSSION Because Ms. Dorego received compensation, she is entitled to an award of reasonable attorneys’ fees by right. 42 U.S.C. § 300aa−15(e). The only question is the amount. The lodestar method contains two factors: a reasonable hourly rate and a reasonable number of hours. An attorney’s reasonable hourly rate usually stays fixed for a certain period, typically one year. Thus, special masters may find persuasive one special master’s factual determination about a reasonable hourly rate. For CHCC, McCulloch supplies an answer to the question about a reasonable hourly rate for Ms. Dorego’s case. McCulloch, however, cannot answer this case’s question about the other factor in the lodestar analysis, a reasonable number of hours. An analysis of the reasonableness of the work an attorney performed begins with the work that the attorney actually performed as listed on the attorney’s timesheet. From that starting point, special masters may differ in their assessments about the reasonableness of the work. McCulloch and the cases following it illustrate this dichotomy. A recurring issue in CHCC cases is the number of attorneys that the law firm assigns. McCulloch found that such case-staffing was reasonable, McCulloch, 2015 WL 5634323, at *24-25. Another special master reached the same conclusion: Morris v. Secʼy of Health & Human Servs., No. 13-601V, 2015 WL 9302975, at *3 (Fed. Cl. Spec. Mstr. Nov. 30, 2015) (finding, despite the Secretary’s objection, that CHCC attorneys spent a reasonable amount of time). However, other special masters have found that some charges are excessive. E.g., Ericzon, 2016 WL 447770, at *3 (stating “[t]he undersigned agrees with respondent that the number of attorneys who billed time in this case is excessive and unnecessary” and reducing attorneys’ fees by ten percent); Avchen, 2015 WL 9595415, at *5-6 (reducing number of hours); Houck, 2015 WL 9259889, at *2 (stating “[t]he undersigned also acknowledges Respondent’s objections to the redundancy associated with time expended by Mr. Homer” and awarding 5.4 hours of 7.4 hours 5 requested); Tomlinson, 2015 WL 7068558, at *4-5 (reducing requested number of hours). Notably, in these cases, special masters resolved questions about the reasonableness of CHCC attorneys that the Secretary had raised. Sometimes, special masters found the objection meritorious and sometimes not. How the Secretary’s objection was resolved is not particularly important. What is important is that the Secretary raised an objection. Here, the Secretary has not raised any objection to Ms. Dorego’s requested number of hours. Although the Secretary may prefer that this decision not to disclose her lack of objection, it is entirely correct to say that the Secretary did not present any specific objection to the time the petitioner’s attorneys have charged. The Secretary did not identify any time that was unreasonable. Similarly, with respect to the costs Ms. Dorego and her attorneys incurred, the Secretary did not identify any items that were unreasonable. As to the reasonableness of the requested attorneys’ fees and costs, the Secretary possessed a right to be heard. See 42 U.S.C. § 300aa−12(b)(1) (“In all proceedings brought by the filing of a petition under section 300aa−11(b) of this title, the Secretary . . . shall participate”); see also Vaccine Rule 20 (“a response or an objection to a written motion must be filed within 14 days after service of the motion”); Office of Special Masters, Guidelines for Practice under the National Vaccine Injury Compensation Program (Red. Ed. 2014) Section X, Chapter 6 (“A fee application is treated procedurally as a motion under Vaccine Rule 20, giving respondent 14 days to file an opposition”). This right to object may even be considered a duty to object as “[a]ttorney fee awards are one aspect of the interest of Government officials in the programs they administer.” Haggart v. Woodley, 809 F.3d 1336, 1344 (Fed. Cir. 2016) (internal quotation marks omitted), pet. for cert. filed, 84 U.S.L.W. 3482 (U.S. Feb. 23, 2016) (No. 15-1072). Specific objections from the party opposing the fee request alert the fee applicant to what aspects need to be defended. See Former Employees of BMC Software, Inc. v. U.S. Sec’y of Labor, 519 F. Supp.2d 1291, 1315-16 (Ct. Int’l Trade 2007). By offering no targeted objection to the activities of CHCC, the Secretary has waived any objection to the requested number of hours. Again, it does not matter that the Secretary wishes that her response not to be “construed as . . . a waiver.” Resp’t’s Resp. at 2 n.1. A waiver is “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938), overruled on other grounds, Edwards v. Arizona, 451 U.S. 477 (1981). 6 The Secretary’s footnote provides no reasoning behind its conclusion that the Secretary has not waived objections to the number of hours or to the amount of costs. It is, therefore, difficult to find that the failure to object constitutes anything other than a waiver. See Vaccine Rule 8(f) (“Any fact or argument not raised specifically in the record before the special master will be considered waived”). To the extent the Secretary is relying upon the special master’s duty to award reasonable attorneys’ fees (see 42 U.S.C. § 300aa−15(e)) to exonerate herself from the responsibility to participate in resolving motions for attorneys’ fees, that attempt is not persuasive. In litigation, parties may (and do) waive rights in a variety of contexts even though some other entity (judge, judicial official, or jury) is ultimately responsible for deciding the issue absent that waiver. In light of the Secretary’s waiver of the right to present any objection to the requested number of hours, the undersigned has reviewed the fee application for its reasonableness. See Shea v. Secʼy of Health & Human Servs., No. 13-737V, 2015 WL 9594109, at *2 (Fed. Cl. Spec. Mstr. Dec. 10, 2015) (“special masters are not obligated to evaluate an attorney’s billing records on a line-by-line basis in making the reasonableness determination . . . and certainly need not do so when Respondent has not attempted to highlight any specific alleged inefficiencies”). All aspects of the fee application appear reasonable. Consequently, Ms. Dorego is awarded the full amount of attorneys’ fees and costs. CONCLUSION The undersigned finds an award of attorneys’ fees and costs appropriate. In sum, the undersigned awards Ms. Dorego the following amount for attorneys’ fees and costs: Accordingly, the court awards: a. $26,126.86 representing attorneys’ fees and costs. The award shall be in the form of a check made payable jointly to petitioner and petitioner’s attorney, Ronald Homer of Conway, Homer & Chin-Caplan, in the amount of $26,126.86; and b. $365.00, representing Ms. Dorego’s costs. The award shall be in the form of a check made payable to Ms. Dorego for $365.00. 7  In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.3 IT IS SO ORDERED. s/ Christian J. Moran Christian J. Moran Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or jointly, filing a notice renouncing the right to seek review. 8 

757 F.Supp.2d 554 (2010) UNITED STATES of America, v. Mohamed Ali SAID, a/k/a Maxamad Cali Saciid, et al., Defendants. Criminal Action No. 2:10cr57. United States District Court, E.D. Virginia, Norfolk Division. August 17, 2010. *556 Raymond E. Patricco, Jr., United States Attorney's Office, Alexandria, VA, Benjamin Lucas Hatch, U.S. Attorney Office, Richmond, VA, Jerome Teresinski, U.S. Department of Justice, Washington, DC, Joseph E. Depadilla, United States Attorney's Office, Norfolk, VA, for United States of America. Arenda Lauretta Wright Allen, Keith Loren Kimball, Office of the Federal Public Defender, Norfolk, VA, Geremy C. Kamens, Office of Federal Public Defender, Alexandria, VA, for Defendants. MEMORANDUM OPINION AND ORDER RAYMOND A. JACKSON, District Judge. Before the Court is the Joint Motion of Defendants to Dismiss Count One of the Superseding Indictment pursuant to Rule 12(b)(2) of the Federal Rules of Criminal Procedure. The Court held a hearing on this motion on July 29, 2010. For the reasons stated herein, the Defendants' Motion to Dismiss Count One is GRANTED. I. FACTUAL AND PROCEDURAL HISTORY Defendants were named in a live-count Indictment on April 21, 2010. On July 7, 2010, the Government filed an eight-count Superseding Indictment. The Government alleges that on or about April 10, 2010, around 5:00 a.m., Defendants approached the USS Ashland in a small skiff in the Gulf of Aden. As Defendants' skiff became even with the USS Ashland on the USS Ashland's port side, at least one person *557 on Defendants' skiff raised and shot a firearm at the USS Ashland. The USS Ashland responded by returning fire, destroying the skiff, and killing one of the passengers. At no time did Defendants board or attempt to board the USS Ashland. The USS Ashland crew members observed in the burning skiff, among other things, the remains of an AK-47 style firearm. Crew members of the USS Ashland then took Defendants into custody. On June 9, 2010, Defendants filed the above-referenced motion. The Government filed a response to this motion on June 21, 2010. Defendants filed a reply on June 28, 2010. A hearing was held on this matter on July 29, 2010. All Defendants jointly move the Court to dismiss Count One of the Superseding Indictment, which alleges that Defendants "committed the crime of piracy as defined by the law of nations," in violation of 18 U.S.C. § 1651. Defendants argue that the Count should be dismissed pursuant to Rule 12(b)(2) of the Federal Rules of Criminal Procedure because under no set of facts was the offense of "piracy" committed where Defendants did not board or take control of the USS Ashland and did not obtain anything of value from it. (Def.'s Mot. to Dismiss 1.) The Government argues in response that this motion should be denied because piracy has historically included different types of conduct and is not limited to the common law definition of robbery on land. (Govt's Resp. 2.) More specifically, the Government asserts that piracy, as defined by the law of nations, does not require the actual taking of property: rather, any unauthorized armed assault or directed violent act on the high seas is sufficient to constitute piracy. (Govt's Resp. 2-3.) II. LEGAL STANDARD Federal Rule of Criminal Procedure 12(b)(2) states that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." Included in the motions that may be made before trial is "a motion alleging a defect in the indictment or information." Fed.R.Crim.P. 12(b)(3). A 12(b) motion is permissible only when "it involves a question of law rather than fact." United States v. Shabbir, 64 F.Supp.2d 479, 481 (D.Md.1999) (citing United States v. Nukida, 8 F.3d 665, 669 (9th Cir.1993) (internal citation omitted)). To survive Defendants' Motion to Dismiss Count One, the indictment must allege that Defendants committed acts which, if proven, would sustain a violation of 18 U.S.C. § 1651. Title 18 U.S.C. § 1651 states, "[w]hoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life." This statute was originally enacted in 1819, and as is the case with the current version, the 1819 version did not specifically identify what conduct constituted "piracy as defined by the law of nations." Article I of the United States Constitution grants Congress the power to "define and punish piracies and felonies committed on the high seas, and offenses against the law of nations." U.S. CONST. ART. I § 8. Inherent in this grant is the understanding that a set of international laws separate from domestic United Slates law exists. See Ex Parte Quirin, 317 U.S. 1, 29-30, 63 S.Ct. 2, 87 L.Ed. 3 (1942). The "law of nations" refers to the body of law known as "customary international law." See Flores v. S. Peru Copper Corp., 343 F.3d 140, 154 (2d Cir.2003). The courts considering the phraseology "law of nations," in the civil context have held that in determining what offenses violate the *558 law of nations, "courts must proceed with extraordinary care and restraint." as there is no single, definitive source on what constitutes customary international law. See Guinto v. Marcos, 654 F.Supp. 276, 279 (S.D.Cal.1986) (noting that "there is no universally accepted definition of this phrase"). Generally, one of the key determinations of what principles arc a part of international law is that countries must universally abide by the principles out of a sense of legal obligation and mutual concern. Flores, 343 F.3d at 154 (citing Filartiga v. Pena-Irala, 630 F.2d 876, 888 (2d Cir.1980) ("customary international law includes only well established, universally recognized norms of international law")). Moreover, for a particular rule to be a part of customary law in the international community, courts must look first to concrete evidence of the customs and practices of the countries through formal laws and judicial actions, and second to the work of scholars. Flores, 343 F.3d at 156. Thus, the myriad of decisions upon which the Court must rely must be unambiguous and clear to give rise to a rule of customary international law under the law of nations. Id. Despite its reference to international law, piracy under the law of nations in § 1651, as with every other criminal statute in the United States criminal code, is subject to the constitutional rigors of due process. At a minimum, constitutional due process requires fair warning of the charged conduct. See United States v. Hassan, 542 F.3d 968, 978 (2d Cir.2008). Accordingly, the principle of due process is "that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." Bouie v. City of Columbia, 378 U.S. 347, 351, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) (quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954)). This "fair warning requirement" bars enforcement of "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." United States v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926)). Furthermore, as a corollary point to the vagueness doctrine, "the cannon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered." Lanier, 520 U.S. at 266, 117 S.Ct. 1219. Finally, due process bars courts from setting forth a "novel" construction of a criminal statute "to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope." Id. III. DISCUSSION For the first time since 1820, this Court is faced with the task of interpreting the piracy statute, 18 U.S.C. § 1651, as it applies to alleged conduct in international waters. As detailed above, Defendants contend that Count One should be dismissed because it is undisputed that Defendants did not board, take control, or otherwise rob the USS Ashland; therefore, under no set of facts did Defendants commit the offense of "piracy" as defined by the United States Supreme Court ("Supreme Court") in United States v. Smith, 18 U.S. 153, 5 Wheat. 153, 5 L.Ed. 57 (1820) (Story, J.). Relying in part on contemporary international law, the Government's argument is essentially two-fold: (1) the definition of "piracy, defined by the law of nations" includes, and has always included, any unauthorized violent acts or *559 attacks committed on the high seas without lawful authority against another ship; and (2) this definition of piracy faces no constitutional vagueness issues because it is sufficiently defined to provide Defendants with reasonable notice. The Court will consider these arguments in turn. A. Smith is the Definitive Authority on the Definition of Piracy Under Title 18 U.S.C. § 1651. The Court must interpret a statute by its ordinary meaning at the time of its enactment. Dep't of Labor v. Greenwich Collieries, 512 U.S. 267, 275, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994) ("Courts interpret Congress' use of a term in light of its history, and presume Congress intended the phrase to have the meaning generally accepted in the legal community at the time of its enactment"); see Norfolk S. Ry. Co. v. Bhd. of Locomotive Eng'rs, 217 F.3d 181, 188-89 (4th Cir.2000) (citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 284, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998) ("We attempt to infer how the ... Congress [at the time of enactment] would have addressed the issue.")). This rule applies whether the statute at issue is criminal or civil. See United States v. Cardenas, 864 F.2d 1528, 1535 (10th Cir. 1989) (noting that "there is no evidence in the language of [the criminal statute at issue] or its legislative history that Congress intended the word ... to have a different meaning than the legal meaning in 1968," the year the statute was enacted). This Court must therefore determine what Congress meant by piracy as defined by the law of nations, as stated in § 1651 at its 1819 enactment. 1. Smith Defines Piracy as Sea Robbery. Since the statutory language of § 1651 is devoid of any guidance on the scope of piracy under the law of nations, the Court must examine any relevant judicial opinions to answer this question. The Supreme Court addressed the issue of § 1651's scope in Smith. In fact, Smith is the only case to ever directly examine the definition of piracy under § 1651. In Smith, the Government indicted the defendant for piracy under the 1819 version of § 1651.[1] The special verdict of the jury found that the defendant was guilty of the plunder and robbery charged in the indictment. On appeal, the circuit court divided on the question of whether piracy as defined by the law of nations included the defendant's conduct, or whether the term piracy lacked a precise meaning. The Supreme Court found that piracy, under the law of nations, was robbery on the sea and that it was sufficiently and constitutionally defined. 18 U.S. at 162. Justice Story, for the Court, wrote that "whatever may be the diversity of definitions, all writers concur, in holding, that robbery or forcible depredations, animo furandi, upon the sea... is piracy ... [W]hether we advert to writers on the common law or the maritime law, or the law of nations, we shall find that they universally treat piracy as an offense against the law of nations, and that its true definition by that law is robbery upon the sea." Id. at 161-62. *560 The Government, nevertheless, seeks to distinguish and diminish the precedential significance of Smith. The first contention is that Smith did not address what other acts besides robbery or forcible depredations may constitute piracy because the facts of that case were specifically limited to an incident of robbery. (Govt.'s Resp. 6-7.) However, this Court finds that the discernable definition of piracy as "robbery or forcible depredations committed on the high seas" under § 1651 has remained consistent and has reached a level of concrete consensus in United Slates law since its pronouncement in 1820. See Taveras v. Taveraz, 477 F.3d 767, 772 n. 2 (6th Cir.2007) (quoting Blackstone and noting that "a fundamental element of piracy is that the acts of robbery or depredation must have been committed upon the high seas"); United States v. Madera-Lopez, 190 Fed.Appx. 832, 836 (11th Cir. 2006) (citing Smith for the declaration that "piracy, by the law of nations, is robbery upon the sea, and that it is sufficiently and constitutionally defined"): United States v. Barnhart, 22 F. 285, 288 (C.C.D.Or.1884) (noting that "[p]iracy, or robbing on the on the high seas, is a violation of this common or universal law"); United States v. Baker, 24 F.Cas. 962, 965 (C.C.S.D.N.Y.1861) (noting the in charge to a jury that "pirates, according to the law of nations, have always been compared to robbers; the only difference being that the sea is the theatre of operations of one and the land of the other"); United States v. Libellants & Claimants of the Schooner Amistad, 40 U.S. 518, 586, 15 Pet. 518, 10 L.Ed. 826 (1841) (citing Smith in holding that "[p]iracy is an offense defined and ascertained by the law of nations; it is `forcible depredation on the sea, amino furandi,' or robbery"); Davison v. Seal-Skins, 7 F.Cas. 192, 193-94 (C.C.D.Conn.1835) ("A pirate is one who acts solely on his own authority, without any commission or authority from a sovereign state, seizing by force, and appropriating to himself, without discrimination, every vessel he meets with; and hence pirates have always been compared to robbers."); United States v. Furlong, 18 U.S. 184, 197, 5 Wheat. 184, 5 L.Ed. 64 (1820) (defining piracy as robbery committed on the seas). Moreover, the cases the Government cites do not provide concrete examples of ¶ 1651 being expanded beyond the definition laid out in Smith. For instance, in Harmony v. United States, 43 U.S. 210, 2 How. 210, 11 L.Ed. 239 (1844),[2] Justice Story considered whether the actual taking away of property was necessary as an element of the crime of piracy in a civil forfeiture case. The Court rejected the idea that in order for actions to be considered "piratical," it must be done with intent to steal or plunder. Id. at 232. Notably, however, this case was a civil forfeiture action under section 4 of the Piracy Act of 1819 as opposed to a criminal sanction under section 5 of the Act. Under section 4, "piratical aggression" included acts of violence other than robbery, forcible depredation or otherwise taking of a vessel. Furthermore, the Court slated that "[t]he word `piratical' in the act is not to be limited in its construction to such acts as by the laws of nations are denominated piracy." Id. at 210. In other words, "piracy" has a much narrower meaning than "piratical" acts. Other courts have also made this distinction between piracy and mere piratical undertakings. For example, in The Ambrose Light, 25 F. 408, 415 (S.D.N.Y.1885). another civil forfeiture case, the Court distinguished piracy from mere "piratical undertakings." The Court *561 stated, "[c]ondemnation of the vessel as piratical does not necessarily imply a criminal liability of her officers or crew. The vessel might be condemned for being engaged upon a piratical expedition only, or for attempts at piratical aggression or restraint. In such a case no indictment for piracy would lie ... and our statutes do not make criminally punishable piratical undertakings or aggressions merely." Id. In The Chapman, 5 F.Cas. 471, 473 (N.D.Cal.1864), which the Government also cites, the court described another civil forfeiture provision that was enacted in 1861. The Court stated that the offenses of "aggression, search, restraint, depredation or seizure" referred to in the provision would be "deemed piratical under the laws of nations." The statutes referenced in The Chapman are now codified at 33 U.S.C. §§ 384 and 385. The Chapman court also stated that "general piracy" includes "any act which denotes ... universal hostility.... Not only an actual robbery, therefore, but cruising on the high seas without commission, and with intent to rob." Id. at 474. However, it is unclear if this language is mere dicta, because in a later part of the opinion, the court contradicts itself by stating that "[a]ll agree that piracy, under the laws of nations, is the offense of depredating on the seas without authority or commission from any sovereign or belligerent state," i.e., sea robbery. Id. at 475. Therefore, this case provides the Government weak authority for the expansive definition of piracy it urges. Finally, the Government also relies on United States v. Shi, 525 F.3d 709, 721 (9th Cir.2008), also a non-§ 1651 case, to support its expansive reading of piracy under § 1651. In Shi, the Ninth Circuit determined that because the defendant's offenses involved interference with property on the open sea through lite use of force, they were within Congress' overall authority to define and punish crimes of piracy under Article 1, Section 8 of the Constitution. Id. Therefore, the District Court had jurisdiction to find the defendant guilty of 18 U.S.C. §§ 2280(1)(1)(A) and (a)(1)(B). Id. The Ninth Circuit noted that these provisions "proscribed offenses which meet the definition of piracy." Id. However, this Court finds the Government's argument that this case confirms the inclusion of all unauthorized acts of violence in the definition of piracy under § 1651 unavailing. Notably, the Ninth Circuit also slated that piracy has "traditionally been defined as robbery at sea." Id. (citing Smith, 18 U.S. at 161). The Court reads the Ninth Circuit's reference to "piracy" in discussing §§ 2280(a)(1)(A) and (a)(1)(B) as a general statement of Congress' authority to punish crimes that fall under the umbrella of "Piracies and Felonies on the High Seas." This reading makes sense considering the fact that the defendant in the Shi case was contending that the district court lacked jurisdiction over him because the crime occurred outside United States territory. Id. at 720. 2. The Term "Forcible Depredations" Does Not Include Any Unauthorized Acts of Violence. Secondly, the Government argues that even if Smith and subsequent case law defined piracy as "robbery or forcible depredations," this definition includes "a variety of offense conduct," including Defendants' alleged acts of attacking the USS Ashland with an AK-47 rifle. (Hrg. Tr. 45.) It asserts that "forcible depredations" is not specific to any criminal offense. (Hrg. Tr. 58.) However, it is clear to the Court that this argument is without merit. The Government's interpretation of the phrase "forcible depredations" as something other than robbery or plunder is contrary to the unambiguous definition of "depredation," See BLACK'S LAW DICTIONARY *562 (8th ed. 2004) (defining depredation as "the act of plundering: pillaging"); Deal v. United States, 274 U.S. 277, 283, 47 S.Ct. 613, 71 L.Ed. 1045 (1927) (defining depredation as "the act of plundering; a robbing; a pillaging") (internal quotations omitted). This definition does not include acts of assault or aggression, and Justice Story's use of the terms "robbery" and "forcible depredations" does not embrace the conduct charged against Defendants. Accordingly, the Government's argument is both an expansion and a misinterpretation of Smith, and it would be erroneous for the Court to agree with it. In sum, the Government simply fails to cite to one case in United States jurisprudence in which the Defendant was criminally prosecuted for "piracy in violation of the law of nations," for conduct that fell short of robbery or seizure of a ship. Finding none, this Court concludes that the Supreme Court in Smith set forth the authoritative definition of piracy as robbery or forcible depredations on the high seas, i.e., sea robbery. 3. Subsequent Congressional Actions Support the Smith Definition of Piracy. A review of the statutory history of § 1651 reveals that the definition espoused in Smith has remained unchanged. For instance, in the 1901 Report to the Commission to Revise and Codify the Criminal and Penal Laws of the United States, the Commission noted that the definition of "piracy by the law of nations is: A robbery or forcible depredation on the high seas, without lawful authority, done amino furandi, in the spirit and intention of universal hostility." Alex C. Botkin et al., PENAL CODE OF THE UNITED STATES: REPORT OF THE COMMISSION TO REVISE AND CODIFY THE CRIMINAL AND PENAL LAWS OF THE UNITED STATES XXVII (1901). This Commission, led by Alex C. Botkin, David K. Watson, and WM D. Bynum, was appointed by the President, with the advice and consent of the Senate, to revise and codify the criminal and penal laws. The purpose of the report was to indicate any proposed changes in the substance of existing law before the 1909 recodification of the criminal code. Thus, by 1901, the Commission determined that "piracy" meant the same thing as it did in 1820, as stated by Justice Story in Smith. Although this report is not a direct Congressional enactment or proclamation, it is certainly persuasive evidence of the commonly regarded viewpoint of the statute's meaning of piracy. Furthermore, in 1948, Congress comprehensively revised all of Title 18 of the United Slates Criminal Code. See Act of June 25, 1948. ch. c. 645, 62 Stat. 774 (1948). However, § 1651 was not substantively updated. Indeed, the only substantive change to § 1651 since its enactment has been the removal of the death penalty for the offense as opposed to the current penalty of life imprisonment. See Piracy And Other Offenses Upon The Seas, ch. 321, sec. 290, 35 Stat. 1145 (1909). The analysis does not end here. The Court discerns further support for the limitation of piracy in § 1651 to robbery or forcible depredations by reviewing § 1659 of Title 18, in which Congress explicitly provided that "[w]hoever, upon the high seas or other waters within the admiralty and maritime jurisdiction of the United States, by surprise, or open force, maliciously attacks or sets upon any vessel belonging to another, with an intent unlawfully to plunder the same ... shall be fined under this title or imprisoned not more than ten years, or both." 18 U.S.C. § 1659. The Government contends that it is common for criminal statutes in the Federal Criminal Code to overlap in proscribing penalties for certain conduct and that §§ 1651 and 1659 can be read together. *563 See Pasquantino v. United States, 544 U.S. 349, 359 n. 4, 125 S.Ct. 1766, 161 L.Ed.2d 619 (2005) ("The mere fact that two federal criminal statutes criminalize similar conduct says little about the scope of either"). However, another rule of statutory interpretation is that statutes dealing with similar subject matter must be construed harmoniously "as to allow both to stand and give force and effect to each." Orquera v. Ashcroft, 357 F.3d 413, 422 (4th Cir.2003). Section 1659 was enacted in 1825. When enacting new statutes. Congress is considered to have been aware of prior sections or statutes addressing similar issues such that one is not essentially obliterated by the enactment of another. United States v. Langley, 62 F.3d 602, 605 (4th Cir.1995) ("It is firmly entrenched that Congress is presumed to enact legislation with knowledge of the law; that is with the knowledge of the interpretation that courts have given to an existing statute"); Miles v. Apex Marine Corp., 498 U.S. 19, 32, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990) ("We assume that Congress is aware of existing law when it passes legislation."). Accordingly, two sections in the same chapter of the criminal code should not be construed such that one is made completely superfluous. Section 1659 clearly addresses exactly the conduct charged against Defendants in this case of shooting at the USS Ashland with an AK-47 rifle. See Daeche v. United States, 250 F. 566, 571 (2d Cir.1918) (holding that Defendant could be held liable for conspiring to attack and plunder a vessel based on evidence of a plan to destroy Allied ammunition ships, even though that plan was unsuccessful). Furthermore, the Court must consider the far-reaching consequence of the Government's interpretation of §§ 1651 and 1659. The Government concedes that an act as minor as a sling-shot assault, a bow and arrow, or even throwing a rock at a vessel could be considered an act of violence and subject a defendant to the penalty of life in prison for piracy under § 1651. (Hrg. Tr. 60.) This surely is not a logical interpretation of Congressional intent in enacting § 1651, especially in light of the ten year imprisonment penalty Congress promulgated for a violation of § 1659. B. Contemporary International Law is Inappropriate to Define Piracy Under Title 18 U.S.C. § 1651. Despite the Supreme Court's holding in Smith that piracy as defined by the law of nations in § 1651 is sea robbery, to support its expansive definition of piracy, the Government urges the Court to consider contemporary international law sources. (Govt's Resp. 15.) It points to the International Maritime Bureau, the British Privy Council, the 1958 Geneva Convention, the 1982 United Nations Convention on the High Seas, and certain published treatises by a German law professor as secondary authorities. (Govt's Resp. 15-19.) Defendants argue that Congress defined the offense in 1819, and to the extent that piracy has changed in the international community since Smith, it has only become more clouded with the emergence of new international bodies; thus, the only consistent standard is the one set forth in Smith. (Def.'s Reply 15-16.) 1. Contemporary International Law is Unsettled on the Definition of Piracy. In order to determine whether a particular rule is a part of customary law in the international community, courts must consider concrete evidence of the customs and practices of the States through not only formal laws and scholarly work, but also controlling judicial actions. See Flores, 343 F.3d at 156. Consequently, *564 as the Government conceded during oral argument, the Court can and should look to judicial opinions such as Smith that recognize and enforce the law at hand. (Hrg. Tr. 56.) However, the Court finds that despite the fact that the crime of piracy is generally recognized in the international community, Smith is the only clear, undisputed precedent that interprets the statute at issue. The international sources the Government provides are unsettled. The first foreign source the Government points to is the British Privy Council. The British Judicial Committee of the Privy Council is the independent court of final appeal for Commonwealth countries.[3] In 1934, the Privy Council considered whether actual robbery was an essential element of the crime of "piracy jure gentium," or whether an attempt to commit piratical robbery was also considered piracy. In re Piracy Jure Gentium, [1934] A.C. 586 (P.C.) 586. The Privy Council held that a completed act of actual robbery was not an essential element of piracy, but rather an attack alone was sufficient under the law of nations. Id. at 587-88. Similarly, the 1958 Geneva Convention on the High Seas and Article 101 of the 1982 United Nations Convention on the Law of Sea ("UNCLOS") both define piracy to include the conduct charged against Defendants in this case. Specifically, both conventions noted that "any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or passengers of a private ship ... on the high seas, against another ship ... or against persons or property on board such ship" on constitute piracy, and that the intention to rob or the act of robbing were not required.[4] Finally, in his treatise on International Law, Professor Oppenheim states that "[p]iracy, in its original and strict meaning, is every unauthorized act of violence committed by a private vessel on the Open Sea against another vessel with intent to plunder." Oppenheim, International Law, § 276, 325 (1905). Furthermore, Oppenheim notes that "[t]he act of violence need not be consummated: a mere attempt, such as attacking or even chasing a vessel for the purpose of attack, by itself comprises piracy." Id. Despite the declarations by these international bodies, scholars nevertheless disagree on whether there is an authoritative definition of piracy in the international community. See Helmut Turek, The Resurgence of Piracy: A Phenomenon of Modern Times, 17 U. MIAMI INT'L & COMP. L. REV. 1, 10 (2009) ("Under customary international law, there is no authoritative definition of piracy"); George D. Gabel, Jr., Smother Seas Ahead: The Draft Guidelines as an International Solution to Modern-Day Piracy, 81 TUL. L. REV. 1433, 1434-35 (2007) (noting that customary international law provides no authoritative definition of "piracy"); Barry H. Dubner, Piracy in Contemporary National and International Law, 21 CAL. W. INT'L L.J. 139, 142 (1990) (doubling that "an *565 international agreement, be it in the form of convention, treaty, protocol, or exchange of notes, could be agreed upon regarding a modern definition of piracy [because] the views are just too divergent on the subject"); ALFRED P. RUBIN, THE LAW OR PIRACY 344 (Hotel 1988) ("It may be concluded that both in current practice and in current theory built upon ancient roots and the evolution of the international political and legal orders, there is no public international law defining `piracy;' that the only legal definitions of `piracy' exist in municipal law and are applicable only in municipal tribunals bound to apply that law."). In fact, a number of scholars define piracy just as Justice Story did in the Smith decision. See Eugene Konlorovich, The Piracy Analogy: Modern Universal Jurisdiction's Hollow Foundation, 45 HARV. INT'L L.J. 183, 237 (2004) ("The crime of piracy consists of nothing more than robbery at sea"); Jay S. Bybee, Insuring Domestic Tranquility: Lopez, Federalization of Crime, and the Forgotten Role of the Domestic Violence Clause, 66 GEO. WASH. L. REV. 1, 26 (1997) ("Piracy is well defined by the law of nations as robbery on the sea"). Moreover, in contrast to the British Privy Council. Geneva Convention and UNCLOS, the International Maritime Bureau, the anti-crime arm of the International Chamber of Commerce, defines piracy as "an act of boarding (or attempted boarding) any vessel with the apparent intent to commit theft or any other crime with the apparent intent or capacity to use force in furtherance of that act." (Govt's Resp. 19) (quoting PETER CHALK, THE MARITIME DIMENSION OF INTERNATIONAL SECURITY: TERRORISM, PIRACY, AND CHALLENGES FOR THE UNITED STATES 3 (Rand 2008)). This definition is much narrower than that set forth by the UNCLOS, the Geneva Convention and the British Privy Council, and is arguably more in line with Justice Story's definition of sea robbery. Indeed, following any of these international sources as authoritative is questionable. The International Maritime Bureau does not have the authority to create binding laws, and neither an international maritime peacekeeping force nor an international tribunal with jurisdiction to try or punish pirates exists. Furthermore, "in developing the Harvard Research Draft Convention for the law of Piracy (from which a majority of the definition of piracy for the UNCLOS was derived), the reporters flatly stated, `[t]here is no authoritative definition.'" and there was plenty of debate as to whether the definition in the UNCLOS "adequately and accurately codified piracy." Joshua Michael Goodwin, Universal Jurisdiction and the Pirate: Time for an Old Couple to Part, 39 VAND. J. TRANSNAT'L L. 973, 999 (2006) (internal citations omitted). And while most countries have ratified the UNCLOS, the United States has chosen not to ratify it. Additionally, there is no single court that can bring order to various interpretations of the UNCLOS. Rather, enforcement actions against pirates and criminal prosecutions of pirates are left to individual countries, many of which have different penalties for the crime of piracy ranging from three years to life in prison.[5]*566 As one scholar notes, "to claim that there is a common definition may be correct in the sense that there is a definition of piracy in the UNCLOS, but the interpretation of that definition can potentially vary greatly between the states." Id. at 1000. (emphasis added). Accordingly, the Court's reliance solely on the international sources would be erroneous. 2. Due Process Constraints Prevent a Novel Construction of Title 18 U.S.C. § 1651. Most importantly, § 1651, as every other criminal statute under United States Criminal Code, is subject to the constitutional rigors of due process. Sea United States v. Sun, 278 F.3d 302, 309 (4th Cir. 2002). There is nothing special about § 1651 such that it should not receive the same scrutiny. If the Court only relied on the Government's international sources— as they stand at this point in time—in formulating the definition of piracy under the law of nations, it could hold that the charged conduct in this case is sufficient to withstand a Motion to Dismiss because Defendants' acts are included as piracy in the range of conduct these various international bodies proscribe. However, following this line of reasoning would be contrary to Supreme Court precedent, and would inevitably deny Defendants due process. The Smith Court held that § 1651 was not unconstitutionally vague because piracy under the law of nations had a specified meaning: robbery at sea. 18 U.S. at 162. If the Court accepted the Government's request to adopt the definition of piracy from these debatable international sources whose promulgations evolve over time, defendants in United States courts would be required to constantly guess whether their conduct is proscribed by § 1651. This would render the statute unconstitutionally vague. See Ladner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958) ("[T]he Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended"); United States v. Wiltberger, 18 U.S. 76, 105, 5 Wheat. 76, 5 L.Ed. 37 (1820) ("[P]robability is not a guide which a court, in construing a penal statute, can safely take").[6] The Court concludes that the definition of piracy in the international community is unclear and not consistent with Congress' understanding of § 1651 as recognized by the Supreme Court. See Lanier, 520 U.S. at 266, 117 S.Ct. 1219 (noting that due process bars courts from setting forth a "novel" construction of a criminal statute "to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope"); Sosa v. Alvarez-Machain, 542 U.S. 692, 728, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) (in construing the Alien Tort Statute, 28 U.S.C. § 1350, holding that courts "have no congressional mandate to seek out and define new and debatable violations of the law of *567 nations"). Given the flexible manner in which international sources treat the definition of piracy, and that these sources inherently conflict with Supreme Court precedent, the Court's reliance on these international sources as authoritative would not meet constitutional muster and must therefore be rejected. The Smith definition of piracy as sea robbery, on the other hand, is clear and authoritative. IV. CONCLUSION The Court finds that the Government has failed to establish that any unauthorized acts of violence or aggression committed on the high seas constitutes piracy as defined by the law of nations in 18 U.S.C. § 1651. Following the Government's assertions would subject Defendants to an enormously broad standard under a novel construction of the statute that has never been applied under United States law, and would in fact be contrary to Supreme Court case law. In the Superseding Indictment, the Government has recognized that Defendants' alleged conduct is proscribed by a variety of federal statutes. The Government has charged Defendants with: 18 U.S.C. § 1659, Attack to Plunder a Vessel, having a penalty of ten years imprisonment; 18 U.S.C. § 2291(a)(6), Acts of Violence Against Persons on a Vessel, having a penalty of twenty years imprisonment; 18 U.S.C. § 2291(a)(9), Conspiracy to Perform Acts of Violence Against Persons on a Vessel, having a penalty of twenty years imprisonment; 18 U.S.C. §§ 111(a)(1) and (b). Assault with a Dangerous Weapon on Federal Officers and Employees, having maximum penalties of eight and twenty five years; 18 U.S.C. § 924(o), Conspiracy Involving Firearm and a Crime of Violence, having a penalty of twenty years; and 18 U.S.C. § 924(c)(1)(A)(iii), Use of Firearm During a Crime of Violence, having a penalty of ten years. However, 18 U.S.C. § 1651 is not a statute under which Defendants' alleged conduct falls. Accordingly, Defendants' Motion to Dismiss Count I is GRANTED. IT IS SO ORDERED. NOTES [1] See Act to Protect the Commerce of the United States and Punish the Crime of Piracy, ch. 77, sec. 5, 3 Stat, 511 (1819). The 1819 statute stated, "it any person or persons whatsoever, shall, on the high seas, commit the crime of piracy, as defined by the law of nations, and such offender or offenders, shall afterwards be brought into or found in the United States, every such offender or offenders shall, upon conviction thereof, before the circuit court of the United States for the district into which he or they may be brought, or in which he or they shall be found, be punished with death." [2] The Government refers to this case as "The Malek Adhel." (Govt's Resp. 10.) [3] The Government notes that the Judicial Committee of the Privy Council was formally established by the Judicial Committee Act of 1833, and since then it has operated as an independent court of law, (Govt's Resp. 14 (citing Roger V. Bryan, Toward the Development of a Caribbean Jurisprudence: The Case for Establishing a Caribbean Court of Appeal, 7 J. TRANSNAT'L L. & Pol'y 181, 183 (1998))). [4] See Convention on the High Seas, Sept. 15, 1958, art. 15, 13 U.S.T. 2312, 2317, 450 U.N.T.A. 11, 90 (available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/8_1_1958_high_seas.pdf); Convention on the Law of the Sea, Dec. 10, 1982, art. 101, 1833 U.N.T.S. 3, 436 (available at http://www.un.org/Depts/los/convention_agreements/texts/unclo_e.pdf). [5] "In Russia, piracy is punished with a prison sentence of five to ten years if there are no weapons involved, eight to twelve years if a weapon is involved, and ten to fifteen years if an organized group commits it or death results from it ... In Mexico, the punishment is imprisonment for fifteen to thirty years. Argentina, on the other hand, punishes piracy with imprisonment for three to fifteen years, or fifteen to twenty-five years if death occurs during the commission of the piracy. These are but a few examples, but they show that not everyone views piracy to be equally heinous. Most do not even view piracy as the most heinous crime." Goodwin, supra, at 997-98. [6] Alfred P. Rubin, a noted author on piracy law, writes that "[t]here are many other reasons in theory for denying the present day existence of an international law on `piracy,' such as the general acknowledgment today that all criminal acts must be so defined by statute before they can be punished, nulla crimen sine lege; nulla poena sine lege. Thus, the very notion of there being an `international crime' in the absence of a statute binding on the tribunal before which the accused is brought, is inconsistent with basic theory for those accepting the validity of the platitudinous rule." RUBIN, supra, at 343.

371 Mass. 832 (1977) 359 N.E.2d 949 COMMONWEALTH vs. ROBERT EVERETT COOK. Supreme Judicial Court of Massachusetts, Suffolk. December 6, 1976. February 4, 1977. Present: HENNESSEY, C.J., QUIRICO, BRAUCHER, KAPLAN, & WILKINS, JJ. Dyanne Klein Polatin for the defendant. Timothy M. Burke (Newman A. Flanagan, Assistant District Attorney, with him) for the Commonwealth. BRAUCHER, J. The defendant's conviction of murder in the second degree was affirmed in Commonwealth v. Cook, 351 Mass. 231, cert. denied, 385 U.S. 981 (1966). Thereafter he sought a new trial under G.L.c. 278, § 29, and the judge reported the case to the Appeals Court without decision under G.L.c. 278, § 30A, so far as necessary to present the following question: "Was the defendant denied due process of law by the admission of the uncounseled records of conviction in the absence of any limiting instruction by the trial judge." We transferred the case here on our own motion and answer the question in the affirmative. *833 A statement of agreed facts discloses that an eyewitness testified to the shooting of the victim by the defendant. That testimony was corroborated in several ways, but the credibility of the eyewitness was impeached by prior inconsistent statements and by her failure to tell the grand jury on her first appearance before them that she had witnessed the murder. The principal corroborating witness incriminated the defendant only after being interrogated by the police thirty to fifty times and being threatened with prosecution as an accessory. A verdict of acquittal was directed for a codefendant, and the codefendant and the defendant both testified that the shooting had been done by the codefendant's brother, who was dead at the time of trial. To impeach the defendant's credibility, the Commonwealth put in evidence records of five convictions of assault and battery resulting in jail sentences and of one conviction of taking part in an affray, which resulted in a suspended fine. No limiting instructions were given or requested, and no exception was claimed either to the admission of the records or to the absence of limiting instructions. Neither the prosecutor nor the defendant made any comments on the convictions in summation. There is evidence in the probation file of representation by counsel in the affray case, but no proof of representation or waiver in any of the five assault and battery cases. The use of a conviction of crime, resulting in a jail sentence, to impeach the credibility of a criminal defendant is clear error of constitutional dimension unless the Commonwealth establishes that he had or waived counsel. Loper v. Beto, 405 U.S. 473, 483 (1972). See Carey v. Zayre of Beverly Inc., 367 Mass. 125, 127 (1975), and cases cited. We apply the rule retroactively, and do not insist on exceptions where counsel could not have anticipated the ground of objection. See Subilosky v. Commonwealth, 358 Mass. 390, 395 n. 7 (1970). Since no limiting instructions were requested or given, we do not consider what effect limiting instructions might have had. See Gilday v. Scafati, 428 F.2d 1027, 1029 (1st Cir.), cert. denied, 400 U.S. 926 (1970); cf. Commonwealth v. DiMarzo, 364 *834 Mass. 669, 681 (1974) (Hennessey, J., concurring). The only serious question in the present case is whether the error was harmless beyond a reasonable doubt. The defendant was not impeached by the proper admission of more recent or more serious convictions than the uncounseled convictions, as in Gilday v. Commonwealth, 355 Mass. 799 (1969), Commonwealth v. Brown, 2 Mass. App. Ct. 76, 83 (1974), and Gilday v. Scafati, supra at 1032. Nor did he open up the subject of his prison record, as in Subilosky v. Commonwealth, supra at 396, and Subilosky v. Moore, 443 F.2d 334, 336 (1st Cir.), cert. denied, 404 U.S. 958 (1971). Five convictions of assault and battery, each resulting in a jail sentence, were not harmless by reason of their "dubious significance." Cf. Commonwealth v. Boudreau, 362 Mass. 378, 382 (1972). Although the case against the defendant was a strong one, we are left with a reasonable doubt whether the error was harmless. Cf. Commonwealth v. Barrett, 3 Mass. App. Ct. 8, 17-18 (1975); Howard v. Craven, 446 F.2d 586, 587 (9th Cir.1971). In the circumstances of this case, the defendant is entitled to a new trial. We answer the question "Yes," and remand for proceedings consistent with this opinion. So ordered.

