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Timaeus 12

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS OCT 29 2002 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk ERNEST E. WALKER, Plaintiff - Appellant, v. No. 02-1020 D.C. No. 00-S-1931 OFFICER DISNER; JOHN DOE OF (D. Colorado) ARAPAHOE COUNTY DETENTION FACILITY, Defendants - Appellees. ORDER AND JUDGMENT * Before KELLY and BALDOCK , Circuit Judges, and BRORBY , Senior Circuit Judge. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. 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.  Plaintiff Earnest Walker, a state prisoner appearing pro se , appeals the district court’s order dismissing his amended complaint alleging, under 42 U.S.C. § 1983, that Officer Edward Disner, a Sheridan, Colorado, police officer, and an unidentified John Doe violated his civil rights. 1 The magistrate judge recommended that the complaint be dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief could be granted. By separate order, the magistrate judge denied Mr. Walker’s motion to amend his complaint for a third time. The district