887 F.2d 157 1989-2 Trade Cases 68,793 CITY OF MALDEN, MISSOURI, Appellant,v.UNION ELECTRIC COMPANY and Missouri Utilities Company, Appellees.CITY OF MALDEN, MISSOURI, Appellant,v.UNION ELECTRIC COMPANY and Missouri Utilities Company, Appellees. Nos. 88-2129, 88-2399. United States Court of Appeals,Eighth Circuit. Submitted June 15, 1989.Decided Oct. 6, 1989. 1 Charles F. Wheatley, Jr., Annapolis, Md., for appellant. 2 Jay A. Summerville, St. Louis, Mo., for appellees. 3 Before WOLLMAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and LARSON,* Senior District Judge. 4 LARSON, Senior District Judge. 5 Plaintiff, the City of Malden, Missouri, appeals from the district court's1 entry of judgment in favor of defendants Union Electric Company and its wholly-owned subsidiary, Missouri Utilities Company, in this antitrust action challenging defendants' refusal to transmit power to plaintiff under a favorable tariff the city had negotiated with Missouri Utilities. Plaintiff claims the jury's verdict in favor of defendants is against the great weight of the evidence, the trial court's instructions to the jury were erroneous, and defense counsel's prejudicial remarks in closing argument require a new trial. Plaintiff further contends it should have been awarded its attorney's fees in connection with a motion for preliminary relief filed at the beginning of the litigation. We affirm. I. FACTUAL BACKGROUND 6 Malden owns and operates its own electric generation system and distributes electricity to industrial, commercial, and residential customers in its southeastern Missouri service area. Malden does not have the generating capacity to meet all of its electrical needs. In 1969, Malden entered into an agreement to purchase electricity at a wholesale rate from Missouri Utilities to supplement its own generation facilities. Missouri Utilities and Union Electric at that time owned the only transmission line which directly connected to the city of Malden, although Malden was surrounded by the service territories of rural electrical cooperatives and other municipal utilities. 7 Prior to October 1, 1979, the expiration date of Malden's contract with Missouri Utilities, Malden inquired about the possibility of Missouri Utilities "wheeling" or transmitting power to Malden from another generation source.2 At that time, Missouri Utilities had never wheeled power to anyone and had no wheeling rate or billing provisions, but suggested wheeling would be a proper subject of negotiations. 8 While the parties attempted to agree to a new contract, Missouri Utilities continued to supply power to Malden under a "sales for resale" tariff known as the SFR-1. The SFR-1 rate included a "demand charge" to recover Union Electric's demand charge to Missouri Utilities,3 a charge for recovering Missouri Utilities' investments in transmission, and an energy charge for recovering the cost of purchased power and electrical losses. Malden incurred the demand charge only if it took power during peak periods. It could avoid the charge by generating its own power or by obtaining power from a different source during peak times. Malden's contract with Missouri Utilities contained a "ratchet" feature, so that any demand charge remained in effect for the month in which it was incurred as well as for the eleven succeeding months. 9 In the negotiations for a new contract, Malden stated that it wanted off-peak power under the SFR-1 rate and wheeling service from SWPA to Malden. Missouri Utilities contended that wheeling in conjunction with the SFR-1 rate would not allow it to recover its costs, and in 1981 provided Malden with a proposed wheeling rate and two firm power prices. Malden chose to negotiate for continued service under the SFR-1 tariff, and requested an agreement which provided for an initial term of one year and which was terminable by either party with six months' written notice. This agreement was signed in December, 1981, and was approved by the Federal Energy Regulatory Commission (FERC) on February 16, 1982. 10 In 1983, Union Electric announced a proposed merger with its wholly-owned subsidiaries, including Missouri Utilities. In April, Malden again requested that SWPA power be wheeled as of January 1, 1984. Missouri Utilities responded that it would provide wheeling service, but not in conjunction with the SFR-1 rate. Negotiations continued, and in October, 1983, Union Electric sent Malden a draft agreement contemplating interruptible power and wheeling at rates for both pre- and post-merger services. 11 After receiving comments from counsel for Malden, a revised agreement was sent to Malden on November 4, 1983. That same day, Malden filed suit against Missouri Utilities and Union Electric, alleging the utilities' refusal to wheel violated sections 1 and 2 of the Sherman Act and section 3 of the Clayton Act. On November 17, Malden filed a motion for a preliminary injunction requiring defendants to wheel electric power to Malden effective January 1, 1984. In late November, the parties agreed to file the proposed November 4 agreement with FERC to allow the contract to go into effect as of January 1, 1984, subject to the city's right to challenge the proposed interruptible rates. Because of this agreement, Malden's motion for preliminary relief was neither heard nor ruled upon by the district court. 12 On December 19, FERC approved the merger of Union Electric and its subsidiaries effective January 1, 1984, rejecting Malden's challenge to the merger and noting the city could raise its concerns about rates when Union Electric proposed a rate change. In response to Malden's request that approval of the merger be conditioned on Union Electric filing a general wheeling rate for the city, the agency stated simply that appropriate procedures and standards for requesting a compulsory wheeling order existed under sections 211 and 212 of the Federal Power Act, should such an order become necessary. Shortly after the merger became effective, Malden paid Union Electric for power based on an interruptible W-4 rate. At the time of trial, Malden was constructing its own interchange with the SWPA. 13 II. PLAINTIFF'S BOTTLENECK THEORY OF LIABILITY 14 The case went to trial based on Malden's claim that the city was entitled to damages under section 2 of the Sherman Act4 for Missouri Utilities' refusal to wheel power to Malden. Malden claimed Missouri Utilities had a "bottleneck" monopoly on transmission facilities and had refused to wheel power to Malden from Springfield, Missouri, from 1979 to 1983. 15 Under the "bottleneck" or essential facilities doctrine, those in possession of facilities which cannot practically be duplicated must share the facilities with their competitors on fair terms. Aspen Highlands Skiing Corp. v. Aspen Skiing Co., 738 F.2d 1509, 1519 (10th Cir.1984), aff'd on other grounds, 472 U.S. 585, 105 S.Ct. 2847, 86 L.Ed.2d 467 (1985); MCI Communications v. AT & T, 708 F.2d 1081, 1132 (7th Cir.), cert. denied, 464 U.S. 891, 104 S.Ct. 234, 78 L.Ed.2d 226 (1983); Hecht v. Pro-Football, Inc., 570 F.2d 982, 992-93 (D.C.Cir.1977), cert. denied, 436 U.S. 956, 98 S.Ct. 3069, 57 L.Ed.2d 1121 (1978); United States v. Otter Tail Power Co., 331 F.Supp. 54, 61 (D.Minn.1971), aff'd, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973). 16 The doctrine requires (1) control of an essential facility by a monopolist; (2) the inability to practically or economically duplicate the facility; and (3) the unreasonable denial of the use of the facility to a competitor when such use is economically and technically feasible. Aspen Highlands, 738 F.2d at 1520; MCI, 708 F.2d at 1132-33; Hecht, 570 F.2d at 992-93. Plaintiff sought to prove in this case that Missouri Utilities' transmission line was an "essential facility" which defendants had refused to share fairly with Malden. 17 At trial, the parties disputed both whether Missouri Utilities' transmission line was the only practical means for Malden to obtain outside power and whether the conditions on access to the line imposed by Missouri Utilities were reasonable. Defendants' witnesses testified that other feasible alternatives for transmission of power included connecting with neighboring facilities owned by SWPA, M & A Cooperative, and Arkansas Power & Light Company. Plaintiff contended none of these alternatives were economically feasible because they would all result in the city paying more for power than Malden paid to Missouri Utilities under the SFR-1 rate. 18 Defendants' expert witness testified Malden's SFR-1 rate was very favorable, that Union Electric actually lost money when it was selling power through Missouri Utilities to Malden, and that Malden paid substantially less for power than all other similarly situated municipalities in the region with the exception of the cities of Jackson and Kennett, both of which also purchased power from Missouri Utilities at the SFR-1 rate. Defendants' expert concluded Malden did have available, economical alternatives, but conceded these alternatives would be more expensive to the city than wheeling in conjunction with the SFR-1 rate. 19 In answers to special interrogatories, the jury found that, during the years 1979 through 1983, Missouri Utilities controlled the only existing electric transmission line capable of conveying power to the City of Malden's electrical system,5 but that Malden could have economically provided for an alternative transmission system to convey electrical power. In finding that reasonable alternatives to Missouri Utilities' transmission line existed, the jury rejected plaintiff's claim that the line constituted an "essential facility" over which defendants exercised monopoly power. 20 The jury further found that in response to plaintiff's specific request for wheeling (1) Missouri Utilities had not unconditionally or unreasonably refused to wheel power to Malden; (2) Missouri Utilities could not economically wheel power to Malden; and (3) Missouri Utilities had not acted with specific intent to deprive Malden of electric power with which to compete with Missouri Utilities. The district court denied Malden's motion for a new trial, and entered judgment against the city based on the jury's verdict. 21 After trial, Malden filed a motion for attorney's fees, contending that it had "substantially prevailed" on a major issue in that defendants had agreed to wheel SWPA power as of January 1, 1984, only after the city had filed its motion for preliminary relief. The district court denied the motion, stating plaintiff had failed to persuade the court that the lawsuit, rather than the parties' "long antecedent business negotiations," had resulted in the provision of wheeling after January 1, 1984. 22 Malden has appealed both from the judgment entered on the jury's verdict and from the order denying its request for attorney's fees. III. PLAINTIFF'S REQUEST FOR A NEW TRIAL 23 Plaintiff raises numerous contentions in support of its request that a new trial be granted in this case, the first of which is that the jury's verdict is against the great weight of the evidence. A. The Jury's Verdict 24 In determining if a verdict is against the weight of the evidence, the trial court conducts its own review of the evidence to measure the results in terms of whether a miscarriage of justice has occurred. Brown v. Syntex Laboratories, Inc., 755 F.2d 668, 673 (8th Cir.1985); Fireman's Fund Insurance Co. v. AALCO Wrecking Co., 466 F.2d 179, 187 (8th Cir.1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1371, 35 L.Ed.2d 592 (1973). In reviewing a district court's order denying a new trial, appellate courts ordinarily defer to the discretion of the district court and reverse only upon a strong showing that such discretion has been abused. Green v. American Airlines, Inc., 804 F.2d 453, 454-55 (8th Cir.1986); Voegeli v. Lewis, 568 F.2d 89, 94-95 (8th Cir.1977). 25 The jury's basic findings in this case were (1) that alternatives to Missouri Utilities' transmission line existed and (2) that Missouri Utilities acted reasonably in its dealings with the city on the wheeling issue. The evidence was conflicting concerning the viability of alternatives to the transmission of power over Missouri Utilities' transmission line and concerning the fairness of the conditions imposed by the utility in its negotiations with the city. The city's basic premise was that it was entitled to wheeling and to the favorable SFR-1 rate, and that any alternative which cost more than this option was not a viable one. 26 Defendants presented extensive expert testimony concerning at least five alternatives which Malden could have developed to obtain power from an outside source during the relevant time period: three possible connections to SWPA transmission lines and connection with either the M & A Cooperative or Arkansas Power & Light Company. There was evidence that SWPA had offered to connect its transmission lines to the city free of charge in the 1960's, but the city had refused the offer. The SWPA line which was intended for the City of Malden was in existence during the relevant time period, however, and was within a mile of the city limits. By the time of trial, the city had elected to pursue connection with SWPA transmission lines. 27 A representative of the M & A Cooperative, which had a transmission line within the city limits during the period at issue, also testified that M & A was willing and able to have the city connect with M & A's line. Finally, there was testimony that Malden could have connected with the facilities of the Arkansas Power & Light Company, which were within ten miles of the City of Malden. Defendants' engineers testified concerning the technical aspects of each of the five proposed connections, and other witnesses gave testimony concerning the relative costs of each alternative. 28 With respect to the reasonableness of Missouri Utilities' position on wheeling over its own transmission line, defendants presented evidence that the utilities could not economically offer wheeling in conjunction with the SFR-1 tariff. Defendants' witnesses testified that the SFR-1 rate was a unique tariff, which allowed Missouri Utilities to recover its costs only if the city purchased its full requirements from Missouri Utilities (with the exception of the peak summer months). Since wheeling power to Malden would reduce Malden's power purchases throughout the year, Missouri Utilities took the position that wheeling in conjunction with the SFR-1 rate was not possible. Instead, Missouri Utilities offered to continue full service under the SFR-1 rate, offered to wheel 100% of Malden's power from an alternative source for a basic wheeling charge, and offered to continue to supply a portion of Malden's power under a new rate which would provide for service and wheeling. 29 There was a definite conflict in the parties' perceptions of the fairness of defendants' offers and the availability of alternatives to the Missouri Utilities transmission line, but the resolution of such conflicts is properly the role of the jury. There is evidence to support the jury's findings concerning these issues, and we find no abuse of discretion in the trial court's decision to deny plaintiff's motion for a new trial based on the weight of the evidence presented in this case. B. The Trial Court's Instructions 30 Plaintiff also challenges the instructions given by the trial court on relevant market and on the intent required to establish a monopolization claim under section 2 of the Sherman Act. 31 The court instructed the jury that "[c]harges of monopolization can only be judged in the framework of the relevant market." There is no dispute in this case that the relevant product market is the sale of electric power. The court instructed the jury to determine the relevant geographic market by considering "the areas in which the sellers operate" and "the areas in which the purchasers can practically turn for the product." 32 Plaintiff contends this instruction confused the jury because the concept of geographic market is irrelevant to its bottleneck theory of monopoly, which in plaintiff's view focuses solely on the existence of practical alternatives to an essential facility. Our review of the "essential facilities" caselaw convinces us that the trial court did not err in placing plaintiff's bottleneck theory in the context of the relevant market. See Aspen Highlands, 738 F.2d at 1516, 1520-21, 1528-29; Hecht, 570 F.2d at 988-89, 992-93; Otter Tail Power, 331 F.Supp. at 58-60. In each of the above-cited cases, the court considered the relevant product and geographic markets in determining whether the defendant exercised monopoly control over the facility in question. In MCI's antitrust litigation against AT & T, the jury was expressly asked to determine whether MCI had proven AT & T possessed monopoly power in the relevant market, in addition to questions concerning AT & T's refusal to interconnect MCI with its local facilities. See generally MCI, 708 F.2d at 1195-1209 (instructions and special verdict form). While none of these cases specifically approved the use of a relevant market instruction in the context of a bottleneck monopoly theory case, they suggest the concept is not as "irrelevant" as plaintiff contends. 33 Moreover, even assuming the primary focus in this case was on whether practical alternatives to the facility in question existed, the court's relevant market instruction led the jury to consider "the areas in which purchasers can practically turn for the product." More importantly, however, immediately after its instruction on relevant market, the trial court expressly presented plaintiff's bottleneck theory to the jury.6 In special interrogatories, the jury was asked simply whether the city had proven by a preponderance of the evidence that Malden was unable practically, realistically, or economically to provide an alternative to the Missouri Utilities' transmission line. The court thus allowed the plaintiff to use the bottleneck theory as a means of proving the defendants possessed monopoly power in the relevant market, the first element of a section 2 monopolization claim. 34 A district court has broad discretion to frame instructions and special interrogatories to the jury, and as long as the entire charge fairly and adequately contains the law applicable to the case, the judgment will not be disturbed on appeal. See Garnes v. Gulf & Western Manufacturing Co., 789 F.2d 637, 642 (8th Cir.1986). We find no reversible error in the court's relevant market/bottleneck instructions in this case. 35 The jury's finding in response to these instructions that Malden had alternatives available to Missouri Utilities' transmission line effectively defeats the city's monopolization claim. The jury found there simply was no "bottleneck," and hence, defendants had no monopoly power. The jury was also asked, in a series of three special interrogatories, to evaluate defendant's conduct in responding to the city's request for wheeling. The jury found defendants had not unconditionally or unreasonably refused to wheel power to the city and that it would not be economical for defendants to wheel power under the city's terms. These two findings are also fatal to plaintiff's claim because it was plaintiff's burden to prove that wheeling under the SFR-1 rate was technically and economically feasible. See Aspen Highlands, 738 F.2d at 1521; MCI, 708 F.2d at 1133; Hecht, 570 F.2d at 993. 36 The jury finally found that defendants had not acted with the specific intent to maintain their monopoly by denying the city alternative sources of electric power. Plaintiff challenges the requirement that it show defendants acted with specific intent, arguing that only a general intent is required where defendants possess monopoly power. See Aspen Highlands, 738 F.2d at 1521 n. 16; Paschall v. Kansas City Star Co., 727 F.2d 692, 696 (8th Cir.1984). 37 Defendants concede that ordinarily under a section 2 monopolization claim a general intent is sufficient, but argue that a higher standard is necessary where defendants are regulated utilities. The Seventh Circuit has expressly adopted such a rule. See MCI, 708 F.2d at 1107-08 (reaffirming holding in Mishawaka v. American Electric Power Co., 616 F.2d 976, 984-85 (7th Cir.1980),cert. denied, 449 U.S. 1096, 101 S.Ct. 892, 66 L.Ed.2d 824 (1981)). 38 We question whether specific intent should be required in a civil monopolization case where the conduct at issue has neither been approved by nor subject to regulatory agency review.7 We need not decide whether the court's specific intent instruction constituted error, however, because any such error must be viewed as harmless in light of the jury's finding that defendants did not possess monopoly power. See Green v. American Airlines, Inc., 804 F.2d 453, 456 (8th Cir.1986); Vanskike v. ACF Industries, Inc., 665 F.2d 188, 203 (8th Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1632, 71 L.Ed.2d 867 (1982); Flanigan v. Burlington Northern, Inc., 632 F.2d 880, 889 (8th Cir.1980), cert. denied, 450 U.S. 921, 101 S.Ct. 1370, 67 L.Ed.2d 349 (1981). Because plaintiff has failed to show that any alleged error in the trial court's instructions was prejudicial to its claim in the sense that it would have changed the result, plaintiff's request for a new trial on the basis of alleged error in the court's instructions must be rejected. See Vanskike, 665 F.2d at 203. C. Defense Counsel's Closing Argument 39 Plaintiff's final argument in support of its motion for a new trial is that defense counsel's closing argument improperly suggested that if the jurors did not agree unanimously that plaintiff had satisfied its burden of proof, then they must answer the special verdict questions "no." Plaintiff's counsel objected to these comments at the close of oral argument before the court had instructed the jury, and urged the court to include a specific response to defense counsel's statements by instructing the jury that if they could not agree on any answer, they should come back to the court for further instructions. 40 The court declined to instruct the jury as plaintiff had requested, but did state in its instructions that the jury "shall record as its findings [to the special verdict questions] only answers to which all jurors unanimously agree." The court also polled the jury at plaintiff's request after the verdict had been returned, and all jurors confirmed that their findings were unanimous. 41 Defense counsel's statements were improper and should not have been made. Nevertheless, to constitute reversible error, statements made in oral argument must not only be plainly unwarranted but also clearly injurious. Morrissey v. Welsh Co., 821 F.2d 1294, 1303 (8th Cir.1987); Vanskike v. Union Pacific R.R., 725 F.2d 1146, 1149 (8th Cir.1984); Wilfing v. General Motors Corp., 685 F.2d 1049, 1053 (8th Cir.1982). Plaintiff bears the burden of making a concrete showing of prejudice. Vanskike, 725 F.2d at 1149. 42 After reviewing the record, we cannot say that plaintiff's case was so prejudiced by the comments that the trial court's denial of a new trial amounts to an abuse of discretion. See Tyler v. White, 811 F.2d 1204, 1207 (8th Cir.1987); Wilfing, 685 F.2d at 1052-53; Vanskike, 725 F.2d at 1149. Defense counsel's comments were brief and were made in the context of a lengthy closing argument which emphasized the facts concerning the alternatives available to the city, the fairness of Missouri Utilities' conduct, and the evidence of damages that had been presented. The corrective action requested by plaintiff could have invited a hung jury, and the trial judge properly instructed the jury concerning their duty to record only unanimous answers--"yes" or "no"--to the special verdict questions. We decline to order a new trial solely on the basis of defense counsel's remarks. IV. PLAINTIFF'S MOTION FOR ATTORNEY'S FEES 43 Plaintiff contends that despite the jury's verdict against it, the city should be entitled to recover attorney's fees in connection with the filing of its motion for preliminary relief, because only after the filing of this motion did defendants agree to wheel SWPA power to the city as of January 1, 1984. Section 16 of the Clayton Act provides: 44 In any action under this section in which the plaintiff substantially prevails, the court shall award the cost of suit, including a reasonable attorney's fee, to such plaintiff. 45 15 U.S.C. Sec. 26. 46 This Court has held that a lawsuit which prompts the defendant to act may qualify for an attorney's fee award. United Handicapped Federation v. Andre, 622 F.2d 342, 346-47 (8th Cir.1980); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 429-30 (8th Cir.1970). We agree that in this case plaintiff may be viewed as a "prevailing party" if plaintiff's lawsuit and plaintiff's attorney's efforts were "a necessary and important factor" in achieving the wheeling requested by plaintiff in its motion for preliminary relief. See United Handicapped, 622 F.2d at 346; Southwest Marine, Inc. v. Campbell Industries, 732 F.2d 744, 746-47 (9th Cir.), cert. denied, 469 U.S. 1072, 105 S.Ct. 564, 83 L.Ed.2d 505 (1984). 47 In denying plaintiff's fee request, however, the district court found as a factual matter that plaintiff had failed to establish that its lawsuit, rather than the parties' ongoing negotiations, had resulted in the use of Missouri Utilities' transmission line to wheel SWPA power to Malden. Defendants argue on appeal that the evidence shows wheeling service to Malden began on January 1, 1984, in spite of the city's lawsuit, and not because of it. 48 Our review of the record reveals, again, conflicting perceptions of the positions of the various parties. We find the district court was in the best position to evaluate the factual question presented by this conflict, and we decline to disturb the court's judgment that plaintiff should not be awarded attorney's fees in this case. V. CONCLUSION 49 The City of Malden brought this antitrust action against defendants on the theory that defendants' transmission line was the only practical option available to the city to obtain the electrical power needed to supply its customers and defendants had imposed unreasonable conditions on the city's access to that line. We have no doubt that the city believes it was unfairly treated by defendants. But the jury found that the city had other alternatives which feasibly could have been implemented and that Missouri Utilities had not arbitrarily prevented the city from wheeling power over its transmission line. While the trial before the Magistrate was not error-free, we find no basis for reversing the court's judgment based upon the jury's verdict and we decline to disturb the court's ruling with respect to attorney's fees. Accordingly, the judgment of the district court is, in all respects, affirmed. * The HONORABLE EARL R. LARSON, Senior United States District Judge for the District of Minnesota, sitting by designation 1 By consent of the parties, the trial in this matter was conducted by United States Magistrate David D. Noce 2 One of the specific sources mentioned at the time was the Southwestern Power Administration (SWPA), which had been delegated the authority to dispose of surplus energy produced at federal water projects. Municipalities such as Malden are given preference in the sale of this power, and SWPA informed Malden in 1978 that it would be entitled to receive 5000 kilowatts of preference power upon completion of the Truman Dam project. Malden's SWPA allocation would be withdrawn, however, if it did not have adequate transmission facilities or agreements to transmit the power in place by January 1, 1984 Another alternative power source, which Malden claims was available and was mentioned orally to Missouri Utilities, was the City of Springfield, Missouri. 3 Missouri Utilities initially had its own generation facilities, but subsequently began purchasing substantially all of its power from Union Electric. Union Electric charged Missouri Utilities a demand charge during times of peak demand to compensate for the fixed costs necessary to construct and maintain the facilities to supply the necessary power during peak periods 4 Section 2 prohibits the monopolization and attempted monopolization of trade or commerce. 15 U.S.C. Sec. 2. The offense of monopoly under section 2 has two elements: (1) the possession of monopoly power in the relevant market, and (2) the willful acquisition or maintenance of that power as distinguished from the growth or development of a superior product, business acumen, or historic accident. United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1703-04, 16 L.Ed.2d 778 (1966) 5 This fact was not disputed by the parties and the court directed this finding for the jury 6 The court stated: Monopoly power, that is, the power to control prices or the power to exclude or economically inhibit competitors, may be proven through what is known as a bottleneck monopoly. With respect to the bottleneck test, you may consider, in determining whether the defendant possesses monopoly power in the relevant market, the extent to which defendant controlled the transmission facilities available to plaintiff; that is, plaintiff's means of reasonably obtaining wholesale electricity. The control of wholesale supplies has been referred to as bottleneck control. Bottleneck control is a matter of practical, economic alternatives. While there is almost always some kind of alternative for everything, you are only to consider realistic, economically practical alternatives. In this case, the City of Malden has argued that Missouri Utilities Company and Union Electric Company had a bottleneck monopoly because Missouri Utilities Company and Union Electric Company own the only transmission lines connected to Malden. If you find that Malden had no realistic, economically practical alternative means of obtaining wholesale electricity, then you must find that Missouri Utilities and/or Union Electric Company had a bottleneck monopoly. 7 FERC specifically refused to consider the challenged conduct in its decision approving Union Electric's merger with Missouri Utilities. See 25 Fed. Energy Reg. Comm'n Rep. (CCH) para. 61,394 (1983). FERC has limited authority to compel wheeling under the standards and procedures of sections 211 and 212 of the Federal Power Act, adopted by Congress in 1978. See 16 U.S.C. Secs. 824j & 824k; Florida Power & Light Co. v. FERC, 660 F.2d 668, 672 n. 15 (5th Cir.1981)

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 06-3379 ___________ Julianna Vaughn, * * Appellant, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Rick Wallace; Dena Driver, * also known as Dena Tolson, * * Appellees. * ___________ Submitted: March 14, 2007 Filed: August 7, 2007 ___________ Before RILEY, BOWMAN, and ARNOLD, Circuit Judges. ___________ ARNOLD, Circuit Judge. Three-year-old Robert Hughes III and his seven-year-old cousin Damian died tragically in a fire in the foster home where the Missouri Division of Family Services (DFS)1 had placed them. Robert's mother, Julianna Vaughn, then brought an action against his foster mother, Patricia Boston, and several DFS employees for violations of Robert's right to substantive due process and failure to train under 42 U.S.C. 1 DFS was the division of the Missouri Department of Social Services that is now known as the Family Support and Children's Division. See Mo. Rev. Stat. ch. 207. § 1983, and for wrongful death under Mo. Rev. Stat. § 537.080. After the district court2 granted summary judgment to the DFS defendants, Ms. Vaughn dismissed her claims against Ms. Boston and appealed the court's judgment in favor of two of the DFS employees, child care worker Rick Wallace and his supervisor, Dena Driver. We affirm. I. We state the evidence favorably to Ms. Vaughn. See Tipler v. Douglas County, Neb., 482 F.3d 1023, 1025 (8th Cir. 2007). When Robert was two years old, DFS placed him in a "possible adoptive home" with Ms. Boston, a licensed foster parent, who intended to adopt both Robert and Damian; Mr. Wallace was the boys' child care worker. Although Ms. Boston notified the defendants when she and the children moved to a different location about a year later, they did not visit her new home. Not long after the move, Lisa Wegman – an employee of a company that re-licenced foster homes and trained foster and potential adoptive parents for the state's social services department– inspected Ms. Boston's home and completed a review form. In response to a question on the form asking whether "[a]ll flammable liquids, matches, cleaning supplies, poisonous materials, medicines, and alcohol [were] inaccessible to children," Ms. Wegman marked neither "yes" nor "no" but simply wrote in the "remarks" section, "will put up – watch closely"; she did not name any particular dangerous substance that was accessible to children. Both Ms. Wegman and Ms. Boston signed the completed form. No one visited the home again on behalf of DFS. Robert died in the fire two months after Ms. Wegman's visit. At the time of the fire, nine people lived in Ms. Boston's home: Ms. Boston; her seventeen-year-old daughter, Crystal; Ms. Boston's fiancée, Bernard Davis; Mr. Davis's fifteen-year-old son; and Ms. Boston's five foster children – Robert, 2 The Honorable Nanette K. Laughrey, United States District Judge for the Western District of Missouri. -2- Damian, an infant, a three-year-old girl, and a thirteen-year-old girl. Crystal said that she was awakened on the morning of the fire by a smoke alarm; she helped the infant and the three-year-old girl out of the house and notified the fire department. The teenage foster child said that she heard the smoke alarm, went to the kitchen where she saw smoke, and then returned to the bedroom that she shared with Crystal to tell her about it. Robert and Damian slept in a back room on the other side of the kitchen. Ms. Boston, who worked nights, had not yet arrived home, and Mr. Davis had left for work. When firefighters entered the home, they found Robert and Damian unconscious in their bedroom, took them out of the house, and turned them over to medical personnel who had arrived on the scene. Firefighters then entered the room near the boys' bedroom that Ms. Boston called the mudroom, where they discovered an ironing board with a burning pattern on it that had been caused by igniting a flammable liquid. Fire investigators ultimately concluded that the fire was an arson and had been started in the mudroom by some type of accelerant. Ms. Boston stated that charcoal lighter fluid and charcoal were kept in that room. Neither the fire department nor law enforcement identified a perpetrator and no criminal charges were filed. Investigators questioned the adults and teenagers who had been living in the home and checked into their backgrounds. They noted that the thirteen-year-old foster child who first discovered the fire had been placed with Ms. Boston only three days earlier. Before the fire, Mr. Davis, who was not licensed as a foster parent, had not responded to Ms. Wegman's requests that he give her permission to check into his background. Mr. Davis did provide that permission after the fire, and the Missouri Highway Patrol obtained his criminal record, which showed that he had been convicted of second degree assault ten years earlier. The documents filed in the district court contain one reference that appears to connect Mr. Davis with an arson that occurred more than two decades earlier: an unsigned handwritten note written -3- after Robert's death and discussing Mr. Davis's background includes the entry, "arson–72-75." II. We review the district court's grant of summary judgment de novo. Sallis v. University of Minn., 408 F.3d 470, 474 (8th Cir. 2005). The party requesting summary judgment is "entitled to judgment as a matter of law," Fed. R. Civ. P. 56(c), if the non-movant fails "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Sallis, 408 F.3d at 474. In determining whether the non-movant created a material question of fact, we consider only evidence that would be admissible at trial. Id. We do not believe that Ms. Vaughn created a genuine issue of material fact on the issue of causation, a matter that she had the burden of proving as to all of her claims. Ms. Vaughn's substantive due process claims are based on the contention that the defendants deprived Robert of his life by engaging in conscience-shocking conduct, see United States v. Salerno, 481 U.S. 739, 746 (1987), and by failing to train Ms. Boston. And her wrongful death claim of course required proof that the defendants caused Robert's death. See Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 860-61 (Mo. 1993). As Ms. Vaughn's counsel acknowledged at oral argument, the record does not show who started the fire or how he or she did it. Though the fact that no one was named as the perpetrator or charged with a crime does not by itself mean that Ms. Vaughn has not shown causation, she cannot base her claims on speculation. Ms. Vaughn makes several arguments in an attempt to connect the defendants' actions or inaction to Robert's death, but we conclude that all of them lack evidentiary support. In general, Ms. Vaughn argues in her brief that the defendants were required -4- to abate several "dangerous condition[s]" in Ms. Boston's home that led to Robert's death. Ms. Vaughn first maintains that the state defendants caused Robert's death by allowing too many children to live in Ms. Boston's home. Even if the home were overcrowded, a matter that we do not decide, we think that that fact is simply too unconnected to Robert's death to amount to proof of what caused it: There is no proof that Robert would not have died if fewer people had been living in the house. We also see no merit to Ms. Vaughn's contention that Robert's death resulted from the defendants' failure to investigate Mr. Davis's background and to remove him from the home based on his criminal history. We do not believe, first of all, that Ms. Vaughn can rely on the vague reference in the record to arson because we do not think that it would be admissible at trial. But even if it were, the record simply could not support a finding by a preponderance of the evidence that Mr. Davis had anything to do with the fire. Ms. Vaughn also contends that the fire started because no one from DFS visited the home after Ms. Wegman reported that one or more hazardous substances were accessible to the children. But contrary to Ms. Vaughn's assertion, Ms. Wegman's report does not say that flammable materials were accessible to the children, and the record does not reveal that Ms. Wegman discovered any particular substance during her visit to the home. Nor is there anything in the record tending to show where Ms. Wegman found the substance or substances that were the subject of her note. As we have said, the form that she completed listed materials such as cleaning supplies, medicines, and alcohol, as well as flammable liquids, and her remarks indicated only that at least one of the listed items was accessible to the children. Ms. Vaughn did not offer other evidence that would clarify Ms. Wegman's report or would show that conditions remained the same during the two-month interval between Ms. Wegman's visit to the home and the fire. Nor is there any evidence from which one can deduce -5- what accelerant was used to start the fire, whether Ms. Wegman saw it, or whether it would have been discovered during a follow-up visit. But most importantly, we think, the evidence simply does not support a finding by reasonable jurors that the fire occurred because a dangerous substance was accessible to children. Finally, without addressing the question of whether Ms. Vaughn stated a claim under § 1983 for failure to train, we conclude that she offered no evidence to show how any such failure resulted in Robert's death. Having carefully reviewed the record, we conclude that Ms. Vaughn did not offer evidence from which reasonable jurors could conclude by a preponderance of the evidence that anything that Mr. Wallace or Ms. Driver did or did not do caused Robert's tragic death. See Anderson v. Liberty Lobby, 477 U.S. 242, 252; Fed. R. Civ. P. 56(c). We therefore affirm the judgment of the district court. ______________________________ -6- 

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 06-APR-2020 08:29 AM 

363 F.2d 439 Azell Jackson HODGES, Jr., Appellant,v.UNITED STATES of America, Appellee. No. 22682. United States Court of Appeals Fifth Circuit. July 18, 1966. Richard T. Jones, Gainesville, Fla., for appellant. C. W. Eggart, Jr., Murray M. Wadsworth, Asst. U.S. Attys., Pensacola, Fla., Clinton Ashmore, U.S. Atty., Tallahassee, Fla., for appellee. Before WISDOM and COLEMAN, Circuit Judges, and HUGHES, District Judge. PER CURIAM. 1 The appellant, Azell Jackson Hodges, Jr., was convicted by a jury April 7, 1965 for possession, removal, and concealment of distilled spirits in violation of the Internal Revenue Code, 26 U.S.C. 5205(a)(2), 5604(a)(4), and 5601(1) (12). In this appeal, he questions (1) the sufficiency of the evidence to support his conviction; and (2) the completeness of the court's instructions to the jury on the requirements of possession.' 2 We find that the evidence as a whole is sufficient to support both counts of the conviction. The evidence of dominion and control satisfies this Court's standard for possession of unstamped liquor. See Handford v. United States, 5 Cir. 1957, 249 F.2d 295. The circumstantial evidence of removal and concealment was sufficient for the jury to exclude every reasonable hypothesis except that of guilt. See Clark v. United States, 5 Cir. 1961,293 F.2d 445, 448. 3 The appellant argues that the instructions on 'possession' were defective in that the judge did not draw a specific distinction between dominion and control of the liquor and mere presence at the stash. We have often observed that specific mention of this distinction is desirable in section 5205(a)(2) possession charges. See, e.g., Handford v. United States, supra 247 F.2d at 297. The appellant requested instructions that expressly noted the distinction. Nonetheless, we find that the instructions given 'substantially covered' the requirements of possession in language that would prevent the jury's mistaking 'mere presence at the scene' for dominion and control of the liquor. See Pine v. United States, 5 Cir. 1943, 135 F.2d 353, 355, cert. denied, 320 U.S. 740, 65 S.Ct. 40, 88 L.Ed. 439; cf. Teate v. United States, 5 Cir. 1961, 297 F.2d 120. 4 The judgment must be affirmed.

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147 Ariz. 51 (1985) 708 P.2d 732 STATE of Arizona, Appellee, v. Paul Ernest SPARKS, Appellant. No. 6403. Supreme Court of Arizona, In Banc. October 17, 1985. *52 Robert K. Corbin, Atty. Gen., by William J. Schafer III and Greg McCarthy, Asst. Attys. Gen., Phoenix, for appellee. David Chamberlain, Prescott, Atty. for appellant. CAMERON, Justice. Defendant, Paul Ernest Sparks, was convicted by a jury of first degree murder, A.R.S. § 13-1105; and negligent homicide, A.R.S. § 13-1102. He was sentenced for the murder to a term of life imprisonment without possibility of parole for twenty-five years, A.R.S. § 13-703; and to a term of eight years for the negligent homicide to be served consecutively to the life sentence, A.R.S. §§ 13-1102, -604, -708. We have jurisdiction pursuant to art. 6, § 5(3) of the Arizona Constitution and A.R.S. §§ 13-4031, -4035. Three issues are presented for review: 1. Did the trial court improperly refuse to strike a juror for cause? 2. Did the trial court improperly strike a juror who expressed reservations about the death penalty? 3. Did the trial court err in permitting improper character evidence to be admitted against defendant? The facts follow. On 11 April 1984, defendant, an employee of his father's Prescott, Arizona insurance agency, had an argument with his father at work. It culminated in defendant's father, one of the victims, striking defendant. Testimony conflicted as to the cause of the argument. Defendant maintained that they argued over his recent purchase of a diamond ring. The victim's business associates, however, inferred that defendant and the victim argued about defendant's embezzlement from the agency to support his extravagant lifestyle, a fact of which, they asserted, the father was aware. Testimony was also adduced that defendant had a poor relationship with his parents, stemming from his unwillingness to conform to their strict religious lifestyle. On the evening of 11 April 1984, defendant went to a local bar and consumed a great amount of alcohol as was his custom. Witnesses testified, however, that defendant had a high tolerance to alcohol, that they had never observed him drunk, and that he did not appear to be drunk on the night in question. At approximately 1:30 a.m., on April 12th, defendant purchased a pair of mittens at a convenience market. Later that morning, at approximately 4:30 a.m., defendant silently entered the home of his sleeping parents. He went directly to a bedroom closet where a .22 caliber revolver was kept. Wearing mittens, defendant delivered a fatal shot to his father's head, and when his sister startled him, he mortally wounded her in the chest. Defendant's mother was also wounded in the wrist amidst the confusion of flying bullets. Defendant fled and was later apprehended in San Diego, where he waived his Miranda rights and gave a full statement. REFUSAL TO STRIKE A VENIREMEMBER Defendant argues that the court erred in refusing to strike a potential juror for cause. Mary Kathleen Stump testified on voir dire that she had read about defendant's case in a newspaper and had discussed it *53 with friends. She answered the court's questions as follows: THE COURT: All right. Have you formed or did you form — MS. STUMP: Well, at that time, you know, I formed some drastic opinions. I'm really soul searching, you know. I think I can set all of that aside and listen to what's happening now, and not what I read. THE COURT: But you have, or did form an opinion at one time, is that right? MS. STUMP: Yeah, in the spring I definitely did. THE COURT: You think you can set that aside now and be fair and impartial? MS. STUMP: Yes, I think I can, because there is going to be alot of things come out now that weren't in the paper, you know. THE COURT: Judge the case based solely on the evidence produced in Court? MS. STUMP: I think I can. THE COURT: Disregard what you have discussed or hear, read — disregard the fact that you at one time formed an opinion? MS. STUMP: Yeah, I think I can. THE COURT: Be fair and impartial? MS. STUMP: Yeah. Later, when questioned by defendant's attorney, the following dialogue took place: MR. HINSON: You've told us that — in open court you told us that you formed some drastic opinions about this case when you first heard about it. Can you — MS. STUMP: Well, yeah. I had real drastic opinions, you know, because, like, there is no reason — you know — it's kind of drastic action. MR. HINSON: You use the term, "you know", and the trouble with this proceeding is that we don't, though. MS. STUMP: I am sorry. MR. HINSON: What drastic opinions did you form? MS. STUMP: Well, I think it's pretty bad when you kill your family members. And I felt that he had killed his father and sister, and also wounded his mother. My feelings — the family unit is what there is. MR. HINSON: You used the past tense of the term that you felt that he had done this. MS. STUMP: Well, I am trying — with some of the other things that has been brought out in questioning — or, you know, in the questioning of the jury, that even if he still — if he did it, there might have been circumstances that it's just not quite as black and white as I felt in the beginning. But I still — it's hard. I'm really going through a wringer, because I still think, basically, you don't kill your family members. MR. HINSON: And, at this point in the proceedings, you feel that that's what Paul Sparks did, don't you? MS. STUMP: That, you know — and I'm trying to be — you know, trying to decide for myself whether I can put all of that out of my mind. MR. HINSON: What do you think? Do you think you can? MS. STUMP: I think — I think I can listen to the evidence, and if — even if I still feel that he did, I think I can listen and understand the reason, if he did that, and judge on what — not on what — you know, what I have decided last spring, because I think I can make a decision on what I would hear. MR. HINSON: You have told us that you feel you can be a fair and impartial juror? MS. STUMP: I really think I can. MR. HINSON: Do you think that you would be more fair and impartial if you hadn't had this prior knowledge? MS. STUMP: Probably. Recently, the United States Supreme Court reiterated the standard against which a trial judge must evaluate whether to strike a prospective juror for cause. The court stated, "[t]hat standard is whether the juror's views would `prevent or *54 substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Wainwright v. Witt, 469 U.S. ___, ___, 105 S.Ct. 844, 852, 83 L.Ed.2d 841, 851-52 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581, 589 (1980)). See also, State v. Martinez-Villareal, 145 Ariz. 441, 449, 702 P.2d 670, 678, and cases cited therein. Although both Wainwright and Adams dealt with jurors challenged for cause based on their views about capital punishment, the Wainwright court indicated that its formulation has broad applicability: [T]here is nothing talismanic about juror exclusion * * * merely because it involves capital sentencing juries. * * * Here, as elsewhere, the quest is for jurors who will conscientiously apply the law and find the facts. * * * * * * As with any other trial situation where an adversary wishes to exclude a juror because of bias, then, it is the adversary seeking exclusion who must demonstrate, through questioning, that the potential juror lacks impartiality. * * * This is, of course, the standard and procedure outlined in Adams, but it is equally true of any situation where a party seeks to exclude a biased juror. * * * * * * [E]xcluding prospective capital sentencing jurors because of their opposition to capital punishment is no different from excluding jurors for innumerable other reasons which result in bias, * * *. Wainwright, supra, 469 U.S. at ___-___, 105 S.Ct. at 852-855, 83 L.Ed.2d at 851-55 (citations omitted). Turning to the facts of this case, undeniably Stump's replies as to her ability to sit as a juror exposed a degree of ambivalence. Our inquiry, however, does not end there. As the court noted in Wainwright, facial expressions, coupled with vocal inflections, can convey to a trial judge a degree of credibility we cannot gauge from a lifeless transcript: [S]uch a finding is based upon determinations of demeanor and credibility that are peculiarly within a trial judge's province. Such determinations were entitled to deference even on direct review; * * *. [The trial judge's] predominant function in determining juror bias involves credibility findings whose basis cannot be easily discerned from an appellate record. Wainwright, supra at ___-___, 105 S.Ct. at 854-855, 83 L.Ed.2d at 854-55. We will not, therefore, set aside a ruling on a challenge to a veniremember absent a clear showing that the trial court abused its discretion. State v. Montano, 136 Ariz. 605, 607, 667 P.2d 1320, 1322 (1983). In the instant case, we are unable to say that he abused his discretion in failing to strike veniremember Stump. That Stump had preconceived notions did not necessarily render her incompetent to sit fairly and impartially as a juror. State v. Clabourne, 142 Ariz. 335, 344, 690 P.2d 54, 63 (1984). Rather, she could serve if willing to put aside her opinions and base her decision solely upon the evidence. Id. The voir dire was properly used to rehabilitate her by persuading her of her responsibility to sit impartially. Id. STRIKING A JUROR FOR HER VIEWS ABOUT CAPITAL PUNISHMENT Defendant maintains that he was also denied a fair trial because the trial court prohibited a veniremember from sitting as a juror after she expressed reservations about the death penalty. Merla Kathleen Earnshaw was excused for cause based upon the following exchange with the court during voir dire: Is there anyone on the panel who, because of the nature of the offenses that have been charged, the type or kind of case that will be tried, or the instructions that I may give concerning the law as they apply in this case, or for any reason whatsoever, up to this point in the case, feel that you could not be a fair and impartial juror? If you feel that you could not, please raise your hand. *55 Miss Earnshaw, you think you would have a problem? MS. EARNSHAW: Well, teenager would be weighing on my mind. I am sorry. I would be sidetracked with my mind on that. THE COURT: You believe that your beliefs with respect to capital punishment might cause you a problem? MS. EARNSHAW: Yes. We first note that a fair reading of her statements reveal that Earnshaw was not necessarily struck due to her feelings about the death penalty. Rather, the dialogue indicates that she might have been excused because she expressed uneasiness over the defendant's youth. Assuming arguendo, however, that Earnshaw's disqualification was based solely upon her opposition to capital punishment, we, nevertheless, believe that it was proper. In Witherspoon v. Illinois, 391 U.S. 510, 522 n. 21, 88 S.Ct. 1770, 1777 n. 21, 20 L.Ed.2d 776, 785 n. 21 (1968), the United States Supreme Court indicated in a footnote that jurors may be excused for cause if it is: * * * unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt. In two more pronouncements, the Court retreated from what it felt had become an unworkable Witherspoon standard. In its stead, the court stated that a juror could be excluded if his views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright, supra; Adams, supra. Recently, we had opportunity to apply the Wainwright/Adams standard. In State v. Martinez-Villareal, supra, we held that a trial judge properly excluded three jurors who stated that their reservations about the death penalty would render them unable to determine impartially the defendant's guilt or innocence. In the instant case, Earnshaw stated that her feelings about capital punishment would have caused her a problem. Admittedly, the Wainwright/Adams disqualification standard would have been more clearly satisfied had the trial court gone on to ask one or more questions to determine definitively if Earnshaw's feelings would have impaired her ability to perform her duties. Even without such further questioning, however, we believe that Earnshaw's statements, read as a whole, indicated her inability to sit as a juror without distraction. Her responses reveal that her opposition to capital punishment, coupled with her concerns about defendant's youth, would have "sidetracked" her. That the colloquy was not couched in the language of Wainwright and Adams is not fatal: "[r]elevant voir dire questions addressed to this issue need not be framed exclusively in the language of the controlling appellate opinion; the opinion is, after all, an opinion and not an intricate devise in a will." Wainwright, supra 469 U.S. at ___, 105 S.Ct. at 857, 83 L.Ed.2d at 857-58. Granting deference to the decision of the trial judge, as we must, Wainwright supra, we do not believe that he abused his discretion in excusing veniremember Earnshaw. Rather, we believe that the Wainwright/Adams standard recently adopted by this court in Martinez-Villareal, supra, was met. We find no error. PRIOR BAD ACTS TESTIMONY Defendant asserts that the trial court erred in allowing the admission of prejudicial character evidence. We do not agree. The state's theory in this case was that defendant and his father had a long-standing feud over defendant's extravagant lifestyle, that they came to blows the day before the instant offenses, and that defendant committed these offenses to retaliate. The state further theorized that defendant intended to take over his father's *56 insurance agency and that his father was aware that defendant was embezzling funds from the business to support his lifestyle. In support of this hypothesis, the state presented the testimony of persons affiliated with the agency and of insurance investigators who testified that defendant did, in fact, embezzle funds from the agency. Our rules of evidence provide: 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. Rule 404(b), Ariz.R.Evid., 17A A.R.S. In denying defendant's motion in limine to preclude the admission of the contested evidence, the trial court stated that: I find for the record that the statement or statements that are being offered, they are evidence of material fact or facts. They are more probative on the point for which they are offered than other evidence that might be available, or they are more probative in addition to the other evidence that is available. The interest of justice will be served; the statements are strongly probative under the circumstances, and they are reliable. We have stated that, "[b]ecause a trial court is best able to balance the probative value versus the prejudicial effect of `other crimes, wrongs, or acts' evidence, it is invested with considerable discretion in deciding whether to admit such evidence." State v. Via, 146 Ariz. 108, 704 P.2d 238 (1985). We believe that the trial judge ruled correctly in the instant case. That defendant and the victim had an ongoing feud was clearly relevant under the facts of this case. See State v. Jeffers, 135 Ariz. 404, 418, 661 P.2d 1105, 1119, cert. denied, 464 U.S. 865, 104 S.Ct. 199, 78 L.Ed.2d 174 (1983) ("Evidence of prior trouble between the victim and the accused derives its relevance from the fact that the existence of prior ill will toward the victim not only renders the commission of the crime more probable, but tends to show the malice, motive or premeditation of the accused.") Testimony that the feud may have involved defendant's embezzlement was, in turn, admissible as evidence completing the story of the crime. State v. Reinhold, 123 Ariz. 50, 55, 597 P.2d 532, 537 (1979). Where, as here, defendants planned to take over businesses from their victims, testimony of such plans was admissible as evidence of the defendants' motive. State v. McCall, 139 Ariz. 147, 152-53, 677 P.2d 920, 925-26 (1983); cert. denied, 467 U.S. 1220, 104 S.Ct. 2670, 81 L.Ed.2d 375 (1984); State v. Cruz, 137 Ariz. 541, 546-47, 672 P.2d 470, 475-76 (1983). We see little to distinguish these cases from the case now before us. We find no error. We have reviewed the entire record pursuant to A.R.S. § 13-4035 for reversible error and have found none. The judgments and sentences are affirmed. HOLOHAN, C.J., GORDON, V.C.J., and HAYS, J., concur. FELDMAN, Justice, specially concurring. I do not agree with the portion of the opinion dealing with the state's challenge to Ms. Earnshaw. The trial judge denied defendant's challenge for cause to Ms. Stump, even though she admitted to having formed some "drastic opinions." At 734. The majority concludes that there was no error because, after extensive questioning, Ms. Stump stated that she could find the facts objectively, apply the law and be a "fair and impartial juror." At 735. The majority correctly states that the "standard is whether the juror's views would `prevent or substantially impair the performance of [her] duties.'" At 735, citing Wainwright v. Witt, 469 U.S. ___, ___, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). The majority neglects to tell us why the same legal principles should not apply to Ms. Earnshaw, successfully challenged by *57 the state because she feared that it would "be weighing on my mind" that the defendant was a teenager charged with having murdered his father and sister and attempting to kill his mother. As the court indicates, "`it is the adversary seeking exclusion who must demonstrate, through questioning, that the potential juror lacks impartiality.'" At 735, again quoting Wainwright v. Witt, supra. That burden was not carried here. The only follow-up question revealed that Ms. Earnshaw's "beliefs with respect to capital punishment might cause [her] a problem." At 736. We do not know what type of belief the juror held nor what type of problem she had. Neither the state nor the court demonstrated "that the potential juror [lacked] impartiality." The majority speculates (At 736-737) that Ms. Earnshaw's "statements, read as a whole, indicated her inability to sit as a juror without distraction." The juror did not indicate any such inability. In any event, sitting "without distraction" is not the test. The majority twice tells us that the Wainwright test requires the trial judge to determine whether the juror's views would "prevent or substantially impair the performance of his duties...." At 735 and 736. There is no evidence that this standard was met with respect to juror Earnshaw, and no amount of speculation over what the juror may have meant can change that fact. The juror was worried about matters that would naturally evoke concern from any civilized juror. The court did not ask any question to elicit information upon which to ground a conclusion that the witness could not be fair and impartial. Thus, the majority holds that the defense challenge was properly denied even though the juror had "drastic opinions" because the juror could be "fair and impartial." The state's challenge, however, was properly granted although there was no evidence of opinion or partiality. I cannot agree that trial judges may apply legal principles differently when ruling upon challenges for cause made by the defendant and by the state. This is a case in which evidence of guilt is clear and the problem deals only with a challenge to a single juror. It is quite understandable that the court might be reluctant to face the issue of whether the error was prejudicial. In my view, however, it is better to struggle with that issue and even to call it harmless error, than to send a message that rules of law will be unevenly applied.

Case: 12-40578 Document: 00512185626 Page: 1 Date Filed: 03/25/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED March 25, 2013 No. 12-40578 Lyle W. Cayce Summary Calendar Clerk DONNA M. HENDERSON, Plaintiff–Appellant v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant–Appellee Appeal from the United States District Court for the Eastern District of Texas 4:10-cv-222 Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM:* Plaintiff–Appellant Donna Henderson (“Henderson”) appeals the district court’s affirmance of the Social Security Commissioner’s decision denying Henderson social security benefits because she was not disabled as of the last day of her social security benefits coverage. I. FACTUAL AND PROCEDURAL BACKGROUND A. Factual Background * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  Case: 12-40578 Document: 00512185626 Page: 2 Date Filed: 03/25/2013 No. 12-40578 Henderson was born in 1949, making her 53 when she was last insured for benefits and 58 when the Administrative Law Judge (“ALJ”) rendered his most recent decision in the case. She has a high school degree and last worked as a licensed practical nurse in 1997. She was insured for social security benefits through June 30, 2002. The present claim is not Henderson’s first. Henderson had previously filed a claim for benefits—alleging that she had been disabled since 1976—which the Social Security Administration denied in 1995. Later, Henderson reported having suffered a stroke, which necessitated a 1996 laser surgery to repair the affected area of her heart. In October 1997, while working as a licensed practical nurse, Henderson injured her back while steadying a patient who had started to fall. Later physicians noted that she had a history of mitral valve prolapse. Neurosurgeon Marcos A. Ramos, M.D., stated Henderson previously exhibited cardiac symptoms, and that she had undergone a successful laser surgery. In December 1997, he noted that she was alert, oriented, talkative, and coherent. Thereafter, in 1998, Henderson filed an application alleging disability from the October 1997 back injury, which the Social Security Administration denied in 1999. In July 1999, Neurologist Daniel J. Hopson, M.D., noted that Henderson had a history of mitral valve prolapse and cardiac arrhythmia and had possibly suffered a small stroke in 1995. He treated her for back and left leg pain. He noted that she denied any prior neurological symptoms, but that she was reporting some symptoms of depression and memory loss associated with her prior stroke. He stated she had 5/5 strength in her lower extremities. Her MRI and EMG were negative. Hopson saw Henderson twice more in 2000, at which point he ordered a lumbar spine MRI. The test result was normal, showing no evidence of disc herniation or stenosis. Hopson’s records for Henderson’s July 2  Case: 12-40578 Document: 00512185626 Page: 3 Date Filed: 03/25/2013 No. 12-40578 2000 visit noted normal gait, station, and balance, and a strength of 5/5 in the lower extremities. In January 2001, Hopson said she suffered back injury, and has resulting neuralgia pain, but given her negative test results he had no further treatment recommendations. In June 2001, he noted her lumbar pain, negative neurologic exam, and 5/5 strength assessment. A February 2001 record from Steven L. Remer, M.D., noted that Henderson’s past medical history included a history of mitral valve prolapse, and a history of cardiac arrhythmia with no recurrent problems. In July 2001, Henderson returned to Dr. Hopson. He ordered a lumbar CT, which revealed an annular tear, but no significant disc bulge at any level. Her strength continued to be 5/5. In July 2002, Hopson reported that Henderson had 5/5 motor strength, chronic lumbar pain with a recent flare-up, but no motor or sensory loss. On July 22, 2002, Henderson applied again for Title II disability insurance benefits, alleging that she had been disabled since October 10, 1997, due to her back injury and memory problems. Her insured status ended on June 30, 2002. On October 31, 2002, after Henderson had applied for benefits, Dr. Kabel completed a psychiatric evaluation of her. Henderson reported occasional depression. Dr. Kabel noted that Henderson had “some cognitive problems” but stated that a specialist should be consulted for more precise prognosis. He assessed her Global Assessment of Functioning (“GAF”)—a scale used to rate the social, occupational, and physiological functioning of adults—score at 60, based on psychological factors alone. A score of 60 indicates “moderate symptoms,” but is on the verge of “some mild symptoms.” He noted that she told him she gets up every morning, has coffee, watches the news, bathes, dresses, cleans the house, makes the bed, and runs errands. She occasionally dates and has a friend with whom she goes out to eat or to the movies. In December 2002, state medical consultant A. Boulos, M.D., stated that Henderson’s depression was secondary to the stroke and determined that 3  Case: 12-40578 Document: 00512185626 Page: 4 Date Filed: 03/25/2013 No. 12-40578 Henderson did not have a severe mental impairment, but that what impairments she did have resulted in mild restriction of daily activities. In January 2003, the lumbar spine MRI that Dr. Hopson ordered indicated a “mild diminution in disc signal intensity without diminution in disc height . . .[and] no focal disc protrusion or central spine stenosis or foraminal stenosis.” His office notes from January 2003 indicate he had the impression she had a memory disorder, but his stated plan was to continue with current pain and depression medicines and follow up in three months. At the same visit he also noted that she had normal speech, comprehension, strength, coordination, gait, and balance. She also reported fatigue and decreased mood to Dr. Hopson. He filled out an Estimated Functional Capacity Form, noting that she could occasionally lift and carry up to ten pounds and sit four hours a day with rests, but could not perform other postural activities. In June 2003, Hopson noted that Henderson had sciatic nerve pain, and should stay off work. He noted that her pain was controlled with analgesics and prescriptions from his office. In March 2004, Dr. Mount, a clinical psychologist, performed a psychological evaluation of Henderson. He noted that her affect and mood were depressed, she had some suicidal ideation, tearfulness, and anxiety. He diagnosed a mood disorder and a GAF of 45, indicating “serious symptoms.” Administrative hearings were held in 2004 and 2005. At the 2005 hearing, medical expert David Sowell, M.D., testified that Henderson’s motor and sensory functions were generally intact, and that there was a general lack of findings that could confirm her reported pain. He said she had degenerative disc disease, but that there was no evidence of nerve root compression. Henderson testified that she had constant pain which required prescription pain relievers and ibuprofen. She testified that she had been depressed since 2002. She testified that she performs light housework, but had given up attending church. She said she speaks to friends on the phone, eats out, and goes to the movies, but only 4  Case: 12-40578 Document: 00512185626 Page: 5 Date Filed: 03/25/2013 No. 12-40578 finds relief through hot baths. She also testified that she traveled to Shreveport to visit her daughter every few months. When asked by the ALJ whether she sought counseling, she replied, “I don’t want to spend my life in a psychiatrist’s office, and so I don’t go.” After she told the ALJ that doing so would do no good, he ceased that line of questioning. Ultimately, the ALJ denied Henderson’s claim on June 9, 2005, finding that Henderson was not disabled as of June 30, 2002, the date that she was last insured. The 2005 decision indicated that degenerative disc disease was Henderson’s only severe impairment, and that Henderson retained the ability to perform a significant range of light work. The Appeals Council vacated and remanded the ALJ’s 2005 decision. The Appeals Council directed the ALJ on remand to give further consideration to the treating and examining source opinions, further evaluate Henderson’s subjective complaints, give further consideration to Henderson’s maximum functional capacity, and obtain supplemental evidence from a vocational expert. Another administrative hearing was held on November 13, 2007. Henderson, her daughter, a medical expert, and a vocational expert testified. Neurologist Susan Blue, M.D., testified that Henderson did not meet the degree of limitations necessary to be deemed disabled. Instead, Henderson had symptoms consistent with a mild radiculopathy. Dr. Blue opined that, based on the findings in the record, Henderson could lift twenty pounds frequently, lift forty pounds occasionally, sit for two hours at a time up to six hours a day, and crawl and bend occasionally. Dr. Blue testified to having reviewed Dr. Hopson’s records, but stated she did not see any physical justification for his opinion. Dr. Blue, acknowledging that Henderson experienced some pain, also stated she was giving Henderson the “benefit the doubt” because there was insufficient objective evidence to substantiate the limitations that Henderson claimed. Dr. Blue, 5  Case: 12-40578 Document: 00512185626 Page: 6 Date Filed: 03/25/2013 No. 12-40578 noting that Henderson had been prescribed numerous medications, opined that Henderson’s motivation was a problem. Vocational expert Tammie Donaldson, M.S., testified that Henderson’s past work included light, unskilled work as a fundraiser, and light, skilled work as an office nurse. Donaldson testified that an individual with Henderson’s specified exertional and nonexertional functional limitations could perform Henderson’s past relevant fundraising work. Donaldson also identified other jobs that someone Henderson’s age could perform, taking into account her education and specified limitations. Donaldson also testified as to how many thousands of each such possible job were in Texas. The ALJ issued a second unfavorable decision on January 23, 2008, finding that Henderson was not disabled because she was capable of performing her past relevant work. Specifically, he determined that Henderson had severe physical and mental impairments, but did not have an impairment that met or equaled any listing through her date of insurance. The ALJ indicated that Henderson had mild restrictions in daily activities and moderate difficulties with concentration, persistence, or pace, but that she had no difficulties with social functioning and no episodes of decompensation. He found that her impairments resulted in limitations that restricted her to work that fell between light and medium. More specifically, the ALJ determined that Henderson retained the residual functional capacity to lift forty pounds occasionally and twenty pounds frequently, sit for six of eight hours, and stand/walk two of eight hours (thirty minutes at a time). She had the ability to understand, remember, and follow simple and detailed instructions and complete repetitive tasks. According to the vocational expert’s testimony, Henderson retained the capacity to perform her light, unskilled past relevant work as a fundraiser. Thus, the ALJ denied her application. 6  Case: 12-40578 Document: 00512185626 Page: 7 Date Filed: 03/25/2013 No. 12-40578 The Appeals Council denied Henderson’s request for review, making the ALJ’s 2008 decision the Social Security Commissioner’s final opinion. Henderson sought judicial review before the District Court for the Eastern District of Texas. United States Magistrate Judge Don D. Bush recommended that the District Court affirm the Commissioner’s decision. United States District Court Judge Richard Schell adopted the Report and Recommendation of the Magistrate Judge and issued a Final Judgment affirming the Commissioner’s decision. Henderson appealed. II. JURISDICTION The District Court had jurisdiction pursuant to 42 U.S.C. § 405(g). Henderson timely filed a notice of appeal. This court has jurisdiction pursuant to 28 U.S.C. § 1291. III. DISCUSSION A. Standard of Review The federal courts review the Social Security Commissioner’s denial of social security benefits only to ascertain whether (1) the final decision is supported by substantial evidence, and (2) whether the Commissioner used the proper legal standards to evaluate the evidence. Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000). Substantial evidence is more than a scintilla, but less than a preponderance. Falco v. Shalala, 27 F.3d 160, 162 (5th Cir. 1994). The Court of Appeals does not re-weigh the decision, try the issues de novo, or substitute its judgment for that of the Commissioner. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994). Therefore, a finding of no substantial evidence is appropriate only if there is a conspicuous absence of credible evidence to support the decision. See Johnson v. Bowen, 864 F.2d 340, 343–44 (5th Cir. 1988). In determining whether a claimant is disabled under Title II, a five-step “sequential evaluation” is used. First, a claimant engaged in substantial gainful 7  Case: 12-40578 Document: 00512185626 Page: 8 Date Filed: 03/25/2013 No. 12-40578 employment at the time of her claim is not disabled. 20 C.F.R. § 404.1520(b). Second, the claimant is not disabled if her alleged impairment is not severe. Id. § 404.1520(c). Third, if the alleged impairment is severe, the claimant is considered disabled if her impairment corresponds to an impairment described in 20 C.F.R., Subpart P, Appendix 1. Id. § 404.1520(d). Fourth, a claimant with a severe impairment that does not correspond to a listed impairment is not considered to be disabled if she is capable of performing her past work. Id. § 404.1520(e), (f). The fifth step involves determining whether the claimant could perform some work in the national economy. Id. § 404.1520(g). At this stage, the burden shifts to the Commissioner to establish that there are jobs in the national economy that the claimant can perform, consistent with her medically determinable impairments, functional limitations, age, education, and work experience. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). B. Analysis On appeal, Henderson raises two issues, the first of which has several subpoints. First, she argues that the ALJ failed to set forth a proper evaluation of her mental impairments. Second, she disputes the ALJ’s determination that Henderson’s account of her limitations was not entirely credible. Although she raises specific issues, which we discuss below, ultimately, our review is limited to whether the ALJ applied the correct legal standard and whether there is substantial evidence supporting his decision. We affirm as to both. 1. Whether the ALJ properly evaluated Henderson’s mental impairments As to the issue of whether the ALJ properly evaluated Henderson’s mental impairments, she raises several subissues. She alleges that the ALJ failed to comply with the Appeals Council’s remand order, that the ALJ did not adequately analyze her mental impairments, and that the ALJ erred by not sufficiently discussing his conclusions. Finally, she alleges the ALJ erred in determining her mental residual functional capacity. We affirm the district court as to all four. 8  Case: 12-40578 Document: 00512185626 Page: 9 Date Filed: 03/25/2013 No. 12-40578 a. Did the ALJ fail to comply with the remand order? Henderson first alleges that, on remand, the ALJ failed to comply with the Appeals Council’s remand order. As discussed above, after the first series of hearings, the Appeals Council remanded the case to the ALJ with several instructions: (1) give further consideration to the opinions of those that treated and examined her as to her mental impairment; (2) evaluate her subjective complaints; (3) with regard to her residual functional capacity, provide rationale and references to support assessed limitations; (4) obtain evidence from a vocational expert concerning appropriate jobs Henderson could perform and their incidence in the national economy. This contention is without merit because although Henderson cites some case law for the proposition that failure to comply with an Appeals Council order constitutes reversible error, none is mandatory authority. In fact, all three are district court opinions from outside the Fifth Circuit, and none is published. Instead, the clear rule is that remand is warranted only where the ALJ’s decision fails to apply the proper legal standard or the decision is not supported by substantial evidence. In an abundance of thoroughness, we note however, that the ALJ addressed each category that he was directed to evaluate on remand. First, the ALJ was directed to give further consideration to the treating and examining opinions regarding Henderson’s mental impairment. As the magistrate judge’s Report and Recommendation notes, the ALJ did not entirely reject Dr. Hopson and Dr. Mount’s opinions, but instead afforded them little evidentiary weight. “Even though the opinion and diagnosis of a treating physician should be afforded considerable weight in determining disability . . . [t]he opinions may be assigned little or no weight when good cause is shown[,] . . . [like] where the treating physician’s evidence is conclusory . . . or is otherwise unsupported by the evidence.” Newton v. Apfel, 209 F.3d 448, 455–56 (5th Cir. 2000). In his 2008 decision, the ALJ explained that he gave little weight to 9  Case: 12-40578 Document: 00512185626 Page: 10 Date Filed: 03/25/2013 No. 12-40578 evidence from Drs. Hopson and Mount because their opinions were inconsistent with other evidence presented, such as Henderson’s own testimony about her daily activities and the negative EMGs, MRIs, and normal assessment of her gait and reflexes during examinations. As required, the ALJ addressed the factors that must be considered before an ALJ can decline to give a treating physician’s opinion controlling weight. See Newton, 209 F.3d at 456. Second, the Appeals Council directed the ALJ to further evaluate Henderson’s subjective complaints. He did so. His 2008 decision detailed his reasons for doubting the credibility of Henderson’s account. He noted that, at the first hearing, Henderson testified to eating out several times a week, dating occasionally, cooking, attending movies and visiting her daughter in Shreveport. He held that while her impairments could have produced the alleged symptoms, “her statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible,” presumably due to the personal activities she completes. Third, on remand, the ALJ was to provide explanation and references to support any assessed limitations regarding her residual functional capacity. Before considering step four of the sequential evaluation process, the ALJ must first determine the claimant’s residual functional capacity. 20 C.F.R. § 404.1520(e). An individual’s residual functional capacity is her ability to do physical and mental work activities despite limitations from impairments. 20 C.F.R. §§ 404.1520(e), 404.1545. The ALJ spent approximately five pages detailing his findings about her residual functional capacity, relying in part on testimony of medical experts, including Dr. Hopson, Dr. Kaber, and at least six others. Medical expert Dr. Sowell testified that Henderson had a residual functional capacity for medium-level work. Finally, the Appeals Council had directed the ALJ to obtain the testimony of a vocational expert on remand. Pursuant to this directive, at the hearing upon 10  Case: 12-40578 Document: 00512185626 Page: 11 Date Filed: 03/25/2013 No. 12-40578 which the ALJ’s ultimate decision was based, vocational expert Tammie Donaldson offered detailed testimony about job availability for someone with Henderson’s level of education and impairment. Moreover, Henderson, in her request for review in front of the Appeals Council, argued that the ALJ had not followed the Appeals Council’s remand instructions. Had the Appeals Council thought that the ALJ had not complied with its remand order, the Appeals Council could have granted Henderson’s request for review, which it denied. b. Did the ALJ adequately analyze Henderson’s mental impairment? Henderson also contends on appeal that the ALJ failed to adequately analyze her mental impairments at step two of the sequential evaluation process, specifically in regard to her stroke. The ALJ found that Henderson had two severe impairments: degenerative disc disease and depression. Having found that Henderson suffered from severe impairments, the ALJ thus progressed to step three. Henderson argues that it was error for the ALJ not to find her stroke to be a severe impairment. The ALJ’s step two determination states in part: “the claimant worked after her stroke and it did not constitute a severe impairment.” Henderson argues this statement erroneously implies that because she worked after the stroke, it cannot have been severe. The ALJ could appropriately use the fact that Henderson continued to perform skilled work as a practical nurse for more than two years after the alleged stroke to substantiate his conclusion that her stroke was not a severe impairment. See Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985) (“[A]n impairment can be considered as not severe only if it is a slight abnormality [having] such minimal effect on the individual that it would not be expected to interfere with the individual’s ability to work, irrespective of age, education or work experience.”) (alterations in original). Moreover, Henderson bears the burden of establishing a severe impairment from the stroke. See Bowen v. Yuckert, 482 U.S. at 146 n.5 (stating that plaintiff 11  Case: 12-40578 Document: 00512185626 Page: 12 Date Filed: 03/25/2013 No. 12-40578 bears the burden at step two of the sequential evaluation process). The ALJ’s decision cites and applies the correct standard from Stone, 752 F.2d at 1101. The ALJ acknowledged that Henderson reported having had a stroke, although there is some inconsistency as to the year of the stroke. He found that she had a normal brain MRI. The ALJ noted that an examining neurosurgeon found her to be alert, oriented, and pleasant, with normal thought and speech. He also noted that although Henderson self-reported memory loss due to a stroke, she also delivered to him an articulate four-page letter she had written containing a well-crafted and concise medical history. The ALJ had before him the report of a treating physician, Dr. Remer, that noted a “history of mild stroke secondary to arrhythmia with full recovery.” Our review on this point is limited to determining whether the ALJ applied the correct legal standard. We find that he did, and thus did not err in finding that only Henderson’s depression and disc degeneration were severe impairments. c. Did the ALJ err by not including the bases for his decision? Third, Henderson argues that the ALJ erred in assessing the severity of her mental impairment by not including any discussion of the bases for his conclusion. He determined that “[i]n activities of daily living, the claimant has mild restrictions[,]” no difficulties in social functioning, and “moderate difficulties” in the area of “concentration, persistence or pace[.]” Specifically, Henderson argues that the ALJ’s findings were in error because they were contrary to the level of limitations to which she testified. This argument is unpersuasive. The ALJ expressly considered the criteria of mental impairment listings. See 20 C.F.R. Pt. 404, subpt. P app. 1 ¶ 12.04. Further, questions of credibility concerning pain are within the ALJ’s discretion. Dunbar v. Barnhart, 330 F.3d 670, 672 (5th Cir. 2003) (per curiam) (“The ALJ did not err in discounting [claimant’s] subjective complaints of pain as inconsistent with other evidence in the record, including the findings of physicians. The ALJ must 12  Case: 12-40578 Document: 00512185626 Page: 13 Date Filed: 03/25/2013 No. 12-40578 consider the subjective evidence of pain, but it is within his discretion to determine the pain’s disabling nature.” (internal quotation marks omitted)). Here, the ALJ outlined the seven factors that he was required to consider, in addition to objective medical evidence, when assessing the credibility of a claimant. As discussed above, the ALJ did not err in determining that Henderson’s reports about the intensity, persistence, and limiting effects of her symptoms were not credible. He noted that medical examinations revealed full muscle strength, intact sensations and reflexes, and normal gait and balance. She had occasionally ceased taking pain medications on her own. A residual functional capacity evaluation report noted that Henderson had demonstrated inconsistent effort. He noted that Henderson had reported taking care of a pet, going out to eat, driving, making her bed, bathing, doing chores, dating, and traveling occasionally to Shreveport. Additionally, the ALJ noted that he discounted Henderson’s daughter’s testimony because it was vague, did not contain dates, and contradicted Henderson’s own testimony. Ultimately, as Henderson’s account of her limitations conflicted with both the state agency medical consultants and the medical experts, the ALJ was well within his discretion to afford her testimony little credibility. d. Did the ALJ err in determining Henderson’s mental residual functional capacity? Finally, Henderson argues that the ALJ erred in determining Henderson’s mental residual functional capacity. Specifically, Henderson claims he disregarded evidence from Dr. Mount without a proper basis. As discussed above, see supra III.B.1.(a)., the ALJ did not err in affording little weight to Dr. Mount, a non-treating physician whose opinions contradicted other medical evidence and testimony. See 20 C.F.R. § 404.1527(c). The opinion of an examining doctor must be considered, but need not be given controlling weight. Id. 13  Case: 12-40578 Document: 00512185626 Page: 14 Date Filed: 03/25/2013 No. 12-40578 To the extent that Henderson claims on appeal that the ALJ erred in only ruling out her ability to complete complex tasks without accounting for her “moderate limitations of concentration, persistence, or pace,” that argument is waived because Henderson failed to raise it before the district court. See City of Dall. v. Hall, 562 F.3d 712, 723–24 (5th Cir. 2009). 2. Whether the ALJ erred in discounting Henderson’s credibility Henderson’s second point of error is that the ALJ erred in discounting her credibility. As discussed above, see supra III.B.1.(a) and (c), the ALJ adequately supported his determination that Henderson’s allegations of her limitations were not entirely credible. Ultimately, Henderson cannot meet her burden to establish that the Commissioner’s decision applied the wrong legal standard or that the decision is not supported by substantial evidence. IV. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s judgment affirming the Commissioner’s decision. 14 

16 F.3d 1223 74 A.F.T.R.2d 94-5458 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.UNITED STATES of America, Plaintiff-Appellee,v.Max SALAS, Defendant-Appellant. No. 93-5897. United States Court of Appeals, Sixth Circuit. Jan. 27, 1994. Before: NELSON and BATCHELDER, Circuit Judges; and MATIA, District Judge* PER CURIAM. 1 Max Salas appeals the district court's sentence imposed following his guilty plea to a criminal information charging two counts of violation of 26 U.S.C. Sec. 7206(l). The government alleged therein that Salas made false statements on his personal income tax returns for tax years 1987 and 1988. The district court, after hearing evidence concerning the manner and means in which the offenses were committed, found that the offense level under the United States Sentencing Guidelines should be increased by two points for the use of "sophisticated means," pursuant to U.S.S.G. Sec. 2T1.3(b)(2) (1992). For the following reasons, we affirm. 2 * On November 19, 1992, Salas appeared before the district court to enter a plea of guilty to two counts of making false statements on two personal income tax returns by underreporting his taxable income to the Internal Revenue Service in violation of 26 U.S.C. Sec. 7206(1). The court finally accepted the plea on June 15, 1993. Salas acknowledged that during 1987 and 1988 he skimmed money from the proceeds of concessions he operated, including the beer concession for the Tennessee State Fair and the Nashville Speedway and various concessions at the monthly flea market held at the State Fairgrounds. Salas did not report the money he skimmed on his tax returns for 1987 and 1988. 3 At the sentencing hearing on June 15, 1993, Clifford Hargrove, an investigator with the Criminal Investigation Division of the Internal Revenue Service, testified that Salas concealed the true amount of the gross proceeds of his concessions by altering the various financial reports which were required by the State Fair Board. Two sets of records were maintained on the computer, and the assistance of a former Salas employee was required to access the records. Other records were in writing. 4 The controller hired by Salas testified that two sets of records were kept in the computer, one showing the full amount taken in and the other showing the amount remaining after Salas skimmed. The controller testified that although the computer spreadsheet program used by Salas was available at computer stores, it was not widely used in 1987 and 1988 and involved the use of a unique password to gain access to the records. Four different people had access to certain data they were working on, and each had his or her own password. 5 Based upon the evidence, the district court found that sophisticated means were used and accordingly assessed a two-level increase in the offense level under the Sentencing Guidelines. Salas was sentenced to ten months in custody, with the last five months to be spent in a community treatment center. II 6 Salas claims that U.S.S.G. Sec. 2T1.3(b)(2) is void for vagueness when applied to the facts of this case. Therefore, he argues, the district court should have applied the "rule of lenity." We do not agree. 7 Chapter Two, Part T of the Guidelines Manual covers offenses involving taxation. U.S.S.G. Sec. 2.T1.3(b)(2) (1992) provides as follows: "If sophisticated1 means were used to impede discovery of the nature or extent of the offense, increase by 2 levels." Application Note 2 under Commentary provides as follows: 8 "Sophisticated means," as used in Sec. 2T1.3(b)(2), includes conduct that is more complex or demonstrates greater intricacy or planning than a routine tax-evasion case. An enhancement would be applied, for example, where the defendant used offshore bank accounts or transactions through corporate shells. 9 The doctrine of vagueness involves two due process concepts: (1) notice to an accused of conduct that is proscribed or required, and (2) the right of a citizen not to be the subject of arbitrary enforcement of laws regulating his or her conduct. The Sentencing Guidelines do not establish the illegality of any conduct. Rather, they are directives to judges and not to citizens. As such, they are not susceptible to a vagueness attack. Since there is no constitutional right to sentencing guidelines, the limitations placed on judges' discretion by the Guidelines do not violate a defendant's right to due process by reason of vagueness. United States v. Wivell, 893 F.2d 156, 159-60 (8th Cir.1990). 10 Although a number of courts2 have applied the "rule of lenity"3 to the Sentencing Guidelines, U.S.S.G. Sec. 2T1.3(b)(2) does not suffer from any such ambiguity as would trigger the application of the rule of lenity in this case. Its language is clear and provides a sufficient basis on which a trial court can make the necessary factual determination. III 11 The district court held a sentencing hearing at which the government and the defendant presented evidence. The court thereafter made a finding that sophisticated means were used and, accordingly, imposed a two-point enhancement of the offense level. Appellant claims the district court erred because there was no evidence to support the finding that sophisticated means were used. We do not agree. 12 The finding of a court in a guideline sentencing hearing is reviewed on appeal subject to the standard set forth in 18 U.S.C. Sec. 3742(e), which provides in pertinent part: 13 ... The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts. 14 The facts elicited at the sentencing hearing amply support the district court's finding that sophisticated means were used. Those facts are reflected in this court's statement of facts and will not be repeated here. The district court's finding was not clearly erroneous.4 15 For the foregoing reasons, the judgment of the district court is affirmed. * The Honorable Paul R. Matia, United States District Judge for the Northern District of Ohio, sitting by designation 1 Salas repeatedly uses the term "unusually sophisticated." The word "unusually" does not appear anywhere in U.S.S.G. Sec. 2T1.3 2 United States v. Rivera, 996 F.2d 993 (9th Cir.1993); United States v. Lambey, 974 F.2d 1389 (4th Cir.1992); United States v. Collar, 904 F.2d 441 (8th Cir.1990) 3 The rule of lenity is said to provide that when there are two possible interpretations of a guideline, one of which would result in an increased sentence for a defendant, a court should adopt the interpretation which results in the lesser sentence 4 Even if the court had not found that sophisticated means were used, application of the lower offense level would still have produced a guideline range that would have encompassed the sentence of which Salas complains here

2008 WY 133 DALE WAYNE EATON, Petitioner, v. THE STATE OF WYOMING, Respondent. No. S-08-0235 Supreme Court of Wyoming. OCTOBER TERM, A.D. 2008. November 14, 2008 ORDER GRANTING PETITION FOR WRIT OF REVIEW, ORDER VACATING WARRANT OF EXECUTION, ORDER SETTING DATE OF EXECUTION, AND ORDER STAYING EXECUTION BARTON R. VOIGT, Chief Justice. [¶1] This matter came before the Court upon a "Petition for Writ of Review, or in the Alternative, Petition for Writ of Certiorari" and "Petitioner's Motion for Stay of Execution," both filed herein October 24, 2008. After a careful review of the petition, the motion for stay, the State of Wyoming's "Response to Petition for Writ of Review or Writ of Certiorari and Motion for Amended Warrant of Execution," and the State of Wyoming's "Response to Petitioner's Motion for Stay of Execution," and the file, this Court finds that this matter should be determined without further briefing from the parties. The Court concludes as follows. [¶2] With respect to the district court's "Warrant of Execution," this Court concludes that the warrant is defective because it does not set a specific date for execution of the death sentence. The Warrant provides that Petitioner's death sentence "shall be executed no later than December 19, 2008." In this Court's opinion affirming Petitioner's convictions and sentence, this Court remanded this case to the district court "for the purpose of vacating the suspension of the sentence of death and setting a specific date for the execution of that sentence." Eaton v. State, 2008 WY 97, ¶ 230, 192 P.3d 36, 124 (Wyo. 2008). Also, the relevant statutes indicate that a warrant for execution should establish a specific date for execution. Wyo. Stat. Ann. §§ 7-19-905, 906, 909, and 910. The warrant does not set a specific date for execution, making it defective. This Court finds that the district court's "Warrant of Execution" should be quashed and vacated. [¶3] With the Warrant of Execution vacated, this Court must next determine how to proceed. After a careful study of this matter, this Court finds that it would be most efficient if this Court follows the procedure that it used in its most recent similar case, Harlow v. State, 2003 WY 47, 70 P.3d 179, 212-14 (Wyo. 2003). Consistent with that precedent, this Court will employ a narrow stay approach, which will promote the timely handling of those direct and post-conviction remedies that Petitioner actually pursues. Under this approach, this Court will set a specific date for execution of that sentence, and then stay the execution of that sentence pending Petitioner's timely application to the United States Supreme Court seeking a writ of certiorari. The time for filing a petition for writ of certiorari with that Court is ninety (90) days from the date of this Court's denial of rehearing in Petitioner's direct appeal. See Supreme Court Rule 13.3. This Court believes that setting a new date of execution, rather than again remanding to the district court to set a new date of execution, may help avoid some inherent delays in this case, as well as conserve resources of the courts and the parties. This Court does not foreclose, however, this Court's remanding to the district court to set a new date of execution if such course of action becomes appropriate in this case in the future. [¶4] This Court shall further order Petitioner's counsel to promptly inform this Court and the State of Wyoming of counsel's timely filing of application to the United States Supreme Court for a writ of certiorari asking that Court to review this Court's determination of his direct appeal. This Court shall further order Petitioner's counsel to promptly inform this Court and the State of Wyoming when the United States Supreme Court has disposed of Petitioner's petition for writ of certiorari. Upon that Court's disposition of Petitioner's petition for writ of certiorari, this Court may make such further orders as may then appear to be necessary and appropriate, if it still retains jurisdiction. See Harlow v. State, 2003 WY 144, 78 P.3d 1044 (Wyo. 2003); Harlow v. State, 2004 WY 55, 90 P.3d 92 (Wyo. 2004); Harlow v. State, 2005 WY 16, 105 P.3d 1078 (Wyo. 2005). It is, therefore, [¶5] ORDERED that the petitioner, Dale Wayne Eaton, be allowed to proceed in this matter in forma pauperis; and it is further [¶6] ORDERED that the "Petition for Writ of Review, or in the Alternative, Petition for Writ of Certiorari," filed herein October 24, 2008, be, and hereby is, granted; and it is further [¶7] ORDERED that the "Warrant of Execution," entered by the district court on October 13, 2008, be, and hereby is, quashed and vacated; and it is further [¶8] ORDERED that the new date for execution of the sentence of death is December 19, 2008, a date more than thirty (30) days from the date of this order; and it is further [¶9] ORDERED that the execution of that sentence of death is hereby stayed pending Petitioner's timely application to the United States Supreme Court for a writ of certiorari, the time for Petitioner's filing a petition for writ of certiorari with the United States Supreme Court being ninety (90) days from the denial of rehearing in Petitioner's direct appeal; and it is further [¶10] ORDERED that Petitioner's counsel promptly notify this Court and the State of Wyoming of counsel's timely filing of application to the United States Supreme Court for a writ of certiorari asking that Court to review this Court's determination of his appeal. Counsel shall provide such notification by filing a Status Report in this docket; and it is further [¶11] ORDERED that Petitioner's counsel promptly notify this Court and the State of Wyoming when the United States Supreme Court has disposed of Petitioner's petition for writ of certiorari. Counsel shall provide such notification by filing a Status Report in this docket; and it is further [¶12] ORDERED that this Court retains jurisdiction over this matter, and the captioned case shall remain open for the filing of the Status Reports described above and for the issuance of any orders that may be necessary and appropriate; and it is further [¶13] ORDERED that this order be published in Pacific Reporter Third.

26 Ariz. App. 97 (1976) 546 P.2d 366 Albert F. BUFFINGTON, Appellant, v. TITLE INSURANCE COMPANY OF MINNESOTA, Appellee. No. 1 CA-CIV 2866. Court of Appeals of Arizona, Division 1, Department A. March 2, 1976. Rehearing Denied March 29, 1976. Review Denied April 13, 1976. *98 Atmore L. Baggott, Phoenix, for appellant. O'Connor Cavanagh Anderson, Westover Killingsworth & Beshears, P.C., by Wilbert G. Anderson, Phoenix, for appellee. OPINION OGG, Judge. The issue in this case is whether an escrow agent can be held liable to a buyer for any damages sustained by reason of an alleged wrongful forfeiture of the buyer's interest under a land purchase contract. The appellant/plaintiff Albert Buffington, Jr., filed suit against the appellee/defendant Title Insurance Company of Minnesota and defendants Darrell G. Hand and Sharon Hand, his wife, claiming damages as the result of an alleged wrongful forfeiture of Buffington's interest in an escrow contract. The escrow involved a land purchase contract between the Hands, as sellers, and Buffington, as buyer, in which Minnesota Title acted as escrow agent. Only the liability of Minnesota Title for damages for the alleged invalid forfeiture is involved in this appeal. Soon after the escrow was established a dispute arose between the parties over whether Buffington, the buyer, had been carrying the insurance required under the sales agreement and whether the deed placed in escrow by Hand conveyed the full five acres as called for under the agreement. As a result of various disputes between the parties, an action was filed in Maricopa County Cause No. C 273952. A full discussion of that case would only lengthen this opinion and confuse the issue in this case. It is sufficient to note that, after the court's decision, Buffington went to Minnesota Title, informed it of the decision in Cause No. C 273952, and tendered two checks as payment on the escrow contract. The title company refused tender on the ground that Hand had given instructions to refuse such tender unless the payments included the payments for the disputed insurance premiums. Buffington's interest was thereafter forfeited, the escrow documents were delivered to Hand and the escrow cancelled. Buffington then instituted the present action, alleging a breach of escrow instructions by the title company and a failure by both the sellers and the title company to correct the property description in the escrow. The complaint asked for money damages or, in the alternative, that the five acres as shown by a corrected description be placed in escrow and that Buffington be granted a reasonable time to remedy any deficiency in payment. The title company answered the complaint and filed a motion to compel election of remedies, arguing that a buyer of land which was wrongfully forfeited in breach of escrow instructions could not seek both money damages and specific performance as alternatives. Judge C. Kimball Rose granted the motion and Buffington filed an amended complaint seeking only the remedy of money damages from the defendants Hand and Minnesota Title. Minnesota Title then filed a motion for summary judgment, arguing that when Buffington elected to seek money damages rather than specific performance he thereby approved and confirmed any allegedly wrongful acts of Minnesota Title and ratified them to preclude him as a matter of *99 law from pursuing this action for damages against the title company. Buffington also filed a motion for summary judgment against the title company on the ground that it had no right to refuse the Buffington tender of payments based on the unilateral directive of the sellers. Buffington also alleged that a buyer of property has no duty to make payments under an escrow contract until the seller has placed a deed in escrow correctly describing the property being sold. Judge Warren L. McCarthy granted Minnesota Title's motion for summary judgment and denied Buffington's motion for summary judgment. We affirm the denial of Buffington's motion for summary judgment. There are numerous questions of fact relative to the alleged wrongful forfeiture of Buffington's interest in the escrow contract and what amount of damages, if any, he is entitled to recover. It would have been error to grant Buffington's motion for summary judgment under such a state of facts. Summary judgment should not be granted where there are any material issues of fact. City of Phoenix v. Space Data Corp., 111 Ariz. 528, 534 P.2d 428 (1975); Leonardi v. Furman, 83 Ariz. 61, 316 P.2d 487 (1957). We now must determine whether the trial judge was correct in granting Minnesota Title's motion for summary judgment which barred Buffington from seeking damages against the title company. Minnesota Title relies upon the case of Phoenix Title & Trust Co. v. Horwath, 41 Ariz. 417, 19 P.2d 82 (1933) as authority for the trial court holding as a matter of law that Buffington has no cause of action against Minnesota Title for the wrongful escrow forfeiture since Buffington elected to sue for damages rather than seek specific performance under the contract. Minnesota Title reasons that when the buyer sues for breach of contract he is deemed by law to have ratified the wrongful forfeiture, thereby waiving any right to claim damages from the escrow agent. It appears that reliance upon the case of Phoenix Title & Trust Co. v. Horwath, supra, to defeat any cause of action by Buffington, is misplaced; we distinguish this case from Horwath on the facts. In Horwath, as in the present case, the buyer was attempting to recover damages from the escrow agent for an alleged premature forfeiture of the buyer's interest in an escrow contract. In Horwath the Arizona Supreme Court found that there had been a premature forfeiture but that the buyer under the particular facts of that case suffered no damages. Moreover, the buyer made no attempt to remedy the default in the payments and without any justifiable excuse the buyer failed to make the payments. In the case before us, Buffington attempted to make the payments due under the escrow but such payments were refused by Minnesota Title upon instructions from the sellers Hand. Thus, unlike the buyer in Horwath, Buffington was ready to perform the contract and here there was a valid dispute as to what payments were actually due under the contract. The law is well settled in this state that an escrow agent acts in a fiduciary capacity and must conduct the affairs with which he is entrusted with scrupulous honesty, skill and diligence. Tucson Title Ins. Co. v. D'Ascoli, 94 Ariz. 230, 383 P.2d 119 (1963); Higgins v. Kittleson, 1 Ariz. App. 244, 401 P.2d 412 (1965). The escrow agent is a trustee and must act in accordance with the terms of the escrow agreement. Malta v. Phoenix Title & Trust Co., 76 Ariz. 116, 259 P.2d 554 (1953); Higgins v. Kittleson, supra. The consequences of a wrongful delivery of a deed out of escrow is discussed in Volume 30A, C.J.S. Escrows § 11 at page 1004, which reads: Where property deposited in escrow is delivered or disposed of without compliance with the conditions of the deposit, the depositor is entitled to recover such damages as he may suffer through the depository's unwarranted act ... See also 30A C.J.S. Escrows § 12. *100 Laurentide Leasing Co. v. Schomisch, 382 Mich. 155, 169 N.W.2d 322 (1969); Allen v. Allen Title Co., 77 N.M. 796, 427 P.2d 673 (1967). We find that Buffington has stated a cause of action for damages since an escrow agent who wrongfully forfeits out a buyer's interest may be liable for the damages suffered by the buyer. We are not here ruling on the proper measure of damages since that issue was not before us. We further find that there are valid questions of fact remaining to be litigated as to whether Minnesota Title breached its fiduciary duty and what damages, if any, were suffered by Buffington. We therefore hold that it was error for the trial court to grant Minnesota Title's motion for summary judgment and we reverse such order. We affirm the order of the court which denied Buffington's motion for summary judgment. This case is remanded to the trial court for a trial on the merits pursuant to this opinion. DONOFRIO, P.J., and FROEB, J., concurring.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-5083 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus THOMAS WILLIAM FIELDER, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Chief District Judge. (CR-02-152) Submitted: January 12, 2007 Decided: February 20, 2007 Before WILLIAMS and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Kevin A. Tate, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Douglas Scott Broyles, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Thomas William Fielder pleaded guilty, pursuant to a plea agreement, to one count of conspiracy to possess with intent to distribute and to distribute five kilograms or more of cocaine and fifty grams or more of crack cocaine within 1000 feet of a school or playground, in violation of 21 U.S.C. §§ 841(a)(1), 846, 860 (2000) (Count One); and one count of using and carrying a firearm during and in relation to a drug trafficking crime and possessing a firearm in furtherance of such crime, in violation of 18 U.S.C. § 924(c) (2000) (Count Eleven). The plea agreement included stipulations related to the determination of Fielder’s sentence that included the quantity of crack cocaine attributable to Fielder and the validity of a specific prior felony drug conviction. In determining the sentencing range for Count One, the probation officer recommended a base offense level of thirty-six pursuant to U.S. Sentencing Guideline Manual (USSG) § 2D1.1(c)(2) (2002), based on the plea agreement stipulation of drug quantity. This was enhanced by two levels pursuant to USSG § 2D1.2(a)(1) because the drugs were stored, possessed, and/or distributed within 1000 feet of a protected location. After a three-level reduction for acceptance of responsibility, Fielder’s total offense level was thirty-five. Fielder’s prior criminal record and the fact that the instant offenses were committed while Fielder was under a criminal justice sentence for a prior conviction resulted in the assessment - 2 - of six points, placing him in criminal history category III. The resulting sentencing range for Count One was 210 to 262 months, but because the statutory minimum was twenty years, the Guideline range was 240 to 262 months, plus a mandatory consecutive five years on Count Eleven. Fielder did not object to the presentence report (PSR). Prior to sentencing, the Government moved for a downward departure from both the Guideline range and the statutory minimum pursuant to USSG § 5K1.1 and 18 U.S.C. § 3553(e) (2000), based on Fielder’s substantial assistance to the Government. The Government requested a total sentence of 240 months. At sentencing, the district court adopted the factual findings and Guideline calculations in the PSR, granted the Government’s departure motion, and sentenced Fielder to 240 months of imprisonment, ten years of supervised release, and a $200 special assessment. Fielder now appeals. On appeal, counsel filed an Anders brief, in which he states there are no meritorious issues for appeal, but questions whether Fielder’s trial counsel was ineffective in allowing him to enter into a plea agreement in which he admitted a prior conviction that was not listed in the PSR. In a pro se supplemental brief, Fielder repeats the argument raised by counsel, and asserts other claims of ineffective assistance of counsel and sentencing error. - 3 -  Counsel suggests that trial counsel was ineffective in that he “should have investigated [Fielder’s] criminal record and should have advised him not to admit the prior conviction which he admitted in his plea agreement.” In his pro se brief, Fielder likewise asserts counsel was ineffective in failing to investigate the validity of the prior conviction listed in the plea agreement. An allegation of ineffective assistance should not proceed on direct appeal unless it appears conclusively from the record that counsel’s performance was ineffective. United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Our review of the record leads us to conclude that deficient performance is not conclusively shown, and Fielder is not entitled to any relief on this claim. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We have considered the arguments asserted in Fielder’s pro se supplemental brief and find them to be without merit. We therefore affirm Fielder’s conviction and sentence.* This court requires that counsel inform Fielder, in writing, of the right to petition the Supreme Court of the United States for further review. If Fielder requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court * We have reviewed the district court’s determination of Fielder’s sentence and conclude that Fielder is not entitled to any relief based on United States v. Booker, 543 U.S. 220 (2005). - 4 - for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on Fielder. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED - 5 - 

490 So.2d 1001 (1986) Ellis S. RUBIN, Appellant, v. The STATE of Florida, Appellee. No. 85-2370. District Court of Appeal of Florida, Third District. June 17, 1986. *1002 Ellis S. Rubin, in pro. per. Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellee. Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ. DANIEL S. PEARSON, Judge. This is an appeal from an order holding the appellant, an attorney, in contempt for refusing to comply with the trial court's earlier order requiring the attorney to represent his client, a criminal defendant accused of murder, in a trial scheduled to begin immediately. We affirm. Nearly a year before the contempt order was entered, this same attorney representing the same criminal defendant (one Russell Sanborn) in the same murder case asked the same trial judge for permission to withdraw as Sanborn's defense counsel, the request being made just before jury selection was to begin. Although clothed in language ostensibly designed to preserve the client's confidential communications to his attorney (e.g., Rubin alleged that the defendant "confided new and contradictory details and heretofore unknown explanations" and "issued certain instructions to Rubin as to the strategy and tactics to be employed at the trial"), Rubin's message to the court was that the defendant had insisted upon testifying falsely at trial. Accordingly, Rubin asked that he be excused from further representation of the client. The trial court denied the motion to withdraw and ordered Rubin to proceed to trial.[1] Rubin sought certiorari review of that order. This court denied his petition and in *1003 so doing assured Rubin that he would carry out his ethical obligations as an attorney (as well as render all the effective assistance to the defendant to which the defendant was entitled) by allowing "the defendant to take the stand and deliver his statement in narrative form" and by refusing to "elicit the perjurious testimony by questioning ... [or to] argue the false testimony during closing argument." Sanborn v. State, 474 So.2d 309, 313 (Fla. 3d DCA 1985). Rubin's motions for rehearing and rehearing en banc were denied, and he sought no further review in any other court, state or federal. Despite this, when upon the issuance of our mandate the case was restored to the trial calendar, Rubin again sought to withdraw on the same ground as before. The trial court, scrupulously adhering to its initial ruling and our mandate, again denied Rubin's motion and again ordered him to proceed to trial. When Rubin refused, the contempt order which gives rise to this appeal was entered. The law of the case, established by this court in Sanborn v. State, 474 So.2d 309, is that even if Sanborn were to testify in the manner Rubin claimed he would, Rubin could ethically represent Sanborn by refusing to specifically elicit or argue such testimony. Rubin contends, however, as he did before the trial court, that our decision in Sanborn v. State is, in his view, wrong, and, because he firmly holds to that view, he disobeyed the lower court's order to proceed. Rubin is certainly free to disagree and maintain his personal view of what the law is or should be, or indeed his personal view of what some higher law provides.[2] It is, however, the decision of the mortal judges in Sanborn v. State, having not been stayed, much less set aside, by some higher court with jurisdiction over the matter, which Rubin must obey. Thus, even if, arguendo, it might have been later determined that Sanborn v. State was wrongly decided, Rubin's contumacious refusal to follow the undisturbed order to proceed would be nonetheless punishable as a direct contempt. As will be seen, this rule of law is essential to the maintenance of our system of laws as a whole. It is well settled in this state, and elsewhere, that where a court acting with proper jurisdiction and authority renders an order, an aggrieved party's failure to abide by the order may be punished by contempt even if the order is ultimately found to be erroneous. Health Clubs, Inc. v. State ex rel. Eagan, 377 So.2d 28 (Fla. 5th DCA 1979), appeal dismissed sub nom., Cataldo v. Eagen, 383 So.2d 1191 (Fla. 1980) (appellant's failure to obey injunction found to be erroneous as overbroad, punishable by contempt). See also State ex rel. Buckner v. Culbreath, 147 Fla. 560, 3 So.2d 380 (1941); State ex rel. Pearson v. Johnson, 334 So.2d 54 (Fla. 4th DCA 1976); Friedman v. Friedman, 224 So.2d 424 (Fla. 3d DCA 1969); Annot., Right to Punish for Contempt for Failure to Obey Court Order or Decree Either Beyond Power or Jurisdiction of Court or Merely Erroneous, 12 A.L.R.2d 1059 (1950). The reason behind the rule requiring obedience to court orders regardless of their alleged invalidity is that the need for obedience to a court order far outweighs any detriment to individuals who may be temporarily victimized by the order, even if erroneous. "If a party can make himself a judge of the validity of orders which have been issued for the protection of property rights, and by his own act of disobedience can set them aside, then are the courts impotent, and what the Constitution of the state ordains as the judicial power becomes a mere mockery. *1004 "This power has uniformly been held indispensable to enable the court to enforce its judgments and to execute its orders necessary to the due administration of law and the protection of the rights of citizens." Seaboard Air Line Ry. Co. v. Tampa Southern R. Co., 101 Fla. 468 at 476, 134 So. 529 at 533 (1931). Rubin's personal view that the decision in Sanborn is erroneous (a far cry from a judicial declaration that the decision is erroneous) quite obviously cannot excuse his disobedience. This power to punish disobedience of court orders through contempt is unique to the judicial branch of government. As one court explained: "The criminal contempt exception requiring compliance with court orders ... is not the product of self-protection or arrogance of Judges. Rather it is born of an experience-proved recognition that this rule is essential for the system to work... . Disobedience to a legislative pronouncement in no way interferes with the legislature's ability to discharge its responsibilities (passing laws). The dispute is simply pursued in the judiciary and the legislature is ordinarily free to continue its function unencumbered by any burdens resulting from the disregard of its directives. Similarly, law enforcement is not prevented by failure to convict those who disregard the unconstitutional commands of a policeman. "On the other hand, the deliberate refusal to obey an order of the court without testing its validity through established processes requires further action by the judiciary, and therefore directly affects the judiciary's ability to discharge its duties and responsibilities. Therefore, `while it is sparingly to be used, yet the power of courts to punish for contempts is a necessary and integral part of the independence of the judiciary, and is absolutely essential to the performance of the duties imposed on them by law. Without it they are mere boards of arbitration whose judgments and decrees would be only advisory.'" United States v. Dickinson, 465 F.2d 496, 510 (5th Cir.1972), cert. denied, 414 U.S. 979, 94 S.Ct. 270, 38 L.Ed.2d 223 (1973). Our system of justice simply cannot function if individuals — however strong their views — are free to ignore court orders. Therefore, that Rubin may believe that his position is virtuous and his disobedience moral — or that his view may some day, in some other case,[3] prevail — does nothing to excuse his refusal to comply with the court's order to proceed with the defense of Sanborn. In Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967), a majority of the United States Supreme Court, acknowledging the contemnors' strong and principled belief that an order enjoining them from assembling in the streets without a required permit flagrantly infringed upon their constitutional rights, nonetheless felt constrained to uphold the contempt convictions of the civil rights marchers who disobeyed the injunction. Recognizing that adherence to law in a constitutional system is central to the existence of law itself, the Court wrote: "The rule of law that Alabama followed in this case reflects a belief that in the fair administration of justice no man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion. This Court cannot hold that the petitioners were constitutionally free to ignore all the procedures of the law and carry their battle to the streets. One may sympathize with the petitioners' impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give *1005 abiding meaning to constitutional freedom." Walker v. City of Birmingham, 388 U.S. at 320-21, 87 S.Ct. at 1832, 18 L.Ed.2d at 1219-20 (footnote omitted). Surely Rubin — one trained in the law — should know that if persons may with impunity disobey the law, it will not be long before there is no law left to obey.[4] Affirmed. NOTES [1] Because the withdrawal of an attorney from a pending court action potentially affects the rights of the client, other parties to the action, and, in a criminal case, the public interest, the withdrawal must be approved by the court, Fla. R.Jud.Admin. 2.060(i), and an attorney may not withdraw without such approval, Fla. Bar Code Prof. Resp. D.R. 2-110(A). In the present case, the trial court, noting that Rubin was the fourth attorney to represent Sanborn, recognized in its order the interests at stake: "The Court must and has considered the timing of counsel's motion, the inconvenience to witnesses, the period of time elapsed between the date of the alleged offense and the scheduled trial date, and, most importantly, the possibility and probability that any new counsel will be confronted with the same conflict." While Sanborn may have agreed to Rubin's withdrawal and a further postponement of the trial, neither the State, the public, nor the court was bound by Sanborn's acquiescence. See generally Fisher v. State, 248 So.2d 479, 484 n. 5 (Fla. 1971) (noting public interest factor in withdrawal from criminal action). [2] When asked if there was any reason the trial court should not adjudge him in contempt and punish him, Rubin's sole answer was: "Yes, your Honor, I am obeying the Code of Professional Responsibility. There is not only an irreconcilable conflict between my client and myself, but between myself and the finding of the District Court of Appeal. I believe that I must rely on not only the Code of Professional Responsibility but my own code of honor and integrity. I have to live with myself and I could not live with myself knowing that I'm deceiving a jury with or without court approval." [3] As we have already noted, Rubin sought no further relief from our decision in Sanborn after we denied rehearing and rehearing en banc. Sanborn now represents the law in this district until changed by a later en banc decision, or by a decision of the Supreme Court of Florida. [4] Rubin urges that if he followed our decision in Sanborn, he would have been exposed to prosecution for aiding and abetting Sanborn's perjury and Bar grievance proceedings. This argument is simply another way of saying that our decision in Sanborn was erroneous and is thus no defense to the contempt order. We do, however, note in passing that as a general rule a person's good faith reliance on a court order — here, the decision in Sanborn — is a complete defense to criminal prosecution, cf. Malley v. Briggs, 475 U.S. ___, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) (good faith reliance on warrant); Wright v. State of Florida, 495 F.2d 1086 (5th Cir.1974) (good faith reliance on wiretap order); § 934.10, Fla. Stat. (1985) (codification of rule that good faith reliance on court order is complete defense to illegal wiretap prosecution); § 826.02(4), Fla. Stat. (1985) (codification of rule that good faith reliance on invalid divorce decree is complete defense to bigamy prosecution), and that, although only the Florida Supreme Court has jurisdiction over disciplinary matters, good faith reliance on a court order will likely not result in Bar discipline, cf. Ciravolo v. The Florida Bar, 361 So.2d 121 (Fla. 1978) (although trial court had no authority to immunize attorney from disciplinary proceedings, its decision to do so, justifiably based on Florida Supreme Court precedent, would be enforced).

675 F.2d 1169 Fed. Sec. L. Rep. P 98,667MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., Plaintiff-Appellant,v.Helen Echo HAYDU, Defendant-Appellee. No. 81-6114. United States Court of Appeals,Eleventh Circuit. May 10, 1982. Bennett Falk, Walton, Lantaff, Schroeder & Carson, Miami, Fla., for plaintiff-appellant. Bartel, Shuford & Dubitsky, P. A., Bill Shuford, Jr., Stanley J. Bartel, Miami, Fla., for defendant-appellee. Appeal from the United States District Court for the Southern District of Florida. Before MILLER*, Judge, TJOFLAT and CLARK, Circuit Judges. CLARK, Circuit Judge: 1 Merrill Lynch appeals from the dismissal of its action in federal district court below. That court acted in accordance with instructions provided by this court in a prior consideration of this lengthy dispute. The panel at that time set forth the history of this litigation; we borrow that history. 2 On January 10, 1979, Helen Echo Haydu, appellant (here appellee), filed a complaint in Florida state court alleging negligence, fraud, and breach of fiduciary duties in the handling of two of her stock option accounts by appellee (here appellant) Merrill Lynch, Pierce, Fenner & Smith, Incorporated (Merrill Lynch). The stock option agreements contained an arbitration clause that provided that any disputes between the parties would be settled through arbitration. Haydu admits that she signed both agreements but claims that she did so under duress. 3 On February 5, 1979, Merrill Lynch removed the state action to the United States District Court for the Southern District of Florida (district court I). Merrill Lynch then filed a motion to compel arbitration and stay further proceedings pursuant to the Federal Arbitration Act, 9 U.S.C.A. §§ 1-14, on February 9, 1979. Haydu moved to remand the case to state court and on February 17, 1979, district court I granted Haydu's motion. District court I remanded the case pursuant to 28 U.S.C.A. § 1447(c) after concluding that the action was "improvidently removed" because (1) there was no invocation of the federal securities laws thus no federal question jurisdiction and (2) there were inadequate allegations of diversity jurisdiction since the removal petition failed to allege diversity at the time the action was removed as well as at the time the action commenced. 4 After the remand to state court Merrill Lynch supplemented its motion to compel arbitration by changing its basis for the motion from the United States Arbitration Act, 9 U.S.C.A. §§ 1-14, to the Florida Arbitration Code, Florida Statutes, Chapter 682. The state court denied Merrill Lynch's original and supplemental motions to compel arbitration on July 2, 1979, and ordered a trial. 5 After the remand, Merrill Lynch filed an independent petition to compel arbitration pursuant to the United States Arbitration Act in the United States District Court for the Southern District of Florida (district court II). In response, Haydu moved to dismiss the petition or to stay the federal action pending resolution of the state proceedings. On July 11, 1979, district court II granted Merrill Lynch's motion to compel arbitration. Haydu did not plead the July 2nd state court judgment in district court II until July 13, 1979, in a motion Haydu filed to reconsider the July 11th order. District court II denied the motion to reconsider on July 19, 1979. 6 The state court, apparently uncertain of its jurisdiction in light of district court II's July 11th order, vacated its July 2nd order. However, on November 7, 1979, the state court fully reinstated its July 2nd order nunc pro tunc when it denied Merrill Lynch's motion to abate the state proceedings. Merrill Lynch's appeal from the denial of its motion to abate was actively pending in state court until district court II, acting upon Merrill Lynch's motion, enjoined further state proceedings on January 11, 1980. Haydu had moved district court II to stay the federal proceedings pending her appeal of the July 11th order. On December 17, 1979, this Court granted Haydu's motion to stay pending appeal but relinquished to district court II jurisdiction for the restricted purpose of entertaining Merrill Lynch's application for injunctive relief to determine whether such relief was warranted and permissible in order to protect or effectuate its July 11th order pursuant to 28 U.S.C.A. § 2283. Thus the proceedings in both federal and state courts are stayed pending the outcome of the instant appeal of the July 11th order. 7 Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Haydu, 637 F.2d 391, 394-95 (5th Cir. 1981) (footnotes omitted). 8 This court determined that a remand was necessary in order to determine whether the federal district court's action had been barred by the prior state court proceeding. 9 District court II should dismiss this action unless it can be shown that the state court's July 2nd order did not rule on Merrill Lynch's federal arbitration claims in its original motion to compel arbitration and stay further proceedings and that the state court's July 2nd order does not have final effect under Florida law. 10 637 F.2d at 399 (footnote omitted). 11 On remand the district court determined that the state court had finally disposed of the federal arbitration claim and dismissed the action. Merrill Lynch appeals and we affirm. 12 We do not address, however, the correctness of the district court determination below. Such review is not necessary because an amended complaint filed before the state court makes the claim nonarbitrable. Further, we view this case in a much more developed posture than did this court in February 1981. Comity concerns, strong then, now overwhelmingly compel us to allow this cause to proceed to completion in state court. 13 Plaintiff's amended state court complaint contains a 1933 Securities Act count. Although the complaint seems to make reference to § 17 of the Securities Act, for which a private cause of action may not lie,1 the facts make clear that plaintiff states a claim under § 12 of the Act. Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953), stands for the proposition that a contract requiring arbitration does not preclude a party from seeking relief in a court for violations of the 1933 Securities Act.2 Because Count III states a claim under § 12 and this is not a sham complaint, and given the right to litigate claims under the 1933 Act in a court rather than be compelled to arbitrate, Merrill Lynch fails to make out a case that it is entitled to arbitrate Count III. 14 Count I of the complaint seeks relief for fraud and misrepresentations in the management of plaintiff's account with defendant and alleges that defendant through its agents purchased securities without authority and failed to account for the unauthorized purchase of securities. Count II alleges claims under the Florida Securities Act. These two counts fall outside the Wilko rule and thus generally are arbitrable. When arbitrable and nonarbitrable claims are asserted in a complaint, a district court should not sever the arbitrable claims if the arbitrator making a decision on these claims would be "impelled to review the same facts needed to establish the plaintiff's securities law claim." Sawyer v. Raymond, James & Associates, Inc., 642 F.2d 791, 792 (5th Cir. 1981). This issue has been amply discussed in Sawyer, supra; Miley v. Oppenheimer & Co., Inc., 637 F.2d 318 (5th Cir. 1981); and Sibley v. Tandy Corp., 543 F.2d 540 (5th Cir. 1976). In reviewing the complaint here, it appears that the arbitrable and nonarbitrable claims are intertwined and depend on the same facts. 15 For common sense and comity reasons, we should not stop this trial which is set for this month. On January 10, 1979, plaintiff filed her state court complaint, starting a three-year journey to nowhere through the state and federal courts. This is the second appeal to this court, the first one by Ms. Haydu. 16 Merrill Lynch has two appeals pending in the state court, one of which it has not pursued. The other, striking the pleadings of the defendant for failure to provide discovery, was set for argument March 8. In both courts, Merrill Lynch has sought an order requiring arbitration. The state court denied Merrill Lynch's motion. Merrill Lynch appealed, but has failed to pursue the appeal. Abandoning in state court a parallel right granted in a federal forum forfeits the party's right to seek that relief later in the federal forum. Our prior panel opinion said: 17 Given the concurrent jurisdiction of the state and federal courts that existed in this instance and especially in view of the prior remand, a stay of Merrill Lynch's independent action by district court II would have been appropriate. 18 637 F.2d 391 at 397. Principles of comity require that in view of the current advanced posture of this case we yield jurisdiction to the state courts. 19 Principles of comity come into play when separate courts are presented with the same lawsuit. When faced with such a dilemma, one court must yield its jurisdiction to the other, unless one court has exclusive jurisdiction over a portion of the subject matter in dispute. Principles of comity suggest that a court having jurisdiction over all matters in dispute should have jurisdiction of the case. Otherwise, the fractioned dispute would have to be resolved in two courts. In this case, both courts have jurisdiction over the arbitration dispute under 9 U.S.C. § 3. As set out in the prior panel opinion in this case, state courts, as well as federal courts, have jurisdiction over federal arbitration. Since the federal act is substantive law, it must be considered in a state court action. Merrill Lynch removed the dispute to federal court, but the district court remanded the case pursuant to 28 U.S.C. § 1447(c) for lack of federal question or diversity jurisdiction. (28 U.S.C. § 1447(d)). After the removal, Merrill Lynch filed an independent action to compel arbitration at which time it alleged diversity of citizenship and the jurisdictional amount in controversy. This was filed six weeks after plaintiff had sued in state court. Since the state court had jurisdiction of the entire matter, including Merrill Lynch's motion for arbitration under the federal act, and the federal forum had only the motion seeking arbitration, the federal court should yield jurisdiction to the state court which had all matters before it. Additionally, the state court had prior jurisdiction, and convenience of the parties was served just as easily in the state court as in the federal court. 20 Congress has expressed its concern over friction between federal and state courts. See, e.g., 28 U.S.C. § 2283 (stay of state court proceedings discouraged). Several judicial doctrines discourage needless conflict between the separate judicial systems. See, e.g., Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) ("Younger" abstention). The continued vitality and independence of concurrent judicial systems require our sensitive consideration of ongoing proceedings in state courts. See, e.g., Toucey v. New York Life Insurance Co., 314 U.S. 118, 62 S.Ct. 139, 86 L.Ed. 100 (1941). In short, federalism concerns require that a federal court "tread lightly" when a state proceeding is already underway. See, e.g., Southern California Petroleum Corp. v. Harper, 273 F.2d 715, 718-20 (5th Cir. 1960). There is no indication that the state court here is incapable of resolving this dispute. Gratuitous interference with the orderly and comprehensive disposition of a state court litigation should be avoided. Brillhart v. Excess Insurance Company of America, 316 U.S. 491, 494, 62 S.Ct. 1173, 1175, 86 L.Ed. 1620 (1942). "End runs" around the removal statute have long been in disfavor. Kaufman Ruderman, Inc. v. Cohn and Rosenberger, 177 F.2d 849 (2d Cir. 1949); Thompson v. Moore, 109 F.2d 372 (8th Cir. 1940). 21 In addition to the federalism concerns, practicality dictates a relinquishment of jurisdiction. This case has proceeded on parallel tracks for three years. All that has been accomplished is a state court order denying arbitration and a federal court order compelling it. The matter was first presented to the state court which first decided the question. In absence of compelling circumstances, the court initially seized of a controversy should be the one to decide the case. Mann Mfg., Inc. v. Hortex, Inc., 439 F.2d 403 (5th Cir. 1971). It should make no difference whether the competing courts are both federal courts or a state and federal court with undisputed concurrent jurisdiction. There are no reasons compelling the federal court, last into this case, which remanded after removal proceedings, to decide the case. The facts compel an opposite result. This cause is scheduled for trial within a week in the state court. Since the lifting of the stay in July, the state court system has acted on this cause with dispatch. Judgment has been entered against Merrill Lynch (which has appealed that judgment in the state court system) on the liability issues. Trial on damages alone is scheduled. Although comity is clearly a discretionary judicial concept, the concerns embodied therein and the equities asserted here compel a state court resolution of this matter. 22 For these reasons, we AFFIRM. * Honorable Jack R. Miller, Judge for the U.S. Court of Customs and Patent Appeals, sitting by designation 1 A split of authority exists among federal courts on the question whether an implied private right of action lies under § 17 of the Securities Act of 1933. Apparently, no Fifth Circuit case has addressed this question. However, district courts within the circuit have taken the position that a private right of action does not lie under § 17. See, e.g., Westlake v. Harris, 504 F.Supp. 337, 346 (N.D.Ga.1980); Gunter v. Hutcheson, 433 F.Supp. 42 (N.D.Ga.1977) 2 The Wilko Court held that an agreement between a purchaser and broker to arbitrate future controversies is a "condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision" of the Securities Act of 1933, which section 14 of that Act declares to be void. The Court stated that "the right to select the judicial forum is the kind of 'provision' that cannot be waived under § 14 of the Securities Act." Id. at 435, 74 S.Ct. at 186

467 F.2d 486 Kenneth STANLEY, d/b/a Wayne Maid Farms, Plaintiff-Appellant,v.WILLIAM DAVIES CO., INC., d/b/a Shur-Gain Feed Division ofWilliam Davies Co., Inc. and also d/b/a SwisherFeed Division of William Davies Co.,Inc., Defendant-Appellee. No. 71-2751 Summary Calendar.** United States Court of Appeals,Fifth Circuit. Oct. 25, 1972. Before BELL, DYER and CLARK, Circuit Judges. PER CURIAM: 1 Affirmed: See Local Rule 21.1 The charge to the jury with respect to the inference to be drawn from the failure of appellant to produce witnesses was warranted and therefore not error. Georgia Southern & Florida Railway Company v. Perry, 5 Cir., 1964, 326 F.2d 921, 924-925. ** Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I 1 See NLRB v. Amalgamated Clothing Workers of America, 5 Cir. 1970, 430 F.2d 966

Filed 3/4/13 Hatai v. Peo. of the State of Cal. CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE KENNETH HATAI, B236757 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC426766) v. PEOPLE OF THE STATE OF CALIFORNIA et al., Defendants and Respondents. APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Dunn, Judge. Affirmed. Jay W. MacIntosh; and Henry J. Josefsberg for Plaintiff and Appellant. Kamala D. Harris, Attorney General, Alicia M.B. Fowler, Assistant Attorney General, Chris A. Knudsen and Terry R. Price, Deputy Attorneys General for Defendant and Respondent Sameer Haddadeen. Ronald W. Beals, Chief Counsel, Linda Cohen Harrel, Deputy Chief Counsel, Jerald M. Montoya and Neil H. Brown for Defendant and Respondent the People of the State of California, acting by and through the Department of Transportation. _________________________  Plaintiff and appellant Kenneth Hatai (Hatai) appeals a judgment following jury verdicts in favor of his employer, defendant and respondent People of the State of California, acting by and through the Department of Transportation (Caltrans), and his supervisor, defendant and respondent Sameer Haddadeen (Haddadeen). In this employment discrimination case, Hatai alleged he was discriminated against because of Japanese ancestry and Asian race. At trial, Hatai sought to prove his discrimination claim by showing that Haddadeen, of Arab ancestry, discriminated against any employee who was not of Arab descent. The trial court disallowed Hatai‟s broad theory but allowed Hatai to present evidence of anti-Asian animus. We perceive no prejudicial error and affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND 1. Facts. Haddadeen was the office chief of the Caltrans Office of Traffic Investigations (OTI) in the District office located in Los Angeles. He supervised a number of Senior Traffic Engineers (STEs), including Hatai. Haddadeen, in turn, was supervised by Frank Quon, Deputy District Director for Operations; Quon reported to the Chief Deputy District Director, Raja Mitwasi, who in turn reported to the District Director, Doug Failing. Following Haddadeen‟s 2006 promotion to chief of OTI, his superiors charged him with improving production and attendance and eliminating a backlog of safety investigations. Haddadeen monitored employee attendance by walking the floor at OTI. On March 27, 2007, Hatai had a meeting with Quon and Mitwasi concerning Haddadeen‟s management style. They had another meeting on May 21, 2007. Hatai admitted that at neither meeting, the March 27 and May 21 meetings, did he assert he was being treated differently because of his Japanese or Asian ancestry. 2  On May 17, 2007, Karem Al-Chokhachi, an engineer who worked for another STE, Luu Nguyen, wrote a letter to Nguyen summarizing an incident with Haddadeen. In the letter, Al-Chokhachi stated Haddadeen told “me something which I consider it illegal act. He asked me that we should be friend and work together and stick together (in Arabic language) and try to help each other in our working area and if I need anything I can go back to him.” On June 5, 2007, Hatai, Nguyen, and six other STEs sent a letter to Failing, the District Director, complaining of Haddadeen‟s management. The June 4, 2007 letter asserted that Haddadeen had created a hostile work environment where employees were suspicious of one another, and that he had accused staff of falsifying time sheets without any proof. The letter also claimed that employees “have been racially discriminated, harassed, and retaliated against with respect to their race, ethnicity and national origin. Managers have tried to form alliances with staff of Arab descent using statements such as, „We Arabs should stick together‟ in Arabic language [sic].”1 Director Failing responded to the June 5, 2007 letter by individually meeting with each of the STEs, including Hatai. Hatai admitted that Failing gave him the opportunity to air his grievances. Hatai did not complain to Failing of discrimination. Hatai simply told Failing that Haddadeen and his staff had “contempt” for one other. Hatai admitted he did not tell Failing “anything to the effect that Mr. Haddadeen was discriminating against [him] because [he was] Japanese or Asian.” Hatai admitted he did not give Failing “a single example of an E.E.O. violation that he could have investigated . . . .” 1 Thus, the June 5, 2007 letter, to which Nguyen was a signatory, was inconsistent with the earlier letter which Al-Chokhachi sent to Nguyen. According to exhibit 4, i.e., the May 17, 2007 letter from Al-Chokhachi to Nguyen memorializing the conversation between Al-Chokhachi and Haddadeen, Haddadeen merely told Al-Chokhachi, in Arabic, that they should “stick together,” not that “We Arabs should stick together.” 3  On August 4, 2007, Hatai wrote a letter to Lela Nishizaki, investigation manager at Caltrans Audits and Investigations in Sacramento. In said letter, Hatai did not assert that he was “being treated differently or badly because [he is] Japanese or Asian.” On October 31, 2007, Hatai was interviewed by Terry Baker, an investigator dispatched by the Caltrans Discrimination Complaint Investigation Unit (DCIU). Baker was referred the matter by Audits and Investigations because of possible Equal Employment Opportunity (EEO) issues raised by the June 5, 2007 letter. Hatai admitted that Baker “made it perfectly clear” he was there to investigate any complaints the STEs had about Haddadeen‟s EEO violations. Hatai did not provide Baker with any examples of being treated differently because of his Japanese or Asian ancestry. Hatai admitted that if he had any examples of such discrimination, he would have provided them to Baker. Baker concluded there was no EEO violation, but merely a dispute between two factions based on Haddaden, rather than Nguyen, having being promoted to office chief. Beginning in December 2007, Hatai was absent from work due to his father‟s failing health. Haddadeen texted Hatai that he needed to bring a medical report from his doctor or his father‟s doctor or he would be “AWOL,” and that a five-day AWOL was grounds for separation from state service. Haddadeen granted Hatai leave as requested. Hatai admitted Haddadeen did not do anything with respect to his medical or family leave based on Hatai‟s national origin or race. On August 5, 2008, Hatai was further interviewed by Caltrans Audits and Investigations, by Teresa Esquivel Preciado and Lela Nishizaki. During the interview, which was transcribed and admitted into evidence as exhibit 25, Hatai complained, inter alia, that Haddadeen displayed a lack of respect for staff, as by cutting off debate at meetings. However, Haddadeen did not tell Preciado and Nishizaki that he suffered discrimination, retaliation or harassment because he was Japanese or Asian. Hatai‟s performance at work deteriorated, resulting in a January 30, 2009 Letter of Warning from Haddadeen. The warning letter (exhibit 32), sets forth 11 examples of Hatai‟s disregarding Haddadeen‟s requests for information, as well as Hatai‟s failure to 4 meet assignment deadlines. At trial, Hatai conceded the accuracy of the charges made in the warning letter. A major controversy in this case is what occurred on the afternoon of January 30, 2009, at the time Haddadeen gave Hatai the warning letter. Hatai‟s deposition testimony was highly inconsistent in this regard. In the course of his deposition, he gave three different accounts of the event. (1) In the October 19, 2010 deposition session, Hatai testified that when Haddadeen handed him the warning letter, Haddadeen did not make any reference to Hatai‟s national origin or race. (2) In the January 17, 2011, deposition session, Hatai testified that after Haddadeen gave him the warning letter, Haddadeen said “I‟m going to discipline you because you are Asian.” (3) At the deposition session on February 2, 2011, Hatai again changed his testimony. When asked “when is it that Mr. Haddadeen said to you that he was disciplining you because you are Asian?”, Hatai responded: “It was more like ‟I‟m going to get rid of you Asian troublemaker‟ at some later time. He didn‟t say he was doing it because he was disciplining me.” Later in the afternoon of January 30, 2009, shortly after Haddadeen gave Hatai the warning letter, Hatai sent an email (exhibit 33) to his superiors complaining of Haddadeen‟s treatment of him. In said email, Hatai did not assert he was being mistreated based on race or national origin. On February 9, 2009, by which time Hatai had retained legal counsel, Hatai sent a five-page response (exhibit 34) to the warning letter. This letter was directed to Frank Quon, the deputy director of the district. The February 9, 2009 letter likewise lacked any allegation that Haddadeen‟s actions were motivated by Hatai‟s race or national origin. On March 5, 2009, five weeks after the warning letter, Hatai was interviewed by Frank Quon and Gwen Correa. Hatai conceded he did not tell Quon and Correa “about either the „Mr. Haddadeen is disciplining me because I‟m Asian‟ or the he‟s going to get rid of you because you‟re an Asian troublemaker statement . . . .” 5  On April 24, 2009, three months after the warning letter, Hatai participated in a DCIU interview, which was transcribed (exhibit 37). Similarly, in said interview, Hatai never mentioned the alleged “Asian troublemaker” or “I‟m disciplining you because you‟re Asian” remarks. Hatai continued to be employed at Caltrans, in the OTI office, supervising eight engineers. On October 9, 2009, Hatai filed a discrimination complaint with the California Department of Fair Employment and Housing against Caltrans and Haddadeen and he received right-to-sue letters the same day. 2. Proceedings. a. Pleadings. On November 24, 2009, Hatai filed suit against Caltrans and Haddadeen. The operative first amended complaint pled four causes of action under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940). Hatai alleged race/national origin/ancestry discrimination (§ 12940, subd. (a)); harassment (§ 12940, subd. (j)); retaliation (§ 12940, subd. (h)); and failure to take reasonable steps to prevent discrimination and harassment (§ 12940, subd. (k)). Although Hatai‟s pleadings contained a narrative of the January 30, 2009 meeting at which time Haddadeen gave Hatai the warning letter, there was no allegation that Haddadeen made the anti-Asian remarks to which Hatai later testified. Although the first amended complaint consisted of four FEHA causes of action, the pleading was virtually bereft of factual allegations of race discrimination. The pleading alleged at length that Haddadeen had mistreated Hatai, as by unreasonably demanding Hatai deliver a doctor‟s note on short notice when his father was hospitalized. Hatai‟s factual allegations of discrimination were as follows: Paragraph 1 alleged Hatai is of Asian or Japanese race or national origin or ancestry and thus a member of a protected class under FEHA. 6  At paragraph 48, he pled: “During Plaintiff‟s employment with Caltrans, Plaintiff observed that Defendants treated Asian employees differently and less favorably than non-Asian employees. Plaintiff complained about this to Caltrans‟ management. Caltrans, rather than remedying the situation retaliated against Plaintiff by further harassing Plaintiff, and by trying to force Plaintiff to quit. Plaintiff‟s observation of how Haddadeen treated Asian employees further created a hostile work environment.” The FEHA allegations then asserted in general terms that Hatai had been subjected to unlawful discrimination, he was “subjected to a continuing pattern of harassment by Haddadeen on the basis of his race and national origin/ancestry,” he “observed that all Defendants treated Asian employees differently and less favorably than non-Asian employees,” defendants “retaliated against Plaintiff because of [his] opposition to Defendants‟ discrimination and harassment,” and defendants failed to take all reasonable steps to prevent discrimination and harassment from occurring. b. Defense motion in limine. Prior to trial, the defense made a motion in limine, Motion in Limine No. 2, to exclude “testimony and evidence of Luu Nguyen, Gary Kevorkian, Raja Mitwasi, Karem Al-Chockachi, Khosrow Kamali, Lewis Yee, Sheik Moinuddin, Steve Leung, himself and other individuals as to other lawsuits and/or complaints of discrimination, harassment and other complaints including the June 5, 2007 letter, that they have filed either internally at Caltrans (Caltrans Audits and Investigations, Caltrans EEO, Caltrans DCIU and the like) or presented in litigation.” Caltrans asserted that based on evidence Hatai had presented in opposition to summary judgment and during discovery, it believed Hatai intended to offer the testimony of those individuals at trial. Caltrans sought to preclude such testimony on the ground that claims of alleged harassment, discrimination or any other matters involving any individuals other than Hatai had no relevance to this case. “Plaintiff seeks to have the court try multiple cases at the same time hoping that some evidence will stick inuring to his benefit, even if the matters have nothing to do with his lawsuit. This would essentially allow for the trying of a case within a case.” 7  Caltrans also argued such evidence should be excluded under Evidence Code section 352. “The introduction of this evidence [involving anyone other than Hatai] would greatly expand the scope of this trial. Each and every collateral claim would have to be litigated to ascertain the veracity of the claim and any potential defenses thereto. Numerous witnesses and numerous documents would be paraded before the jury to litigate matters that are not pertinent to the . . . claims raised by [Hatai] in [his] complaint. This is precisely the type of collateral matter that Evidence Code section 352 was enacted to cover.” At the hearing on the motion in limine, Hatai‟s counsel stated he intended to prove that Haddadeen had discriminatory intent “against anyone who is not an Arab.” The trial court responded, “[t]hat‟s not what you pled in your complaint. What you just said was that Mr. Haddadeen is prejudiced against and discriminates against anybody that‟s not an Arab.” Defense counsel added, “his repositioning of the case as now the Arab favoritism style case is new. It‟s not in the original complaint. It wasn‟t in the discovery. It wasn‟t in any of the depositions.” Hatai‟s counsel acknowledged that exhibit 6 (the June 5, 2007 letter signed by eight STEs), accusing Haddadeen of saying “We Arabs should stick together” was at the heart of the case. Hatai sought to present the “We Arabs should stick together” comment by Haddadeen in the context of Haddadeen‟s knowledge that Quon in the past allegedly had favored Asians at the expense of others.” The trial court ruled that Hatai would be allowed to show “there was a history of alleged favoritism for Asians, and this comment [„We Arabs have to stick together‟] is somehow tied into that.” c. Trial and verdict. The matter was tried to a jury, commencing June 9, 2011. On June 24, 2010, the jury returned defense verdicts in favor of both Haddadeen and CalTrans. 8  d. Motion for new trial. Hatai filed a motion for new trial on the grounds of evidentiary and instructional error. Hatai argued it was error to excude evidence of the “overall context of discrimination,” that Haddadeen “openly favored employees of Arab ancestry,” and the trial court should have allowed evidence of Haddadeen‟s harassment and discrimination against other employees who were not of Japanese or East Asian ancestry. The trial court denied the motion for new trial and explained its rationale as follows: “The court would have reached the same decision as the jury with its own analysis of the evidence. [¶] The court permitted in this case the contextual testimony about the Arabs versus Asians, which seemed to be the crux of the background information that the plaintiffs wanted to admit into evidence, even though there‟s nothing in the complaint or the F.E.H.A. complaint about that. [¶] The complaint in the F.E.H.A. complaint, and there were other, I think, instances of this talked about, are discrimination based on his ancestry. And essentially the argument from the very beginning of this case was that . . . Mr. Haddadeen discriminated against everybody that was different than him. [¶] And the court never permitted that, but did permit the Asian versus Arab aura that appeared to be the gist of what the plaintiff was saying. [¶] “Mr. Hatai did not in his complaints, his formal complaints, F.E.H.A. or the complaint itself, allege what you are now suggesting should have been admitted into evidence. [¶] And there are limits to simply opening up the case in the areas which have never been pleaded or alleged or complained about to state authorities.” “As far as his credibility is concerned, there was clearly sufficient evidence for the jury to have found his testimony about the statements „you Asian troublemaker,‟ and „I‟m firing you because you‟re Asian‟ to be lacking in credibility, and the court would agree with that. [¶] I think Mr. Hatai was sincere. I think he feels that he was profoundly mistreated in some way. It was very clear during the trial. But that feeling does not equate to admissible evidence on the issue. [¶] So the court‟s tentative will stand, and the motion is denied.” 9  e. Subsequent proceedings. Defendants filed memoranda of costs and Hatai filed motions to strike. The trial court awarded costs of $27,347.87 to Caltrans and $3,642.35 to Haddadeen. Hatai filed a timely notice of appeal from the judgment. CONTENTIONS Hatai contends: the trial court erred in excluding evidence of Haddadeen‟s discrimination against persons of non-Arab ancestry; the limitation on evidence also prevented Hatai from presenting a harassment case; he was prevented from presenting his retaliation case; he was improperly prevented from putting on his case with respect to failure to prevent harassment, discrimination and retaliation; the trial court erred in denying leave to amend; a new trial was warranted due to the erroneous exclusion of evidence and instructional error; and the trial court erred in awarding costs to the prevailing defendants. DISCUSSION 1. No merit to claim of evidentiary error. The essence of Hatai‟s appeal is that he was in the class of non-Arabs subjected to discriminatory and harassing treatment by Haddadeen, but the trial court improperly prevented the introduction of such evidence. We reject Hatai‟s contention. On this record, the trial court acted well within the bounds of its discretion in excluding evidence relating to employees outside Hatai‟s protected class. a. “Me-too” in employment discrimination cases. Johnson v. United Cerebral Palsy/Spastic Children’s Foundation (2009) 173 Cal.App.4th 740 (Johnson), considered “the admissibility of me-too evidence under [Evidence Code] section 1101, subdivision (b), in the analogous situation of a FEHA claim for pregnancy discrimination. Johnson claimed her employer fired her because she was pregnant. In opposing the defendant‟s motion for summary judgment, Johnson submitted evidence that defendant had fired other women because they were pregnant. The evidence was declarations of five former employees who claimed they were fired or otherwise discriminated against after telling the employer they were pregnant. The trial 10 court granted the motion. (Johnson, supra, 173 Cal.App.4th at pp. 744-745, 761-762.) On appeal, Johnson argued that the me-too evidence supported her contention that there were triable issues of fact. (Id. at p. 759.) The Court of Appeal agreed and reversed on this basis among others. (Ibid.) It rejected the defendant‟s contention that the declarations were inadmissible propensity evidence under Beyda [v. City of Los Angeles (1998) 65 Cal.App.4th 511]. (Johnson, supra, at p. 760.) Justice Croskey wrote: „Beyda did not address whether the evidence could be admitted under the provisions of subdivision (b) of Evidence Code section 1101.[2] As discussed below, many courts have held that evidence of the type sought to be introduced by the plaintiff in Beyda, and by the plaintiff in the instant case, is admissible under rule 404(b) of the Federal Rules of Evidence . . . to show intent or motive, for the purpose of casting doubt on an employer‟s stated reason for an adverse employment action, and thereby creating a triable issue of material fact as to whether the stated reason was merely a pretext and the actual reason was wrongful under employment law.‟ (Johnson, supra, 173 Cal.App.4th at p. 760.)” (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 112 (Pantoja).) The “Johnson court concluded . . . the evidence of pregnancy discrimination against other employees „sets out factual scenarios related by former employees of defendant that are sufficiently similar to the one presented by plaintiff concerning her own discharge by defendant‟ to be relevant under [Evidence Code] section 1101, subdivision (b). (Johnson, supra, 173 Cal.App.4th at p. 767.)” (Pantoja, supra, 198 Cal.App.4th at pp. 113-114.) 2 Evidence Code section 1101 states at subdivision (b): “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.” 11  Similarly, in Pantoja, the issue was whether the trial court “erred in not allowing the jury to hear „me too‟ evidence, that is, evidence of the employer‟s alleged gender bias in the form of harassing activity against women employees other than the plaintiff.” (Pantoja, supra, 198 Cal.App.4th at p. 92.) Pantoja held “[t]he me-too evidence was relevant both to prove gender bias and to rebut the defense evidence that [the employer] had a policy of not tolerating harassment and a practice of not directing profanity at individuals. If, as the me-too evidence tended to show, [the employer] lacked this policy and practice when Pantoja was not present and during times when she was not an employee, the jury could rationally infer that he also lacked them when she was an employee and was present.” (Id. at p. 116.) b. Hatai’s broad theory of admissibility is outside the parameters of the “me-too” doctrine. The instant case is far afield from Johnson or Pantoja. In Johnson, a woman who claimed her employer fired her because she was pregnant sought to present “me too” evidence the employer had fired other women because they were pregnant. In Pantoja, a hostile work environment sexual harassment case, the plaintiff sought to present evidence of the employer‟s alleged gender bias in the form of harassing activity against female employees other than plaintiff. Here, Hatai alleged he is a person of “Asian or Japanese race or national origin or ancestry,” and that he suffered discrimination, harassment and retaliation on the basis of his national origin and/or race. Thus, the “me-too” doctrine entitled Hatai to present evidence that other employees at Caltrans of east Asian or Japanese descent had been subjected to similar discrimination. However, given the nature of Hatai‟s lawsuit, the “me-too” doctrine did not entitle Hatai to present evidence of discrimination against employees outside of Hatai’s protected class to show discrimination or harassment against Hatai. Thus, the trial court properly exercised its discretion under Evidence Code section 352 to exclude the proffered evidence on the ground its probative value was outweighed by undue prejudice or the consumption of time that would have been taken up by the 12 issue. The trial court properly refused to entertain a series of mini-trials on issues of tangential relevance relating to employees outside Hatai‟s of protected class. As the trial court noted, this was pled as an anti-Asian case, not as an Arab favoritism case. It was only on the eve of trial that Hatai sought to reframe his case to show that Haddadeen had discriminatory intent “against anyone who is not an Arab” -- lacking evidence of anti-Asian animus by Haddadeen, Hatai now sought to prove his case by showing Haddadeen‟s general xenophobia against non-Arabs. Moreover, the trial court found, in denying the motion for new trial, that Hatai was not credible. The trial court, sitting as a “thirteenth juror” (Barrese v. Murray (2011) 198 Cal.App.4th 494, 503), specifically found Hatai‟s “testimony about the statements „you Asian troublemaker,‟ and „I‟m firing you because you‟re Asian‟ to be lacking in credibility.” On this record, any evidentiary error, if it occurred, was harmless. There was no miscarriage of justice. 2. No merit to Hatai’s contention the trial court erred in denying leave to amend. Hatai contends the trial court erred in denying him leave to amend his complaint to plead pro-Arab favoritism by Haddadeen. However, the opening brief does not indicate whether Hatai even made a motion for leave to amend in the court below. The record reflects that Hatai‟s opposition to a nonsuit motion by Caltrans, at footnote 2, stated if his “[retaliation] allegations are insufficient, HATAI requests leave to amend.” This conditional request for leave to amend, which was buried in a footnote in Hatai‟s opposition to defendants‟ motion for nonsuit, was insufficient to present the issue below. Therefore, Hatai cannot contend on appeal that the trial court erred in denying his motion for leave to amend. 3. No merit to claim of instructional error. Hatai contends that over his objections, the trial court instructed the jury Hatai‟s “national origin and/or race” were the basis of his FEHA claims. The record reflects that Hatai‟s proposed instructions used the phrase “race, national origin and ancestry,” Some of Hatai‟s proposed instructions also added the term “color.” 13  Hatai has not shown that “ancestry” and “color” were not adequately subsumed within the terms “national origin and/or race.” 4. No error in award of costs to defendants as the prevailing parties. As indicated, the trial court awarded costs of $27,347.87 to Caltrans and $3,642.35 to Haddadeen. These were ordinary trial costs, not expert witness fees or attorney fees. Hatai asked the trial court to strike the cost bills in their entirety because defendants had not shown that Hatai‟s lawsuit was frivolous, vexatious, or wholly without merit. The trial court declined to do so, pursuant to Perez v. County of Santa Clara (2003) 111 Cal.App.4th 671 (Perez). The trial court‟s ruling was proper. As stated in Perez, supra, 111 Cal.App.4th at page 681, “ordinary litigation costs are recoverable by a prevailing FEHA defendant even if the lawsuit was not frivolous, groundless, or unreasonable. . . . Code of Civil Procedure section 1032, subdivision (b) provides for costs „as a matter of right‟ absent express statutory provision, and [Government Code] section 12965(b) specifically allows „reasonable attorney‟s fees and costs‟ within the court‟s discretion. . . . We therefore disagree with the Cummings court‟s [(Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383)] extension of the Christiansburg [(Christianburg Garment Co. v. EEOC (1978) 434 U.S. 412)] standard for attorney fees to ordinary litigation expenses allowed by Code of Civil Procedure section 1033.5. A prevailing defendant should be able to recover these costs even if the plaintiff did not bring a frivolous, groundless, or unreasonable lawsuit.” (Perez, supra, 111 Cal.App.4th at p. 681, italics added; accord Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 134-136; Baker v. Mulholland Security & Patrol, Inc. (2012) 204 Cal.App.4th 776, 783 [in FEHA actions “ordinary litigation costs . . . are routinely shifted under Code of Civil Procedure sections 1032 and 1033.5”].) 14  DISPOSITION The judgment is affirmed. The parties shall bear their respective costs on appeal. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS KLEIN, P. J. We concur: KITCHING, J. ALDRICH, J. 15 

784 F.2d 402 U.S.v.Gordon 85-5218 United States Court of Appeals,Eleventh Circuit. 2/6/86 1 S.D.Fla. AFFIRMED

UNITED STATES COURT OF APPEALS TENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 96-2285 KERRY NEIL ENJADY, Defendant-Appellant. ORDER Filed March 25, 1998 Before BALDOCK, LOGAN, and EBEL, Circuit Judges. This matter is before the court on the government’s motion to clarify the opinion filed in this appeal on January 20, 1998. The request is granted in part. The last full paragraph on page 12 of our original disposition is stricken. In its place, we substitute the following: We agree with David Karp, who drafted Rule 413, that similar acts must be established by “sufficient evidence to support a finding by the jury that the defendant committed the similar act,” citing Huddleston v. United States, 485 U.S. 681, 685 (1988)(Rule 404(b) case). The district court must make a preliminary finding that a jury could reasonably find by a  preponderance of the evidence that the “other act” occurred. See D. Karp, Evidence of Propensity and Probability in Sex Offense Cases and Other Cases, 70 Chi.-Kent L. Rev. 15, 19 (1994). The remainder of the opinion remains unaltered. A copy of the amended decision is attached to this order. This order stands as a supplement to the mandate issued on March 3, 1998. ENTERED FOR THE COURT PATRICK J. FISHER, Clerk By: Randy Simmons Deputy Clerk -2-  F I L E D United States Court of Appeals Tenth Circuit PUBLISH MAR 25 1998 UNITED STATES COURT OF APPEALS PATRICK FISHER Clerk TENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 96-2285 KERRY NEIL ENJADY, Defendant-Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. CR-95-252-JP) Robert J. McDowell, Assistant Federal Public Defender, Las Cruces, New Mexico, for Defendant-Appellant. Tara C. Neda, Assistant U.S. Attorney (John J. Kelly, United States Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee. Before BALDOCK, LOGAN, and EBEL, Circuit Judges. LOGAN, Circuit Judge.  Defendant Kerry Neil Enjady appeals his conviction by a jury of one count of aggravated sexual abuse, in violation of 18 U.S.C. §§ 1153, 2241(a)(1) and 2245(2)(A). Defendant asserts prejudicial error in the district court’s admission, under Fed. R. Evid. 413, of testimony about a prior rape defendant allegedly committed, for three separate reasons: (1) the district court erroneously applied Rule 413 before its effective date; (2) Rule 413 is unconstitutional; and (3) if the rule is constitutional, the district court should have excluded the evidence as unduly prejudicial under Fed. R. Evid. 403. Defendant also argues that the district court abused its discretion in permitting the prosecution to cross-examine him concerning instances of violent contact that did not result in criminal convictions, because his direct testimony did not place his character for peacefulness or violence in issue. The complaining witness, A, and defendant were both enrolled members of the Mescalero Apache Indian Tribe and the alleged rape occurred on the reservation. A, defendant, and others had been drinking at A’s house in the late morning and afternoon. After A either passed out or fell asleep everyone else left the premises, but defendant later returned. A testified that she awoke to find defendant raping her. She reported the incident and medical personnel administered a rape kit. Defendant was later arrested on other charges and interviewed by criminal investigator Mark Chino. Defendant initially denied that he returned to A’s residence and -2- that he had any physical contact with her. When his blood sample provided a DNA match, however, defendant admitted having sex with A, but argued it was consensual. The government sought the court’s permission to introduce testimony from witness B that defendant had raped her approximately two years earlier. Consistent with its reading of congressional intent in adopting Rule 413, the government sought admission of B’s testimony to show defendant’s propensity to rape. The court delayed ruling until after the government introduced investigator Chino’s testimony and defendant’s written statement that defendant “wouldn’t ever do something like this to anyone.” I R. doc. 24, Gov’t Ex. 2; IX R. 158. Applying Rule 403 balancing, the district court ruled that the testimony of the prior rape was relevant and admissible under Rule 413. In its balancing under Rule 403 the court considered the testimony’s value both to show propensity and to rebut defendant’s statement to Chino. I Congress originally provided that new Fed. R. Evid. 413-415 would apply only“to proceedings commenced on or after the effective date.” Pub. L. No. 103-322, Tit. XXXII § 320935(e). Rule 413 became effective on July 9, 1995. Defendant was indicted in May 1995 and tried in June 1996. The district court concluded that defendant’s trial was “a discrete step in a criminal prosecution,” IX R. 196, and that Rule 413 applied because defendant’s trial commenced after the July 1995 effective date. -3-  Within a month after defendant’s trial, however, we held in United States v. Roberts, 88 F.3d 872, 879 (10th Cir. 1996), that “rule [413] was not intended to apply to criminal cases already pending as of the rule’s effective date.” We declined to apply Rule 413 to an indictment filed before July 1995. In September 1996 Congress responded to Roberts, calling it an “erroneously restrictive interpretation of the effective date language for the new rules.” 142 Cong. Rec. H12051-04 (1996). Congress amended the effective date language to provide that new Rules 413-415 “shall apply to proceedings commenced on or after the effective date of such amendments, including all trials commenced on or after the effective date of such amendments.” Pub. L. No. 104-208, Div. A, Tit. I, § 101(a). Thus Congress overruled that part of Roberts that had narrowly interpreted the original effective date language. The purpose and effect of this amendment was for Rules 413-415 to apply to all trials commenced after July 10, 1995. Fed. R. Evid. 413(e). “[R]ules of pleading and proof can [] be altered after the cause of action arises, and even, if the statute clearly so requires, after they have been applied in a case but before final judgment has been entered.” Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 229 (1995) (citation omitted); see also Landgraf v. USI Film Prods., 511 U.S. 244, 275 & n.29 (1994) (“the promulgation of a new rule of evidence would not require an appellate remand for a new trial”). The 1996 amendment is the law at the time we decide defendant’s direct appeal, and we must give effect to the amendment. Olcott v. Delaware -4- Flood Co., 76 F.3d 538, 547 (10th Cir. 1996). We thus reject defendant’s argument that Rule 413 should not have applied to his trial. II A Defendant contends that allowing B’s testimony of the prior sexual assault under Rule 413 to show propensity denied him a fair trial guaranteed by his constitutional right to due process. He argues that admission of propensity evidence creates the danger of convicting a defendant because he is a “bad person,” thus denying him a fair opportunity to defend against the charged crime. See Michelson v. United States, 335 U.S. 469, 475- 76 (1948). Defendant asserts that introduction of such evidence undermines the presumption of innocence and permits convicting him on less than proof beyond a reasonable doubt. We agree that Rule 413 raises a serious constitutional due process issue. The rule was passed by a Congress that overrode concerns expressed by the Judicial Conference and its Advisory Committee on the Federal Rules of Evidence and its Advisory Committee on the Federal Rules of Criminal Procedure. A number of commentators have expressed views on its constitutionality, several arguing that it is unconstitutional.1 1 See, e.g., M. Sheft, Federal Rule of Evidence 413: A Dangerous New Frontier, 33 Am. Crim. L. Rev. 57 (1995); L. Natali & R. Stigall, “Are You Going to Arraign His Whole Life?”: How Sexual Propensity Evidence Violates the Due Process Clause, 28 Loy. U. Chi. L.J. 1 (1996). -5-  In order to prove a due process violation defendant must show that Rule 413 fails the “fundamental fairness” test and “violate[s] those fundamental conceptions of justice which lie at the base of our civil and political institutions.” Dowling v. United States, 493 U.S. 342, 352-53 (1990) (citations and quotations omitted). The Supreme Court has defined narrowly those infractions that violate fundamental fairness, and declared that “[b]eyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation.” Id. at 352; see also United States v. Lovasco, 431 U.S. 783, 789-90 (1977). Defendant asserts that the historic exclusion of prior bad acts evidence to prove propensity to commit the charged crime is so basic to our criminal justice system that it falls within the narrowly defined “fundamental fairness” arena. The Supreme Court has explained the rationale for the historical ban on use of prior bad acts as propensity evidence: The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice. Michelson, 335 U.S. at 475-76 (footnotes omitted). Despite this strong language, various exceptions to this exclusionary rule have developed. For example, prior bad acts evidence may be used to prove motive, opportunity, intent, preparation, plan, knowledge, -6- identity, absence of mistake or accident, and to impeach. See, e.g., Fed. R. Evid. 404(b), 405, 406, 608 and 609; see also USSG § 4A1.3 (allowing sentence enhancement for prior criminal conduct not resulting in conviction). Of course, Rule 403 balancing may require the district court to exclude this relevant evidence if its admission would be fundamentally unfair. Ad. Comm. Notes to Rule 403 (court should exclude evidence that has “an undue tendency to suggest decision on an improper basis”). In passing Rule 413 Congress believed it necessary to lower the obstacles to admission of propensity evidence in a defined class of cases. Its rationale for sexual assault cases includes the assistance it provides in assessing credibility: Similarly, sexual assault cases, where adults are the victims, often turn on difficult credibility determinations. Alleged consent by the victim is rarely an issue in prosecutions for other violent crimes--the accused mugger does not claim that the victim freely handed over his wallet as a gift--but the defendant in a rape case often contends that the victim engaged in consensual sex and then falsely accused him. Knowledge that the defendant has committed rapes on other occasions is frequently critical in assessing the relative plausibility of these claims and accurately deciding cases that would otherwise become unresolvable swearing matches. 140 Cong. Rec. S129901-01, S12990 (R. Dole, Sept. 20, 1994). Prosecutors often have only the victim’s testimony, with perhaps some physical evidence, linking a defendant to the sexual assault. Unlike other crimes, the defendant may raise consent as a defense--as he did here--reducing the trial to a “swearing match” and diffusing the impact of even DNA evidence. Rule 413 is based on the premise that evidence of other sexual assaults is highly relevant to prove propensity to commit like -7- crimes, and often justifies the risk of unfair prejudice. Congress thus intended that rules excluding this relevant evidence be removed. 140 Cong. Rec. H8968-01, H8992 (S. Molinari, Aug. 21, 1994). The principal arguments that Rule 413 is unconstitutional are based, at least in part, on the assumption that Rule 403 is inapplicable. The Rule 413(a) language “is admissible” can be read as trumping Rule 403 and requiring admission of such evidence in all circumstances. The legislative history, however, indicates that the district court must apply Rule 403 balancing and may exclude such evidence in an appropriate case. See 140 Cong. Rec. H8968-01, H8991 (S. Molinari Aug. 21, 1994) (“In other respects, the general standards of the rules of evidence will continue to apply, including the restrictions on hearsay evidence and the court’s authority under evidence rule 403 to exclude evidence whose probative value is substantially outweighed by its prejudicial effect. . . . The presumption is in favor of admission.”); id. S12990-01, S12990 (R. Dole, Sept. 20, 1994) (“The presumption is that the evidence admissible pursuant to these rules is typically relevant and probative, and that its probative value is not outweighed by any risk of prejudice.”); id. H5437-03, H5438 (J. Kyl, June 29, 1994) (“The trial court retains the total discretion to include or exclude this type of evidence.”). Even without reference to the legislative history, we agree with the Eighth Circuit that adoption of this rule without any exclusion of or amendment to Rule 403 makes Rule 403 applicable, as it is to others of the rules of evidence. See United States v. Sumner, 119 F.3d 658, 661-62 (8th -8- Cir. 1997) (Rule 414); see also United States v. Larson, 112 F.3d 600 (2d Cir. 1997) (same). We held in United States v. Meacham, 115 F.3d 1488, 1492 (10th Cir. 1997), that Rule 414 was subject to Rule 403 balancing. Thus, the narrow issue before us is whether Rule 413’s presumption in favor of admission violates fundamental fairness. The Supreme Court has not held that admission of prior acts evidence to show propensity would necessarily violate a defendant’s right to a fair trial. The relevant opinions do, however, “stand[] for the proposition that a trial is fundamentally fair, and thus consistent with due process, when uncharged misconduct evidence is admitted for a non-character or sentencing purpose.” M. Sheft, Federal Rule of Evidence 413: A Dangerous New Frontier, 33 Am. Crim. L. Rev. 57, 79 (1995) (emphasis added); see Estelle v. McGuire, 502 U.S. 62, 69 & 75 n.5 (1991) (in habeas corpus case, upholding admission of evidence that victim suffered from “battered child syndrome” to establish intent, expressly reserving “whether a state law would violate the Due Process Clause if it permitted the use of ‘prior crimes’ evidence to show propensity to commit a charged crime”); Dowling, 493 U.S. at 352-53 (identification testimony from residential burglary victim in bank robbery case admissible even though defendant acquitted on burglary charge; this evidence was “at least circumstantially valuable in proving petitioner’s guilt” and did not impair trial’s fundamental fairness). In Spencer v. Texas, 385 U.S. 554 (1967), the Supreme Court rejected a due process challenge to Texas habitual criminal statutes that permitted introduction during -9- trial of a defendant’s convictions for the same or similar offense, with a limiting instruction to the jury. A partially dissenting opinion in that case did state that “our decisions . . . suggest that evidence of prior crimes introduced for no purpose other than to show criminal disposition would violate the Due Process Clause.” Id. at 574 (Warren, C.J., dissenting in part, concurring in part). One reason the majority in Spencer gave for upholding the validity of the Texas statutes was that “it has never been thought that [the Court’s Due Process Clause fundamental fairness] cases establish this Court as a rule- making organ for the promulgation of state rules of criminal procedure.” Id. at 564. Rule 413 is a federal rule, of course, and most federal procedural rules are promulgated under the auspices of the Supreme Court and the Rules Enabling Act. But we must recognize that Congress has the ultimate power over the enactment of rules, see 28 U.S.C. § 2074, which it exercised here. The due process arguments against the constitutionality of Rule 413 are that it prevents a fair trial, because of “settled usage”--that the ban against propensity evidence has been honored by the courts for such a long time that it “must be taken to be due process of law,” Hurtado v. California, 110 U.S. 516, 528 (1884); because it creates a presumption of guilt that undermines the requirement that the prosecution must prove guilt beyond a reasonable doubt, see Estelle, 502 U.S. at 78 (O’Connor, J., concurring); and because if tendered to demonstrate the defendant’s criminal disposition it licenses the - 10 - jury to punish the defendant for past acts, eroding the presumption of innocence that is fundamental in criminal trials. See Sheft, supra, at 77-82. That the practice is ancient does not mean it is embodied in the Constitution. Many procedural practices--including evidentiary rules--that have long existed have been changed without being held unconstitutional. The enactment of the Federal Rules of Evidence and subsequent amendments are examples. See also Spencer, 385 U.S. 554. Even critics of Rule 413 acknowledge the merits of the rule: First, it continues the movement toward focusing on the perpetrators, rather than the victims, of sexual violence. Since neither stranger nor acquaintance rapes generally occur in the presence of credible witnesses, this rule permits other victims to corroborate the complainant’s account via testimony about the defendant’s prior sexually assaultive behavior. Broader admissibility of prior rapes places before the jury evidence that the defendant “lacks [the] moral inhibitions that would prevent him from committing rapes” and implies that the threat of criminal sanctions has not deterred the defendant in the past. Corroboratory information about the defendant also limits the prejudice to the victim that often results from jurors’ tendencies to blame victims in acquaintance rape cases. Thus, like rape shield statutes codified in the federal and state rules of evidence, Rule 413 encourages rape reporting and increased conviction rates by directing the jury’s attention to the defendant. Sheft, supra, at 69-70 (footnotes omitted). The Supreme Court has recognized that prior instances of violent behavior are an important indicator of future violent tendencies. See, e.g., Kansas v. Hendricks, 117 S. Ct. 2072, 2080 (1997). Nevertheless, without the safeguards embodied in Rule 403 we would hold the rule unconstitutional. Rule 403 requires that if the trial court concludes the probative value of the similar crimes evidence is outweighed by the risk of unfair prejudice it must exclude the - 11 - evidence. But the exclusion of relevant evidence under Rule 403 should be used infrequently, reflecting Congress’ legislative judgment that the evidence “normally” should be admitted. See 140 Cong. Rec. H8992 (S. Molinari, Aug. 21, 1994); see also Wheeler v. John Deere Co., 862 F.2d 1404, 1408 (10th Cir. 1988); Meacham, 115 F.3d at 1491 (Rule 414 favors liberal admission of propensity evidence despite application of Rule 403 balancing). Rule 403 balancing in the sexual assault context requires the court to consider: 1) how clearly the prior act has been proved; 2) how probative the evidence is of the material fact it is admitted to prove; 3) how seriously disputed the material fact is; and 4) whether the government can avail itself of any less prejudicial evidence. When analyzing the probative dangers, a court considers: 1) how likely is it such evidence will contribute to an improperly-based jury verdict; 2) the extent to which such evidence will distract the jury from the central issues of the trial; and 3) how time consuming it will be to prove the prior conduct. Sheft, supra, at 59 n.16. We agree with David Karp, who drafted Rule 413, that similar acts must be established by “sufficient evidence to support a finding by the jury that the defendant committed the similar act,” citing Huddleston v. United States, 485 U.S. 681, 685 (1988) (Rule 404(b) case). The district court must make a preliminary finding that a jury could reasonably find by a preponderance of the evidence that the “other act” occurred. See D. Karp, Evidence of Propensity and Probability in Sex Offense Cases and Other Cases, 70 Chi.-Kent L. Rev. 15, 19 (1994). - 12 -  Also, Rule 413(b) requires that the government disclose to defendant the similar crimes evidence to be offered no later than fifteen days before trial (unless shortened by court order). This notice period protects against surprise and allows the defendant to investigate and prepare cross-examination. It permits the defendant to counter uncharged crimes evidence with rebuttal evidence and full assistance of counsel. See Karp, supra, at 18-22. Finally, we note one of Congress’ expressed rationales for Rule 413--the need for corroborating evidence when the alleged rapist claims consent, and there are no witnesses other than the defendant and the alleged victim. The evidence has undeniable value in bolstering the credibility of the victim. Such evidence has long been recognized as admissible to impeach a defendant’s testimony. See, e.g., Spencer, 386 U.S. at 561. This is considered a purpose for the evidence other than propensity. Id. at 577. It is no great stretch to permit the evidence to be introduced in the case-in-chief when defense counsel- -as in the instant case--has made it clear that consent will be the defense. Considering the safeguards of Rule 403, we conclude that Rule 413 is not unconstitutional on its face as a violation of the Due Process Clause. B Defendant claims that Rule 413 violates his right to equal protection because it allows unequal treatment of similarly situated defendants concerning a fundamental right. - 13 - Because he did not raise this constitutional issue before the district court we review only for plain error. United States v. Orr, 864 F.2d 1505, 1508-09 (10th Cir. 1988). “[I]f a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.” Romer v. Evans, 116 S. Ct. 1620, 1627 (1996). Under our due process analysis Rule 413 does not violate, on its face, a defendant’s fundamental right to a fair trial. Thus the rational basis test applies, and a “strong presumption of validity” attaches to the evidentiary classification made in enacting Rule 413. Heller v. Doe, 509 U.S. 312, 319 (1993) (citing FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993)). Congress’ objective of enhancing effective prosecution for sexual assaults is a legitimate interest. The nature of sex offense prosecutions frequently involves victim-witnesses who are traumatized and unable to effectively testify, and offenders often have committed many similar crimes before their arrest on the charged crime. Karp, supra, at 24-25. Defendant’s equal protection claim is without merit. III Defendant argues that even if Rule 413 is constitutional, the district court abused its discretion in finding, under Rule 403, the probative value of B’s testimony concerning the prior rape outweighed the risk of prejudice. See United States v. Patterson, 20 F.3d 809, 815 (10th Cir. 1994). We may uphold a district court’s evidentiary ruling on any - 14 - ground supported by the record. United States v. Martinez, 76 F.3d 1145, 1148 (10th Cir. 1996). Although the district court must recognize the congressional judgment that Rule 413 evidence is “normally” to be admitted, it also must engage in Rule 403 balancing. The district court did so in the instant case. When the government sought a pretrial ruling on the admissibility of B’s testimony the court deferred ruling until it ascertained at trial what other evidence the government would produce and, presumably, whether the evidence was needed. The court forbade mention of the alleged prior rape in the government’s opening statement. When the court did allow B’s testimony it found the evidence admissible both to show propensity and to rebut defendant’s assertions to investigator Chino--which were in evidence, through Chino’s testimony and defendant’s signed statement--that defendant would “never do something like this to anyone.” I R. doc 24, Gov’t Ex. 2; IX R. 196; X R. 454-55. In the instant case defense counsel sought a hearing outside the presence of the jury before allowing B’s testimony, presumably to require the judge to find by a preponderance of the evidence that the prior rape occurred. The district court denied that hearing, stating that B’s credibility was a question for the jury. Although B’s credibility is a matter for the jury, we can easily conceive of situations in which such a ruling by the court would be an abuse of discretion. But here the government established that B had - 15 - filed a contemporaneous police report and it presented the investigating officer’s testimony about why the alleged rape of B was not prosecuted. In the case before us the government gave prior notice of the government’s intent to use B’s testimony and the defense had the opportunity to investigate and prepare. At trial the defense briefly but effectively cross-examined B and Officer Chino about the incident. The defense also recalled Chino in presenting its defense, and used him to establish an inconsistency between B’s trial testimony and her report at the time of the alleged rape. Finally, the court allowed B’s testimony in the government’s case-in-chief only after hearing defense counsel’s opening statement revealing the consent defense and after Chino testified that defendant asserted that he would never rape anyone. Thus, although not technically rebuttal evidence, the Rule 413 testimony effectively rebutted defendant’s position. The district court engaged in Rule 403 balancing, and did not abuse its discretion in admitting B’s testimony under Rule 413. IV Defendant finally contends that the district court abused its discretion in permitting the prosecution to cross-examine him concerning alleged instances of violent conduct that did not result in criminal convictions. Defendant stated in his direct testimony that he knew right from wrong and did not want to commit perjury. On cross-examination the government began to inquire about specific instances of defendant’s violent conduct - 16 - toward women. Defense counsel objected based only on Fed. R. Evid. 609 (impeachment by evidence of conviction of crime). Defendant argues on appeal that the prosecutor’s cross-examination was improper because defendant’s testimony on direct examination did not place his character for peaceableness or violence in issue. See Fed. R. Evid. 404(a)(1). Because defendant failed to raise the Rule 404(a) issue at trial, we now review only for plain error. See United States v. Jones, 44 F.3d 860, 875 (10th Cir. 1995). In its cross-examination the government first asked whether defendant hit his girlfriend Stephanie Torres, the mother of his young child. Defendant admitted doing so, stating it was a one time mistake that he regretted. The prosecutor next attempted to elicit that defendant “beat up” another girlfriend in Ruidoso; but because the prosecutor lacked her name or a specific date, the court instructed the jury to disregard the question. The prosecutor continued to question defendant about that alleged incident; defendant ultimately admitted only to arguing with that individual but not to abusing her. The prosecutor finally inquired whether defendant was incarcerated during the time period between the alleged rape charged in the case before us and his arrest. Defendant denied being incarcerated. Defendant’s direct testimony portrayed him as a truthful person with a Catholic upbringing. His counsel “reluctantly” agreed that this testimony opened the door to cross- examination about incidents reflecting on his knowledge of the difference between right and wrong. IX R. 323. But the specific instances at issue here did not involve defendant - 17 - distinguishing right from wrong. Thus, the cross-examination was not proper under Rule 404(a)(1). Because these incidents did not result in criminal convictions, defendant’s Fed. R. Evid. 609 objection was inapposite. We thus consider whether the government cross-examination amounted to plain error. Plain error is that which is obvious, or which seriously affects the fairness or integrity of the trial. United States v. Thody, 978 F.2d 625, 631 (10th Cir. 1992). The cross-examination was brief, and the government presented an overwhelming case against defendant: DNA evidence, medical personnel testimony describing A’s physical injuries and hysterical condition after the assault, defense witness Torres’ testimony that A was not bruised when the group left A’s house the day of the attack, and defendant’s damaged credibility because he first denied sexual contact and then effectively testified that A seduced him. We cannot conclude that defendant’s trial was seriously lacking in fairness because of the prosecutor’s improper impeachment efforts. AFFIRMED. - 18 - 

966 F.2d 216 Prod.Liab.Rep. (CCH) P 13,198Roger WEGER and Marilyn Weger, Plaintiffs-Appellants,v.SHELL OIL COMPANY, Ashland Oil Company, General ElectricCompany, et al., Defendants-Appellees. No. 91-2464. United States Court of Appeals,Seventh Circuit. Argued April 22, 1992.Decided May 19, 1992.Order Published June 4, 1992.* Joseph A. Bartholomew, Harriet H. Hamilton, argued, Cook, Shevlin, Keefe, Ysursa, Brauer & Bartholomew, Belleville, Ill., for plaintiffs-appellants. Vincent H. Venker, II, Richard Cornfeld, Coburn, Croft & Putzell, St. Louis, Mo., for Shell Oil Co. James W. Erwin, Paul J. Puricelli, Thompson & Mitchell, Belleville, Ill., Raymond L. Massey, Thompson & Mitchell, St. Louis, Mo., for Ashland Oil Co. John C. Shepherd, Paul N. Venker, argued, Armstrong, Teasdale, Schlafly, Davis & Dicus, St. Louis, Mo., for General Elec. Co. Vincent H. Venker, II, Richard Cornfeld, argued, Coburn, Croft & Putzell, St. Louis, Mo., for Union Carbide Corp. Before BAUER, Chief Judge, MANION and KANNE, Circuit Judges. PER CURIAM. 1 Plaintiffs-appellants Roger and Marilyn Weger appeal the district court's order granting summary judgment to all defendants-appellees in an action alleging negligence, strict product liability, and loss of consortium. Jurisdiction in the district court was based on diversity of citizenship of the various defendant corporations and alleged damages in excess of $50,000. I. FACTS 2 Appellant Roger Weger was employed by Victor Dana Corporation for fourteen years as a shop steward and sheet metal operator before he was forced to leave his job due to severe kidney problems in December 1982. He suffered renal failure that same month and has received extensive medical treatment, including a kidney transplant. Mr. and Mrs. Weger initially filed this action on September 16, 1986 in the Circuit Court of Madison County, Illinois alleging that Mr. Weger's kidney problems were a result of inhalation of, and exposure to, certain chemicals and solvents produced by the defendants. Mrs. Weger also asked for damages as a result of loss of consortium. 3 The defendants were successful in their request for removal of the case to the district court based on diversity of citizenship. On May 19, 1989, after deposing Mr. and Mrs. Weger, the defendants moved for summary judgment based on the applicable two-year statute of limitations. The plaintiffs filed a motion to dismiss their complaint without prejudice, which was granted by the district court on June 27, 1989. 4 On March 28, 1990, the plaintiffs refiled the case in the district court.1 The defendants again moved for summary judgment and, after an evidentiary hearing, the district court awarded summary judgment to all defendants. The district court found, as a matter of law and undisputed material fact, that the Wegers knew or reasonably should have known no later than July 30, 1984 that Roger Weger's injury may have been wrongfully caused by his exposure to chemicals at work. The claims were therefore barred by the statute of limitations. 5 The facts are undisputed and merit only a brief review to establish the key dates. Over several years Mr. Weger experienced daily dizziness, nausea, and burning of eyes, nose and throat which, according to deposition testimony, he related to exposure to chemicals. In December 1982 Mr. Weger suffered renal failure and the Wegers began to investigate the causation of Mr. Weger's kidney problems, asking their personal physician, as well as other doctors, about the possible link with chemical exposure. In November 1983 Mrs. Weger read an article in the International Association of Machinists and Aerospace Workers Journal on the long term negative health effects of exposure to solvents in the workplace.2 After discussing the article with Mr. Weger, Mrs. Weger wrote to the author, George Robinson, stating "I feel solvents are directly related to his [Mr. Weger's] medical problems." Mr. Robinson's response to Mrs. Weger on January 9, 1984 stated "I think because of the medical problems your husband has encountered that appear to be work related, it might be in your best interest to contact a physician who is familiar with industrial diseases in the Illinois area." Mr. Robinson then referred the Wegers to Dr. Samuel Epstein. On January 12, 1984 Mrs. Weger wrote to Dr. Epstein, explaining that her husband was exposed to chemicals at work. Dr. Epstein replied on July 30, 1984 and recommended "that you find yourself an experienced lawyer." In August 1984, the Wegers retained Attorney Robert Douglas, who filed a workers' compensation claim which declared, "As a result of exposure to chemicals, Petitioner has liver and kidney disease." On December 1, 1984, Attorney Douglas wrote the Wegers, confirming the decision not to pursue a third-party action, stating, "As you know, your statute runs in the middle of December. If you wish to get another opinion, feel free to do so, but your Statute runs in the middle of December...." Dr. David Main subsequently examined Mr. Weger and reported to Attorney Douglas on July 16, 1985 that it was not clear what caused Mr. Weger's glomerulonephritis and that association of the disease with chemicals was not "clear cut." The Wegers filed this suit on September 16, 1986. II. ANALYSIS 6 This court reviews de novo a district court's grant of summary judgment. Pro-Eco, Inc. v. Board of Commissioners of Jay County, Indiana, 956 F.2d 635, 637 (7th Cir.1992). Summary judgment is appropriate if, after drawing all reasonable inferences in favor of the non-moving party, the court concludes 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); Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 320 (7th Cir.1992). 7 The parties agree that this action is governed by a two-year statute of limitations. Ill.Rev.Stat. ch. 110 p 13-213(d). The statute allows a claim "within two years after the date on which the claimant knew, or through the use of reasonable diligence should have known, of the existence of the personal injury...." A loss of consortium claim must also be commenced within the same period. Ill.Rev.Stat. ch. 110 p 13-203. The two year discovery rule of p 13-213(d) applies only to those injuries which are not immediately discoverable. American Family Ins. Co. v. Village Pontiac-GMC, Inc., 182 Ill.App.3d 385, 131 Ill.Dec. 484, 486-87, 538 N.E.2d 859, 861-62 (1989). This discovery rule has been interpreted by the Illinois Supreme Court to mean that the limitations period begins to run when a person knows or reasonably should know of the injury and also knows or reasonably should know that the injury was wrongfully caused. Curry v. A.H. Robins Co., 775 F.2d 212, 216 (7th Cir.1985) (citing Witherell v. Weimer, 85 Ill.2d 146, 52 Ill.Dec. 6, 11, 421 N.E.2d 869, 874 (1981)). This does not require that the plaintiff have actual knowledge of liability, but that once a plaintiff reasonably should know that an injury was wrongfully caused, the burden then rests on the plaintiff to inquire further as to the existence of a cause of action. Witherell, 52 Ill.Dec. at 11, 421 N.E.2d at 874. This realization that someone might be legally responsible for the injury thus triggers the limitations period. Curry, 775 F.2d at 216 (citing Witherell, 52 Ill.Dec. at 11, 421 N.E.2d at 874); Knox College v. Celotex Corp., 88 Ill.2d 407, 58 Ill.Dec. 725, 729-30, 430 N.E.2d 976, 980-81 (1981). See also United States v. Kubrick, 444 U.S. 111, 123, 100 S.Ct. 352, 360, 62 L.Ed.2d 259 (1979) (accrual of cause of action under Federal Tort Claims Act does not await awareness that injury was negligently inflicted, nor does it await acquisition of knowledge that would alert reasonable person to suspect that a legal duty had been breached). When a defendant raises the affirmative defense of the statute of limitations, the burden is on the plaintiff to prove that the claim has been filed within the limitations period. Ruklick v. Julius Schmid, Inc., 169 Ill.App.3d 1098, 120 Ill.Dec. 297, 303, 523 N.E.2d 1208, 1214 (1988). 8 The Weger's first argue that a question of fact remains--whether they had a mere suspicion or a reasonable belief that Mr. Weger's injury might have been wrongfully caused--and that summary judgment was therefore inappropriate. Claiming that their personal belief is objectively unreasonable and is therefore irrelevant to a reasonableness inquiry, the Wegers point to the letter from Dr. Main on July 16, 1985 as the event which transformed their suspicion into reasonable belief. 9 The defendants respond, in concert, that the Wegers not only had a reasonable belief which would cause a reasonable person to further inquire into the existence of a cause of action, but that the Wegers actually did inquire as early as November 1983 and retained an attorney in August 1984 for that very purpose. Relying only on the Wegers' own testimony, documents and complaint, the defendants-appellees insist there exist no issues of material fact suitable for consideration by a jury. 10 The legal inquiry is whether a reasonable person would know, or should know, that an injury might be wrongfully caused under these circumstances. It is apparent that the Wegers understood that someone might be legally responsible for Mr. Weger's kidney condition and that they believed that exposure to chemicals at Victor Dana caused that injury. Mrs. Weger expressed that belief in a letter to Robinson, which he, in turn, confirmed. They were advised to contact a lawyer to pursue the matter and did so, showing that they possessed sufficient information that caused them to inquire further. 11 The limitations period will not await commencement until a plaintiff has assurance of the success of an action. Nendza v. Board of Review, 105 Ill.App.3d 437, 61 Ill.Dec. 317, 321, 434 N.E.2d 470, 474 (1982). The statute of limitations is also not tolled while a plaintiff seeks expert witnesses to support a claim. Beasley v. Abusief, 146 Ill.App.3d 54, 99 Ill.Dec. 826, 830-31, 496 N.E.2d 519, 523-24 (1986); Kruk v. Birk, 168 Ill.App.3d 949, 119 Ill.Dec. 625, 632, 523 N.E.2d 93, 100 (1988). Here, the Wegers sought and received confirmation of their belief from two sources. Evidence of that belief is contained in Mr. Weger's workers' compensation claim, filed on October 10, 1984, stating that exposure to chemicals caused his liver and kidney disease. Nothing occurred between July 30, 1984 and October 10, 1984 to affect this knowledge indicating that the belief that the injuries were wrongfully caused existed in July 1984. The causal connection between chemical exposure and renal failure is still debated and confirmation of that connection was not required to trigger the limitations period. 12 The Wegers also argue that they should not lose their remedies because they relied on an attorney's valid advice regarding the merits of their claim. Recounting the equities in their favor, they insist they did all they could do to discover the cause of Mr. Weger's injury and that they pursued a legal remedy at the proper time. 13 Professional advice by an attorney, even incompetent advice, does not toll the statute of limitations. Kubrick, 444 U.S. at 125, 100 S.Ct. at 360-61; Witherell, 52 Ill.Dec. at 12, 421 N.E.2d at 875. As a result, the statute of limitations may render a valid claim unenforceable. Illinois courts do not require that the plaintiff confirm a defendant's negligent conduct before the limitations period may begin. Nendza, 61 Ill.Dec. at 321, 434 N.E.2d at 474; Knox, 58 Ill.Dec. at 729, 430 N.E.2d at 980. Attorney Douglas' advice did not alter the limitations period. III. CONCLUSION 14 Where it is apparent from undisputed facts that only one conclusion can be drawn, that question is one for the court. The district court's grant of summary judgment is 15 AFFIRMED. * Pursuant to Circuit Rule 53, this opinion was originally issued as an unpublished order on May 19, 1992. Upon reconsideration, the panel issues this decision as an opinion 1 The running of the statute of limitations was tolled by the filing of the first suit and a plaintiff has a right to refile within one year of a voluntary dismissal. Ill.Rev.Stat. ch. 110 p 13-217 2 Mr. Weger testified in his 1988 deposition that he did not know the cause of his injury until November 1984 when his wife saw the article. The plaintiffs later acknowledged they saw the article in November 1983

906 S.W.2d 282 (1995) 321 Ark. 533 Mary Elizabeth CIGAINERO, Appellant, v. STATE of Arkansas, Appellee. No. CR 95-206. Supreme Court of Arkansas. September 18, 1995. *283 Damon Young, Texarkana, for Appellant. Sandy Moll, Asst. Attorney General, Little Rock, for Appellee. GLAZE, Justice. This is Mary Elizabeth Cigainero's second appeal. See Cigainero v. State, 310 Ark. 504, 838 S.W.2d 361 (1992). In Cigainero I, Cigainero challenged her first-degree murder conviction in the shooting death of her husband, Christopher, claiming (1) there was insufficient evidence to support the conviction and (2) the trial court erred in failing to grant her a new trial based on juror bias. This court held the evidence at trial was more than substantial in showing Cigainero had planned and committed her husband's murder. Concerning Cigainero's second argument in Cigainero I, she had filed a new trial motion after her conviction, asserting newly discovered evidence showed that two of the twelve jurors had failed to disclose on voir dire that they had previously signed a petition. The petition, containing 2,500 signatures, requested that the Miller County Circuit Court call a grand jury to investigate the prosecuting attorney's failure to "file, charge, and prosecute the Christopher Cigainero homicide and many other major crimes in Miller County." While the trial court agreed that Cigainero's motion was timely and based upon newly discovered evidence, it denied her a new trial. On appeal, this court affirmed the trial court, but did so on the grounds that Cigainero's new trial motion had been untimely filed. Id., 310 Ark. at 507-508, 838 S.W.2d at 363-364. After the Cigainero I decision, Cigainero petitioned for postconviction relief under Ark.R.Crim.P. 37, and essentially alleged the same juror bias allegations previously alleged in her new trial motion in Cigainero I. Citing Chisum v. State, 274 Ark. 332, 625 S.W.2d 448 (1981), the state below argued that Cigainero's Rule 37 petition raised no new issues from those previously decided on direct appeal in Cigainero I, and therefore, her petition should be dismissed. The trial court apparently agreed with the state's argument, but did not state its reasons when dismissing Cigainero's petition. The Chisum decision established that Rule 37 created a method for determining whether the accused's rights with respect to constitutional or statutory rights had been violated or whether the sentence was otherwise subject to collateral attack. 274 Ark. at 333, 625 S.W.2d at 449. The court explained that there was no reason for this court to create machinery for a direct attack upon judgments in criminal cases, because that remedy had been adequately supplied by statute for a century or more. It further concluded that Rule 37 provides a remedy when the sentence is vulnerable on constitutional grounds or is otherwise subject to collateral attack, Id., 274 Ark. at 334, 625 S.W.2d at 449, and stated that a motion asking the trial court to *284 grant a new trial for newly discovered evidence is plainly a direct effort to have the judgment vacated, not a collateral attack. See Ark.Code Ann. § 16-89-130(c)(6) (1987) (the trial court in which a trial is had upon an issue of fact may grant a new trial when a verdict is rendered against the defendant by which his substantial rights have been prejudiced, upon his motion where the defendant has discovered important evidence in his favor since the verdict). In sum, the court in Chisum held that a motion for a new trial based upon newly discovered evidence is not a proper basis for relief under Arkansas's postconviction rule. In the present case, Cigainero concedes her new trial motion below was based upon newly discovered evidence, claiming she only learned after her trial commenced that two of her jury members had previously signed the petition asking a grand jury be called to investigate the Christopher Cigainero homicide. While she concedes the Chisum holding appears to preclude new trial motions based upon newly discovered evidence, Cigainero argues Rule 37 relief is still available since the juror misconduct present in her case violated her constitutional right to a fair and impartial jury. See Ark. Const. art. 2, § 10.[1] She also suggests that, in order for her counsel to exercise his valid judgment in the use of peremptory challenges in obtaining an impartial jury, the answers to questions posed to prospective jurors must be truthful and accurate. Because we conclude such alleged juror misconduct is not a proper subject for Rule 37 proceedings, we need not resolve in this appeal whether the two jurors challenged here answered Cigainero's questions on voir dire honestly or knowingly failed to respond. See Pineview Farms, Inc. v. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989). This court has held that Rule 37 does not provide a means to challenge the constitutionality of a judgment where the issue could have been raised in the trial court. Bailey v. State, 312 Ark. 180, 848 S.W.2d 391 (1993). Like it does for newly discovered evidence, § 16-89-130 also provides a defendant a new trial motion remedy where, from the misconduct of the jury, the court is of the opinion that the defendant has not received a fair and impartial trial. See § 16-89-130(c)(7). Again, like the newly discovered evidence point previously discussed, Cigainero's remedy was to attack directly her verdict by requesting a new trial based upon juror misconduct. Moreover, her motion was required to show the exercise of diligence. Chisum, 274 Ark. at 334, 625 S.W.2d at 449. Cigainero failed to do so. Cigainero points out that the petition, which sought a grand jury investigation of the Christopher Cigainero homicide and other major crimes at sometime prior to her trial, had been filed in a miscellaneous drawer in the circuit clerk's office. Because the petition had been filed away, she claims that she was unaware of the petition, at least, until her cross-examination of a state witness at trial. Nonetheless, we find nothing in the abstract of record that reflects why Cigainero was unable to obtain or review that petition for names and signatures once its existence was known. Once discovered, a timely new trial motion based on juror misconduct could have been filed before or shortly after Cigainero's conviction. In conclusion, this court has consistently stated that a constitutional violation is not in itself enough to trigger application of Rule 37. Cotton v. State, 293 Ark. 338, 738 S.W.2d 90 (1987). Nor is Rule 37 intended to provide a review of mere error in the conduct of the trial or to serve as a substitute for appeal. Id. Here, because Cigainero fails to present proper grounds for postconviction relief, we affirm the trial court's decision denying Cigainero's Rule 37 motion. NOTES [1] This constitutional provision in relevant part provides that, in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by impartial jury of the county in which the crime shall have been committed.

776 F.2d 1060 Abramsv.Merit Systems Protection Bd. 85-570 United States Court of Appeals,Federal Circuit. 7/19/85 MSPB Affirmed

989 A.2d 282 (2010) 201 N.J. 205 In the Matter of Anthony F. NATALE, an Attorney at Law. D-75 September Term 2009, 065673. Supreme Court of New Jersey. March 16, 2010. ORDER ANTHONY F. NATALE, formerly of CRANFORD, who was admitted to the bar of this State in 1989, and who has been temporarily suspended from the practice of law since February 10, 2009, having tendered his consent to disbarment as an attorney at law of the State of New Jersey, and good cause appearing; It is ORDERED that ANTHONY F. NATALE is disbarred by consent, effective immediately; and it is further ORDERED that respondent's name be stricken from the roll of attorneys and that he be permanently restrained and enjoined from practicing law; and it is further ORDERED that all funds, if any, currently existing or hereinafter deposited in any New Jersey financial institution maintained by ANTHONY F. NATALE pursuant to Rule 1:21-6 shall be restrained from disbursement except on application to this Court for good cause shown and shall be transferred by the financial institution to the Clerk of the Superior Court, who is directed to deposit the funds in the Superior Court Trust Fund pending further Order of this Court; and it is further ORDERED that respondent comply with Rule 1:20-20 dealing with disbarred attorneys; and it is further ORDERED that the entire record of this matter be made a permanent part of respondent's file as an attorney at law of this state; and it is further ORDERED that respondent reimburse the Disciplinary Oversight Committee for appropriate administrative costs and actual expenses incurred in the prosecution of this matter, as provided in Rule 1:20-17.

Filed 4/11/14 P. v. Edwards 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, G048241 v. (Super. Ct. No. 11NF3469) DARRYL HASHIM EDWARDS, OPINION Defendant and Appellant. Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed. Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. * * *  Appellant Darryl Hashim Edwards was convicted by jury of second degree robbery. The court sentenced him to two years in state prison, and he filed this appeal. We appointed counsel to represent him. Counsel did not argue against her client, but advised this court she could find no issues to argue on appellant’s behalf. (People v. Wende (1979) 25 Cal.3d 436.) She filed a brief which set forth the facts of the case and advised us she was unable to find an appellate issue she could ethically argue. Appellant was given 30 days to file written argument in his own behalf (actually, more than 30 days because his place of incarceration had been changed, and we gave him an additional 30 days to file) if he chose to. That time has expired and no argument has been received. We have therefore reviewed the record ourselves to see if we could find any issues – not necessarily issues that would win, but issues that might be worth considering. We could not. As the facts recited below demonstrate, there was very little that could be done in appellant’s behalf, either in the trial court or here. FACTS This was a rather pedestrian – both literally and figuratively – strong-arm robbery. As Silvia Ruiz and her husband, Isidro Santillan, were out walking, a young man they thought was Hispanic walked past them, pulled a necklace from Mr. Santillan’s neck, and ran away. The stunned victim and his wife watched the man, wearing a gray hoodie and blue jeans, leap into a vehicle, which drove away. Mr. Santillan gave pursuit and caught the car, but a passenger in the car punched him and wrestled with him until he fell away from the moving car, sustaining injuries. Bystanders, observing this somewhat unusual tableau, called 911 and pursued the car, observing that it was driven by what they described as a male Hispanic in his 20’s, wearing a gray shirt. They followed the car into a cul-de-sac, and parked so as to block its exit. Police responding to the 911 call arrived moments later and while the 2 passenger – an African-American male in his 20’s – fled and was never apprehended, appellant remained behind the wheel and was arrested. While no one was able to identify appellant as the robber, witnesses essentially established a “chain of custody” of him from the scene of the crime to his arrest. A police officer identified him as the driver of the car, pointed him out in a picture wearing the gray hoodie and jeans, and produced Mr. Santillan’s watch – taken from him as he tried to stop the car – and located by police behind the driver’s seat. It is hard to imagine a more open-and-shut case. The defense was that it was the African-American passenger of the car who robbed Santillan and appellant was just an innocent driver of the car who had no idea what had happened. But appellant did not testify, so this defense, weak as it was, had to be presented through inference. Trial counsel presented a remarkably well-structured closing argument, but could not pull this one out of the fire. There were no serious evidentiary issues, no search problems, no complicated instructions. While no trial is garden-variety, and every one is important, there was nothing about this one that presented a significant legal challenge. The case was based on identification and intent, and neither raised difficult problems of a legal nature. The case turned on facts and their interpretation, not legal niceties. Nor can we find anything remarkable about the sentencing. The court admittedly struggled with sentencing a 19 year old to state prison – especially because there were other issues raised in the probation and sentencing reports. But the court resolved those issues by sentencing appellant to the low term in state prison. Certainly probation would have been a possibility, but no one could seriously argue that there was anything like an abuse of discretion in the court’s decision of a state prison commitment. 3  In short, we find ourselves in agreement with appellant’s appellate counsel. We have carefully reviewed the record and cannot conceive of any issue that could be raised on this appeal. The judgment is affirmed. BEDSWORTH, J. WE CONCUR: O’LEARY, P. J. IKOLA, J. 4 

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA , No. 11-10182 Plaintiff-Appellee, D.C. No. v. 3:10-cr-00455- WHA-1 MARCEL DARON KING , Defendant-Appellant. OPINION Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding Argued and Submitted September 19, 2012—San Francisco, California Filed March 8, 2013 Before: Susan P. Graber, Marsha S. Berzon, and Richard C. Tallman, Circuit Judges. Opinion by Judge Graber; Dissent by Judge Berzon 2 UNITED STATES V . KING SUMMARY* Criminal Law Affirming the district court’s denial of a suppression motion, the panel held that the Fourth Amendment permits a suspicionless search of a probationer’s residence when the probationer has accepted a suspicionless-search condition as part of a probation agreement. Dissenting, Judge Berzon wrote that the majority does not give appropriate weight to two factors – the particular language in the defendant’s search condition and the Supreme Court’s holdings that probationers have greater expectations of privacy than parolees. COUNSEL Daniel P. Blank, Assistant Federal Public Defender, San Francisco, California, for Defendant-Appellant. Suzanne B. Miles, Assistant United States Attorney, San Francisco, California, for Plaintiff-Appellee. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  UNITED STATES V . KING 3 OPINION GRABER, Circuit Judge: Defendant Marcel Daron King appeals his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The question that we must answer is whether the Fourth Amendment permits a suspicionless search1 of a probationer’s residence. We hold that such a search is permissible when, as here, the probationer has accepted a suspicionless-search condition as part of a probation agreement. We therefore affirm. Officers of the San Francisco Police Department suspected that Defendant was involved in a homicide.2 When they checked into his criminal history, they learned that he was on adult felony probation in the City and County of San Francisco. Defendant’s probation agreement included the following term: “Defendant is subject to a warrantless search condition, as to defendant’s person, property, premises and vehicle, any time of the day or night, with or without 1 W e use the term “suspicionless search” to refer to a search for which the police have less than reasonable suspicion. That is, the term covers both a search as to which there is some (but not enough) suspicion and a search that is, for example, conducted randomly with no individualized suspicion. 2 W e recite only the facts that relate to the present question. The original panel opinion, United States v. King, 672 F.3d 1133 (9th Cir.) (per curiam), vacated, 687 F.3d 1189 (9th Cir. 2012) (en banc) (per curiam), contains a full statement of the facts. 4 UNITED STATES V . KING probable cause, by any peace, parole or probation officer.”3 The officers searched Defendant’s residence and found an unloaded shotgun under his bed. That shotgun was the subject of Defendant’s indictment under 18 U.S.C. § 922(g)(1). In the district court, Defendant filed a motion to suppress the shotgun, arguing that it was the fruit of an illegal search. The court denied the motion, holding that the officers had reasonable suspicion to conduct the search. After a bench trial with stipulated testimony, conducted only to preserve 3 Under California law, Defendant’s agreement to the warrantless search condition as part of his state-court probation was an agreement to be subject to suspicionless searches. See People v. Bravo, 738 P.2d 336, 342–43 (Cal. 1987) (holding that “a search condition of probation that permits a search without a warrant also permits a search without ‘reasonable cause’”); see also People v. Woods, 981 P.2d 1019, 1023–24 (Cal. 1999) (approving Bravo’s holding). W e disagree with the dissent’s assertion that Bravo represents only a decision under federal constitutional standards. Dissent at 18, n.6. The court there interpreted “the scope of appellant’s consent in agreeing to the search condition of his probation” under California law. Bravo, 738 P.2d at 342. The meaning of such a California term of probation is a question of state law. Cf. Parrish v. Wainright, 614 F.2d 1028, 1029 (5th Cir. 1980) (per curiam) (holding that the meaning of a parole condition is a matter of state law). Woods cited Bravo’s holding with approval and looked to California law to examine the imposition on probationers of search clauses. Woods, 981 P.2d at 1023–24, 1025 n.5. The Woods court also observed, referring to California law, that “the search in any case remains limited in scope to the terms articulated in the search clause.” Id. at 1027–28 (citing Bravo, 738 P.2d at 336). Only after the meaning and scope of a search clause are determined, under state law, does the federal Fourth Amendment analysis begin. Thus, although the dissent plausibly parses King’s search clause, California law at the time this search condition was imposed on King interpreted such clauses more broadly, to waive all claims of privacy. W e are not at liberty to do otherwise.  UNITED STATES V . KING 5 Defendant’s right to appeal the denial of his motion to suppress, Defendant was convicted. On appeal, a majority of this panel concluded that police lacked reasonable suspicion that Defendant was engaged in criminal activity. United States v. King, 672 F.3d 1133, 1139 (9th Cir.) (per curiam), vacated, 687 F.3d 1189 (9th Cir. 2012) (en banc) (per curiam). Nevertheless the majority also held that the district court properly denied Defendant’s motion to suppress because, under United States v. Baker, 658 F.3d 1050, 1055–56 (9th Cir. 2011), suspicionless-search conditions for probationers do not violate the Fourth Amendment. Baker, however, rested on the faulty premise that there is no difference, for Fourth Amendment purposes, between probationers and parolees. Id. at 1058–60 (Graber, J., concurring). That premise was at odds with the Supreme Court’s statement in Samson v. California, 547 U.S. 843, 850 (2006), that “parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.” The en banc court granted rehearing to consider the continuing validity, in light of Samson, of Baker and several related cases. United States v. King, 682 F.3d 779 (9th Cir. 2012) (order). In a brief opinion, the court overruled Baker and the related cases, vacated our panel opinion, and remanded the case to us. United States v. King, 687 F.3d 1189 (9th Cir. 2012) (en banc) (per curiam). Now that Baker no longer controls, and because the panel majority has already held that police lacked reasonable suspicion that Defendant was involved in criminal activity, 6 UNITED STATES V . KING we must decide whether the search of Defendant’s residence satisfied the Fourth Amendment even though police lacked reasonable suspicion. Thus, the question presented is whether a suspicionless search, conducted pursuant to a condition of Defendant’s probation, violates the Fourth Amendment. In United States v. Knights, 534 U.S. 112, 114 (2001), the Supreme Court upheld a search that police had conducted pursuant to the terms of a defendant’s probation, which authorized searches “with or without a search warrant, warrant of arrest or reasonable cause.” The police had no warrant for the search of the defendant’s apartment, but they did have reasonable suspicion that the defendant was involved in criminal activity. Id. at 114–15. The Court balanced the degree of intrusion on the defendant’s expectation of privacy against the degree to which the government needed to conduct the search for the promotion of legitimate governmental interests. Id. at 118–19. The Court held that “the search . . . was reasonable under our general Fourth Amendment approach of examining the totality of the circumstances, with the probation search condition being a salient circumstance.” Id. at 118 (citation and internal quotation marks omitted). The Court did not decide the question that we confront here: “whether the probation condition so diminished, or completely eliminated, [the defendant’s] reasonable expectation of privacy . . . that a search by a law enforcement officer without any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment.” Id. at 120 n.6. In Samson, 547 U.S. at 846, the Supreme Court considered whether a California law that authorizes searches of parolees “with or without a search warrant and with or  UNITED STATES V . KING 7 without cause” violates the Constitution. The Court used the same balancing approach that it had used in Knights. Samson, 547 U.S. at 848–54. In assessing the defendant’s privacy interest, the Court wrote that “parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.” Id. at 850. Balancing the defendant’s privacy interests against the government’s interests, the Court “conclude[d] that the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee.” Id. at 857. In light of Knights and Samson, our task is to examine the totality of the circumstances to determine whether the suspicionless search of Defendant’s residence was reasonable. Id. at 848. To do so, we must “‘assess[], on the one hand, the degree to which [the search] intrudes upon [Defendant’s] privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’” Id. (quoting Knights, 534 U.S. at 119). Defendant’s status as a probationer means that he begins with a lower expectation of privacy than is enjoyed by a citizen who is not subject to a criminal sanction. Knights, 534 U.S. at 119. “Probation, like incarceration, is a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty. . . . Inherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled.” Id. (internal quotation marks omitted). Additionally, “the probation search condition [is] a salient circumstance.” Id. at 118. As in Knights, the judge who sentenced Defendant to probation “determined that it was 8 UNITED STATES V . KING necessary to condition the probation on [his] acceptance of the search provision.” Id. at 119. “The probation order clearly expressed the search condition[,] . . . [Defendant] was unambiguously informed of it,” and he accepted it. Id. Both Samson and Knights “found that acceptance of a clear and unambiguous search condition ‘significantly diminished [a defendant’s] reasonable expectation of privacy.’” Samson, 547 U.S. at 852 (quoting Knights, 534 U.S. at 120). Under Knights, not only did Defendant begin with a lower expectation of privacy than an average citizen has, but the probation search condition “significantly diminished” that lower expectation of privacy. We recognize that, under Samson, Defendant has a greater expectation of privacy than does a parolee. Id. at 850. So we do not go so far as to hold, as the Samson Court did, that Defendant “did not have an expectation of privacy that society would recognize as legitimate.” Id. at 852. But we do conclude that Defendant’s expectation of privacy was small. We hold, therefore, that the search conducted here intruded on Defendant’s legitimate expectation of privacy only slightly. On the other side of the balance, the government has several important interests. First, the state has an interest in “apprehending violators of the criminal law, thereby protecting potential victims” from probationers’ recidivism. Knights, 534 U.S. at 121. “‘[T]he very assumption of the institution of probation’ is that the probationer ‘is more likely than the ordinary citizen to violate the law.’” Id. at 120 (quoting Griffin v. Wisconsin, 483 U.S. 868, 880 (1987)). In fact, “[t]he recidivism rate of probationers is significantly higher than the general crime rate.” Id.  UNITED STATES V . KING 9 Second, the state has an interest in discovering criminal activity and preventing the destruction of evidence. The Supreme Court has recognized that probationers have even more of an incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary criminal because probationers are aware that they may be subject to supervision and face revocation of probation, and possible incarceration, in proceedings in which the trial rights of a jury and proof beyond a reasonable doubt, among other things, do not apply. Id. All the more so when, as here, the probationer agreed to a search condition that permits warrantless, suspicionless searches of the probationer’s “person, property, premises and vehicle[] [at] any time of the day or night.” Finally, the state has an interest in a probationer’s successful completion of probation and in his or her reintegration into society. Id. at 120–21. The Supreme Court has observed that, by reducing recidivism, a state’s “ability to conduct suspicionless searches of parolees . . . aids, rather than hinders, the reintegration of parolees into productive society.” Samson, 547 U.S. at 854. That statement is true of probationers as well. We conclude that the governmental interests at stake here “are substantial.” Id. at 853. We further conclude that the state has a significant need to promote those interests through suspicionless searches of probationers. As the Supreme Court has stated, the Fourth Amendment does not “require the State to shut its eyes” to its legitimate interests. Knights, 10 UNITED STATES V . KING 534 U.S. at 121. Nor does it “render the States powerless to address these concerns effectively.” Samson, 547 U.S. at 854. Balancing the slight intrusion on Defendant’s expectation of privacy against the government’s significant need to promote its legitimate governmental interests, we hold that the search conducted here was reasonable. We need not decide whether the Fourth Amendment permits suspicionless searches of probationers who have not accepted a suspicionless-search condition, because that case is not before us. Nor do we condone searches that are conducted for illegitimate reasons, such as harassment. We hold only that a suspicionless search, conducted pursuant to a suspicionless- search condition of a probationer’s probation agreement, does not violate the Fourth Amendment. AFFIRMED. BERZON, Circuit Judge, dissenting: I continue to agree with Judge Graber that San Francisco Police Department officers lacked reasonable suspicion to search Marcel King at his residence. See Op. at 5; United States v. King, 672 F.3d 1133, 1139 (9th Cir. 2012) (per curiam), vacated, 687 F.3d 1189 (9th Cir. 2012) (en banc) (per curiam). I part ways with the present majority regarding whether police could search King’s home without any individualized suspicion. The majority does not give appropriate weight to two factors that are for me decisive — the particular language in King’s search condition and the Supreme Court’s holdings that probationers have greater  UNITED STATES V . KING 11 expectations of privacy than parolees. I therefore respectfully dissent. I Like the majority, I “examine the totality of the circumstances to determine whether the suspicionless search of [King’s] residence was reasonable.” Op. at 7. I begin by analyzing King’s privacy interests under the Fourth Amendment, and then turn to the weighing of those interests against competing, governmental concerns. See Samson v. California, 547 U.S. 843, 848 (2006); United States v. Knights, 534 U.S. 112, 118–19 (2001). A In assessing “‘the degree to which [the search] intrude[d] upon [King’s] privacy,’” Samson, 547 U.S. at 848 (quoting Knights, 534 U.S. at 119), a critical fact that distinguishes this case from Knights and Samson is the text of the probation search condition applicable to King. The condition in Knights authorized searches “with or without a search warrant, warrant of arrest or reasonable cause.” Knights, 534 U.S. at 114. The parole condition in Samson, in turn, provided for searches “‘without a search warrant and with or without cause.’” Samson, 547 U.S. at 846 (quoting Cal. Penal Code § 3067). In contrast, King’s probation search condition was as follows: Defendant is subject to a warrantless search condition, as to defendant’s person, property, premises and vehicle, any time of the day or night, with or without probable cause, by any peace, parole or probation officer. 12 UNITED STATES V . KING Under the terms of his search condition, then, King was subject to searches without a warrant and “without probable cause.” But King’s search condition did not “clear[ly] and unambiguous[ly]” permit searches without any modicum of individualized suspicion. See Samson, 547 U.S. at 852. To the contrary, by specifying that the search could be “without probable cause,” the search condition, read in the context of well-developed Fourth Amendment concepts, indicated that some cause was required, just not the relatively high standard of suspicion portended by the term “probable cause.” I note at the outset that the language of King’s search condition differs from that of every parole or probation agreement that we or the Supreme Court have analyzed in determining the reasonableness of a warrantless search. I have found no Ninth Circuit or Supreme Court case — and neither the majority nor the government cites any — in which a parole or probation agreement provided for searches “without probable cause” but lacked a provision expressly authorizing searches without reasonable suspicion. The relevant precedents governing the validity of warrantless searches of probationers or parolees either involved (1) probation conditions that stated some standard of suspicion  UNITED STATES V . KING 13 other than that used in King’s agreement;1 or (2) the condition mandated by California Penal Code § 3067 for all parolees.2 As is apparent from the varied wordings of the search conditions in the aforementioned probation cases, California judges do not uniformly impose the same search conditions on all probationers, nor do they necessarily impose on probationers the terms of the mandatory parole condition. See supra nn.1–2. Unlike the majority, I assume that King’s 1 See Knights, 534 U.S. at 114; United States v. Baker, 658 F.3d 1050, 1054 (9th Cir. 2011) (“with or without a warrant, with or without probable cause, and with or without reasonable suspicion”), overruled in part, United States v. King, 687 F.3d 1189 (9th Cir. 2012) (en banc) (per curiam); Sanchez v. Canales, 574 F.3d 1169, 1171 (9th Cir. 2009) (“with or without a search warrant, warrant of arrest or reasonable cause”), overruled in part, King, 687 F.3d at 1189; Moreno v. Baca, 431 F.3d 633, 637 (9th Cir. 2005) (“without a warrant”), overruled in part, King, 687 F.3d at 1189. I note that Sanchez misstated California law when it reported that “every probationer in California is required to ‘submit his . . . person, property, place of residence, vehicle, [and] personal effects, to search at any time, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer of officer of the law.’” 574 F.3d at 1171 (emphasis added). Sanchez did not specify the source for its quoted statement. As I understand California law, and as the parties in this case have briefed it, all California parolees are subject to a search condition “with or without a search warrant or with or without cause,” Cal. Penal Code § 3067(b)(3), but probationers are not automatically subject to any search condition, though a court “may impose . . . reasonable conditions[] as it may determine are fitting and proper,” id. § 1203.1(j). 2 See Samson, 547 U.S. at 846 (quoting Cal. Penal Code § 3067) (“‘without a search warrant and with or without cause’”); United States v. Lopez, 474 F.3d 1208, 1209 (9th Cir. 2007) (same), overruled in part, King, 687 F.3d at 1189; Motley v. Parks, 432 F.3d 1072, 1075 n.2 (9th Cir. 2005) (en banc) (same), overruled in part, King, 687 F.3d at 1189. 14 UNITED STATES V . KING sentencing judge chose the particular words in King’s search condition as the judge “determined . . . fitting and proper,” see Cal. Penal Code § 1203.1(j), and I would give effect to the particular language used. The difference between the probable cause standard3 and the lesser reasonable suspicion standard4 is fundamental to 3 “Probable cause exists where the facts and circumstances within [an officer’s] knowledge and of which [he] had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.” Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 370 (2009) (alterations in original) (internal quotation marks omitted). 4 “Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.” Alabama v. White, 496 U.S. 325, 330 (1990). The Supreme Court recently described the quantum of suspicion that an officer must have before conducting a warrantless search under each standard: For searches that require probable cause, the officer must know that the search “raise[s] a ‘fair probability’ or a ‘substantial chance’ of discovering evidence of criminal activity.” Safford, 557 U.S. at 371 (internal citations omitted). For searches that require reasonable suspicion, there need only be “a moderate chance of finding evidence of wrongdoing.” Id. California cases sometimes use the terms “reasonable suspicion” and “reasonable cause” interchangeably. See, e.g., People v. Letner, 50 Cal. 4th 99, 146–47 (2010); People v. Souza, 9 Cal. 4th 224, 232 (1994) (citing In re Tony C, 21 Cal. 3d 888 (1978)). The Supreme Court has occasionally done so as well. See Adams v. Williams, 407 U.S. 143, 147 (1972) (describing the requisite level of suspicion required for a stop-and- frisk under Terry v. Ohio, 392 U.S. 1 (1968), as “reasonable cause”).  UNITED STATES V . KING 15 Fourth Amendment law.5 Although neither standard is “finely-tuned,” see Ornelas v. United States, 517 U.S. 690, 696 (1996) (internal quotation marks omitted), the reasonable suspicion standard requires “at least a minimal level of objective justification,” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). So the sentencing judge’s decision to limit the probation search condition to searches conducted without probable cause, while not stating that searches could be conducted in the absence of reasonable suspicion, has import in the Fourth Amendment lexicon. Moreover, as I have noted, California’s mandatory parole condition includes the term “with or without cause,” see supra pp. 12–13 & n.2; that provision covers the entire universe of searches, including those conducted without any cause. King’s search condition was conspicuously narrower, authorizing searches only “with or without probable cause.” Had the judge who placed King on probation meant to permit a search without any suspicion or cause, he could have used the mandatory parole condition language. But he did not, indicating an intent to deviate from the “no cause” condition signified by that locution. 5 See, e.g., Safford, 557 U.S. at 377 (requiring reasonable suspicion, but not probable cause, that a student has concealed contraband in her underwear before school officials may conduct a strip search); Maryland v. Buie, 494 U.S. 325, 334–35 (1990) (permitting searches incident to arrests upon reasonable suspicion that danger to arresting officers exists); Terry, 392 U.S. 1 (authorizing protective stop-and-frisks without probable cause but with reasonable suspicion); United States v. Becerra-Garcia, 397 F.3d 1167, 1174 (9th Cir. 2005) (noting that under the Fourth Amendment, “investigative traffic stops” require “only reasonable suspicion”). 16 UNITED STATES V . KING The majority cites two California Supreme Court cases for the proposition that as a matter of California law, King’s particular search condition was an agreement “to be subject to suspicionless searches.” Op. 4 n.3 (citing People v. Woods, 21 Cal. 4th 668, 674–75 (1999); People v. Bravo, 43 Cal. 3d 600, 609–10 (1987)). After Knights and Samson — both decided after Woods and Bravo — these California cases cannot control here with regard to the impact of the condition’s wording on King’s reasonable expectation of privacy. Federal law, not California law, governs the ultimate question before us, which is whether the San Francisco police’s search of King’s residence was permissible under the Fourth Amendment. See, e.g., United States v. Davis, 932 F.2d 752, 758 (9th Cir. 1991) (noting that “the validity of a search conducted by state law enforcement officers is ultimately a question of federal law”). Knights and Samson make clear that the California Supreme Court’s analysis in Woods and Bravo is inapposite, and so not binding, here. Woods and Bravo upheld warrantless, suspicionless searches of probationers based on two interrelated factors: that 1) the probationers had “validly consent[ed] in advance to warrantless searches in exchange for the opportunity to avoid service of a state prison term,” Woods, 21 Cal. 4th at 674 (citing Bravo, 43 Cal. 3d at 608, and Schenckloth v. Bustamonte, 412 U.S. 218, 219 (1973)); and 2) that courts should not interpret “minor differences in the wording of search conditions in other probation orders” as having any significance in the scope of a probationer’s consent to searches, Bravo, 43 Cal. 3d at 606–07.  UNITED STATES V . KING 17 Knights and Samson abjure reliance on either of the California Supreme Court’s rationales. Each of the U.S. Supreme Court precedents expressly declined to adopt the central holding of Bravo, reiterated in Woods, that “‘acceptance of the search condition constituted consent in the Schneckloth sense of a complete waiver of . . . Fourth Amendment rights.’” Samson, 547 U.S. at 852 n.3 (quoting Knights, 534 U.S. at 118) (internal citation omitted). Instead, Knights and Samson each followed a Fourth Amendment balancing approach, under which the search condition is pertinent not as evidencing consent but as partially indicative of the probationer or parolee’s reasonable expectation of privacy. And, in implementing that approach, neither followed Bravo’s rough, generic interpretation of the search conditions, even though Samson and Knights were both cases involving search conditions in California. Instead of relying on Bravo’s generic interpretation of all warrantless search conditions — as the majority here does — the U.S. Supreme Court proceeded to analyze the “plain terms” of the search conditions. See id. at 852. In doing so, Samson repeatedly emphasized the significance of the fact that the search conditions in both Knights and Samson were “clear and unambiguous,” explaining that in Knights, in determining the reasonableness of the search conducted pursuant to Knights’s probation condition, “[w]e . . . considered the facts that Knights’ probation order clearly set out the probation search condition, and that Knights was clearly informed of the condition. . . . [W]e found that acceptance of a clear and unambiguous search condition ‘significantly diminished Knights’ reasonable expectation of privacy.’” Samson, 547 U.S. at 849, 852 (quoting Knights, 534 U.S. at 120) (emphasis added). With regard to the search condition at issue in Samson, the 18 UNITED STATES V . KING Court noted that the condition “was ‘clearly expressed’ to [Samson].” Id. at 852 (quoting Knights, 534 U.S. at 119) (emphasis added). Samson further explained that the “plain terms of the . . . search condition” were a central factor in evaluating the searched party’s reasonable expectation of privacy. Id. (emphasis added). Over and over, then, Samson and Knights stressed the importance of the “plain,” “clear[],” and “unambiguous,” terms of the search conditions in those cases. We are of course bound by the “mode of analysis” of the United States Supreme Court in deciding Fourth Amendment questions, see United States v. Van Alstyne, 584 F.3d 803, 813 (9th Cir. 2009), not that of the California Supreme Court.6 Applying the principles set forth in Knights and Samson, I would conclude, for the reasons explained above, see supra pp. 11–15, that King’s search condition did not plainly, clearly, and unambiguously provide notice that he was subject to 6 The California Supreme Court decided Woods and Bravo under federal constitutional standards, not under some separate state law ground under which we might be bound or that might feed into our interpretation of King’s search condition under the totality of the circumstances analysis. Compare Trishan Air, Inc. v. Fed. Ins. Co., 635 F.3d 422, 427 (9th Cir. 2011) (noting that “[w]hen interpreting state law, federal courts are bound by decisions of the state’s highest court”) (internal quotation marks omitted). Under the California Constitution, California courts may only grant a suppression motion when “exclusion is mandated by the federal Constitution.” People v. Robinson, 47 Cal. 4th 1104, 1119 (2010) (citing Cal. Const. art. 1 § 28(f)(2)). Woods and Bravo, in turn, upheld searches of probationers under the Fourth Amendment, not under some separate state law standard. See Woods, 21 Cal. 4th at 674 (citing Cal. Const. art. 1 § 28); see also Bravo, 43 Cal. 3d at 603 n.3 (noting that the search in Bravo occurred before the relevant California constitutional provision was enacted, but that the court’s analysis would be identical whether under the California Constitution or the federal constitution).  UNITED STATES V . KING 19 searches without even reasonable suspicion. Because King was not as a condition of probation subject to searches conducted without that quantum of suspicion, the search condition did not diminish King’s privacy interests in any sense relevant to the suspicionless search at issue in this case. B The next relevant consideration in assessing King’s privacy interests is King’s status as a probationer. See Samson, 547 U.S. at 850; Knights, 534 U.S. at 119. While the Supreme Court has held that parolees may be subject to suspicionless searches, Samson, 547 U.S. at 857, the Court has never held that a suspicionless search of a probationer would pass Fourth Amendment muster, see Knights, 534 U.S. at 120 n.6. The Court has instead emphasized that probationers have greater Fourth Amendment interests than parolees. See Samson, 547 U.S. at 850. Samson, in turn, cited approvingly to Judge Kleinfeld’s concurring opinion in United States v. Crawford, 372 F.3d 1048 (9th Cir. 2004) (en banc), in which Judge Kleinfeld wrote separately “to clarify the distinction between parolees and probationers,” “who are near opposite ends of the punishment scale.” Id. at 1076–77 (Kleinfeld, J., concurring); see Samson, 547 U.S. at 855. And our court recently deemed the distinction between parolees and probationers so important that we went en banc to overrule our case law that conflicted with Samson insofar as it held that “‘there is no constitutional difference between probation and parole for purposes of the fourth amendment,’” King, 687 F.3d at 1189 (quoting Motley, 432 F.3d at 1083 n.9), and had “overlooked the important distinction between parolees and probationers,” 20 UNITED STATES V . KING see United States v. Baker, 658 F.3d 1050, 1059 (9th Cir. 2011) (Graber, J., concurring). The constitutionally significant difference between probationers’ and parolees’ reasonable expectations of privacy stems from the fundamental difference between the circumstances under which persons are sentenced to the two forms of state supervision. Often, “[p]arolees are persons who have been sentenced to prison for felonies and released before the end of their prison terms.” Crawford, 372 F.3d at 1077 (Kleinfeld, J., concurring). But see Cal. Penal Code § 3000 (requiring parole for persons released from prison upon completion of their prison terms). In California, every person released from state prison is placed on parole “irrespective of whether the inmate is capable of integrating himself back into productive society.” Samson, 547 U.S. at 854 (citing Cal. Penal Code §§ 2931, 2933, 3000 (West 2000)). Probationers, in contrast, may have been convicted of an infraction, misdemeanor, or felony. Crawford, 372 F.3d at 1077 (Kleinfeld, J., concurring); see Cal. Penal Code § 1203. And in California, even if a person is convicted of a felony, as King was, he can only be sentenced to probation if the sentencing judge has determined, based on the facts and circumstances of the offense and the history and characteristics of the defendant, “that there are circumstances in mitigation of the punishment prescribed by law or that the ends of justice would be served by granting probation to the person.” Cal. Penal Code § 1203(b)(3). As Judge Kleinfeld aptly put the point: “Unlike parolees, who were sent to prison for substantial terms, probationers attain that status from a judicial determination that their conduct and records do not suggest so much harmfulness or danger that substantial imprisonment is justified.” Crawford, 372 F.3d at 1077 (Kleinfeld, J., concurring).  UNITED STATES V . KING 21 In light of the Supreme Court’s and our case law distinguishing between probationers’ and parolees’ reasonable expectations of privacy, I cannot accept the majority’s conclusion that King’s privacy interest was so “small” as to permit entirely suspicionless searches. See Op. at 8. I recognize that King’s status as a probationer diminished his expectation of privacy. See Knights, 534 U.S. at 120. But I cannot go along with discounting his privacy interests to the minimal level the majority posits, especially in his residence, where Fourth Amendment rights are particularly “sacrosanct.” See United States v. Duenas, 691 F.3d 1070, 1080 (9th Cir. 2012) (citing United States v. Jones, 132 S. Ct. 945, 951 (2012)). * * * The majority holds that the San Francisco police’s suspicionless search of King’s residence, pursuant to a probation agreement that did not clearly permit searches with less than reasonable suspicion, “intruded on [King’s] legitimate expectation of privacy only slightly.” Op. at 8. I would give greater weight than the majority to the Supreme Court’s admonition that the “permissible degree” of “impingement upon [probationers’] privacy” “is not unlimited.” See Griffin v. Wisconsin, 483 U.S. 868, 875 (1987). Under the circumstances of this case — including the limited search condition — King had a moderate privacy interest, albeit one somewhat diminished by his status as a probationer. 22 UNITED STATES V . KING II I agree with the majority that under the Supreme Court’s analysis in Samson and Knights, the government has legitimate interests in supervising probationers, see Samson, 547 U.S. at 853; Knights, 534 U.S. at 120, interests which the Court has accorded significant weight in authorizing warrantless searches of probationers and parolees. I nonetheless have two disagreements with the majority’s analysis of the government’s interests here.7 First, the government’s interest in “‘apprehending violators of the criminal law, thereby protecting potential victims’ from probationers’ recidivism,” Op. at 8 (quoting Knights, 534 U.S. at 121), is not as compelling with regard to probationers as with regard to parolees. Knights cited a 43% recidivism rate for felons on probation as a factor in authorizing warrantless searches of probationers based on reasonable suspicion of criminal activity. 534 U.S. at 120 (citation omitted). Samson cited a 68–70% recidivism rate for parolees as a factor in permitting warrantless searches of parolees without even reasonable suspicion. 547 U.S. at 853–54 (citation omitted). Although both recidivism rates are considerable, the rate for probationers is substantially lower. As one of several factors to assess under the totality of the circumstances approach, I would conclude that the state’s interest in crime prevention is somewhat weaker here than in Samson. 7 For the reasons explained in Part I.A, supra, I disagree with the majority’s assertion that the government’s general “interest in discovering criminal activity and preventing the destruction of evidence” is heightened by King’s “accept[ance]” of this particular search condition. See Op. at 8–9.  UNITED STATES V . KING 23 Second, the mere fact that the Supreme Court has described the government’s interests in preventing crime among probationers and parolees as “substantial,” and has articulated several justifications for why this is so, see id. at 853–55; Knights, 534 U.S. at 120–21, cannot alone allow suspicionless searches. The government always has a “general interest in crime control.” City of Indianapolis v. Edmond, 531 U.S. 32, 42 (2000). Fourth Amendment protections exist precisely to prevent “intrusions” on the fundamental right of privacy “from becoming a routine part of American life,” in the face of the substantial interest in preventing crime and apprehending criminals. See id. So the three-fold government interests the majority articulates — reducing recidivism, discovering criminal activity, and promoting probationers’ reintegration, Op. at 8–9 — cannot by themselves bear the weight the majority places on them. The “totality of circumstances” analysis is not an arithmetic problem. Cf. Noble v. United States, 231 F.3d 352, 359 (7th Cir. 2000); Piamba Cortes v. Am. Airlines, Inc., 177 F.3d 1272, 1298–99 (11th Cir. 1999). III Considering both the particular terms of King’s search condition, and his probationer (and not parolee) status, I would hold that King had a somewhat greater expectation of privacy than the parolee in Samson. And King’s probationer status also makes the government’s interests at least slightly weaker here than in Samson. Weighing the “balance of these considerations,” see Knights, 534 U.S. at 121, I would hold that King was subject to warrantless searches only upon reasonable suspicion of criminal conduct. 24 UNITED STATES V . KING CONCLUSION Warrantless searches conducted with only reasonable suspicion of criminal activity represent a considerable departure from the generally applicable requirement for a search of a person’s residence. The Supreme Court has upheld such searches for probationers, see Knights, 534 U.S. 112, but the majority’s decision goes one step further, permitting such searches without any quantum of suspicion, as long as the probationer has assented to a warrantless search condition, no matter how ambiguously worded. I would not expand the “‘closely guarded . . . category of constitutionally permissible suspicionless searches’” further than the Supreme Court already has. See Samson, 547 U.S. at 860 (Stevens, J., dissenting) (quoting Chandler v. Miller, 520 U.S. 305, 309 (1997)). I therefore dissent from the majority’s decision upholding the district court’s order denying King’s motion to suppress. I would instead remand to the district court for further proceedings, including resolution of the factual dispute whether the police obtained valid consent for the search from King’s mother. See United States v. Prieto-Villa, 910 F.2d 601, 602 (9th Cir. 1990). 

188 F.3d 1247 (10th Cir. 1999) DUANE JANTZEN; RICHARD HAUGLAND; WILLIAM GABRIELE MOULTON; MONTE PRENO, Plaintiffs-Appellants,v.LEWIS HAWKINS, Individually and in his official capacity as Sheriff of Canadian County, Oklahoma; CANADIAN COUNTY BOARD OF COUNTY COMMISSIONERS, Defendants-Appellees. No. 98-6000 UNITED STATES COURT OF APPEALS TENTH CIRCUIT August 31, 1999 Appeal from the United States District Court for the Western District of Oklahoma. D.C. No. CIV-96-2041-L[Copyrighted Material Omitted][Copyrighted Material Omitted] Mark L. Henricksen (Lanita Henricksen, with him on the briefs), of Henricksen & Henricksen Lawyers, Inc., El Reno, Oklahoma, for Plaintiffs-Appellants. Gayla I. Jones (Chris J. Collins, on the brief), of Collins, Zorn, Jones & Wagner, P.C., Oklahoma City, Oklahoma, for Defendants-Appellees. Before EBEL, Circuit Judge, MCWILLIAMS, Senior Circuit Judge and MURPHY, Circuit Judge. EBEL, Circuit Judge. 1 In May 1996, Defendant-Appellee Lewis Hawkins was the incumbent Sheriff of Canadian County, Oklahoma. Hawkins' Sheriff Office was comprised of thirty-four appointees, including Plaintiffs-Appellants Richard Haugland, Duane Jantzen, and Monte Preno, who were Deputy Sheriffs, and William Gabriele Moulton, a jailer. Hawkins sought re-election to his Sheriff post. On May 2, 1996, Hawkins convened a meeting of his subordinates in which he read from a prepared statement warning that anyone who ran for office against him, openly opposed his reelection, or was in any way disloyal to him would be fired. At that meeting, Haugland announced his intentions to run for sheriff against Hawkins in the upcoming election. Hawkins immediately fired Haugland. 2 In his six month campaign for sheriff, Haugland received the political support of Jantzen, Preno, and Moulton. Jantzen was active in Haugland's campaign, making telephone calls, putting up yard signs, and doing some door-to-door campaigning. Preno also supported Haugland by building political signs, putting those signs up the day before the general election, contributing money to Haugland's campaign, and making telephone calls on his behalf. Moulton actively campaigned for Haugland by setting-up signs, passing out magnets, doing some door-to-door campaigning, and providing addresses for the campaign staff to put out signs. In the end, Hawkins won the election, and after the election, Jantzen, Preno, and Moulton were fired. 3 All four Appellants sued Hawkins and the Canadian County Board of Commissioners under 42 U.S.C. § 1983, claiming that their termination violated their rights under the First Amendment of the Constitution. Specifically, the amended complaint alleged violations of both the employees' right to political affiliation and their right to free expression. The district court granted summary judgment in Hawkins' favor, relying on case law pertaining only to the freedom of association claim, and found political loyalty to be an appropriate job requirement for the effective performance of the jobs held by Appellants. The district court held, in the alternative, that Hawkins was entitled to qualified immunity on all of Appellants' claims. Because it ruled in Hawkins' favor, the court found no basis for imposing liability on the County Commissioners of Canadian County, and thereby entered judgment in its favor. This appeal followed. We affirm in part and reverse in part. DISCUSSION 4 We review a decision granting summary judgment de novo, using the same legal standard applicable in the district court. See Miles v. Denver Pub. Sch., 944 F.2d 773, 775 (10th Cir. 1991). "In cases involving the First Amendment, the de novo standard is appropriate . . . for the further reason that . . . [i]n cases raising First Amendment issues . . . an appellate court has an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression." Horstkoetter v. Dep't of Public Safety, 159 F.3d 1265, 1270 (10th Cir. 1998) (internal quotations omitted). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "In determining whether the evidence presents a genuine issue of material fact, we view it in the light most favorable to the party against whom summary judgment was entered," here Appellants. Garratt v. Walker, 164 F.3d 1249, 1251 (10th Cir. 1998) (en banc). 5 Appellants contend that defendants violated two types of First Amendment rights: political association and free speech. Where a government employer takes adverse action on account of an employee's political association and/or political beliefs, we apply the test as developed in the Elrod v. Burns, 427 U.S. 347 (1976) (plurality opinion), and Branti v. Fikel, 445 U.S. 507 (1980), line of cases. Where a government employer takes adverse action because of an employee's exercise of his or her right of free speech, we apply the balancing test from Pickering v. Board of Educ., 391 U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138 (1983) (the "Pickering / Connick test"). See generally O'Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 718-19 (1996) (explaining which First Amendment rights trigger Branti and which trigger Pickering). We address each First Amendment right in turn. I. Freedom of Association 6 "The First Amendment protects public employees from discrimination based upon their political beliefs, affiliation, or non-affiliation unless their work requires political allegiance." Mason v. Oklahoma Turnpike Auth., 115 F.3d 1442, 1451 (10th Cir. 1997). To defeat the Appellees' summary judgment motion against the political discrimination claim, Appellants are required to establish a genuine dispute of fact that (1) political affiliation and/or beliefs were "substantial" or "motivating" factors behind their dismissals; and (2) Appellants' respective employment positions did not require political allegiance. See id. 7 We find no genuine dispute of fact as to whether political affiliation and/or beliefs were substantial or motivating factors in firing Haugland. Haugland alleged and testified that the only reason he was fired was because he was a candidate for sheriff against his own boss. Given that the only factor driving Haugland's termination was his candidacy qua candidacy, Haugland has put forth no evidence that he was in any way terminated for "supporting or affiliating with a particular political party." Board of County Comm'rs v. Umbehr, 518 U.S. 668, 675 (1996) (interpreting Branti). See also Carver v. Dennis, 104 F.3d 847, 850 (6th Cir. 1997) (termination of deputy county clerk by and for running against the incumbent county clerk "was not a patronage dismissal[,] . . . not a dismissal because of political beliefs or affiliations[, and] not a dismissal based on politics at all, except to the extent that running for public office is a political exercise in its broad sense"). The right to political affiliation does not encompass the mere right to affiliate with oneself, and accordingly, we affirm the district court's grant of summary judgment against Haugland on his First Amendment association claim. 8 On the other hand, we do find a genuine dispute of fact as to whether Jantzen, Preno, and Moulton were fired for their political affiliations and/or beliefs. At the May 2, 1996 meeting that Hawkins convened, he told all the employees in the Sheriff's Office: 9 You work at my pleasure . . . . Webster defines the word loyal as Number 1, "unswerving in allegiance," and Number 2, "faithful." Loyalty is defined as, "the binding of a person to something or someone to which he is loyal. I do not require that you like me, nor do I require that we take warm showers together. I do not require that you always agree with me, or with my policies or directives, but I do require loyalty from those who work for me and for this office. I work for the citizens of Canadian County, and you work for me, I am the Sheriff and this is my office. . . . [I]f you openly oppose my reelection, or campaign for any opponent against me, my pleasure with you will end. I have never required personnel from this office, to actively campaign for me. I have never required personnel from this office, to put up signs, paint signs, collect money, nor work in any way in any campaign for me. But again, I do require that you be loyal, not just to this office, but to me personally. 10 Given Hawkins' repeated demands of "unswerving allegiance" from his subordinates, and given the evidence that Moulton, Jantzen, and Preno were fired because of their affiliation with Haugland, there remains a genuine dispute as to whether political affiliation and/or beliefs were a substantial or motivating factor in those Appellants' terminations. 11 As the Supreme Court has stated: "[O]fficial pressure upon employees to work for political candidates not of the worker's own choice constitutes a coercion of belief in violation of fundamental constitutional rights." Connick, 461 U.S. at 149 (1983) (citing Branti, 445 U.S. at 515-516; Elrod, 427 U.S. 347 (emphasis added)); Rutan v. Republican Party of Illinois, 497 U.S. 62, 65, 73 (1990) (holding that political patronage practices short of dismissal, such as demotion or transfer, fall within the Branti and Elrod line of cases and therefore may not be based on party affiliation; "Employees who find themselves in dead-end positions due to their political backgrounds are adversely affected. They will feel a significant obligation to support political positions held by their superiors, and to refrain from acting on the political views they actually hold, in order to progress up the career ladder."); Branti, 445 U.S. at 517 (sufficient for dismissed employees to show that they were discharged because "they were not affiliated with or sponsored by" a particular party (quotations omitted)); Elrod, 427 U.S. at 357 ("'There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of 'orderly group activity' protected by the First and Fourteenth Amendments.'") (quoting NAACP v. Button, 371 U.S. 415, 430 (1963)); Smith v. Sushka, 117 F.3d 965, 970 n.6 (6th Cir. 1997) ("[P]olitical affiliation is not limited to membership in a political party and includes commonality of political purpose and support of political candidacy."). 12 We must therefore next address if a genuine dispute also exists regarding whether Moulton, Jantzen, and Preno's respective positions require political allegiance. "The Supreme Court has held that 'the need for political loyalty of employees . . . to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate,' is a valid justification for political patronage dismissals of individuals in policymaking positions." Green v. Henley, 924 F.2d 185, 186 (10th Cir. 1991) (per curiam) (quoting Elrod, 427 U.S. at 367). "[T]he ultimate inquiry is not whether the label 'policymaker' or 'confidential' fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." Branti, 445 U.S. at 518; see also Rutan, 497 U.S. at 64. 13 In this case, for summary judgment purposes, we must decide whether political loyalty is an "appropriate requirement for effective performance" of the position of Deputy Sheriff and Jailer of Canadian County. Dickeson v. Quarberg, 844 F.2d 1435, 1442 (10th Cir. 1988). To determine whether political loyalty is an appropriate requirement, we must analyze "the nature of the employee's duties and responsibilities." Id. To be more precise, we must focus on the inherent powers of the positions and the actual duties performed.1 Id. The defendant bears the burden of proof on whether political association was an appropriate requirement for the effective performance of the public office involved. Id. at 1441. "In close cases, doubt should be resolved in favor of the public employee subject to the dismissal." Id. at 1442. Having reviewed the record, we hold that when all reasonable inferences are drawn in Appellants' favor, and resolving any doubt in close cases in the Appellants' behalf, there is a genuine dispute over whether Jantzen, Preno, and Moulton could effectively perform their jobs without being politically loyal to the Sheriff. 14 We note that there is ample proof that they actually did effectively perform their jobs despite political differences with the Sheriff. The record contains evidence that while Jantzen, Preno, and Moulton remained in their jobs for six months during the election campaign, the Sheriff's Office ran smoothly. Hawkins' deposition testimony, which we quote at length, illustrates the point:2 15 Q: From May to November, would the people in the so-called Haugland camp attend work as required? 16 A: I don't believe that I became aware of anybody failing to show up for work. 17 Q: On matters dealing with the function of the office, if a task required a Haugland and a Hawkins and a neutral person to discharge the function, can you give any example where they failed to do that from May to November? 18 A: I don't recall of any tasks that probably would have required that but, no, sir, I can't give you any example. 19 Q: Can you give any specific example where the duties of the sheriff's office were not accomplished as a result of the political differences that existed, you say, within the sheriff's department from May to November? 20 A: Not rating the accomplishment, but just the fact they were accomplished, no, sir. . . . 21 Q: Can you think of any particular function or task which could have been done better but for this alleged existence of factions within the sheriff's office? 22 A: As far as a specific, no. I am aware, and I don't even remember what the case was, where there was a report that needed a follow-up that had been submitted into the investigation division for follow-up. And I want to say it was Sgt. Preno that wrote the report. Again, I believe it was assigned to Gene McPherson, and McPherson didn't even want to go to Preno to ask for the information he needed to clarify the report. And I think he only did it under a direct order from me to go do it, is one that comes to mind, which is not against your client, by the way. 23 Q: Okay. Can you identify any other instances from May to November where people would not cooperate with each other . . . . based on political differences? 24 A: I cannot give you a specific answer. 25 Q: So the only one you can identify was one of your supporters who . . . did not want to speak to Mr. Preno except under a direct order from you? 26 A: As far as anything I can accurately recall, yes, sir. 27 Hawkins' admissions that his office functioned effectively even during the heat of his re-election campaign severely undermine his summary judgment argument that political affiliation and loyalty are as a matter of law indisputably valid justifications for Jantzen, Moulton, and Preno's patronage dismissals. With this background in mind, we now turn to the details of their particular occupations. A. Jailer 28 As a jailer, Moulton's actual duties and inherent powers primarily consisted of day-to-day maintenance of the county jail. This included (1) receiving and booking inmates, (2) regulating inmates' meals, (3) regulating inmates' medication, (4) monitoring jail activity and conducting cell checks, and (5) keeping jail records. We do not believe that for summary judgment purposes any of these actual duties and inherent powers necessarily require political loyalty to the Sheriff for efficient performance. None of these duties or responsibilities relate to any "partisan political interests." Branti, 445 U.S. at 519. The job of a jailer is, in the main, politically neutral. Indeed, in Dickeson, we squarely held party affiliation to be an inappropriate job requirement for a jailer whose duties were quite similar to Moulton's. See Dickeson, 844 F.2d at 1443-44. The jailer's duties in Dickeson included supervising four other jailers, housing and feeding prisoners, preparing work schedule for jailers, ordering food, planning menus, and preparing meals. See Id. at 1443. Given the holding in Dickeson, and the lack of evidence of any meaningful disruptions at work, the district court's conclusion that political loyalty was a proper job requirement for a jailer such as Moulton was in error. See also Zorzi v. County of Putnam, 30 F.3d 885,892 (7th Cir. 1994) (finding party affiliation not an appropriate requirement for dispatchers who acted as part-time jailers); Terry v. Cook, 866 F.2d 373, 378 (11th Cir. 1989) ("Although it can be said that each job in the sheriff's office implements the policies of the office, the limited and defined roles [that, inter alia, a jailer] tend[s] to play do not support the need for political loyalty to the individual sheriff."). 29 Defendants argue that political loyalty is a valid job requirement for a jailer because a jailer's high profile support of a political opponent of the Sheriff "could make" the jailer "appear hostile and unreliable in carrying out the policies of the Sheriff. [The jailer's] opposition made it questionable whether he could execute Sheriff Hawkins's policies." Likewise, the district court, in granting summary judgment against Jailer Moulton, reasoned that the actions he took in running the jail "were a reflection on the Sheriff with the public and entitled the Sheriff to demand and receive political loyalty in this position." These arguments are unavailing, however, because their take on the impact of jailer-sheriff political bickering did not carry the day in Dickeson. Additionally, as a practical matter, these theoretical arguments are not supported by the evidence in this case, which includes Hawkins' testimony that despite Moulton's political disputes with him, he could not think of "any particular function or task which could have been done better" but for the existence of in-house political fighting.3 B. Deputy Sheriffs 30 As Deputy Sheriffs, Jantzen and Preno were responsible for a wide range of diverse tasks. Primarily, they patrolled the county to execute and enforce the law and "make on-the-spot, split-second decisions effectuating the objectives of the sheriff's policies."4 31 Given the actual duties and inherent powers of deputy sheriffs in Canadian County, Oklahoma, we find there to be a genuine dispute as to whether political loyalty is an appropriate requirement for a deputy sheriff. In short, there is no compellingly politically loyal way to arrest a thief, no partisan way to serve a summons or to stop a speeding motorist, and defendants have not pointed to anything in the record to show that Jantzen or Preno's professional judgment would be, or were, skewed by their political loyalties. Moreover, despite the fact that deputy sheriffs might have factual discretion on the street to enforce the law, the record is also replete with evidence that the Sheriff establishes all the policy standards by which deputy sheriffs in such enforcement are to be guided. As Hawkins himself testified: 32 Q: Does anyone else make policy in that office?A: Define 'policy' for me. 33 Q: Well, the rules and regulations and operating procedures for the people that work under you. 34 . . . . 35 A: As far as the bottom line, I have to approve all policy. 36 Q: You are pretty much a hands-on sheriff for your department; is that correct? 37 A: That is correct. 38 Q: In fact in the media you have described yourself as a benevolent dictator; is that correct? A: That's correct.5 39 When this evidence is viewed in light of the additional evidence that the Sheriff's Office functioned effectively during the rival campaign season, we must conclude that there exists a genuine dispute of material fact over the appropriateness of political loyalty as a job requirement for deputy sheriffs. See Dickeson, 844 F.2d at 1444; Francia v. White, 594 F.2d 778, 782 (10th Cir. 1979) (upholding judgment for deputy sheriffs who were terminated for their political affiliations after finding that the deputy sheriffs served in "non-policy-making, non-confidential positions," and whose job it was to "enforce or execute the law"); Matherne v. Wilson, 851 F.2d 752, 760 (5th Cir. 1988) ("[P]olitical loyalty was not required for the effective performance of the duties of employees in a sheriff's office."); but see Jenkins v. Medford, 119 F.3d 1156, 1164-65 (4th Cir. 1997) (en banc) (requiring district courts to examine the "specific position at issue" and the "job duties of the position, and not merely the title, of those [employees] dismissed," and holding that political loyalty is an appropriate job requirement for a North Carolina deputy sheriff whose positions resemble "a policy maker, a communicator, or [is] privy to confidential information") (quotation omitted), cert. denied, 118 S. Ct. 881 (1998).6 In any event, the record here demonstrates that Jantzen and Preno were not policy makers, and defendants have failed to cite to any portion of the record that unequivocally establishes as a matter of law that Jantzen and Preno were such important communicators or were privy to confidential information to such an extent that political loyalty would be an appropriate job requirement. As a result, Jantzen and Preno's association claim should survive defendant's summary judgment motion, and the district court's judgment on this issue was in error.7 II. Freedom of Speech 40 We next turn to whether Sheriff Hawkins was entitled to summary judgment under the Pickering / Connick test for his termination of Haugland. Only Appellant Haugland has properly raisedthe Pickering / Connick issue. Jantzen, Moulton, and Preno's objection to Hawkins' motion for summary judgment nowhere referred to the Pickering / Connick test by reference or application. Rather, they simply relied upon Branti political association arguments. We will not consider an appellant's new legal theory on appeal, even if it "falls under the same general category as an argument presented at trial." Bancamerica Commercial Corp. v. Mosher Steel of Kan., Inc., 100 F.3d 792, 798 (10th Cir.), opinion amended on other grounds, 103 F.3d 80 (10th Cir. 1996). Thus, we consider this issue only with respect to Haugland. 41 The issue is whether, and to what extent, the government, acting as an employer, can restrict the speech of its public employees. To determine whether defendants have infringed the employee's freedom of expression, we employ the four-part test Pickering / Connick test. See Horstkoetter, 159 F.3d at 1271. The test is: 42 1. Whether the speech in question involves a matter of public concern. 43 2. If so, we must weigh the employee's interest in the expression against the government employer's interest in regulating the speech of its employees so that it can carry on an efficient and effective workplace. 44 3. Employee must show the speech was a substantial factor driving the challenged governmental action. 45 4. If so, can the employer show that it would have taken the same employment action against the employee even in the absence of the protected speech. 46 Id. "The first two parts . . . are questions of law for the court; the remaining two steps are questions of fact for the jury." Id. 47 Under the first prong, a government employee's speech is of public concern, and therefore entitled to First Amendment protection, if it is "'of interest to the community, whether for social, political, other reasons.'" Id. at 1271 (quoting Lytle v. City of Haysville, 138 F.3d 857, 863 (10th Cir. 1998)). Haugland's political speech his candidacy for office undoubtedly relates to matters of public concern. See Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971) (The First Amendment's "constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office."); Cragg v. City of Osawatomie, 143 F.3d 1343, 1346 (10th Cir. 1998) ("We would be hard pressed to classify the election of a city council member as anything other than a matter of great public concern."). Thus, Haugland satisfies the first prong of the Pickering / Connick test. 48 Under the second Pickering / Connick prong, Haugland must show that his "interest in the expression outweighs the government employer's interest in regulating it." Horstkoetter, 159 F.3d at 1272-73. Sheriff Hawkins' proffered interest in regulating Haugland's speech is effective law enforcement. "We will defer to a public employer's reasonable predictions of disruption, but those predications must be supported by the presentation of specific evidence. The [employer] cannot satisfy its burden by making 'purely speculative allegations.'" Cragg, 143 F.3d at 1347 (quoting Melton v. City of Oklahoma City, 879 F.2d 706, 716 n.11 (10th Cir. 1989)).8 Here, at the time of Haugland's termination (in contrast to, Jantzen, Preno, and Moulton's termination six-months thereafter), there was specific evidence to support Hawkins' reasonable prediction that when a subordinate runs for office against his or her boss, such a candidacy risks undermining that office's efficient performance. As Hawkins himself stated at the very meeting in which Haugland announced his candidacy and was fired: 49 The most unpleasant period of time that I experienced with Canadian County Sheriff's Office was from June of 1988, to November of 1988. My predecessors, chose not to run for reelection, and allowed several personnel, me included, to run for the position of sheriff and remain employed here during the campaign. During this period of time, personnel would not talk to each other inside the building, they would go outside and talk to each other. Personnel became paranoid about everything, it was impossible for the office to run in a normal manner. 50 Under these circumstances, Haugland's interest in his speech does not outweigh the defendants' interest in efficient law enforcement. See Connick, 461 U.S. at 152 ("[W]e do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action."). In an analogous context, in Horstkoetter, members of the Oklahoma Highway Patrol were prohibited by regulation from displaying political signs at their private residences, even if placed by their spouses. See Horstkoetter, 159 F.3d at 1269. We held that the troopers' § 1983 suit challenging this regulation failed the second prong of the Pickering / Connick test, partly because the prohibition-on-political-signs policy "promotes efficiency and harmony among law enforcement personnel. In some cases, public endorsement of candidates by police officers has stirred great controversy within police departments and has detracted from 'the efficiency and the quality of the services' provided by law enforcement." Id. at 1273 (quoting Ruff v. City of Leavenworth, 858 F. Supp. 1546, 1554 (D. Kan. 1994)). See also Wilbur v. Mahan, 3 F.3d 214, 218 (7th Cir. 1993) ("declaration of candidacy" to run against his boss by an employee holding a confidential or policymaking job is a "declaration of war" and makes the candidate "a political enemy of his boss"). Though the type of speech at issue in Horstkoetter and the present case are not identical, both types of speech are outweighed by the interest of promoting effective law enforcement. Accordingly, we find Haugland has failed to meet the second requirement of the Pickering / Connick test, and the district court's judgment against Haugland is affirmed. III. Qualified Immunity 51 In the alternative, the defendants argue, and the district court held, that Appellants' claims for damages are barred by the doctrine of qualified immunity. As we have affirmed summary judgment against Haugland on the merits, we only discuss qualified immunity as it pertains to Jantzen, Moulton, and Preno's First Amendment associational claim. When a defendant pleads qualified immunity, the plaintiff must show that: (1) the defendant's actions violated a federal constitutional or statutory right, and (2) the right violated was "clearly established at the time of the conduct at issue." Horstkoetter, 159 F.3d at 1277-78. 52 For a right to be clearly established, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. Although the very action in question need not have been previously declared unlawful, in the light of pre-existing law the unlawfulness must be apparent. This is generally accomplished when there is controlling authority on point or when the clearly established weight of authority from other courts supports plaintiff's interpretation of the law. 53 Greene v. Barrett, 174 F.3d 1136, 1142 (10th Cir. 1999) (quotations, citations, alteration omitted). 54 In light of the facts set forth in the complaint, the preexisting case law detailed in this opinion, including Dickeson and Francia, which held that jobs such as jailer and deputy sheriff did not require political loyalty to the sheriff, and, most importantly the fact the Defendant Hawkins himself knew and had empirical evidence that the lack of political loyalty by Jantzen, Moulton, and Preno did not interfere with the effective performance of their jobs, we conclude that Hawkins should have known that it would be unconstitutional to terminate Jantzen, Moulton, and Preno for affiliating with and/or believing in a particular candidate. Accordingly, we conclude that Hawkins is not entitled to qualified immunity and the district court erred in granting summary judgment on this basis. 55 * * * 56 We also affirm the district court's grant of summary judgment in favor of the Canadian County Board of County Commissioners ("Board"). Appellants, citing Brandon v. Holt, 469 U.S. 464, 471-72 (1985), argue that the Board should be held liable because Hawkins in his official capacity "is essentially the same entity as the Board." However, a municipality cannot be liable under §1983 for acts of a municipal official in his official capacity "unless that official possesses final policymaking authority to establish municipal policy with respect to acts in question." Houston v. Reich, 932 F.2d 883, 887 (10th Cir. 1991) (citing Pembaur v. City of Cincinnati, 475 U.S. 469 (1986)). Put another way, for a local government unit such as the Board to be liable for violating § 1983, that unit's allegedly unconstitutional act (or the act of the defendant in his or her official capacity) must execute "a government's policy or custom." Monell v. Dep't of Social Services, 436 U.S. 658, 694 (1978); Clark v. City of Draper, 168 F.3d 1185, 1187 n.5 (10th Cir. 1999) (interpreting Monell). The record belies any suggestion that the Board's policy or custom was to fire the Sheriff's subordinates for running for office and/or politically associating with, believing in, or campaigning for the "wrong" candidate. The Sheriff was popularly elected by the people of Canadian County, and he fired the Appellants. The Sheriff neither reports to, nor is controlled by, the Board, and thus there is no basis in this case by which the Board could be held liable for such allegedly unlawful terminations. 57 In the end, all that is left for trial is Jantzen, Moulton, and Preno's First Amendment association claim against Hawkins. Accordingly, the judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED in part and REVERSED in part, and the case is REMANDED for further proceedings. Notes: 1 Dickeson's focus on the inherent powers of the positions and the actual duties performed was overlooked three years later in Green v. Henley, 924 F.2d 185 (10th Cir. 1991). In Green, the court found that a dispute as to the actual duties of an employee was not relevant for a Branti inquiry. Instead, the court (quoting the Seventh Circuit case of Tomczak v. City of Chicago, 765 F.2d 633, 640 (7th Cir. 1985)) said that we should focus only on the "powers inherent in a given office." Green, 924 F.2d at 186. Given this conflict between Green and Dickeson, we adhere to the earlier, settled precedent of Dickeson, see Haynes v. Williams, 88 F.3d 898, 900 n.4 (10th Cir. 1996), and thereby focus on both the inherent and actual powers of office. 2 As use of this testimony indicates, we grant Appellants' motion to include Hawkins' deposition testimony in the record on appeal. 3 To the extent that defendants assert that Moulton "formulated policy on a daily basis" by disciplining and segregating inmates, we note that (1) the label "policymaker" is not dispositive, see Branti, 445 U.S. at 518; (2) that Hawkins testified otherwise, stating that "[a]ny approved policy, the bottom line is I have to approve it;" and (3) that in any event, those duties as carried out by a jailer in Canadian County seem best characterized as implementation of policy, not formulation of policy. 4 Our review of Oklahoma statutes also reveals more specific duties and inherent powers of deputy sheriffs, including authorization to seize any item, equipment, or vehicle used in violation of the Oklahoma Wildlife Conservation Code, Okla Stat. tit. 29, § 7-206; to stop any vehicle upon any road to weigh such vehicle, Okla Stat. tit. 47, § 14-111(a); to stop and inspect invoices or load tickets at all times during the transit of petroleum products, Okla Stat. tit. 68, § 1013(B)(5); to stop any vehicle to determine if unstamped or untaxed tobacco products are being sold, and if so, to seize such items, Okla Stat. tit. 68, §§ 351(B), 417(a), 428(B); to seize any motor vehicle subject to a tax lien, Okla Stat. tit. 68, § 721; to enforce the Motor Carrier Act of 1995 by apprehending and detaining motor vehicles, arresting violators, and aiding and assisting in the prosecution of violators, Okla Stat. tit. 47, § 180m; to deem a vehicle abandoned and to remove the vehicle, Okla Stat. tit. 47, § 901; and to be appointed by the sheriff to serve on a community sentencing system planning council, Okla Stat. tit. 22, § 987.5(B)(3). 5 Hawkins further testified: Q: [A]s sheriff, are you the chief policymaker for the Canadian County Sheriff's Office? A: Yes, sir. . . . Any approved policy, the bottom line is I have to approve it. . . . . Q: [C]an you think of any example when any of the plaintiffs implemented a policy on their own that other members of the sheriff's office were obligated to follow? A: Not obligated, no, sir. . . . . A: [T]he bottom line is all written policy is approved by me. I do use suggestions from people, but no matter how good the suggestion, if I don't go along with it, you are correct, it doesn't become policy. 6 Defendants, citing Nichols v. Hurley, 921 F.2d 1101, 1109-11 (10th Cir. 1990), assert that when deputy sheriffs work in a small county like Canadian County, Oklahoma, those deputies fall within the Branti exception of jobs for which political loyalty is an appropriate job requirement. Nichols, however, is inapposite, for it is a Fair Labor Standards Act (FLSA) case which held as a matter of law that deputy sheriffs in a small county fall within the personal staff exception of the FLSA and are therefore not covered "employees" as that term is defined by the FLSA. That holding is of little help to defendants who are trying to apply the Branti exception to their termination of deputy sheriffs for being politically disloyal. 7 Appellants ask us to grant summary judgment for them on this issue. However, since Appellants did not seek summary judgment below, we decline to consider that issue on appeal. 8 We recently stated in Prager v. LaFaver, 180 F.3d 1185, 1191 (10th Cir. 1999), that "[s]peculative assertions of workplace disruption are also insufficient; rather, the employer must show actual disruption of services which results from the employee's speech," (quotation, citation, and alteration omitted). However, that statement in Prager was in the context of a whistleblower who continued for sometime to work at the government office at issue. Thus, it was reasonable there to look for proof of actual disruption in order to justify the subsequent firing. However, as we earlier stated in Cragg, such actual disruption of services may be shown simply by "reasonable predictions" of disruption if based on specific evidence.

543 U.S. 810 JOHNSON ET UX.v.CITY OF SHOREWOOD, MINNESOTA, ET AL. No. 03-1512. Supreme Court of United States. October 4, 2004. 1 C. A. 8th Cir. Certiorari denied. Reported below: 360 F. 3d 810.

933 So.2d 222 (2006) NORWEST BANK v. Junius C. WALKER, and Eddie M. Walker (a/k/a Eddie Mae Baker) and the United States of America, Internal Revenue Service. No. 2005-CA-1068. Court of Appeal of Louisiana, Fourth Circuit. May 24, 2006. Stacy C. Wheat, Jane Faia Mentz, Shapiro & Mentz, L.L.P., Metairie, LA, for Plaintiff/Appellee, Norwest Bank. *223 John McKnight, Katy, TX, In Proper Person and for Defendant/Appellant, Gert Town Enterprise Economic Redevelopement, Inc. (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO, JR.) CANNIZZARO, Judge. First National Bank of Chicago ("First of Chicago") foreclosed on a mortgage affecting real estate owned in part by Gert Town Enterprises Economic Redevelopment, Inc. ("Gert Town"). An in rem judgment[1] in favor of First of Chicago was rendered in the foreclosure suit, and Gert Town is appealing that judgment. STATEMENT OF FACTS AND PROCEDURAL HISTORY Norwest Bank initially filed suit on a promissory note made by Junius C. Walker and Eddie M. Walker, also known as Eddie Mae Baker, that was originally payable to New Orleans Federal Savings and Loan Association but was subsequently transferred to Norwest. Payments on the note were in arrears, and Norwest sued to enforce a mortgage that secured the payment of the note. The mortgage covered property in New Orleans located at 3413-15 Audubon Court, 3409-11 Audubon Court, and XXXX-XX-XX½ Bloomingdale Court. Because the whereabouts of Mr. and Mrs. Walker were unknown, an attorney was appointed by the trial court judge to represent them in the suit by Norwest. After the suit was filed by Norwest, First of Chicago was substituted as the plaintiff in the suit, and the United States Internal Revenue Service was added as a defendant. First of Chicago was substituted as the plaintiff, because it had acquired the note securing the mortgage. The Internal Revenue Service was added as a defendant, because it had filed tax liens against the mortgaged property. A consent judgment, however, was subsequently rendered that provided for the discharge of the tax liens against the mortgaged property, so that it could be sold after foreclosure free of the liens. An in rem judgment recognizing the mortgage on the mortgaged property was granted in favor of First of Chicago and against Mr. and Mrs. Walker. Because the judgment was in rem, it affected only the mortgaged property and not Mr. and Mrs. Walker personally, but First of Chicago reserved its rights to sue them personally. The mortgaged property was seized by the Orleans Parish sheriff and sold at public auction. First of Chicago was the highest bidder at the auction, and the mortgaged property was transferred to First of Chicago by a sheriff's deed. After the mortgaged property was purchased by First of Chicago, First of Chicago moved to rescind the sale, because at the time of the sale, Gert Town and others owned an interest in the mortgaged property and had not been made parties to the foreclosure proceeding. The trial court granted the motion to rescind the sale and also ordered that all mortgages and other encumbrances that had been inscribed against the mortgaged property at the time of the sale to First of Chicago be reinstated and reinscribed in the public records. *224 After the original sale to First of Chicago was rescinded, First of Chicago filed a supplemental and amending petition for the enforcement of the mortgage. Tarnisia Eyette Walker and Gert Town were added as additional defendants in the proceeding, and the unopened succession of Mr. Walker[2], who was deceased, was substituted for Mr. Walker as a defendant. The supplemental and amending petition alleged that Mrs. Walker was deceased and that a judgment of possession in her succession had been rendered placing Tarnisia Walker in possession of Mrs. Walker's undivided one-half community interest in the mortgaged property. Additionally, the supplemental and amending petition alleged that prior to his death, Mr. Walker donated to Gert Town his undivided one-half interest in the mortgaged property. Gert Town answered the supplemental and amending petition and denied all of its allegations except the allegations pertaining to the identity of Mr. and Mrs. Walker and to the donation of Mr. Walker's interest in the mortgaged property to Gert Town. Because the whereabouts of Tarnisia Walker were unknown, an attorney was appointed by the trial court to represent her in the foreclosure proceeding. First of Chicago then filed a motion for summary judgment. In connection with the motion for summary judgment, First of Chicago presented an affidavit to evidence the amount of the debt on the note that was secured by the mortgage as well as evidence of the mortgage itself, which contained a confession of judgment[3] by the mortgagors. A certificate of advertisement in the Times Picayune newspaper was submitted to the trial court as evidence that a search for the note, which had been lost, had been conducted. A judgment was entered on the motion for summary judgment. An in rem judgment, which recognized the mortgage by Mr. and Mrs. Walker, was rendered in favor of First of Chicago and against the unopened succession of Mr. Walker, Tarnisia Walker, and Gert Town in the amount due on the note secured by the mortgage plus interest, reasonable attorneys' fees, and all other amounts permitted by the terms of the mortgage. First of Chicago's rights to sue any debtors on the note were preserved, and the judgment affected the mortgaged properties only. Gert Town is now appealing the judgment. DISCUSSION Standard of Review Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court's consideration of whether summary judgment is appropriate. Reynolds v. Select Props., Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. See also Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 231. A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). If the court finds that *225 a genuine issue of material fact exists, then summary judgment must be rejected. Oakley v. Thebault, 96-0937 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. The burden of proof does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Id. At that point, if the party opposing the motion "fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact." La. C.C.P. art. 966(C)(2). Summary judgment should then be granted. Assignments of Error Assignment of Error No. 1: The trial court committed error in granting the in rem summary judgment in favor of First of Chicago in the absence of an original promissory note and in the absence of a certified copy of a notarial act of transfer of the note, the mortgage securing the note, and the assignment of leases and rents. Foreclosures on immovable property in Louisiana can be brought by an ordinary proceeding or by an executory proceeding. See Hibernia Bank & Trust Co. v. LaCoste, 190 La. 162, 182 So.2d 314 (1938). La. C.C.P. art. 2631 provides that "[e]xecutory proceedings are those which are used to effect the seizure and sale of property, without previous citation and judgment, to enforce a mortgage or privilege thereon evidenced by an authentic act importing a confession of judgment. . . ." In a foreclosure by executory process, much of the evidence must be by authentic act.[4]See La.C.C.P. arts. 2635-37. In a foreclosure proceeding by ordinary process, the general rules applicable to ordinary lawsuits are followed. In the instant case, which is a foreclosure by ordinary process, the promissory note that is secured by the mortgage is not required to be introduced into evidence if the requirements of La. R.S. 13:3741 are met. That statute provides in relevant part: In every case where a lost instrument is made the foundation of a suit it must appear that the loss has been advertised within a reasonable time in a public newspaper and proper means taken to recover the possession of the instrument. In the instant case, the record contains a certificate of publication by the accounts receivable manager of the Times-Picayune Publishing Corporation stating that an advertisement reading as follows was published in The Times-Picayune newspaper: Anyone knowing the whereabouts of one certain mortgage noted [sic] dated May 28, 1986, payable to the order of New Orleans Federal Savings Loan Association, in the sum of $28,000 dollars, signed by Junius C. Walker and Eddie M. Walker. [sic] Please contact Jane Faia Mentz, Attorney at Law, (504) 831-7726. This certificate of publication, together with an affidavit executed by the assistant secretary of Alliance Mortgage Company, the mortgage servicing agent for First of Chicago, stating that she had personal knowledge that First of Chicago was the last holder of the note but that the note was lost or misplaced by First of Chicago, was introduced into evidence in connection with the motion for summary judgment in *226 this case. Because the certification of publication and the affidavit were uncontradicted, they were sufficient to prove the existence of the lost mortgage note. Gert Town has also asserted that it was error for the trial court to permit foreclosure on the mortgaged property, because there were no notarial acts of transfer showing the transfers pursuant to which First of Chicago ultimately obtained ownership of the note secured by the mortgage. In a foreclosure by ordinary proceedings, there is no requirement that evidence of the transfer of the note secured by the mortgage be by authentic act.[5] In the instant case, the ownership of the mortgage note was evidenced by the affidavit of the assistant secretary of the mortgage-servicing agent for First of Chicago. The existence of the original note and its chain of title were properly proven in the instant case. This assignment of error is without merit. Assignment of Error No. 2: The trial court committed error by "applying an Act of Sale Mortgage rules" to render an in rem judgment. In this assignment of error, we assume that Gert Town is asserting that there are different rules that apply to the foreclosure of a mortgage securing a loan that was used to purchase the mortgaged property as opposed to a loan, such as an equity loan, that was not used to purchase the mortgaged property, this assignment is without merit. The same methods of foreclosure are applicable to both purchase money mortgages and other types of mortgages that affect immovable property. We note that Rule 1-3 of the Uniform Rules—Courts of Appeal provides that Louisiana courts of appeal "will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise." Additionally, Rule 2-12.4 of the Uniform Rules—Courts of Appeal requires that all specifications or assignments of error must be briefed. Further, Rule 2-12.4 states that "[t]he court may consider as abandoned any specification or assignment of error which has not been briefed." This assignment of error has not been specifically briefed. Therefore, we do not consider it. Assignment of Error No. 3: The trial court committed error in granting the in rem judgment without a certified history of payment of the account, and "a proper transfer of the balance was not performed on the account in question using the Uniform Commercial Code." Gert Town has not cited the provisions of the Uniform Commercial Code upon which this assignment of error is based. Thus, this aspect of the assignment of error has not been briefed, and under Rule 2-12.4 of the Uniform Rules—Courts of Appeal, we are not obligated to consider it. To the extent that this assignment of error asserts that a certified history of the account was required to be introduced into evidence before the trial court could render judgment in this case, we find that this assignment of error is also without merit. The affidavit executed by the assistant secretary of Alliance Mortgage Company, the mortgage servicing agent for First of Chicago, contained the amount due on the note secured by the mortgage sought to be foreclosed, and no contradictory evidence of the amount due on the note was presented in connection with the motion for summary judgment. Therefore, *227 the amount contained in the affidavit was satisfactory evidence of the amount owed on the note. Additionally, we know of no legal requirement that a certified history of the payments on a mortgage note be presented in an ordinary foreclosure proceeding. Assignment of Error No. 4: The trial court committed error in accepting First National Bank of Chicago as a substitute under La. C.C.P. arts 801-807, "because there must be a legal transference of the subject matter of the note itself." Articles 801 through 807 of the Louisiana Code of Civil Procedure refer to the rules regarding the procedure for substituting a new party in a lawsuit when, among other things, the original litigant has died. These articles do not relate to the instant case, and the relationship was not briefed by Gert Town. We are, therefore, unable to consider this assignment of error. Rule 2-12.4 of the Uniform Rules—Courts of Appeal. Thus, this assignment of error is without merit. Legal Authorities Cited by Gert Town Gert Town has cited four cases in its brief in support of its position.[6] We note, however, that all of these cases involved foreclosures by executory process, not foreclosure by ordinary proceedings, which is what is involved in the instant case. Therefore, these cases are not applicable in the instant case. First of Chicago's Burden of Proof First of Chicago moved for summary judgment in the instant case and bore the burden of proof on the motion for summary judgment. The pleadings and affidavits in the record prove the essential elements required to be proved by First of Chicago. Therefore, First of Chicago met its initial burden of proof. To defeat the motion for summary judgment filed by First of Chicago, Gert Town was required to oppose the motion for summary judgment by showing that a genuine issue of material fact existed. To show this, Gert Town could have presented to the trial court opposing affidavits, depositions, or answers to interrogatories, but it did not do so. Therefore, no genuine issue of material fact was raised, and First of Chicago was entitled to summary judgment. CONCLUSION There is no merit to the assignments of error raised by Gert Town. The judgment of the trial court is affirmed. AFFIRMED. NOTES [1] An in rem judgment operates directly against property and affects all parties' interest in the property. Black's Law Dictionary 860 (8th ed.2004). In contrast, a personal judgment imposes personal liability on a defendant and may be satisfied from any of the defendant's property not exempt from seizure. [2] Gert Town has not raised the issue of whether the unopened succession was a proper party in this case, and we have not considered it. [3] La. C.C.P. art. 2632 provides that "[a]n act evidencing a mortgage or privilege imports a confession of judgment when the obligor therein acknowledges the obligation secured thereby, whether then existing or to arise thereafter, and confesses judgment thereon if the obligation is not paid at maturity." [4] La. Civil Code art. 1833(A) provides that an authentic act is "a writing executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed." [5] La. C.C.P. arts. 2635-37 set forth the requirements regarding the use of authentic evidence in foreclosure proceedings in which executory process is used. [6] Gert Town cited the following cases in its brief: Bank of Louisiana v. Yolo Corp., 430 So.2d 756 (La.App. 5th Cir.1983); Fabacher v. Hammond Dairy Co., 389 So.2d 87 (La.App. 4th Cir.1980); Sternberg v. Mason, 339 So.2d 373 (La.App. 1st Cir.1976); and Scarborough v. Duke, 251 So.2d 58 (La.App. 3rd Cir.1971).

160 Wis.2d 722 (1991) 467 N.W.2d 531 STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Harold W. KUNTZ, Defendant-Appellant-Cross Petitioner.[†] No. 88-1565-CR. Supreme Court of Wisconsin. Argued October 5, 1990. Decided April 3, 1991. *729 For the plaintiff-respondent-petitioner the cause was argued by Christopher G. Wren, assistant attorney general, with whom on the briefs was Donald J. Hanaway, attorney general. For the defendant-appellant-cross petitioner there were briefs and oral argument by Charles Bennett Vetzner, assistant state public defender. WILLIAM A. BABLITCH, J. The State of Wisconsin (State) appeals a decision of the court of appeals which reversed Harold Kuntz's (Kuntz) conviction for arson to a building. The court of appeals concluded that because the jury instructions relieved the State of its burden of proving each element of arson beyond a reasonable doubt, the conviction must be reversed. We conclude *730 that although the circuit court's instruction created a mandatory conclusive presumption as to an element of the arson charge, the presumption did not play any role in the jury's verdict. Consequently, this case presents the rare situation in which a conclusive presumption regarding an element of the crime is harmless error. Therefore, we reverse the court of appeals on this issue. Kuntz raises four additional issues challenging his convictions for first-degree murder and burglary/battery: 1) whether the prosecution could use illegally obtained custodial statements of the defendant to impeach the testimony of a prosecution witness; 2) whether evidence of uncharged misconduct by the defendant eleven and sixteen years earlier was admissible; 3) whether evidence of a prior misdemeanor conviction of a crime not involving dishonesty may be used to impeach the defendant's credibility; and 4) whether convictions and punishment for both first-degree murder and burglary/battery constitute multiple punishments for the same offense. We find no merit with respect to these issues, and, accordingly, we affirm the court of appeals' decision on these issues. On September 18, 1987, Harold Kuntz was convicted of three felonies: committing battery in the course of a burglary, contrary to sec. 943.10(2)(d), Stats.;[1]*731 arson, contrary to sec. 943.02(1)(a);[2] and first-degree murder, contrary to sec. 940.01.[3] Kuntz's convictions stem from occurrences on the evening of March 1, 1987, at the Twin Oaks Trailer Court near Whitewater, Wisconsin where Kuntz's estranged wife, Karen Kuntz, lived with her daughters Sandy and Susan Bowers. Karen Kuntz testified that at about 10 p.m. on the night in question, she returned to the trailer park with her friend Dan Deegan. As they entered the trailer park, Ms. Kuntz saw the defendant's red pickup truck approaching the intersection with its lights off. She recognized the defendant as the driver and observed the truck enter the main highway and travel "a ways" before turning on its lights. When Ms. Kuntz arrived at her mobile home, she smelled smoke. Although both doors of the mobile home had been locked when she left the mobile home at 9 p.m. that evening, she discovered the front door unlocked and the back door wide open. She discovered her daughter Sandy Bowers lying behind the front door. Ms. Bowers was unconscious and had blackened eyes and head injuries. A pathologist at trial testified that Bowers' skull *732 had been "shattered like an eggshell," probably by a blunt instrument with a thin wedge point, and that these injuries were the cause of her death 18 days later on March 19. Ms. Kuntz's brother and Deegan put out the fire in the mobile home. The State at trial presented opinion testimony that the fire had been deliberately set by an open flame in two distinct areas within the bedroom of the mobile home. Harold Kuntz was arrested on the morning of March 2, 1987 while sleeping at the home of Beverly Salmon. Salmon later testified that she had arrived home shortly after 10:00 p.m. on March 1 to find Kuntz waiting for her in his truck in the driveway. She also testified that at his suggestion she and Kuntz took a ride. They travelled on back roads to Beloit and Milwaukee before arriving back at her home at about 4:00 a.m. on March 2. Somewhere during this journey Kuntz apparently lost or disposed of his boots which were missing when they returned to Salmon's. Shortly after Kuntz's arrest, he was taken to an interview room at the jail and given Miranda warnings. See Miranda v. Arizona, 384 U.S. 436 (1966). Kuntz contends that he told police he did not want to talk, that he had a lawyer, and that he wanted to go back to his cell. Less than four hours later the same officer again brought the defendant to the same interview room and, defendant asserts, began interrogating him without issuing new Miranda warnings. At this point, Kuntz made statements to the police indicating that he had not been at the Twin Oaks Trailer Park the previous evening. At trial, Karen Kuntz testified that she had seen the defendant's truck drive past her mobile home with its lights off four or five times on February 23, 1987. She testified that she talked to the defendant on February 25, *733 1987, after he had followed Deegan's car. The defendant had told her he needed her and that if he couldn't have her nobody else could and that she would be sorry if she went through a divorce. Ms. Kuntz further testified that the defendant had threatened her on previous occasions as well, stating that she would never own anything, that he would destroy anything she owned, and on two occasions that he would kill her children. Several other witnesses testified that they had heard Kuntz threaten to hurt Karen Kuntz and her children and destroy her property. The defendant testified on his own behalf at trial. He admitted that he went to the trailer court on March 1 around 10 p.m. He drove past Karen Kuntz's mobile home and then came back out to the intersection without stopping because Karen's car was not there. At the intersection he stopped his truck, shut off the lights, and made some notes about a plumbing job he had just completed. After he completed that task and began moving forward in the truck, he saw another car coming towards him, but he could not identify anyone in that vehicle. The jury found Kuntz guilty of all three charges after a five-day trial. The circuit court sentenced Kuntz to life in prison for the first-degree murder conviction and twenty years each for the arson and burglary/battery convictions to be served consecutively. The court of appeals affirmed Kuntz's convictions for murder and burglary/battery, but reversed the arson conviction and ordered a new trial. Additional facts are set forth below. Jury Instructions The first issue is whether the circuit court relieved the State of its burden of proving every element of the *734 arson charge beyond a reasonable doubt in violation of Kuntz's due process rights. The court of appeals held that the jury instruction, "[a] mobile home is a building," relieved the State of its burden of proving a necessary element of the offense—that a "building" was damaged by fire. We hold that although the instruction was erroneous because it created a mandatory conclusive presumption regarding an element of the arson offense, the error was harmless. After both parties rested, the circuit court and counsel conferred regarding the jury instructions. The court proposed to use the pattern arson instruction, Wis JI—Criminal 1404. The pattern instruction contains no reference to a trailer or mobile home. Neither party raised a question whether a trailer or a mobile home is a building, for purposes of sec. 943.02(1)(a), Stats., and neither party objected to the proposed use of the standard arson instruction. When the conference ended at 10:33 a.m., the circuit court recessed for ten to fifteen minutes. When the court reconvened, it noted that counsel "now have instructions copies and copies of the verdict." The copies of the arson instructions contained the additional sentence, "[a] mobile home is a building." The circuit court did not inform either party that this sentence had been added to the standard instruction. The court immediately called in the jury, and the parties made their final arguments. No part of the arguments touched on the issue of whether a trailer or a mobile home is a building. At 1:05 p.m., the court recessed for lunch and then reconvened at 2:17 p.m. The jury returned to the courtroom and was orally instructed, including the arson instruction with the additional words. Neither party objected during or after the instructions. *735 [1] As a preliminary matter, we note that the judge should have alerted both parties that it had added language to the standard jury instructions after the instructions conference. To prevent this specific issue from arising in the future, we exercise our superintending authority under article VII, sec. 3(1) of the Wisconsin Constitution to declare that the circuit courts of this state must inform counsel of changes they make to jury instructions following the instructions conference. We believe that this rule is necessary to ensure that both parties are aware of the actual content of the jury instructions. [2] Whether the jury instructions given by the circuit court violated Kuntz's right to due process is a question of Law. State v. Zelenka, 130 Wis. 34, 43, 387 N.W.2d 55 (1986). This court must decide questions of law independently without deference to the decision of the lower courts. Id. We hold that although the jury instructions created a mandatory conclusive presumption regarding an element of the arson offense, this case presents one of the exceedingly rare situations in which a conclusive presumption is harmless error because we are confident the error did not play any role in the jury's verdict. Section 943.02(1)(a), Stats., requires the State to prove that a building has been damaged by fire. A separate statute, sec. 943.03, which provides a lesser penalty, covers arson which damages property other than buildings. Kuntz contends that the jury instruction "[a] mobile home is a building," was a mandatory conclusive presumption that required the jury to find that the State had proved that a building had been damaged by fire if the jury found that the structure damaged by fire was a *736 mobile home. Kuntz asserts that the instruction unconstitutionally foreclosed the defendant's right to have the jury decide whether this structure was a building. The State contends that by characterizing the mobile home as a building, the circuit court merely gave definitional content to a statutory term. The State claims that this instruction is analogous to the instruction upheld by the court of appeals in State v. Childs, 146 Wis. 2d 116, 120, 430 N.W.2d 353 (Ct. App. 1988), cert. denied 109 S. Ct. 1154. In Childs, the defendant was charged with second-degree sexual assault contrary to sec. 940.225(2)(a), Stats., which prohibits sexual intercourse, including fellatio, with another person without consent by use or threat of force or violence. Fellatio is not defined under the statutes. The court of appeals found that the circuit court's additional instruction that "fellatio is the oral stimulation of the penis," was not error because it is appropriate for the circuit court to instruct the jury on the ordinary and common meaning of a word as established by the definition in a recognized dictionary. Childs, 146 Wis. 2d at 120. [3] It is axiomatic that the State must prove all the elements of a crime beyond a reasonable doubt to convict a defendant. Muller v. State, 94 Wis. 2d 450, 473, 289 N.W.2d 570 (1980). Therefore, evidentiary presumptions in a jury charge that relieve the state of its duty to prove each element beyond a reasonable doubt violate the due process rights of the accused. Muller, 94 Wis. 2d at 473-74; Francis v. Franklin, 471 U.S. 307, 313 (1985); Sandstrom v. Montana, 442 U.S. 510, 520-24 (1979). [4-6] A mandatory presumption instructs the jury that it must find the elemental fact if the state proves certain *737 predicate facts. Muller, 94 Wis. 2d at 475; Francis, 471 U.S. at 314. A mandatory presumption that is irrebuttable is conclusive. Thus, a mandatory conclusive presumption relieves the state of its burden of persuasion by removing the presumed element from the case entirely if the state proves the predicate facts. Muller, 94 Wis. 2d at 475; Francis, 471 U.S. at 314 n.2. If a specific portion of the jury charge, considered in isolation, could have been understood by reasonable jurors as creating a conclusive presumption, the potentially offending words must be considered in the context of the instruction as a whole to discern if other instructions adequately explain the infirm language and negate the unconstitutional presumption. Carella v. California, 109 S. Ct. 2419, 2420 (1989); Francis, 471 U.S. at 315. [7, 9] Mandatory conclusive presumptions are impermissible because in addition to "`overriding [the] presumption of innocence with which the law endows the accused,'" Carella, 109 S. Ct. at 2421 (Scalia, J., concurring (quoting Sandstrom, 442 U.S. at 523)), such presumptions "`invade [the] fact-finding function' which in a criminal case the law assigns solely to the jury." Carella at 2422 (Scalia, J., concurring). It is beyond dispute that proof of all essential elements must be tendered to the jury. State v. McAllister, 107 Wis. 2d 532, 533, 319 N.W.2d 865 (1982). "An erroneous presumption on a disputed element of the crime renders irrelevant the evidence on the issue because the jury may have relied upon the presumption rather than upon that evidence." Connecticut v. Johnson, 460 U.S. 73, 85 (1983) (plurality opinion). [9] The defendant is correct in his assertion that the instruction "[a] mobile home is a building" is a *738 mandatory conclusive presumption regarding an element of the charge of arson under sec. 943.02, Stats. The State is required to prove beyond a reasonable doubt that the structure in question is a "building." The instruction given requires the jury to find the State has proved that element if it finds that the State has proved beyond a reasonable doubt that the structure is a mobile home. Proof of the predicate fact that a mobile home has been damaged by fire requires the jury to conclusively presume that an element of the arson offense has been proved. The instruction as a whole did not negate this conclusive presumption. Contrary to the State's position, this instruction is not similar to that given in Childs. In Childs, the circuit court gave the ordinary and common meaning of an undefined term in the statute. It remained for the jury to find that the conduct had occurred. The analogous situation in this case would have been for the circuit court to define "building," but not make its own conclusions as to what types of structures are buildings. Whether a certain structure is a "building" is a question of fact that the jury alone must decide. [10] Nevertheless, a mandatory conclusive presumption is not the equivalent of a directed verdict for the state and is subject to the harmless error rule. Carella, 109 S. Ct. at 2421. As Justice Scalia emphasized in his concurring opinion in Carella, 109 S. Ct. at 2423, the "use of conclusive presumptions [can] be harmless error only in those `rare situations' when `the reviewing court can be confident that [such an] error did not play any role in the jury's verdict.'" (quoting Connecticut v. Johnson, 460 U.S. 73 (1983) (plurality opinion)). Justice Scalia's thorough examination of the application of the harmless error rule to conclusive presumptions *739 in Carella merits careful consideration where, as here, the jury instructions created a conclusive presumption regarding an element of the crime. Justice Scalia emphasizes that courts must recognize that: the harmless-error analysis applicable in assessing a mandatory conclusive presumption is wholly unlike the typical form of such analysis. In the usual case the harmlessness determination requires consideration of `the trial record as a whole,' United States v. Hasting, 461 U.S. 499 (1983), in order to decide whether the fact supported by improperly admitted evidence was in any event overwhelmingly established by other evidence. (Citations omitted.) Such an expansive inquiry would be error [when assessing whether a conclusive presumption is harmless error] . . .. 109 S. Ct. at 2421 (Scalia, J., concurring). * * * '[T]he question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials.' Bollenbach v. United States, 326 U.S. 607 (1946). `Findings made by a judge cannot cure deficiencies in the jury's findings as to the guilt or innocence of a defendant resulting from the court's failure to instruct it to find an element of the crime.' Cabana v. Bulloch, 474 U.S. 376, 384-85 (1986). Id. at 2422. [11] Justice Scalia suggests three situations in which he could conceive of harmless error applying to a conclusive presumption. Id. at 2423. Among those "rare situations" would be "an instruction establishing a conclusive presumption on a charge of which the defendant was acquitted (and not affecting other charges), and an instruction *740 establishing a conclusive presumption with regard to an element of the crime that the defendant [has] admitted." Id. at 2423. The other situation may present itself when: the predicate facts relied upon in the instruction, or other facts necessarily found by the jury, are so closely related to the ultimate fact to be presumed that no rational jury could find those facts without also finding that ultimate fact, making those findings is functionally equivalent to finding the element required to be presumed. The error is harmless because it is `beyond a reasonable doubt,' Chapman v. California, 386 U.S. 18, 24 (1967), that the jury found the facts necessary to support the conviction. Id. [12] The instruction in this case fits within Scalia's final example. The instruction did not play any role in the jury's findings of fact regarding its conclusion that the structure damaged by fire was a building. The jury was instructed that "[a] mobile home is a building"; it was not instructed that "a mobile home is a building and this structure was a mobile home." It remained for the jury to find that the structure in question was a mobile home. We conclude that no rational jury could plausibly find that the structure in question was a mobile home without also finding that the structure was a building. As this court has noted, the common usage of nontechnical words may be established by using the dictionary definition of the word. See State v. Ehlenfeldt, 94 Wis. 2d 347, 356, 288 N.W.2d 786 (1980). The Random House Dictionary of the English Language (2d ed. 1987), defines "mobile home" as "a large house trailer designed for year round living in one place." If the jury found this structure to be a mobile home, as that term is commonly understood, this finding would be the "functional equivalent" of finding that the structure was a building. *741 The evidence, which included photographs of the structure and testimony that there was a permanent porch affixed to the trailer, supports the jury's finding that this structure was a mobile home and not something else such as a motor home. Under these circumstances, we are confident that the mandatory conclusive presumption did not play any role in the jury's verdict and the instruction was, therefore, harmless error. Impeachment by Illegally Obtained Statements At a Goodchild hearing, see State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N.W.2d 753 (1965), cert. denied, 384 U.S. 1017 (1965), prior to the prosecutor's cross-examination of Kuntz, the circuit court ruled that Kuntz's custodial statement was admissible for impeachment purposes because it satisfied the voluntariness and trustworthiness requirements of Wold v. State, 57 Wis. 2d 344, 204 N.W.2d 482 (1973). The circuit court did not address whether the police obtained Kuntz's statements in violation of Miranda, 384 U.S. 436, or Edwards v. Arizona, 451 U.S. 477 (1981), reh'g denied, 452 U.S. 973 (1981). We proceed, as the court of appeals did in this case, by assuming without deciding that the statements were in violation of Miranda. Kuntz asserts that the presumably illegally obtained statement was used by the prosecution in its cross-examination of him to impeach the testimony of a prosecution witness, Beverly Salmon, and thereby violated his due process rights. Kuntz relies on the Supreme Court's recent decision in James v. Illinois, 110 S. Ct. 648, 650 (1990), which held that the impeachment exception, which permits the prosecution to introduce illegally obtained evidence to impeach the defendant's own testimony, *742 does not permit illegally obtained evidence to be used to impeach defense witnesses. The defendant argues that the statement contradicts Salmon's testimony that she, and not Kuntz, had suggested going for a ride and taking back roads when they drove to Beloit and Milwaukee on the night of the murder. Kuntz asserts that this statement was crucial to the closing argument made by the prosecutor that the defendant's contact with Salmon demonstrated the defendant's plan to create an alibi, get rid of incriminating evidence, and flee the scene of the crime. The State agrees with Kuntz's characterization of the evidence. The State argues, however, that the statement was admissible under the impeachment exception because James applies only to defense witnesses and not prosecution witnesses. We find that the record does not support the conclusion that the admitted statement impeached Salmon's testimony and, therefore, we do not address the issue of whether the Court's rationale in James applies equally to prosecution witnesses. Nothing in Kuntz's statement to the police, nor in his testimony, can be characterized as disputing Salmon's testimony. On cross-examination of Kuntz, the following exchange took place which is relied upon by Kuntz for his assertion: Q: Do you remember telling Investigatory Meyer during that same interview that when you got to Salmon's house you told her you wanted to take a ride, and that you wanted to take her car and you didn't want to drive; do you remember saying that? A: Yes, I do, that was after I was sitting inside the Car. *743 Salmon had testified earlier, as a prosecution witness, that on the night of the murder, she had returned home at about 10 p.m. to find Kuntz waiting for her in his truck. Salmon testified that she had asked Kuntz to get in her car. The examination then proceeded as follows: Q: What conversation did you have, —what did Mr. Kuntz say and what did you say? A: Well, I think I said to him, I said: You're out here, And he said: Yeah, he came out to the house and he was waiting for me to come home because when he was at his place I wasn't at his place. Q: What did you say? A: And I said what — I kind of asked him what he wanted to do, and he wanted to go check on the lottery tickets because they had, you know, the lottery had rolled over a few times. Q: Did you — Before you got to the discussion of the lottery, did you say that you were going to take a drive? A: Mm-hmm (indicating affirmative response). Q: And after that — A: He asked me if I wanted to go for a ride, and I said: Why not. On cross-examination, Salmon testified as follows: Q: Was there anything — And I want to ask you a question. You indicate you took the back roads when you headed to Illinois. Why did you take back roads? A: I didn't know. I just chose to take back roads. Q: Did Harold tell you, listen — *744 A: No, Harold had nothing to do with it. I'm the one that suggested it. I go the back roads many places many times. Q: And when you testified: I'll take you on roads that you have never been on going to Milwaukee, did Harold ask you to take different roads or backwood roads? A: No. When I felt South Beloit, I just said to him, I said: You want to go for a ride, I said: I'll take you on roads you have never been before. [13] As the excerpts of the relevant portions of Kuntz's and Beverly Salmon's testimony indicate, nothing in the illegally obtained statement of the defendant that was admitted contradicts Salmon's testimony or calls into question her credibility. The crucial piece of information concerns who wanted to take a ride. Both Salmon's testimony and the defendant's illegally obtained statement acknowledge that Kuntz suggested they go for a ride. Nor can it be said that Kuntz's illegally obtained statement carried any weight as direct evidence. Kuntz, in his direct testimony, indicated that the first thing he had said to Salmon was, "Hi, how about going for a ride and check out the numbers." At most the direct evidence provided by Kuntz's illegally obtained statement was cumulative. Any error was harmless beyond a reasonable doubt. Other-Acts Evidence The third issue is whether the defendant was unfairly prejudiced by prosecution evidence of uncharged misconduct involving arson by the defendant eleven and sixteen years before the charged offense occurred. Prior to trial, the circuit court ruled that the testimony of *745 Kuntz's ex-wife Elvetta Kuntz concerning these events was admissible to show identity and motive. The court of appeals found that although Elvetta Kuntz's testimony was admissible to show identity, the prejudicial nature of her testimony substantially outweighed its probative value and it was, therefore, error to admit this evidence. Nevertheless, the court of appeals found that the error was harmless. We conclude that the circuit court's admission of this evidence to show identity and its determination that the probative value of the evidence was not substantially outweighed by its prejudicial value did not constitute an abuse of discretion. Elvetta Kuntz testified that in 1971, soon after the defendant had separated from his first wife, he expressed his intention on more than one occasion to set fire to his first wife's house. She further testified that on one occasion that year, she had woken up during the night to find Kuntz fully dressed in dark clothes. He told her that he was going to set his first wife's house on fire, but she talked him out of it. Elvetta Kuntz also testified that in 1976 she had returned to the defendant after a brief separation and found her furniture missing. The defendant told her he had gotten mad and made a bonfire out of her and her children's belongings. [14] In reviewing evidentiary issues, "`the question on appeal is not whether this court, ruling initially on the admissibility of the evidence, would have permitted it to come in, but whether the trial court exercised its discretion in accordance with accepted legal standards and in accordance with the facts of record.'" State v. Alsteen, 108 Wis. 2d 723, 727, 324 N.W.2d 426 (1982) (quoting State v. Wollman, 86 Wis. 2d 459, 464, 273 N.W.2d 225 (1979)). If there exists a reasonable basis for the trial *746 court's determination, this court will uphold the trial court's ruling. Id. [15] The admissibility of evidence of prior bad acts is controlled by a two prong test. State v. Friedrich, 135 Wis. 2d 1, 19, 398 N.W.2d 763 (1987); State v. Danforth, 129 Wis. 2d 187, 202, 385 N.W.2d 125 (1986); State v. Fishnick, 127 Wis. 2d 247, 378 N.W.2d 272 (1985). First, the circuit court must find that the evidence is admissible under sec. 904.04(2), Stats., which provides: OTHER CRIMES, WRONGS, OR ACTS. 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. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. If the circuit court finds that the evidence of prior bad acts is admissible under a sec. 904.04(2) exception, then it must consider whether the probative value of the evidence is substantially outweighed by the prejudicial value of the evidence. Section 904.03. As with all evidence, the evidence of prior bad acts must also be relevant to be admissible. Section 904.02. [16, 17] To be admissible for the purpose of identity, the other-acts evidence should have such a concurrence of common features and so many points of similarity with the crime charged that it "can reasonably be said that the other acts and the present act constitute the imprint of the defendant." Fishnick, 127 Wis. 2d at 263-64. The threshold measure for similarity with regard to identity is nearness of time, place, and circumstance of the other *747 act to the crime alleged. Id. at 264, n.7. Whether there is a concurrence of common features is generally left to the sound discretion of the trial courts. Id. The State identifies five features common to the circumstances of this arson and the other-acts about which Kuntz's ex-wife testified. In each instance: 1) the marriage had apparently ended; 2) the wife had left the defendant; 3) the house or household goods of the wife were targeted for destruction by Kuntz; 4) Kuntz used or threatened to use fire as the means of attack; and 5) the victim was the estranged wife. Given these multiple points of congruence, the circuit court had a rational basis for concluding that the other-acts evidence was relevant to the issue of identity in view of the similarities in the conduct of the defendant in each instance. As the State noted, the circumstances in each case were strikingly similar. The threat to use fire that was made in each case is a very unusual threat to make. [18] The defendant contends, however, that the prior acts were so remote in time "to negative all rational or logical connection between the fact sought to be proved and the remote evidence offered in proof thereof." Sanford v. State, 76 Wis. 2d 72, 81, 250 N.W.2d 348 (1977). Although the other-acts here were distant in time, that does not end the inquiry. A person is seldom placed in the position of facing the end of his marriage. In considering time, we must take into account, in a case such as this, not only the time that has passed, but also the opportunities presented over that period for the defendant to repeat the acts. See Sanford, 76 Wis. 2d at 82. Because it is the break up of a marriage that apparently triggered Kuntz's arson-oriented acts, the defendant had few "opportunities to repeat" this conduct during the *748 sixteen years between the most remote acts. Accordingly, we uphold the circuit court's ruling to admit the other-acts evidence for the purpose of identity because there was no abuse of discretion. The circumstances in each instance were strikingly similar and the other-acts were not so remote to attenuate all rational or logical connection between the acts. [19] The second prong of the test for the admissibility of other-acts evidence requires circuit courts to consider and determine "`whether the prejudice of other-crimes evidence is so great as compared with its relevancy and the necessity for its admission in the particular case as to require its exclusion.'" Sanford, 76 Wis. 2d at 82 (quoting Whitty v. State, 34 Wis. 2d 278, 292, 149 N.W.2d 557, 563 (1967)). Although the circuit court did not go into detail as to how it arrived at its finding, the transcript reflects that the court did weigh the probative and prejudicial value of the evidence before making its determination. The circuit court stated: I agree that there is some high prejudice involved here. I also believe it's highly probative because of the very similar circumstances which have existed in these acts and their relationship to the breakup of other relationships of the defendant and, therefore, the court will permit the testimony . . .. * * * [T]he court has to make the prejudicial/probative dichotomy. Now anything that's very highly probative may be very highly prejudicial. I believe this is, but I believe that it's something that is necessary in this situation, though it is fairly highly prejudicial. It is also highly probative because of the unique similarities *749 in the matter — manner in which the defendant approached the problems with which he was faced. The court of appeals concluded that the circuit court did not explicitly conduct the required weighing of the probative and prejudicial value of the evidence and conducted its own weighing as in State v. Pharr, 115 Wis. 2d 334, 343, 340 N.W.2d 498, 502 (1983). We conclude that the circuit court's weighing was adequate and, therefore, we only consider whether the court abused its discretion in making its finding. [20] When other-acts evidence is admitted to show identity, courts must be wary of the danger that the jury will convict the accused on improper considerations such as a belief that because the defendant committed one bad act, he necessarily committed the charged offense. See Fishnick, 127 Wis. 2d at 261-62; Alsteen, 108 Wis. 2d at 728-29; Whitty, 34 Wis. 2d at 292. The standards of probativeness and relevancy are stricter when other-acts evidence is used to show identity because of the greater prejudice that usually accompanies such evidence. Fishnick, 127 Wis. 2d at 264; Whitty, 34 Wis. 2d at 294. [21] Nevertheless, we cannot say the circuit court abused its discretion when it considered the prejudice that would result from this evidence. The court recognized that the evidence was highly prejudicial, but also found that the evidence had a great deal of probative value due to the striking similarities in each case. Under these circumstances, it was not an abuse of discretion for the circuit court to conclude that the prejudice of the evidence did not substantially outweigh the probative value. *750 Impeachment by Prior Misdemeanor Convictions The next issue is whether the defendant was unfairly prejudiced by having his testimony impeached on the basis of a prior misdemeanor conviction not involving dishonesty. The court of appeals held that the circuit court did not abuse its discretion by admitting Kuntz's prior conviction for purposes of impeachment. We agree. The Wisconsin Rules of Evidence, as a general rule, permit evidence of conviction of a crime to attack the credibility of a witness. Kuntz's prior conviction in 1983 for reckless use of a weapon did not involve dishonesty, but was admitted for impeachment purposes. Kuntz also had allegedly been convicted of carrying a concealed weapon and battery in 1970, but the circuit court determined that these convictions were to remote to be admissible. The only inquiry made by the State into Kuntz's 1983 conviction was asking Kuntz if he had ever been convicted of a crime. Kuntz answered "yes." No further information regarding the conviction was presented by the State. The Wisconsin Rules of Evidence, unlike the Federal Rules, do not prohibit the use of prior misdemeanor convictions that do not involve dishonesty. Section 906.09, Stats., states: Impeachment by evidence of conviction of crime. (1) GENERAL RULE. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is admissible. The party cross-examining him is not concluded by his answer. (2) EXCLUSION. Evidence of a conviction of a crime may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. *751 The Judicial Council Committee Note to this section acknowledges that the Wisconsin Rule is "a substantial alteration of the Federal Rule." Judicial Council Committee's Note, Wis. R. Evid., 59 Wis. 2d Rp., R177 (1974). Nevertheless, the defendant argues that the Judicial Council Committee Note indicates that the committee intended to embrace the principles behind the federal limitations, but not the specific procedure. In support of this claim, the defendant cites the Committee's statement that the Federal Rule's "strict limitations upon the use of a criminal conviction makes the Rule administratively impractical. The limitations are appropriate, but they should be considered by the judge in applying sub. (2)." Id. The defendant contends that this language indicates that the Council intended to emulate the Federal Rule by creating a presumption that misdemeanor offenses which do not involve dishonesty are inadmissible, while avoiding the inflexibility of the absolute prohibition of the Federal Rule. Therefore, defendant asserts, prior misdemeanor convictions not involving dishonesty should only be admitted under special circumstances. The defendant also argues that policy compels the conclusion that convictions not related to dishonesty should be excluded under sub. (2) because their prejudicial value substantially outweighs the probative value. The defendant contends that the "`rule of thumb' thus should be that conviction which rest on dishonest conduct relate to credibility whereas those of violent or assaultive crimes generally do not . . " Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967). [22, 23] Wisconsin, however, has not adopted this policy. The language of sec. 906.09, Stats., indicates the intention that all criminal convictions be generally admissible *752 for impeachment purposes. The statute reflects the longstanding view in Wisconsin that "one who has been convicted of a crime is less likely to be a truthful witness than one who has not been convicted." Nicholas v. State, 49 Wis.2d 683, 688, 183 N.W.2d 11, 14 (1971). Furthermore, the prejudice that may accompany introducing past misdemeanor convictions which do not involve dishonesty is mitigated by the restrictions placed on the scope of the inquiry into the past convictions. Id. at 688-89. The examiner may only ask the witness if he has ever been convicted of a crime and if so how many times. State v. Rutchik, 116 Wis. 2d 61, 76, 341 N.W.2d 639 (1984); Nicholas, 49 Wis. 2d at 689. If the witness's answers are truthful and accurate, then no further inquiry may be made. Moore v. State, 83 Wis. 2d 285, 295, 265 N.W.2d 540 (1978); Nicholas, 49 Wis. 2d at 689. Given the limited inquiry into the defendant's prior conviction, we do not believe that the defendant was unduly prejudiced by the circuit court's decision to permit the introduction of this evidence. Whether a prior conviction involves dishonesty is, of course, a relevant consideration to admissibility. As the Judicial Council Committee's Note emphasizes: a judge should consider whether from the lapse of time since the conviction, the rehabilitation or pardon of the person convicted, the gravity of the crime, the involvement of dishonesty or false statement in the crime, the elements noted in Luck v. United States, [121 U.S. App. D.C. 151, 348 F. 2d 763 (1965)], and Gordon v. United States, 127 U.S. App. D.C. 343, 383 F.2d 936 (1967), the probative value of the evidence of the crime is substantially outweighed by the danger of undue prejudice. Judicial Council Committee's Note, 59, Wis.2d at R181. *753 [24] In view of the general rule of sec. 906.09(1), Stats., however, the presumption remains that any prior misdemeanor conviction is relevant to the credibility of a witness's testimony. Although convictions involving dishonesty are more probative of credibility than those that do not, Wisconsin law presumes that all criminal convictions have some probative value regarding truthfulness. None of the other prejudicial factors to be considered apply to this case. Accordingly, the circuit court did not abuse its discretion in admitting the conviction for reckless use of a weapon. Multiple Punishments for the Same Offense The final issue is whether Kuntz's convictions and sentences for both burglary/battery, contrary to sec. 943.10(2)(d), Stats., and first-degree murder, contrary to sec. 940.01, violated his constitutional right to be free from multiple punishments for the same offense. The court of appeals affirmed Kuntz's punishments for both offenses, holding that burglary/battery is not a lesser included crime of first-degree murder. We conclude that because the legislature intended to permit convictions for both burglary/battery and first-degree murder, Kuntz's sentence was not unconstitutional. [25, 26] The federal and state constitutions prohibit multiple punishments for the same offense. U.S. Const. amend V; Wis. Const. art. I, sec. 8. The scope of the protection is governed by the interpretation of the words "same offense." State v. Gordon, 111 Wis. 2d 133, 137, 330 N.W.2d 564 (1983). Whether two statutes proscribe the "same offense" is determined by discerning whether the legislature intended to impose cumulative punishments *754 under each statute. Id.; Missouri v. Hunter, 459 U.S. 359, 367 (1983); Note, Multiple Punishment in Wisconsin and the Wolske Decision, 1990 Wis. L. Rev. 553, 557-59. If the legislature did not intend to permit cumulative punishments, then punishment for both offenses is unconstitutional. "With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Hunter, 459 U.S. at 366. Therefore, in order to determine whether punishment for both burglary/battery and first-degree murder is constitutionally permissible, we must discern whether the legislature intended to permit convictions for both offenses when they arise out of the same criminal transaction. We note at the outset that the legislature permits prosecution under more than one statute for the same conduct. Section 939.65, Stats. This court primarily relies on Wisconsin's lesser included offense statute, sec. 939.66, Stats., to discern whether the legislature intended multiple punishments. Gordon, 111 Wis. 2d at 140-41; Note, 1990 Wis. L. Rev. at 559. This statute precludes conviction under more than one statute for the same criminal act if one crime is an included crime of the other. Section 939.66(1) codifies the Blockburger, 284 U.S. 299 (1932) or "elements only," test, which is the established rule of statutory construction in Wisconsin for determining whether the legislature has authorized multiple punishments. Gordon, 111 Wis.2d at 138-39. [27, 28] Under the "elements only" test, an " `offense is a `lesser included' one only if all of its statutory elements can be demonstrated without proof of any fact or element in addition to those which must be proved for the *755 `greater' offense.'" State v. Carrington, 134 Wis. 2d 260, 265, 397 N.W.2d 484 (1986) (quoting State v. Hagenkord, 100 Wis. 2d 452, 481, 302 N.W.2d 421 (1981)). "[A]n offense is not a lesser-included one if it contains an additional statutory element." Id. (quoting Hagenkord, 100 Wis. 2d at 481). If one of the charged offenses is not considered a lesser included offense of the other, then this court will find that the legislature intended to permit cumulative punishments for both offenses unless other factors clearly indicate a contrary intent. See Missouri v. Hunter, 459 U.S. at 367; Albernaz v. United States, 450 U.S. 333, 340 (1981). The defendant claims that multiple punishments for battery/burglary and first-degree murder are impermissible because a battery within the meaning of sec. 943.10(2)(d), Stats., requires proof of no element not otherwise contained within the first-degree murder statute. The defendant analogizes this case to Gordon, 111 Wis. 2d 133, in which this court found that convictions for kidnapping and felony murder resulted in multiple punishments for the same offense because kidnapping was a lesser included crime of felony murder. The defendant claims that because the physical acts that are alleged to comprise the battery portion of his burglary/ battery charge are the same as those alleged to comprise the murder charge, the case is similar to Gordon in which the physical acts that comprised the felony portion of the felony murder also comprised the kidnapping. In Gordon, we determined that kidnapping was a lesser included offense of felony murder because: "Proof of second-degree felony-murder under sec. 940.02(2) requires proof of all the elements of kidnapping and requires proof of additional elements, namely that the death of another human being was caused as a natural and probable consequence of the commission of or *756 attempt to commit the kidnapping, and proof of kidnapping does not require proof of any element which is not necessary to prove the second-degree murder charge." Gordon, 111 Wis.2d at 135. [29] We find the defendant's analogy to Gordon unpersuasive because proof of burglary/battery requires proof of elements in addition to those required to prove first-degree murder and first-degree murder requires proof of elements not required to prove burglary/battery. The burglary portion of the burglary/battery offense requires proof that the defendant intentionally entered a building or dwelling; that the defendant's entry of the building or dwelling was without the consent of a person in lawful possession and the defendant knew the entry was without consent; and that the defendant entered the building or dwelling with intent to commit a felony. See Wis JI—Criminal 1424 (1966). These elements are not required to prove first-degree murder. First-degree murder requires proof that the accused caused the death of another human being and that the accused intended to kill. Neither of these elements is required to prove burglary/battery. Therefore, under the "elements only" test applied in Wisconsin, first-degree murder is not a lesser included offense of burglary/battery and vice-versa. Consequently, absent a clear indication of legislative intent to the contrary, punishment for both offenses is constitutionally permissible. [30] Other factors that may indicate a contrary legislative intent regarding multiple punishment are the language of the statutes, the legislative history, the nature of the proscribed conduct, and the appropriateness of multiple punishment. See Manson v. State, 101 Wis.2d 413, 422, 304 N.W.2d 729, 734 (1981); State v. *757 Bohacheff, 114 Wis. 2d 402, 338 N.W.2d 466 (1983). None of these factors indicate a contrary legislative intent in this case. To the contrary, examination of these factors indicates that the statutes protect distinct interests of the public. The burglary statutes, including the aggravated situation in which a battery occurs within the burglarized building or dwelling, are directed at protecting the public's security in their enclosed property. The homicide statutes protect life and bodily security. Cumulative punishments protect these distinct interests of the public. Application of the "elements only" test indicates that the legislature intended to permit cumulative punishments for first-degree murder and burglary/battery. Because other factors do not clearly indicate a contrary legislative intent, we conclude that Kuntz's convictions for both offenses did not violate his right to be free from multiple punishments for the same offense. Conclusion For the reasons set forth, we affirm the court of appeals' decision affirming Harold Kuntz's convictions for first-degree murder and burglary/battery. We also conclude that the circuit court's erroneous jury instruction on the arson charge was harmless error. Therefore, we reverse the court of appeals' decision on this issue and affirm the judgment of conviction for arson entered by the circuit court. By the Court.—The decision of the court of appeals is reversed in part and affirmed in part and the judgment of the circuit court is affirmed. NOTES [†] Motion for reconsideration denied. [1] Section 943.10 Burglary provides: (1) whoever intentionally enters any of the following places without the consent of the person in lawful possession and with intent to steal or commit a felony in such place is guilty of a Class C felony: (a) Any building or dwelling; * * * (2) Whoever violates sub. (1) under any of the following circumstances is guilty of a Class B felony: * * * (d) While in the burglarized enclosure commits a battery upon a person lawfully therein. [2] Section 943.02(1)(a). Arson of buildings provides: Whoever does any of the following is guilty of a Class B felony: (a) By means of fire, intentionally damages any building of another without his consent . . .. [3] Section 940.01 First-degree murder (1985-86) provides: (1) Whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony. (2) In this chapter `intent to kill' means the mental purpose to take the life of another human being.

982 A.2d 456 (2009) 200 N.J. 367 STATE v. TACUMA. C-51 September Term 2009, 64,413 Supreme Court of New Jersey. September 11, 2009. Petition for Certification Denied.

166 Ariz. 408 (1990) 803 P.2d 129 David W. JORDAN, Petitioner/Appellant, v. Diane L. JORDAN, Respondent/Appellee. No. 2 CA-CV 90-0160. Court of Appeals of Arizona, Division 2, Department A. December 18, 1990. Gabroy, Rollman & Bosse by Lyle D. Aldridge, Tucson, for petitioner/appellant. Scott MacMillan Baker, Tucson, for respondent/appellee. OPINION LIVERMORE, Presiding Judge. This appeal from an order enforcing a California judgment for spousal support raises issues concerning the effect of bankruptcy proceedings on the enforceability of that judgment. The judgment was entered in May 1986. On September 30, 1988, the husband filed for bankruptcy resulting in a discharge of debts on February 10, 1989. The wife sought to intervene in the bankruptcy proceeding to contest dischargeability of her debt but her complaint was dismissed with prejudice as untimely. She then brought this action. The trial court found that the judgment for spousal support was not discharged in bankruptcy. The husband's appeal contends that the bankruptcy judgment is res judicata and that even if it is not he should be allowed to establish that what was purportedly a spousal support award was actually a property settlement. Because we agree with the second argument, we reverse. Appellant husband's first argument is that because the wife's effort to contest dischargeability in the bankruptcy proceeding was dismissed "with prejudice" that dismissal must be treated as a decision on the merits precluding further assertion of the claim that the spousal support judgment was not discharged. The order of dismissal in this case reads: THIS MATTER, having regularly come by hearing before the Court, and it appearing that the Complaint to Determine Dischargability was filed later than is allowed by statute; and that counsel *409 could have filed the Complaint despite the problem with the runner service; and that, therefore the Plaintiff has lost her right to challenge or object to the discharge of the debts of Debtor, IT IS ORDERED that the above matter be and is hereby dismissed with prejudice. Ordinarily a dismissal with prejudice is treated as a final adjudication on the merits. On the facts of this case it should not be because the bankruptcy code contemplates that dischargeability of spousal support awards may be contested in either the bankruptcy proceeding or in proceeding to enforce a judgment. See Advisory Committee Note to Bankruptcy Rule 4007, 11 U.S.C.A. Indeed, the bankruptcy judgment in this case expressly did not discharge any non-dischargeable spousal support judgment. It is clear from the order of dismissal that it was based on an untimely filing and not on an adjudication on the merits. The phrase "with prejudice" can only mean that the bankruptcy court will not again hear the wife's claim. That, however, does not preclude another court system from hearing that claim in a timely action brought in that system. 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure 369 (1981). The wife, having the right to contest dischargeability in either the bankruptcy court or the courts of this state, did not lose her right to the latter by an untimely filing in the former. It would surely be anomalous for a judgment that by its terms does not discharge spousal support judgments to be treated as having so discharged this judgment because the court refused on procedural grounds to hear the issue. Under 11 U.S.C. § 523(a)(5) a bankruptcy discharge does not discharge a debt to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that — * * * * * * (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support. Thus, the law provides, as did the judgment in this case, that spousal support awards are not discharged. It also provides, however, that something labelled spousal support is discharged if the obligation is in fact not one for spousal support. Appellant husband offered evidence that what was labelled support was in fact a property settlement. The trial court refused to hear the evidence on the ground that it was a collateral attack on a California judgment. Assuming that such a characterization is apt, the attack is nonetheless permitted, indeed required, by federal law. The same law that permits the wife to establish that a debt is not discharged because it is a spousal support award permits the husband to establish that it is discharged because the award was not for spousal support. See generally Martin v. Henley, 452 F.2d 295 (9th Cir.1971). The judgment is reversed and the matter remanded for further proceedings. HATHAWAY and LACAGNINA, JJ., concur.

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. RICARDO HERNANDEZ, Appellant. No. 1 CA-CR 15-0101 FILED 3-29-2016 Appeal from the Superior Court in Maricopa County No. CR2013-417494-001 The Honorable Virginia L. Richter, Judge Pro Tem AFFIRMED COUNSEL Arizona Attorney General’s Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Janelle A. McEachern Attorney at Law, Chandler By Janelle A. McEachern Counsel for Appellant MEMORANDUM DECISION Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.  STATE v. HERNANDEZ Decision of the Court G E M M I L L, Judge: ¶1 Ricardo Hernandez appeals his conviction and sentence for aggravated assault, a domestic violence offense. Hernandez’s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), stating that she has searched the record and found no arguable question of law and requesting that this court examine the record for reversible error. Hernandez was afforded the opportunity to file a pro se supplemental brief and has done so. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). For the following reasons, we affirm. BACKGROUND ¶2 “We view the facts and all reasonable inferences therefrom in the light most favorable to sustaining the convictions.” State v. Powers, 200 Ariz. 123, 124, ¶ 2 (App. 2001). On April 12, 2013, police were called to a home after several 911 calls reported a domestic violence altercation. Hernandez’s neighbor, Patricia G., called 911 after she witnessed Hernandez chasing his son, J.H., down the street. Patricia G. testified that J.H. was screaming for help, saying that his father was beating his mother. Another neighbor, Daniel K., testified that he witnessed Hernandez chasing J.R. down the street and yelling at J.H. to get back in the house. J.H. also called 911 and reported that his dad was trying to stab his mom with a knife. ¶3 Police arrived on the scene and found T.J., Hernandez’s fiancé, along with J.H. and several other children. During an interview conducted at the scene, T.J. told police that Hernandez grabbed her by the arm and bent her hand and wrist. She also told police that Hernandez held a knife to her throat. Police photographs taken at the scene reveal several cuts on T.J.’s arms and a “zig-zag” cut spanning the length of her cheek and chin. ¶4 T.J. later explained that she had become angry at Hernandez during a family shopping trip. After stopping at a liquor store to buy several vodka shots and a 40 ounce bottle of malt liquor, T.J. and Hernandez returned to their home. Once there, the two got into an argument, which led to the altercation in question. Contrary to what she told police on the day of the incident, T.J. testified at trial that she began hitting and pushing Hernandez and that he never pushed her or threatened her with a knife. At trial, J.H. also contradicted his earlier statement to police by testifying that he had never seen Hernandez with a knife. 2  STATE v. HERNANDEZ Decision of the Court ¶5 The jury found Hernandez guilty of one count of aggravated assault against T.J. and not guilty of aggravated assault against J.H. The jury also found that the State had proven, beyond a reasonable doubt, the aggravators of emotional harm to the victim, dangerousness, commission of a domestic violence offense in the presence of a child, and that the victim and Hernandez resided and had a child together. After a bench trial on priors, the court found Hernandez was convicted on a prior felony for aggravated drunk driving. ¶6 Despite the aggravating factors, Hernandez was sentenced to the presumptive term of 7.5 years imprisonment with credit for 650 days of presentence incarceration. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031 and 13-4033. DISCUSSION I. Hernandez’s Supplemental Brief ¶7 In his supplemental brief, Hernandez argues that there was insufficient evidence to support his conviction. Specifically, he points to T.J.’s level of intoxication at the time of the incident, argues that T.J. and J.H. fabricated their stories to police, and contends that the evidence regarding what kind of knife was used was inconsistent. ¶8 We conclude there is sufficient evidence in the record to support Hernandez’s conviction. First, the jury had the opportunity to examine all of the relevant evidence, including 911 calls and prior police interviews with J.H. and T.J. The jury also heard evidence that T.J. had been drinking heavily at the time of the incident, and the jury was therefore able to consider in its deliberations her level of intoxication. Second, although both T.J.’s and J.H.’s testimony contained conflicting and inconsistent elements, it was the jury’s role to weigh the evidence and determine the credibility of the witnesses’ statements. See State v. Williams, 209 Ariz. 228, 231, ¶ 6 (App. 2004). Similarly, although the jury heard conflicting evidence over whether the marks on T.J.’s face were made with a bread knife or a butter knife, there was sufficient evidence presented to support a finding that some kind of knife was used during the incident. The record therefore supports the verdict, and we find no error. ¶9 Hernandez also argues that his defense counsel withheld important evidence from the jury and failed to utilize potentially favorable evidentiary leads. To the extent that Hernandez is claiming ineffective 3  STATE v. HERNANDEZ Decision of the Court assistance of counsel, such claims must be raised in a petition for post- conviction relief under Arizona Rule of Criminal Procedure 32. See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002). II. No Reversible Error ¶10 Having considered defense counsel’s brief and examined the record for reversible error, see Leon, 104 Ariz. at 300, we find none. The evidence presented supports the conviction and the sentence imposed falls within the range permitted by law. As far as the record reveals, Hernandez was represented by counsel at all stages of the proceedings, and these proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure. ¶11 Pursuant to State v. Shattuck, 140 Ariz. 582, 584–85 (1984), counsel’s obligations in this appeal have ended. Counsel need do no more than inform Hernandez of the disposition of the appeal and his future options, unless counsel’s review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. Hernandez also has thirty days from the date of this decision in which to proceed, if he desires, with a pro se motion for reconsideration or petition for review. CONCLUSION ¶12 The conviction and sentence are affirmed. :ama 4 

770 F.2d 159 Aliv.Schmidt 83-6475 United States Court of Appeals,Fourth Circuit. 8/2/85 1 D.Md. DISMISSED

544 U.S. 953 COUCHv.HERNANDEZ, WARDEN. No. 04-8438. Supreme Court of United States. March 28, 2005. 1 C. A. 9th Cir. Certiorari denied.

[Cite as Ostanek v. Ostanek, 2020-Ohio-3930.] IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO JULIA M. OSTANEK, : OPINION Plaintiff-Appellee, : CASE NO. 2019-L-140 - vs - : GREGORY F. OSTANEK, : Defendant-Appellant. : Civil Appeal from the Lake County Court of Common Pleas, Domestic Relations Division, Case No. 2000 DR 000178. Judgment: Affirmed in part and reversed in part; remanded. R. Russell Kubyn, Kubyn & Ghaster, 8373 Mentor Avenue, Mentor, OH 44060 (For Plaintiff-Appellee). Kenneth J. Cahill, Dworken & Bernstein Co., L.P.A., 60 South Park Place, Painesville, OH 44077 (For Defendant-Appellant). TIMOTHY P. CANNON, P.J. {¶1} Appellant, Gregory F. Ostanek, appeals from an October 15, 2019 judgment of the Lake County Court of Common Pleas, Domestic Relations Division, denying his Civ.R. 60(B) motion to vacate a domestic relations order issued on January 22, 2013. The judgment is affirmed in part and reversed in part. The Divorce Decree {¶2} Following a marriage of 23 years and two children born of the marriage, Gregory Ostanek and Julia Ostanek (appellant and appellee, respectively)1 were 1. The parties are identified by their first names herein, for clarity and convenience. granted a divorce, pursuant to a judgment entry of divorce issued by the trial court on October 17, 2001. The parties entered into stipulations regarding, inter alia, the nature and extent of separate and marital property, separate and marital debt, and the disposition of each item. The stipulations were incorporated by reference into the divorce decree and were approved and ordered into execution by the trial court. {¶3} By stipulation, it was ordered that “during the marriage” is the time from the date of marriage on February 25, 1978, to the date of trial on April 23, 2001. Relevant herein, the parties also stipulated that “the house shall immediately be placed for sale.” The parties further stipulated, with regard to Gregory’s pension under the Federal Employees Retirement System (“FERS”), that “[t]he FERS shall be divided 50/50 with the court reserving jurisdiction to issue a QDRO if/when the law changes.” The pension was listed in the stipulated schedule of Marital Assets and Liabilities as follows: PROPERTY ITEM VALUE/DEBT *** Federal Employees Retirement System Pension (H) $58,461.41 {¶4} As it pertains to the house and Gregory’s pension, the trial court ordered as follows in the final divorce decree: IT IS FURTHER ORDERED AND ADJUDGED that the following is the parties’ marital property and debts. Each party shall retain, free and clear of any interest of the other, the property attributed to him/her and each party shall pay, indemnify and hold the other harmless on the debt attributed to him/her: PROPERTY ITEM VALUE/DEBT The marital residence located at 2597 Townline Road, Madison, OH, shall immediately be placed for sale, the mortgage extinguished and the net proceeds divided evenly between the parties. 2  WIFE *** One-half of FERS Pension by QDRO approx. $29,230.71 HUSBAND *** One-half of FERS Pension approx. $29,230.71 ** The FERS Pension shall be divided by QDRO. Both parties shall cooperate and execute any and all documents necessary to effectuate the division of this asset. *** IT IS FURTHER ORDERED AND ADJUDGED that no just cause for delay under Civ.R. 54(B) exists and the Court shall retain jurisdiction to approve the QDRO which is to be submitted. The parties shall take all action necessary to prepare and present for signature and filing any QDRO required by this judgment entry. {¶5} The divorce decree reflects an address for each party, neither of which was the marital residence. Julia used another address in Madison, Ohio; Gregory used a Wickliffe, Ohio address. Following the divorce, the marital residence was sold. Gregory moved to Washington, D.C. The COAP {¶6} Over 11 years later, on January 22, 2013, the trial court issued a Court Order Acceptable for Processing under the Federal Employees Retirement System (“COAP”).2 The COAP was prepared by the QDRO Group at the direction of, and approved by, Julia’s counsel. It was not signed by Gregory or his counsel but indicated that Gregory had been “served per attached.” The certificate of service indicates a copy of the COAP had been sent to Gregory on January 9, 2013, via regular U.S. mail at 2597 Townline Rd., Madison, Ohio 44057—the parties’ previous marital residence. 2. A COAP is a form of qualified domestic relations order (“QDRO”) used to effectuate a judicial division of rights in a federal pension retirement plan. 3  {¶7} The COAP explains that “this Order creates and recognizes the existence of a former spouse’s right to receive a portion of the employee’s benefits payable under [FERS]. Such benefits may represent a portion of the Employee Annuity, a Refund of Employee Contributions or may award a Survivor Annuity to the former spouse. It is intended to constitute a Court Order Acceptable For Processing under final regulations issued by the Office of Personnel Management (‘OPM’).” Specifically, the COAP ordered the following with regard to Gregory’s pension (in relevant part and original emphasis): 7. Amount of Former Spouse’s Benefit: This Order assigns to Former Spouse an amount equal to Fifty Percent (50%) of the Marital Portion of the Employee’s Self-Only, unreduced Monthly Annuity determined as of the Employee’s date of retirement. For purposes of calculating Former Spouse’s share of Employee’s benefit, the Marital Portion shall be determined by multiplying the Employee’s Self-Only, unreduced Monthly Annuity by a fraction, the numerator of which is the total number of months of Creditable Service earned by the Employee during the marriage (from February 25, 1978 to April 23, 2001) and the denominator of which is the total number of months of the Employee’s Creditable Service accrued under [FERS] * * *. The marriage began on February 25, 1978. In addition to the above, when COLA’s [Cost-of-Living Adjustment] are applied to Employee’s retirement benefits, the same COLA shall apply to the Former Spouse’s share. Notwithstanding anything contained herein to the contrary, the Former Spouse’s assigned share of the Employee Annuity as calculated above, shall be reduced in accordance with the terms set forth in Section 10 regarding the Former Spouse’s entitlement to a Former Spouse Survivor Annuity. 8. Benefit Commencement Date: The Former Spouse shall commence her benefits as soon as administratively feasible following the date this Order is approved as a [COAP], or on the date the Employee commences his benefits, if later. Payments shall continue to Former Spouse for the remainder of Employee’s lifetime, however, should Former Spouse predecease the Employee, then such benefits shall become payable to her estate. The Employee agrees to arrange or to execute all forms necessary 4  for the OPM to commence payments to the Former Spouse in accordance with the terms of this Order. 9. Refund of Employee Contributions: If Employee leaves Federal service before retirement and applies for a refund of employee contributions under FERS, Former Spouse shall be entitled to a prorata share of the refund of such employee contributions. 10. Former Spouse Survivor Annuity: Pursuant to Section 8341(h)(1) of Title 5, United States Code, Former Spouse shall be awarded a former spouse survivor annuity under [FERS] equal to a pro-rata share. Further, the costs associated with providing this surviving spouse annuity coverage shall be divided equally between the Employee and the Former Spouse. Employee agrees to take all necessary steps to elect Former Spouse as the designated beneficiary for purposes of establishing and sustaining such surviving spouse coverage for Former Spouse. 15. Continued Jurisdiction: The Court shall retain jurisdiction with respect to this Order to the extent required to maintain its status as a [COAP] and the original intent of the parties as stipulated herein. Further the Court shall retain jurisdiction to enter such further orders as are necessary to enforce the award to Former Spouse of the benefits awarded herein, including the recharacterization thereof as a division of benefits earned under another retirement system in lieu of the retirement benefits under FERS or other benefits received in lieu of FERS retirement benefits, or to make an award of alimony (in the sum of benefits payable plus future cost of living adjustments) in the event that Employee fails to comply with the provisions contained above requiring said payments to Former Spouse by any means. {¶8} No appeal was taken from the 2001 judgment entry of divorce or from the 2013 COAP. Motion to Vacate {¶9} Over five years later, on April 5, 2018, Gregory filed in the trial court a “Motion to Vacate [the COAP] filed January 22, 2013 Pursuant to Civil Rule 60(B)(5).” Julia was represented by the same counsel she had at the time of the divorce, whereas Gregory had obtained new counsel. 5  {¶10} In an attached affidavit, Gregory averred he never saw the COAP prior to its filing, as Julia’s counsel sent it to their previous marital residence where Julia knew he had not lived since 2001. Gregory further averred that he attempted to rectify the matter through FERS, to no avail, and subsequently obtained a copy of the COAP from his present counsel. {¶11} As cause for his motion to vacate the COAP, Gregory stated that Julia “has, and continues to receive, approximately $2,065.50 from my pension plan when in fact [Julia] should only be receiving approximately $722.89 per month. The Court Order filed January 22, 2013 has been misconstrued by the Pension Plan administrator to pay far more benefits to [Julia] than she is entitled to receive. Therefore, it is necessary for this Court to issue a new court order reducing [Julia’s] monthly allowance from [Gregory’s] pension plan.” Within the memorandum of law in support of his motion to vacate, Gregory contended the following: It was the intent of the parties that [Julia] should only receive a pension benefit equal to fifty percent (50%) of the accrued benefit from February 25, 1978 through April 23, 2001. The attached report from the QDRO Group definitely reflects that [Julia] has received a monthly benefit far above what she should have received if [the COAP] had not been misconstrued and more definitively explained the extent of [Julia’s] benefit. [Gregory] further states that [the COAP] was filed more than eleven (11) years after the Judgment Entry of Divorce. [Gregory] never saw the court order of January 22, 2013 prior to its filing. [Gregory] had moved out of state more than eleven (11) years earlier and [Julia] was well aware of where he lived in the Washington DC area. {¶12} Attached to his motion are a letter and report from the QDRO Group, which estimated Gregory’s “frozen” benefit accrued as of April 23, 2001, the date the marriage was terminated, to be $1,369.04 per month. Because the service was all marital, Julia would have been entitled to one-half that amount, or $684.52 per month. 6 Increasing that amount for COLA since February 2013, the current amount to which Julia would be entitled of Gregory’s “frozen” benefit would be $722.89 per month. {¶13} On July 27, 2018, Gregory also filed a “Motion to Disgorge Funds.” Gregory alleged Julia was erroneously paid an approximate amount of $80,000.00 from his FERS pension and requested the trial court order Julia to disgorge those funds. {¶14} Julia did not file a response to the Civ.R. 60(B)(5) motion. She filed a Motion to Strike Gregory’s motion to disgorge funds, claiming Gregory’s remedy lies with the FERS pension plan administrator, not with Julia. {¶15} Gregory procured a congressional inquiry into the matter with the United States Office of Personnel Management (“OPM”), which administers FERS pension plans. Pursuant to correspondence dated November 29, 2018, OPM reviewed Gregory’s plan and determined it had miscalculated the Former Spouse’s Marital Share. Gregory had been underpaid from his self-only annuity in the amount of $58,379.32 from May 1, 2013, through November 30, 2018. However, OPM withheld the underpayment until it was adjusted to reflect the former spouse survivor annuity. OPM further stated it would continue to honor the survivor annuity that was awarded to Julia in the COAP and that Julia was to pay for the cost of the survivorship benefit from the court-ordered payments. The cost of providing for the former spouse survivorship benefit ($139.50) would be subtracted from Julia’s marital share ($1,393.13) of Gregory’s monthly retirement payments ($4,956.00). Thus, OPM determined Julia was entitled to a monthly payment of $1,253.63—she had been receiving over $2,000.00 each month since Gregory retired in 2013. {¶16} Subsequently, Gregory received notice from OPM that he had received an overpayment in the amount of $18,542.00, representing the entire monthly cost of providing for the survivor annuity from February 1, 2013, through November 30, 2018. 7 OPM scheduled a reduction of Gregory’s monthly annuity by $515.05 per month for the next 36 months. Gregory filed an objection with OPM as to this determination, which had not been resolved at the time of trial. {¶17} On February 25, 2019, a trial was held before the magistrate on the motion to vacate the COAP. Both parties were represented by counsel. Gregory testified, as did Brian Hogan from the QDRO Group. Julia did not appear for trial; the magistrate noted that her presence had not been excused. Magistrate’s Decision & Trial Court’s Order {¶18} The magistrate issued a decision on April 26, 2019, denying Gregory’s Civ.R. 60(B)(5) motion because it “does not comply with the rule in that [it] was not filed within a reasonable time.” With regard to this dispositive issue of timeliness, the magistrate concluded as follows: In the case at hand, [Gregory] testified that he first became aware of the division of his U.S. Postal retirement account in 2013. In fact, at that time he took several affirmative actions in order to find out additional information about the distribution percentages between himself and [Julia]. These actions included emailing the United States Office of Personnel Management [OPM] and meeting with a case manager at OPM on three separate occasions in order to get information. [Gregory’s] last contact with OPM was in 2013. From 2013 until 2018, no other action was taken by [Gregory] in order to get clarification or documentation. [Gregory], through counsel, filed a Motion to Vacate in April 2018, a full five years after his first communication with OPM about the distribution of his pension. Taking all of these facts into consideration this is not a “reasonable time” within the consideration of Civil Rule 60(B)(5), and therefore, [Gregory’s] Motion to Vacate should be dismissed. As a result, no analysis is necessary regarding any other testimony that was presented. {¶19} Gregory filed objections to the magistrate’s decision. He argued that his motion to vacate was filed within a reasonable period of time under the circumstances and that, regardless of Civ.R. 60(B)(5), the trial court had continued jurisdiction and 8 equitable power to rectify the mistake of Julia receiving more of the pension award than the court had ordered and more than the parties had intended. He further objected on the basis that his due process right to receive notice of the COAP had been violated when it was mailed to the parties’ previous marital residence. {¶20} With leave of court, Gregory filed the trial transcript and supplemental objections. He argued the COAP should have been vacated because it was inconsistent with the divorce decree regarding (1) the method of calculation used to determine the amount Julia was to receive from his pension and (2) the survivor annuity granted to Julia, including the allocation of the expense for said benefit. {¶21} The trial court issued a judgment entry on October 15, 2019, adopting and supplementing the magistrate’s decision. The court supplemented the decision by concluding the COAP was not inconsistent with the divorce decree. With regard to the calculation method and survivor annuity, the court found as follows: The decree clearly provides each party receives ½ of [Gregory’s] FERS, which in 2001 had an approximate present day value of $29,000.00. In his objection, [Gregory] ignores the transcript testimony of Brian Hogan herein. Mr. Hogan of the QDRO Group testified an FERS pension grants survivorship benefits as part of the pension package. Mr. Hogan testified if a FERS pension division is silent as to survivorship rights, the QDRO Group’s default position is to include the right of survivorship to the alternate payee. Mr. Hogan further testified that is also the default position of OPM, when implementing a COAP which is silent as to survivorship. The pension provision in the decree of divorce was silent as to survivorship. Therefore, in that each party was awarded ½ of [Gregory’s] pension, which includes survivorship rights, each party is to pay ½ of the monthly cost for [Julia’s] survivorship right. The Court notes the right of survivorship for FERS employees was not created by the QDRO Group and did not enlarge the decree of divorce. It was part and parcel of [Gregory’s] FERS pension package itself and OPM’s implementation of the pension division order and corresponding COAP. [Gregory’s] objection is not well taken. [Gregory] also objects to the COAP division of [Gregory’s] pension by the coverture method as opposed to the frozen method. Mr. 9  Hogan testified the QDRO Group uses the coverture method as the default when the pension division order is silent as to which method is to be used; OPM uses the same default. Herein, the coverture method was used by the QDRO Group for the COAP preparation. The Defendant’s objection is not well taken. {¶22} The trial court also adopted the magistrate’s conclusion that Gregory’s motion to vacate was not filed within a reasonable time. The court concluded by stating that, as evidenced in the trial transcript, Gregory “acknowledged his strategy for the QDRO preparation was to do nothing and wait for something to come to him. [Gregory] now reaps the consequences of his own inaction and procrastination as to the division of his FERS pension. [Gregory’s] Civ. Rule 60(B)(5) motion, which resulted from his own indifference and inaction over 17 years, was properly dismissed by the Magistrate.” Assignments of Error {¶23} Gregory filed a timely notice of appeal from the trial court’s entry and asserts two assignments of error: [1.] The trial court committed prejudicial error denying defendant- appellant, Gregory F. Ostanek’s motion to vacate pursuant to Civ.R. 60(B)(5) upon its opinion that defendant-appellant was not denied due process since appellant failed to cooperate as to the execution of the paperwork necessary for the division of the pension. [2.] The trial court committed prejudicial error denying appellant’s objection by finding that it was proper that appellant pay for one- half (1/2) the survivorship expense and that it was proper use [sic] the coverture method as required in the “COAP” even though the judgment entry of divorce did not address these issues. Civil Rule 60(B) {¶24} Civ.R. 60(B)(5) provides, in pertinent part: “On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: * * * (5) any other reason 10 justifying relief from the judgment. The motion shall be made within a reasonable time * * *.” To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken. GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus. “Civ.R. 60(B) relief is improper if one of the above requirements is not satisfied.” LaRosa v. LaRosa, 11th Dist. Geauga No. 2001-G-2339, 2002 WL 408074, *3 (March 15, 2002), citing Strack v. Pelton, 70 Ohio St.3d 172, 174 (1994). {¶25} “‘With respect to the first prong of the [Civ.R. 60(B)] test, [the rule] does not contain any specific provision requiring a movant to submit evidential material, such as an affidavit to support the motion for relief from judgment. However, the movant must specifically allege operative facts which would support a meritorious claim or defense to the judgment.’” Gaul v. Gaul, 11th Dist. Ashtabula No. 2011-A-0065, 2012- Ohio-4005, ¶24, quoting Brewster v. Fox, 11th Dist. Lake No. 2003-L-010, 2004-Ohio- 1145, ¶9 (internal citations omitted). “‘Alternatively, the second and third prongs require the movant to “submit material of an evidential quality that would indicate the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5) and that the motion is made within a reasonable time.”’” Id., quoting Brewster, supra, at ¶9, quoting Citibank N.A. v. Ohlin, 11th Dist. Trumbull No. 2000-T-0037, 2002 WL 331739, *2 (Mar. 1, 2002). {¶26} “In regard to the general purpose of Civ.R. 60(B), this court has indicated that the rule ‘attempts to strike a balance between protecting the finality of judgments and the unjust operation of a voidable judgment.’ Stated differently, the rule provides an 11 equitable remedy under which relief from a judgment should be allowed when so dictated by the interests of justice.” Id. at ¶18, quoting Brewster, supra, at ¶6, and citing Mortgage Elec. Registration Sys., Inc. v. Kaehne, 11th Dist. Portage No. 2007-P-0033, 2008-Ohio-4051, ¶13. {¶27} “In reviewing the denial of a 60(B) motion on appeal, an appellate court has an obligation to uphold the determination unless the trial court engaged in an abuse of its discretion.” Id. at ¶31 (citation omitted). {¶28} We initially emphasize that all three requirements of the Civ.R. 60(B) test must be met before relief from a final judgment is warranted. Thus, a trial court is permitted to deny a Civ.R. 60(B) motion solely on the basis that it does not satisfy the “timeliness” requirement. In other words, even if a movant alleges a meritorious claim or defense and establishes a reason justifying relief from the judgment, failure to file the motion within a reasonable time is sufficiently fatal. See, e.g., Irwin v. Irwin, 11th Dist. Lake No. 95-L-102, 1996 WL 586762, *4 (“Given that appellant’s argument concerning the timeliness issue is without merit, her argument as to the mistake issue has technically been rendered moot.”). Inherent Authority to Vacate Void Judgments {¶29} On appeal, Gregory does not assign error to the conclusion that he failed to file his motion within a reasonable time. Rather, he circumvents the possibility of mootness by arguing under both assignments of error that the COAP is void, not voidable, and that the timeliness requirement of Civ.R. 60(B)(5) is therefore irrelevant. {¶30} “The QDRO implements a trial court’s decision of how a pension is to be divided incident to divorce or dissolution.” Wilson v. Wilson, 116 Ohio St.3d 268, 2007- Ohio-6056, ¶7. “A division or disbursement of property * * * is not subject to future 12 modification by the court except upon the express written consent or agreement to the modification by both spouses.” R.C. 3105.171(I). {¶31} “Properly speaking, however, a QDRO is distinct from the decree dividing or disbursing marital property. ‘[A] QDRO is merely an order in aid of execution on the property division ordered in the divorce or dissolution decree. So long as the QDRO is consistent with the decree, it does not constitute a modification, which R.C. 3105.171(I) prohibits, and the court does not lack jurisdiction to issue it.’” Angelo v. Angelo, 11th Dist. Trumbull No. 2012-T-0094, 2013-Ohio-5265, ¶19, quoting State ex rel. Sullivan v. Ramsey, 124 Ohio St.3d 355, 2010-Ohio-252, ¶19 (emphasis sic). Because the sole purpose of a QDRO is to implement the terms of a divorce decree, it “‘may not vary from, enlarge, or diminish the relief that the court granted in the divorce decree.’” Wilson, supra, at ¶18, quoting Lamb v. Lamb, 3d Dist. Paulding No. 11-98-09, 1998 WL 833606, *2 (Dec. 4, 1998). {¶32} Where the terms of a QDRO conflict with the property division set forth in the divorce decree, many courts—including this one—have held that the QDRO is void or a legal nullity. Angelo, supra, at ¶19, citing Pawlak v. Pawlak, 8th Dist. Cuyahoga No. 95734, 2011-Ohio-5652, ¶10; Patten v. Patten, 4th Dist. Highland No. 10CA15, 2011-Ohio-4254, ¶17; and Kachmar v. Kachmar, 7th Dist. Mahoning No. 08 MA 90, 2010-Ohio-1311, ¶50; but see Pearl v. Pearl, 2d Dist. Champaign No. 2012-CA-6, 2012- Ohio-4752, ¶17 (“a QDRO which varies from the division of pension plan benefits ordered in a decree of divorce or dissolution in violation of R.C. 3105.171(I) * * * is voidable for error”). {¶33} When a party claims a judgment is void, that party need not comply with, and the trial court need not rely on, Civ.R. 60(B). Rather, the trial court retains inherent authority to vacate a void judgment. See Angelo, supra, at ¶18; see also Blaine v. 13 Blaine, 4th Dist. Jackson No. 10CA15, 2011-Ohio-1654, ¶17 (collecting cases). “A trial court may exercise that inherent power by treating a Civ.R. 60(B) motion as a common- law motion to vacate a void judgment.” Plummer v. Plummer, 2d Dist. Montgomery No. 23743, 2010-Ohio-3450, ¶27 (citation omitted); see also Beachler v. Beachler, 12th Dist. Preble No. CA2006-03-007, 2007-Ohio-1220, ¶19 and Angelo, supra, at ¶18-22 (treating a Civ.R. 60(A) motion as a motion to vacate void judgment). {¶34} Gregory contends the COAP is void ab initio because it is inconsistent with the divorce decree and contrary to the parties’ stipulations. Specifically, he contends that the COAP fails to accurately implement the divorce decree by utilizing the incorrect method of calculation and by granting a survivor annuity that inures solely to Julia’s benefit, with the cost allocated to both parties. {¶35} The parties evaluated Gregory’s motion using the Civ.R. 60(B) standard, as did the magistrate’s decision. Generally, this court refrains from considering issues on appeal that the trial court has not first considered. However, in overruling Gregory’s objections and supplementing the magistrate’s decision, the trial court evaluated his claim that the COAP is inconsistent with the divorce decree and explicitly determined the two documents do not conflict. Accordingly, we may review Gregory’s argument on appeal that the COAP is void because it conflicts with the divorce decree. See e.g., Blaine, supra, at ¶18. De Novo Review {¶36} Whether a judgment is void is a question of law this court reviews de novo. “Moreover, whether a QDRO conflicts with a separation agreement incorporated into a dissolution or divorce decree presents a question of law that we review de novo.” Blaine, supra, at ¶19 (citation omitted). 14  {¶37} At the time of the divorce, the parties stipulated the present value of Gregory’s FERS pension was $58,461.41 and that “the FERS shall be divided 50/50 with the court reserving jurisdiction to issue a QDRO if/when the law changes.” The stipulations did not include any agreement or language regarding the method of calculation to be used or a survivor annuity. {¶38} In approving and executing these stipulations, the trial court ordered Julia shall retain “one-half of FERS Pension by QDRO / approx. $29,230.71” and Gregory shall retain “one-half of FERS Pension / approx. $29,230.71.” The divorce decree did not include any language or instruction regarding the method of calculation to be used or a survivor annuity. Method of Calculation {¶39} The COAP prepared by the QDRO Group assigns to Julia an amount equal to fifty percent (50%) of the marital portion of Gregory’s monthly annuity, determined as of Gregory’s date of retirement. The COAP orders the marital portion is to be determined by multiplying Gregory’s monthly annuity by a fraction. The fraction is the total number of months of creditable service earned by Gregory during the marriage, divided by the total number of months of creditable service accrued by Gregory under FERS. {¶40} This method of calculation is referred to as “traditional coverture.” [Under] the “traditional coverture” method, or percentage method, a court determines the amount of money due the non-participant spouse by using the value of the pension at retirement to determine the ‘monthly accrued benefit.’ The court then multiples this monthly accrued benefit by the traditional coverture fraction, which employs a ‘ratio of the number of years of employment of the employed spouse during the marriage to the total years of his or her employment’ to arrive at the marital portion of the pension benefit. The non-participant spouse then receives his or her percentage share of that marital portion. By waiting and using the value of the pension at retirement, this method awards the non-participant 15  spouse any post-divorce increase in the value that is attributable to the non-participant’s share. Accordingly, where the eventual, matured monthly payments are greater, due to the participant spouse’s working after the divorce, than if he or she had retired the day of the divorce, then the non-participant’s monthly benefit would be greater as well. Cameron v. Cameron, 10th Dist. Franklin No. 12AP-349, 2012-Ohio-6258, ¶18 (internal citations omitted), quoting Hoyt v. Hoyt, 53 Ohio St.3d 177, 182 (1990). {¶41} Gregory contends, on the other hand, that the divorce decree actually ordered division of his pension using the “frozen coverture” method. Under the frozen coverture method, or dollar amount, the trial court ‘freezes’ the pension benefits at the amount in the account as of the divorce date. Sometimes called the ‘hypothetical’ approach, it calculates the value of the participant spouse’s retirement account had he or she retired on the same day the parties divorced, using the then-present base pay and years of service. Where the participant spouse started working before the marriage, the court can apply a coverture fraction to determine the marital portion of the ‘frozen’ amount. It does so by dividing the number of years in the plan while the parties were married by the total number of years in the plan at the time of the divorce. * * * Under this approach, the non-participant spouse receives no interest the account accrues after that date. Id. at ¶17, citing Reising v. Reising, 2d Dist. Clark No. 2010-CA 92, 2012-Ohio-1097, ¶24. {¶42} The Sixth District case of Borton v. Borton, 6th Dist. Fulton No. F-10-003, 2011-Ohio-143, is similar to the facts at hand. There, “the divorce decree established that the First Energy 401(k), ‘shall be divided equally between the parties on a 50/50 basis, and the parties stipulated a value of $102,000 as of May 6, 2003.’” Id. at ¶17. Husband contended “that any amount in excess of $51,000 accrue solely to his benefit and not be shared equally between the parties.” Id. The Borton Court held as follows: We note simply that the divorce entry did not establish a cap or maximum on the distribution to [Wife] from the 401(k) at $51,000. Rather, it established that the total value at the stated date to be $102,000 and that the plan be divided equally on a 50/50 basis. As 16  such, any appreciation or depreciation occurring between that valuation date and the payout date must be shared equally between the parties to comport with the unambiguous order of a 50/50 split of the value of the account. To suggest otherwise breaches the clear terms of the agreement. Id. at ¶18. {¶43} Similarly, here, the divorce decree unambiguously establishes the total value of the FERS pension at the stated date and that the plan was to be divided on a 50/50 basis pursuant to a QDRO. As such, the COAP does not conflict with the divorce decree by utilizing the “traditional coverture” method of calculating the marital portion of Gregory’s monthly annuity as of the date of his retirement. Nor does it vary, diminish, or enlarge the relief granted in the divorce decree. His argument to the contrary is not well taken. {¶44} Gregory’s argument would possibly have merit if the divorce decree had ordered a one-half division of the FERS pension as of the date the marriage terminated. See, e.g., Johnson v. McCarthy, 10th Dist. Franklin No. 17AP-655, 2019-Ohio-3489, ¶20 (citation omitted) (“Where a trial court awards a percentage of an unmatured pension to a non-participant spouse as of the date a marriage terminates, the only permissible method for determining the amount owed to the non-participant spouse is the frozen coverture method.”); accord Cameron, supra, at ¶25 (recognizing courts have held that, when a property award specifies a date certain for the division of an unmatured pension, the frozen coverture method applies); Schetter v. Schetter, 2d Dist. Clark No. 2010 CA 35, 2011-Ohio-246, ¶18 (wife was not entitled to benefits accrued after the marriage was dissolved where the decree unambiguously stated she was entitled to only one-half of the value that husband had accrued as of the date of the 17 dissolution); Blaine, supra, at ¶21 (where the parties agreed to equally split the value of the account with each party receiving a sum certain). {¶45} But the decree at hand did not include any such limiting language, and it must therefore be enforced as written. Further, “‘mere silence on an issue or a failure to address it does not create an ambiguity where none otherwise exists.’” Cameron, supra, at ¶27, quoting Pierron v. Pierron, 4th Dist. Scioto Nos. 07CA3153 & 07CA3159, 2008-Ohio-1286, ¶10. We conclude the COAP is not inconsistent with the divorce decree as it pertains to the method of calculation. Survivor Annuity {¶46} With regard to the survivor annuity, we find two cases from our sister districts analogous to the situation at hand: Adkins v. Bush, 12th Dist. Butler No. CA2002-05-131, 2003-Ohio-2781, and Butcher v. Butcher, 8th Dist. Cuyahoga No. 95758, 2011-Ohio-2550. {¶47} In Adkins, the parties’ separation agreement merely provided that Wife was to receive one-half of Husband’s pension. Adkins, supra, at ¶4. Wife proposed a QDRO to the trial court, without Husband’s signature, which granted her survivorship benefits. Id. at ¶5-17. The Twelfth District noted that, “‘where there is no uncertainty, but only an absence in the agreement of a provision about a particular matter, the court must not construe as included something intended to be excluded nor make the contract speak where it was silent.’” Id. at ¶27, quoting Sowald & Morganstern, Domestic Relations Law (2002) 438, Section 9:48. The Adkins Court then concluded as follows: The issues presented in this case arise from the “minimalist language” contained in the parties’ inartfully drafted separation agreement. That agreement provides simply that Adkins is to receive one-half of Bush’s pension through his employer. There is nothing ambiguous about that clause. The QDRO proposed by 18  Adkins and adopted by the trial court tried to ‘fill in the gaps’ * * * by providing Adkins with survivorship benefits. However, these provisions of the QDRO do not simply clarify or construe an ambiguity in the parties’ separation agreement, but, instead, amend or modify the agreement, which is not permitted. Accordingly, the trial court erred by adopting Adkins’ proposed QDRO and placing it of record without Bush’s signature. Id. at ¶28 (internal citation omitted). {¶48} The Eighth District relied on Adkins to reach the same result in Butcher. There, the unambiguous language in the separation agreement provided that the parties agreed to divide Husband’s retirement account equally. Butcher, supra, at ¶14. The trial court approved a QDRO that provided Wife with early retirement supplements, interim supplements, temporary benefits, and pre-retirement survivorship benefits, absent any showing the parties intended Wife to share in those benefits. Id. at ¶23. The Eighth District held that by “filling in the gaps” of the separation agreement, the trial court did not simply clarify or construe an ambiguity; rather, it expanded and modified the agreement, which is prohibited by R.C. 3105.171(I). Id. Accordingly, the appellate court concluded that the trial court lacked jurisdiction to approve the QDRO, rendering it void. Id. {¶49} Similarly, here, the parties’ stipulations and the trial court’s divorce decree did not include any agreement or order as to survivorship benefits from Gregory’s FERS pension. Further, the unrebutted evidence at the trial on the motion to vacate was that the parties did not intend for Julia to receive a survivor annuity and that Gregory never reviewed or approved a COAP granting her that benefit. {¶50} Julia asserts that Gregory’s argument ignores the testimony of Brian Hogan, an expert witness from the QDRO Group, the company that prepared the COAP. Mr. Hogan testified that FERS grants survivorship benefits as part of the pension package. He further testified that if a pension division is silent as to those 19 benefits, the QDRO Group’s and OPM’s default position is to grant the right of survivorship to the alternate payee (i.e., the nonparticipant former spouse). {¶51} There are cases where this default position may be appropriate. For instance, in Redding, the Twelfth District held that the trial court was justified in clarifying its original property division to allow a provision in the QDRO granting Wife survivorship benefits, where the separation agreement provided for Wife to receive one- half of Husband’s retirement benefits in such manner “as may be of benefit to her.” Redding v. Redding, 12th Dist. Clinton No. CA99-06-015, 1999 WL 1238834, *3 (Dec. 20, 1999). Also, in Gordon, the Eighth District held that the trial court was justified in reissuing a new QDRO to grant Wife survivorship rights because the court had used those rights as part of the calculation of the parties’ shares of the marital estate. Gordon v. Gordon, 144 Ohio App.3d 21, 25 (8th Dist.2001). {¶52} Here, however, the trial court approved a COAP that “filled in the gaps” of the silent divorce decree, absent any evidence that the parties intended Julia to receive survivorship benefits from Gregory’s pension. Thus, the COAP expanded and modified the divorce decree. The trial court was without jurisdiction to approve a COAP that granted Julia survivorship benefits, rendering it void. Thus, it was also error to apportion half the cost of providing the survivor annuity to Gregory. Disposition {¶53} We conclude that Gregory’s second assignment of error has merit to the extent indicated. The trial court did not err in approving a COAP that utilized the “traditional coverture” method of calculating Gregory’s monthly annuity. The trial court did err, however, in approving a COAP that granted Julia a survivor annuity and in apportioning half the cost to Gregory. Because this renders the COAP void, the timeliness requirement of Civ.R. 60(B)(5) is irrelevant. 20  {¶54} Under his first assignment of error, Gregory asserts he is entitled to relief from the COAP because he was never given a chance to review it or to object to it, which fundamentally denied him due process. This issue has been rendered moot by our disposition of his second assignment of error, and it is overruled on that basis. See App.R. 12(A)(1)(c) and State ex rel. Ford v. Ruehlman, 149 Ohio St.3d 34, 2016-Ohio- 3529, ¶55, quoting State v. Moore, 4th Dist. Adams No. 13CA987, 2015-Ohio-2090, ¶7 (“An issue is moot ‘when it has no practical significance and, instead, presents a hypothetical or academic question.’”). {¶55} The judgment of the Lake County Court of Common Pleas, Domestic Relations Division, is affirmed in part and reversed in part. This cause is remanded to the trial court for further proceedings consistent with this opinion. THOMAS R. WRIGHT, J., MATT LYNCH, J., concur. 21 

889 F.2d 530 Tim BARTOLOMEO, d/b/a Quality Brands, Inc., Plaintiff-Appellant,v.S.B. THOMAS, INC.; CPC International, Inc., Defendants-Appellees. No. 89-2339. United States Court of Appeals,Fourth Circuit. Argued Oct. 5, 1989.Decided Nov. 17, 1989. Denise Smith Cline (Thomas W. Steed, Jr., Barry L. Creech, Moore & Van Allen, Raleigh, N.C., on brief), for plaintiff-appellant. Robert Ambrose Wicker (Linda S. Bellows, Smith, Helms, Mulliss & Moore, Greensboro, N.C., on brief), for defendants-appellees. Before PHILLIPS and WILKINSON, Circuit Judges, and BRITT, Chief Judge, United States District Court for the Eastern District of North Carolina (sitting by designation). PHILLIPS, Circuit Judge: 1 Tim Bartolomeo appeals, pursuant to a Rule 54(b) certification, from the district court's grant of partial summary judgment disposing of three of his four claims against S.B. Thomas, Inc. (Thomas) and CPC International, Inc. (CPC). The court granted summary judgment for defendants on Bartolomeo's claims of wrongful termination of an oral distributorship agreement, unfair and deceptive trade practices in violation of N.C.Gen.Stat. Sec. 75-1.1, and tortious interference with contract, but denied summary judgment on his claim of pre-termination breaches of contract. 2 We affirm. 3 * In October 1983, Bartolomeo entered into an oral distributorship agreement with Thomas, a subsidiary of CPC, to serve as a "multiple distributor" of Thomas' English muffins throughout North and South Carolina. Under this "two-tiered" distribution system, Thomas would contract with multiple distributors like Bartolomeo, who in turn would independently hire subdistributors to supply Thomas' English muffins within a certain region. 4 Bartolomeo began his multiple distributorship for Thomas on January 1, 1984. Operating under the trade name Quality Brands, he made substantial investments in equipment, office space, and promotional efforts in the course of starting up and sustaining his sole-proprietor distributorship. Over the next couple of years, Bartolomeo expanded his business by hiring his wife as an office assistant and by distributing a noncompeting product (Tastykakes), both with the blessing of Thomas. 5 Through it all, Bartolomeo never signed a formal written contract with Thomas. During the life of Bartolomeo's distributorship, Thomas did prepare for its distributors a form contract which provided for thirty days notice of termination and exclusivity in the distributorship. According to Thomas, existing multiple distributors, including Bartolomeo, were provided with a blank copy of that contract, but were not required to execute it because it was understood that they were already operating under the terms made express by the contract. Bartolomeo, on the other hand, claims not to recall ever having seen a copy of the form contract. 6 In 1986, Thomas' parent company, CPC, purchased Arnold Foods, and Thomas and Arnold Foods were grouped under Best Foods Baking Group, a division of CPC. Before that restructuring, Arnold Foods had been using a different distribution system from Thomas' and Bartolomeo thus became concerned about whether the corporate restructuring would affect his distributorship. He claims to have been given repeated assurances from regional representatives of Best Foods that his business would continue. In claimed reliance on these assurances, Bartolomeo prepared a market analysis report containing allegedly proprietary information, which he claims Thomas later used in reorganizing the region's distribution system. 7 In June 1987 Best Foods decided to abandon the two-tiered multiple distributorship system in favor of a single-tier system. Under the new system, Best Foods personnel would manage independent distributors, each of whom would be responsible for a single route. This reorganization required consolidating some routes in which the old Thomas and Arnold Foods distribution systems overlapped and assigning the new routes to some existing individual distributors and terminating others. 8 Bartolomeo was informed of this decision to reorganize the distribution system on July 21, 1987 and was told that he would be terminated "some time in 1988." On October 29, he was given formal written notice that he would be terminated effective January 2, 1988 and on that same day Best Foods offered him $65,000 for a release from liability and for permission to hire his employees. Bartolomeo asked for and was given an extension of the twenty-four hour deadline for accepting the offer, but ultimately declined it. 9 Bartolomeo then brought this action, alleging the four claims earlier identified, all arising out of what he claimed to be the wrongful termination of his distributorship following a series of antecedent acts on Thomas' part which constituted tortious interference with contract, violations of the state unfair trade practices law, and pre-termination breaches of contract. 10 The district court granted partial summary judgment, concluding that the oral distributorship agreement was one terminable at will under North Carolina law so that its termination was therefore not actionable, and that as a matter of law the defendants' conduct did not constitute unfair trade practices under the state statute nor wrongful interference with contract under state tort law. This appeal followed. On it, Bartolomeo only challenges the court's dismissal of his wrongful termination and unfair trade practices claims; the wrongful interference with contract claim is therefore not before us, and its dismissal stands. II 11 In reviewing the district court's grant of summary judgment, we apply the same standard applied by the trial court and consider whether, viewing the facts in the light most favorable to Bartolomeo, there is any genuine issue of material fact precluding the entry of judgment as a matter of law. Fed.R.Civ.P. 56(c). As all agree, North Carolina substantive law controls, and that law "identif[ies] which facts are material." Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). 12 We take the wrongful termination and unfair trade practices claims in that order. A. 13 The propriety of the court's dismissal of the wrongful termination claim turns on the proper interpretation of General Tire & Rubber Co. v. Distributors, Inc., 253 N.C. 459, 117 S.E.2d 479 (1960). In General Tire, the North Carolina Supreme Court held that while a distributorship agreement of indefinite duration is generally terminable at will, a distributor who has made substantial investments in his business is entitled to operate the distributorship for a "reasonable time." Id. 117 S.E.2d at 489. And in its discussion, the Court noted that what is a reasonable period of time depends on a variety of circumstances: amount of expenditures, length of time the distributorship has already run, potential for future profit, and past profitability; but that the ultimate test is not "whether distributor has recouped his expenditures, but whether he has had a fair opportunity." Id. 14 The district court read General Tire as holding by clear implication that a distributor who has recouped his expenses has, as a matter of law, been given a "reasonable time" to operate the distributorship. Because Bartolomeo indisputably had done so, he could not bring himself within General Tire 's "reasonable time" exception, and his distributorship was therefore terminable at will under the general rule. Bartolomeo challenges that reading of General Tire, contending, as we understand his argument, that the rule of General Tire mandates a factual inquiry under any and all circumstances into whether a particular distributorship had been given a "reasonable time" to operate before its termination. In support, he points to portions of the General Tire court's opinion which looked to factors such as the potential for future profit and the length of the distributorship in absolute terms. 15 We agree with the district court's reading. The General Tire court's references to the possibility of future profits and sheer longevity of the distributorship in that case have to be read in context. When this is done, we are satisfied that the decision does not hold, as Bartolomeo seems to argue, that even after an at-will distributor has recouped his expenses, he is entitled to continue it thereafter for a "reasonable time" as that may be determined by finders of fact on a case-by-case basis. 16 Unlike Bartolomeo, the distributor in General Tire had not recouped his investment and indeed had lost a considerable sum on expenditures when his distributorship was terminated. The trial court had refused to permit the jury to award any relief for the loss on the expenditures, and while the North Carolina Supreme Court found no error in this, it ordered a new trial on other grounds and discussed how the termination issue should be addressed at the new trial. Because there was evidence that the business was becoming increasingly unprofitable, the distributor had no right to recover "the expenditures ... as such," id. 117 S.E.2d at 489, but the amount of those expenditures was relevant evidence on the question of whether the distributor had had a reasonable time to operate the distributorship. There was also evidence that the parties had contemplated continuing the distributorship for at least two years beyond the date when it was actually terminated. Thus, the jury was to decide whether the premature termination was reasonable under the circumstances and, if not, what the reasonably ascertainable net profits would have been during a hypothetical reasonable period of continued operation. 17 We are persuaded that the North Carolina courts would hold that General Tire 's narrow exception to the terminable-at-will rule has no application where the distributor has fully recouped his investment, and even made some profits, on his distributorship. Such a distributor manifestly has had a "fair opportunity" to recoup start-up outlays and bring the business into profitable operation. This, we believe, is the essence of the General Tire rule. The rule's concern is to protect against the general rule of termination-at-will only those who have not even had a chance to realize a return on their initial outlays. For such distributors, a multifactored analysis of the "reasonableness" of particular terminations is required to guard against intolerably harsh consequences of early terminations under the general rule. To allow juries to decide, however, the "reasonable time" for continued operation of an already profitable distributorship would virtually nullify the general rule of at-will termination and we do not believe that General Tire intended any such consequence. That sort of added protection against at-will termination, we believe, is still left under North Carolina law to the bargaining process. B. 18 Bartolomeo next contends that there were genuine issues of material fact regarding possible violations of North Carolina's Unfair and Deceptive Trade Practices Act, N.C.Gen.Stat. Sec. 75-1.1(a) (1988) (the Act). The Act prohibits "unfair methods of competition ... and unfair or deceptive acts or practices in or affecting commerce." Id. Although the ultimate issue of whether a particular act or practice violates the Act is one of law for the court, disputes over the facts on which such a legal decision is based are for the trier of fact. Hageman v. Twin-City Chrysler-Plymouth, Inc., 681 F.Supp. 303, 306 (M.D.N.C.1988). Bartolomeo claims that there are genuine issues of material fact here as to whether Thomas misled him into thinking that his distributorship would continue and had committed a series of other acts breaching the agreement which, because of their nature, would constitute violations of the Act. 19 We agree with the district court that, considering the proffered evidence in the light most favorable to Bartolomeo, the defendant's conduct would not violate the Act. 20 Bartolomeo first relies on his available evidence that the defendants knew as early as May 1987 that multiple distributorships such as Bartolomeo's would be discontinued and that they nonetheless gave him repeated assurances that he did not have "a thing to worry about." There is indeed a dispute as to when the decision to change the distribution system was actually made, and whether the regional representatives who spoke to Bartolomeo were merely expressing their honest opinions that he would be continued. But it is undisputed that by July 21, Bartolomeo had actual notice that he would eventually be terminated, and that on October 29 he received written notice that the termination would take effect on January 2, 1988. 21 Taking the relevant evidence in the light most favorable to Bartolomeo, the core of his claim here is that for a period of time in the early summer of 1987, he was "deceived" about the status of his distributorship. And he claims that this caused him to prepare a market analysis report for defendants which detailed some proprietary information about his business during this period. 22 One need not show that he was actually deceived to prevail under the Act, as long as "the acts complained of possessed the tendency or capacity to mislead, or created the likelihood of deception." Chastain v. Wall, 78 N.C.App. 350, 337 S.E.2d 150, 154 (1985) (quoting Overstreet v. Brookland, Inc., 52 N.C.App. 444, 279 S.E.2d 1, 7 (1981)). The defendant's intent or good faith is irrelevant. Marshall v. Miller, 276 S.E.2d 397, 403 (N.C.1981). Bartolomeo argues that under these principles, the trial court erred in ruling as a matter of law that whatever deception he may have experienced did not rise to the level of a violation of the Act. 23 The district court relied primarily on Tar Heel Industries v. E.I. duPont de Nemours, 91 N.C.App. 51, 370 S.E.2d 449 (1988), in reaching its legal conclusion that no statutory violation had occurred even if the facts be as advanced by Bartolomeo. The plaintiff in Tar Heel, a carrier service, complained that defendant duPont had violated the Act by not informing it that duPont was looking for alternative carriers while the parties were still under contract, even though duPont eventually gave a timely notice of termination. The appeals court upheld a grant of summary judgment for duPont, noting that the mere fact of termination under a terminable-at-will agreement does not amount to a violation of the Act, Dull v. Mutual of Omaha, 85 N.C.App. 310, 354 S.E.2d 752 (1987), and that the plaintiff had received all the notice to which it was entitled under the contract. 24 Bartolomeo tries to distinguish Tar Heel by arguing first that there was no express notice period in his oral contract, thereby presenting a genuine issue of the reasonableness of the notice he received, and second that he was not simply uninformed about the plans to change the distribution system but was "knowingly misled" by representatives of Thomas. Neither of these arguments has merit. Written contracts that Thomas had with similarly situated distributors provided for thirty days notice of termination. Although Bartolomeo had no express agreement on notice, it is undisputed that he had over five months actual notice of his termination and written notice over sixty days in advance of the effective date. On his second point, even if the statements did have a deceptive quality within the meaning of the Act, which we doubt, Bartolomeo has not shown that he "suffered actual injury as a proximate result " of these statements, Ellis v. Smith-Broadhurst, Inc., 48 N.C.App. 180, 268 S.E.2d 271, 273-74 (1980) (emphasis supplied). Because he had all the notice for which he could conceivably have asked, and has not shown how the supposedly proprietary information that he gave to Thomas' representatives was misappropriated to his actual injury, the district court properly concluded that this conduct did not violate the Act. 25 Bartolomeo next maintains that other pre-termination breaches of the distributorship agreement, which survived the summary judgment motion, were accompanied by aggravating circumstances which constituted violations of the Act. 26 A simple breach of contract, even if intentional, does not amount to a violation of the Act; a plaintiff must show substantial aggravating circumstances attending the breach to recover under the Act, which allows for treble damages. See United Roasters, Inc. v. Colgate-Palmolive, 649 F.2d 985 (4th Cir.1981). In United Roasters, the defendant had decided to terminate an agreement under which it would manufacture and promote a product developed by the plaintiff. After the decision was made to terminate, but before notice was given, the defendant ceased performing under the contract. We upheld the plaintiff's breach of contract claim, though not on the bad faith termination theory relied upon by the district court, but nonetheless agreed with the court that no violation of the Act had occurred. Despite the defendant's complete and abrupt abandonment of the contractual relationship, we saw no suggestion of "substantial aggravating circumstances" that would justify the extraordinary treble damages recovery, and we opined that to find such factors one would probably need to demonstrate deception either in the formation of the contract or in the circumstances of its breach. Id. at 992. 27 Bartolomeo cites seven instances of alleged misconduct on Thomas' part that occurred after the decision to terminate and argues that these should be viewed as substantial aggravating circumstances: (1) delayed notice of a test marketing; (2) limited time to accept a settlement offer; (3) failure to deliver products on the day he refused the offer; (4) tampering with some documents pertaining to changes in distribution methods; (5) delayed reimbursements; (6) failure to inform him of some incentive bonuses; and (7) removal after his termination of some products from the shelves to which he had delivered them. 28 Bartolomeo will of course have the opportunity to pursue these claims as breaches of contract. We agree, however, with the district court's legal conclusion that these acts, even if proved, would not rise to the level of a violation of the Act under the standards of United Roasters. The district court properly viewed these alleged occurrences as, at most, simple breaches of contract, not "substantial aggravating circumstances" that would justify the recovery of treble damages. III 29 For the foregoing reasons, the district court's grant of partial summary judgment is affirmed. 30 AFFIRMED.

Cite as 2014 Ark. App. 74 ARKANSAS COURT OF APPEALS DIVISION IV No. CR-13-258 Opinion Delivered JANUARY 29, 2014 TIMOTHY LEE HOLT APPEAL FROM THE PULASKI APPELLANT COUNTY CIRCUIT COURT, SEVENTH DIVISION V. [NO. CR-10-445] HONORABLE BARRY SIMS, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED DAVID M. GLOVER, Judge Timothy Holt was tried by a jury and found guilty of the offenses of aggravated robbery, aggravated residential burglary, Class B felony theft of property, and Class C misdemeanor fleeing. He was also found to have employed a firearm in committing the felony offenses. He was sentenced as a habitual offender, having four or more prior felony convictions. Holt raises two points of appeal: 1) the trial court erred in denying his motion to suppress, and 2) the trial court imposed an illegal sentence pursuant to Ark. Code Ann. § 16-90-120(a) and (b). We disagree and affirm. Holt does not challenge the overall sufficiency of the evidence supporting his convictions; therefore, it is only necessary to outline the facts surrounding the retrieval of the gun at issue in his motion to suppress. At the suppression hearing, State Trooper Heath Nelson testified that on December 31, 2009, he became involved in a situation involving  Cite as 2014 Ark. App. 74 Holt. According to Trooper Nelson, he was patrolling Shackleford Road around Mara Lynn Road in Little Rock when he heard on the police scanner that Little Rock had a home invasion, the suspect was possibly armed, and the suspect was in the same area that Trooper Nelson was patrolling. He said that he traveled north to the area around Terry Elementary School and saw a suspect matching the description that had been given on the scanner—white male, dark clothing, on foot. Trooper Nelson said it was a clear bright day; when the suspect saw him, the suspect tried to lie down; he put his car in park and exited his vehicle; the suspect began to flee; he pursued the suspect on foot; no other officers were on the scene yet; he saw the suspect reach for his waistline and figured he was trying to get rid of something; the suspect tried to jump a fence but was not able to do so; and he apprehended the suspect, put handcuffs on him, and did a quick pat-down. Trooper Nelson explained that he did not find anything during the pat-down and that he was concerned because the dispatcher had said that the suspect had a weapon. He testified they were close to an elementary school, which his own son attended, and he felt he had to find that gun. He said that he waited until the Little Rock police officers arrived, which was about five minutes from the time he first made contact with the suspect, caught up to him, and put the handcuffs on him. After waiting for more assistance, Trooper Nelson then led the suspect out of the woods, acknowledging that the suspect was in custody at that time. Because he did not work for the Little Rock Police Department, Trooper Nelson stated he did not know the names of the Little Rock officers who came to the scene. With regard to what was said to Holt about the gun, Trooper Nelson reported, “I believe all we said was, 2  Cite as 2014 Ark. App. 74 ‘Hey, we know you had a gun. We’re by a school. You know, we wouldn’t want any kids to get it. Where’s the gun?’” He acknowledged that Holt’s Miranda rights were not read to Holt before Holt showed them where the gun was. Trooper Nelson confirmed that he never heard Holt state that he wanted an attorney. Counsel made their arguments to the trial court at the conclusion of which Holt’s motion to suppress was denied. In arguing that the trial court erred in denying the motion, Holt contends that because he was in custody but was not Mirandized before he led the officers to the gun, he was not adequately informed of his Fifth and Sixth Amendment rights under the Constitution, i.e., his rights against self-incrimination and his right to counsel. He acknowledges the “public-safety” exception to the Miranda rule, but contends that it was not properly applied to this situation. We disagree and affirm. In Marshall v. State, 68 Ark. App. 223, 227–28, 5 S.W.3d 496, 498–99 (1999), we concluded that New York v. Quarles, 467 U.S. 649 (1984), controlled a similar suppression situation, explaining: The United States Supreme Court noted [in Quarles] that while in Miranda v. Arizona, 384 U.S. 436 (1966), the Court “extended the Fifth Amendment privilege against compulsory self-incrimination to individuals subjected to custodial interrogation by the police,” the Fifth Amendment “does not prohibit all incriminating admissions.” Id. at 654. The Court held that “there is a ‘public safety’ exception to the requirement that Miranda warnings be given before a suspect’s answers may be admitted into evidence . . . .” Id. at 655. The Court observed as follows: The police in this case, in the very act of apprehending a suspect, were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket. So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts 3  Cite as 2014 Ark. App. 74 unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it. Id. at 657. The Court held as follows: We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination. We decline to place officers . . . in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them. Id. at 657–58. Similarly, aware that a weapon had been used in the aggravated robbery, [Officer] Colclasure asked Albert Marshall questions regarding the location of the gun. Colclasure testified that she asked these questions for the safety of the officers, as Albert Marshall may still have had the gun on his person or in the immediate area. Also extant were the same concerns as those in Quarles regarding public safety, such as the chance that an accomplice or a student or passerby in the immediate vicinity of the junior high school might discover the weapon. Thus, as in Quarles, “overriding considerations of public safety justifi[ed] the officer’s failure to provide Miranda warnings before he asked questions devoted to locating the abandoned weapon.” Id. at 651. We find no appreciable differences between the circumstances confronting Trooper Nelson in the instant case and those presenting the officers in Quarles and Marshall, supra, and Holt’s reliance upon factors set forth in New Jersey v. Stephenson, 796 A.2d 274 (N.J. Super. Ct. App. Div. 2002), do not persuade us differently. Therefore, we find no error in the trial court’s application of the public-safety exception in this case and its denial of Holt’s motion to suppress. 4  Cite as 2014 Ark. App. 74 For his final point of appeal, Holt contends that “the three five-year (firearm enhancement) sentences of imprisonment that were imposed on Holt pursuant to section 16- 90-120(a) & (b) were illegal because that statute no longer existed after the effective date of the Arkansas Criminal Code, which was January 1, 1976.” This argument is made for the first time on appeal, which is allowed where contentions of illegal sentences are concerned. However, this issue has been raised and rejected before by our supreme court. See Smith v. State, 2013 Ark. 364. We cannot overrule supreme court cases. Affirmed. HARRISON and WYNNE, JJ., agree. Sandra S. Cordi, Deputy Public Defender, by: Clint Miller, Deputy Public Defender, for appellant. Dustin McDaniel, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee. 5 

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________ No. 11-3291 _______________ UNITED STATES OF AMERICA v. NELSON LUIS DIAZ, Appellant _______________ On Appeal from the United States District Court For the Middle District of Pennsylvania (D.C. Criminal Action No. 1-07-cr-00147-001) District Judge: Honorable John E. Jones, III _______________ Submitted Under Third Circuit LAR 34.1(a) June 18, 2012 _______________ Before: AMBRO, VANASKIE and VAN ANTWERPEN, Circuit Judges (Opinion filed: July 6, 2012 ) _______________ OPINION _______________ AMBRO, Circuit Judge Nelson Luis Diaz was convicted of one count of possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and two counts of possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c). The District Court sentenced him to 480 months’ imprisonment, but Diaz twice appealed his sentence, successfully reducing it to 397 months. He nonetheless appeals. His attorney, however, moves to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that all potential grounds for appeal are frivolous. Diaz has not filed a pro se brief in response. We grant the motion and affirm Diaz’s sentence. I. Background Because we write solely for the parties, we recite only those facts necessary to our decision. In March 2006, Diaz was physically assaulted by Albert Pierce, a rival drug dealer. Soon thereafter, Diaz and several individuals confronted Pierce. During the ensuing altercation, several gunshots were fired, including by Diaz, and Pierce was fatally wounded. Who fired the fatal shot is unknown. In connection with that incident, Diaz was arrested and charged with one count of possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and two counts of possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c). PSR at 1–2. In January 2008, he was convicted on all counts. The District Court, as noted, sentenced Diaz to 480 months’ imprisonment, allotting 240 months for the drug count and 240 months for the two firearm counts (120 months each, to be served consecutively). Diaz appealed his convictions and sentence to this Court. We affirmed the convictions for the drug offense and one firearm offense, vacated the second firearm count pursuant to the Fifth Amendment’s Double Jeopardy Clause, and remanded for resentencing. United States v. Diaz, 592 F.3d 467, 474–75 (3d Cir. 2010). 2  On remand, the District Court held a de novo sentencing proceeding and resentenced Diaz to 400 months’ imprisonment, maintaining the 240-month sentence for the drug count and increasing the sentence for the remaining firearm count to 160 months. Diaz again appealed, arguing that our Court had directed the District Court simply to subtract the 120-month sentence for the vacated firearm count, which would result in a total sentence of 360 months. Diaz also urged us to remand for resentencing under Pepper v. United States, 131 S. Ct. 1229, 1241–43 (2011) (holding that at resentencing a district court can consider postsentencing rehabilitation relevant to the factors in 18 U.S.C. § 3553(a)). We upheld the District Court’s exercise of de novo resentencing, but nonetheless remanded for resentencing pursuant to Pepper. United States v. Diaz, 639 F.3d 616, 619, 622–623 (3d Cir. 2011). On remand after his second appeal, the District Court resentenced Diaz to 397 months’ imprisonment. It took into account Diaz’s postsentencing behavior, noting both his positive behavior (i.e., his documented enrollment in a GED program, his lack of violence and drug use, and the harsh conditions of the prison in Dauphin County, Pennsylvania), and his bad behavior (including his infractions while in prison, e.g., possession of marijuana). The Court reasoned that, notwithstanding Diaz’s success in vacating one firearm count and his positive postsentence behavior, a sentence any lower than 397 months would not properly account for the seriousness of the underlying crime. Indeed, this sentence was at the lower end of the Sentencing Guidelines range of 360 months to life imprisonment (which was the same range applicable at his first sentencing). 3  II. Discussion Our rules provide that “[w]here, upon review of the district court record, counsel is persuaded that the appeal presents no issue of even arguable merit, counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California . . . .” 3d Cir. L.A.R. 109.2(a). If we concur with trial counsel’s assessment, we “will grant [the] Anders motion, and dispose of the appeal without appointing new counsel.” Id. Accordingly, our inquiry “is . . . twofold: (1) whether counsel adequately fulfilled the rule’s requirements; and (2) whether an independent review of the record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). In his Anders brief, Diaz’s attorney noted that the only ground for appeal is the reasonableness of Diaz’s sentence. Our review of the record confirms counsel’s assessment that there are no nonfrivolous issues for appeal. District courts must follow a three-step process in imposing a sentence: (1) calculate the applicable Guidelines range; (2) formally rule on any departure motions and explain their rulings on such motions; and (3) exercise discretion in applying at sentencing any relevant factors set forth in § 3553(a). United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). As Diaz’s attorney explains in his Anders brief, the District Court precisely followed this process. It correctly calculated the applicable Guidelines range, to which Diaz did not object. Neither party filed a departure motion. Moreover, the Court properly applied the § 3553(a) factors at sentencing. Among other things, it considered: (1) the facts of Diaz’s criminal conviction; (2) his postsentencing behavior 4 and the prison conditions; (3) his criminal history and upbringing; and (4) both parties’ detailed sentencing memoranda. The Court disagreed that a sentence of 360 months (the minimum length of the Guidelines range) would adequately deter Diaz given the seriousness of his offenses. Because the Court followed proper sentencing procedures and sentenced Diaz to a term of imprisonment on the lower end of the Guidelines range, we cannot say that Diaz’s sentence is either procedurally or substantively unreasonable. * * * * * Diaz’s counsel adequately fulfilled the requirements of Anders. Because our independent review of the record fails to reveal any nonfrivolous grounds for direct appeal, we grant counsel’s motion to withdraw and affirm Diaz’s sentence. 5 

In the United States Court of Appeals For the Seventh Circuit Nos. 12-1964, 12-1965 & 12-1966 U NITED STATES OF A MERICA, Plaintiff-Appellee, v. JOSE JULIAN T OVAR-P INA, Defendant-Appellant. Appeals from the United States District Court for the Central District of Illinois. Nos. 11 CR 40103, 11 CR 40017, 11 CR 40046—James E. Shadid, Chief Judge. A RGUED A PRIL 8, 2013—D ECIDED A PRIL 29, 2013 Before E ASTERBROOK, Chief Judge, and B AUER and S YKES, Circuit Judges. B AUER, Circuit Judge. Jose Tovar-Pina1 has made a habit of coming to the United States illegally and com- 1 Jose Tovar-Pina’s name is spelled “Tovar-Pena” in some documents, and he has also used numerous other names, including Julian Tovar-Pina, Oscar Orellana-Ayala, and Fausto Lopez-Mora. We refer to the defendant-appellant as “Tovar-Pina.” 2 Nos. 12-1964, 12-1965 & 12-1966 mitting crimes. After his third deportation in 2008 and subsequent unlawful return to the United States, Tovar- Pina was arrested in November 2010 for using aliases to cash stolen checks. He was later indicted in two separate jurisdictions—one indictment related to his unlawful return to the United States and the other involved the stolen checks—and a petition was filed to revoke the supervised release that accompanied his 2008 deportation. The three cases were consolidated, and Tovar-Pina pleaded guilty to various charges from the two indictments and admitted that he violated the conditions of his supervised release. At the consolidated sentencing hearing, the district court sentenced Tovar-Pina to a total of 84 months’ im- prisonment, followed by 36 months of supervised re- lease. The district court based its sentence on two separate Presentence Investigation Reports (PSR) pre- pared for the unlawful reentry offense and the bank fraud offenses. Neither party objected to the PSRs at the time. The government and Tovar-Pina now both agree, however, that (1) the prison sentence imposed for the unlawful reentry offense and the bank fraud offenses was based on an improper U.S. Sentencing Guidelines range, and (2) this error affected Tovar-Pina’s sub- stantial rights. We agree with the parties and vacate the sentences at issue in Case Nos. 12-1964 and 12-1965 and remand for resentencing. I. BACKGROUND Tovar-Pina is a Mexican native who first entered the United States illegally sometime before June 1988. Nos. 12-1964, 12-1965 & 12-1966 3 Between that time and his first deportation in 1992, Tovar-Pina was convicted of receiving stolen property, stealing an automobile, attempting to pass a fraudulent check, selling cocaine, and committing two forgeries involving bank victims. By October 1994, he was back in the United States. Upon his return, Tovar-Pina and four other men burglarized roofing and construction com- panies in Nebraska, took payroll checks, forged them, and attempted to cash them. Tovar-Pina was convicted of these crimes, as well as for unlawful reentry, and deported to Mexico for the second time in 1999. By June 2005, Tovar-Pina had returned to the United States. It was then that Tovar-Pina was again arrested and convicted of charges related to a similar scheme of burglarizing landscaping and construction companies, stealing payroll checks, and fraudulently cashing the checks at banks. A district court in the Western District of Virginia sentenced Tovar-Pina to concurrent 4-year prison terms, followed by 3 years of supervised release, for the charges—bank fraud con- spiracy and unlawful reentry. Tovar-Pina was de- ported to Mexico for the third time in August 2008. Tovar-Pina made his way back into the United States sometime before November 2010. That month, Tovar- Pina and a partner stole blank checks from a number of businesses around the Illinois-Iowa border. The two men forged over forty checks, payable to seventeen dif- ferent names, and presented them to various branches of five banks. Three of the banks cashed the checks and suffered a total loss of over $42,000; two banks sus- pected fraud and refused to cash them. 4 Nos. 12-1964, 12-1965 & 12-1966 On November 24, 2010, Tovar-Pina and his partner’s scheme was put to an end when they were arrested after fleeing one of the banks that suspected fraud. This conduct violated the conditions of Tovar-Pina’s super- vised release in the Western District of Virginia, and a petition to revoke his supervised release was issued (the supervised release violation).2 On January 12, 2011, a grand jury in the Southern District of Iowa charged Tovar-Pina with unlawful reentry after deportation (the unlawful reentry offense) in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). One month later, on February 15, a grand jury in the Central District of Illinois returned an eight-count indictment against Tovar-Pina and his partner for their criminal activity in November 2010. Tovar-Pina was named in five counts—bank fraud, in violation of 18 U.S.C. § 1344 (Count One); conspiracy to utter forged securities, in violation of 18 U.S.C. § 371 (Count Two); and uttering forged securities, in violation of 18 U.S.C. § 513(a) (Counts Three, Five, and Seven). These counts are collectively referred to as the “bank fraud offenses.” In May 2011, the Western District of Virginia trans- ferred jurisdiction of Tovar-Pina’s supervised release violation to the Central District of Illinois, which Chief Judge James E. Shadid accepted on May 18, 2011. 2 The petition, filed on May 12, 2011, alleged two violations: (1) the underlying conduct of the unlawful reentry offense and the bank fraud offenses, and (2) Tovar-Pina’s failure to pay restitution from his 2005 fraud conviction. Nos. 12-1964, 12-1965 & 12-1966 5 In October 2011, the parties consented, pursuant to Federal Rule of Criminal Procedure 20(a), to the transfer of the unlawful reentry offense from the Southern District of Iowa to the Central District of Illi- nois. At this point, all three cases—the unlawful re- entry offense, the bank fraud offenses, and the supervised release violation—were all before Chief Judge Shadid. On December 9, 2011, Tovar-Pina pleaded guilty to the unlawful reentry offense and to three of the five bank fraud counts, as well as admitted to violating the conditions of his supervised release. (The govern- ment later dismissed the other two bank fraud counts.) A sentencing hearing for all three cases was set for April 2012. Prior to Tovar-Pina’s sentencing hearing, the proba- tion office prepared two PSRs, one for the unlawful reentry case and one for the bank fraud case. The PSR for the unlawful reentry offense had an offense level of 13 and a criminal history category of IV, which set the Guidelines range at 24 to 30 months’ imprisonment. The PSR for the bank fraud offenses also had an offense level of 13 and a criminal history category of IV, which set the Guidelines range at 24 to 30 months.3 Neither Tovar-Pina nor the government objected to the calculation of the PSRs. All parties involved failed to 3 The PSR added 2 levels under U.S.S.G. § 2B1.1(b)(2)(A)(i) based on the conclusion that the criminal activity involved ten or more victims. Both parties now agree that the report did not identify ten or more victims. 6 Nos. 12-1964, 12-1965 & 12-1966 recognize that a single offense level should have been calculated for both cases pursuant to U.S.S.G. ch. 3, pt. D, as we discuss below. The probation office also prepared a violation memo- randum for the supervised release violation. The advisory Guidelines range for the violation was 24 to 30 months’ imprisonment because of the unlawful reentry and bank fraud offenses and Tovar-Pina’s criminal history category IV. The memorandum also noted, however, that the statutory maximum sentence was 24 months, citing 18 U.S.C. § 3583(e)(3). Neither party objected to the violation memorandum. The parties reconvened for Tovar-Pina’s sentencing hearing on April 13, 2012. Without objection, the district court adopted the PSRs and their respective 24- to 30-month Guidelines ranges for the unlawful re- entry offense and the bank fraud offenses. It also adopted the statutory maximum 24 months’ imprisonment Guide- lines range for the supervised release violation.4 Both 4 The government points out that this was also an error because one of the original counts in the supervised release violation case was unlawful reentry, in violation of 8 U.S.C. § 1326(a), which is a Class B felony. Pursuant to 18 U.S.C. § 3583(e)(3), the maximum statutory penalty for revocation of supervised release on a Class B felony count is 36 months’ imprisonment. Tovar-Pina may have benefitted from this error, and he has asked us to dismiss with prejudice his challenge to the supervised release violation sentence (continued...) Nos. 12-1964, 12-1965 & 12-1966 7 parties were then given an opportunity to address the court. The government detailed Tovar-Pina’s lengthy crim- inal history of entering the United States illegally and engaging in schemes involving theft and fraud. The government then asked the court to impose con- secutive 30-month prison terms for the unlawful reentry offense and the bank fraud offenses, plus an additional 24-month sentence for the supervised release violation.5 Conversely, Tovar-Pina’s counsel asked the court to sentence Tovar-Pina to no more than concur- rent 24- to 30-month prison terms for the unlawful reentry offense and the bank fraud offenses, plus an unspecified sentence for the supervised release viola- tion. Tovar-Pina’s counsel also asked the court to rec- ommend to the Bureau of Prisons that Tovar-Pina be housed at the Federal Correctional Institution in Pekin, Illinois. The district court announced Tovar-Pina’s sentence by first discussing the difference between illegal aliens who come to the United States to “work legally, if they can, to provide for families and themselves and to other- 4 (...continued) in Case No. 12-1966. Accordingly, we grant the dismissal of Tovar-Pina’s appeal in that case. 5 The government originally requested a 30-month prison sentence for the supervised release violation but amended its position when notified by the judge that the statutory maximum was 24 months. 8 Nos. 12-1964, 12-1965 & 12-1966 wise remain free from criminal conduct” and those who come to the United States “illegally but also to continue in an illegal purpose by conducting other criminal conduct.” Tovar-Pina was deemed to be a member of the latter group. Then, after a few addi- tional remarks, the district court imposed a sentence of 30 months’ imprisonment for the bank fraud of- fenses,6 to run consecutively to a 30-month prison term for the unlawful reentry offense and consecutively to a 24-month prison term for the supervised release violation, for a total of 84 months’ imprisonment. The dis- trict court also ordered concurrent 3-year terms of super- vised release on the unlawful reentry and bank fraud offenses, plus $42,865.01 in restitution and special as- sessments totaling $400. Tovar-Pina’s request to be placed at the Pekin, Illinois Correctional Institution was declined. II. DISCUSSION Tovar-Pina challenges his 84-month prison sen- tence, comprised of Case Nos. 12-1964 (unlawful reentry offense), 12-1965 (bank fraud offenses), and 12-1966 (supervised release violation). He contends the district court committed plain error when it failed to determine a single combined offense level for the unlawful reentry offense and the bank fraud offenses, which led to a sen- 6 The district court sentenced Tovar-Pina to 30 months’ im- prisonment on each of the three bank fraud counts. The prison terms were to run concurrently, however, so the total prison sentence resulting from the bank fraud offenses was 30 months. Nos. 12-1964, 12-1965 & 12-1966 9 tence based on an improper Guidelines range. The govern- ment concurs, and so do we. The Sentencing Guidelines instruct courts to deter- mine a single offense level that encompasses all counts of conviction for a given defendant, including those “contained in the same indictment or information,” or as relevant here, “contained in different indictments or information for which sentences are to be imposed at the same time or in a consolidated proceeding.” U.S.S.G. ch. 3, pt. D, intro. comment. Two separate federal grand juries returned indictments against Tovar-Pina—one for the unlawful reentry offense and one for the bank fraud offenses—but the district court was imposing a sentence for both indictments at the same time and in a consolidating proceeding. So, the district court should have applied U.S.S.G. §§ 3D1.4-5 and deter- mined a single offense level, which Tovar-Pina and the government agree should have been 15 with a criminal category IV, leading to a Guidelines range of 30 to 37 months’ imprisonment on each count, with all counts running concurrently. That did not occur; the district court was presented with a Guidelines range of 24 to 30 months’ imprison- ment for each of the two offense groups. Accordingly, when the district judge sentenced Tovar-Pina to two consecutive 30-month prison terms, the sentence re- mained within the Guidelines range the parties believed to be correct, but in reality, this was 23 months above the correct Guidelines range. The judge did not explain this upward departure, and we have no way of 10 Nos. 12-1964, 12-1965 & 12-1966 knowing whether the judge would have imposed the same sentence but for the procedural error. We cannot, therefore, presume the error was harmless. See United States v. Love, 680 F.3d 994, 997-98 (7th Cir. 2012). We vacate Tovar-Pina’s sentence for the unlawful reentry offense and the bank fraud offenses, and remand for resentencing using the correct Guidelines range. The only issue left to decide is whether we should apply Circuit Rule 36 and remand this case to a different judge for resentencing. Tovar-Pina contends the original sentencing judge cannot be impartial because of two remarks made at his sentencing hearing: (1) I believe that [Tovar-Pina] is the poster child for an extended sentence for illegal aliens. His conduct makes it difficult for all who come here seeking only the opportunity to legally work and provide for their families. (2) This will be a first for me: With all due respect, I’m not going to make any recommendations as to your placement. You can be placed where the Bureau of Prisons wishes you to be placed. But these statements do not produce the concerns we voiced in prior cases where we have remanded to a different judge for sentencing. The comments were not unreasonably inflammatory, provocative, or dispar- aging, cf. United States v. Bradley, 628 F.3d 394, 398, 401 (7th Cir. 2010) (remanding to a different judge where the sentencing judge told the defendant, among other things, “You are the crabgrass on the lawn of life.”); United States v. Figueroa, 622 F.3d 739, 743-44 (7th Cir. Nos. 12-1964, 12-1965 & 12-1966 11 2010) (stating that the district judge’s “litany of inflam- matory remarks undermined anything else that court said during the [sentencing] hearing”); nor do they dem- onstrate the judge would be unable to follow our in- structions on remand. Cf. United States v. Thomas, 956 F.2d 165, 167 (7th Cir. 1992) (using Rule 36 where the district judge “said he was in a foul mood because he didn’t like to redo sentences, didn’t like [this Court’s] handing of the [defendant’s] first appeal, and didn’t like the [G]uidelines”). Given Tovar-Pina’s repeated disregard for the law, the comments demonstrate, at most, the sentencing judge’s consideration of the requisite sen- tencing factors and attempt to explain the rationale behind the sentence imposed. We decline to invoke Rule 36. III. CONCLUSION For the aforementioned reasons, we V ACATE Tovar- Pina’s sentence in Case Nos. 12-1964 and 12-1965, and R EMAND for further proceedings consistent with this opinion. We dismiss with prejudice Tovar-Pina’s appeal in Case No. 12-1966. 4-29-13 

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-85,986-01 EX PARTE JOHN DAVID WAGUESPACK, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2012-46-C1A IN THE 19TH DISTRICT COURT FROM MCLENNAN COUNTY Per curiam. ORDER Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of sexual assault and sentenced to imprisonment for life. The Tenth Court of Appeals affirmed his conviction. Waguespack v. State, No. 10-13-00416-CR (Tex. App.—Waco June 18, 2015)(not designated for publication). Applicant contends, among other things, that his trial counsel rendered ineffective assistance because counsel failed to object to the testimony from psychologist, Dr. William Lee Carter, who described the characteristics of a person who commits sexual assault and the characteristics of a  2 person who becomes a victim of sexual assault. Specifically, Applicant contends that the description Dr. Carter gave of the type of person who would commit a sexual assault focused on a controlling person, and Applicant is exactly this type of person. Therefore, Applicant contends that defense counsel should have objected to this testimony as inadmissable pursuant to Rules of Evidence 404(a)(1) and 403. Applicant also alleges that Rules 404(a)(1) and 403 also prohibited Dr. Carter from testifying that the victim in this case was the type of person who, because of her history, becomes a victim of sexual assault. The trial court finds the testimony was admissible, but cited to no authority for the proposition. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d). It appears that Applicant is represented by counsel. If the trial court determines he is not represented by counsel and elects to hold a hearing, it shall then 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 supplemental findings of fact and conclusions of law as to whether the complained of testimony from Dr. Carter was inadmissible pursuant to Rules of Evidence 404(a)(1) and 403. The trial court shall also make additional findings of fact and conclusions of law as necessary as to whether the performance of Applicant’s trial counsel was deficient and, if so,  3 whether counsel’s deficient performance prejudiced Applicant. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant’s claim for habeas corpus relief. This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall be forwarded to this Court within 120 days of the date of this order. Any extensions of time must be requested by the trial court and shall be obtained from this Court. Filed: February 15, 2017 Do not publish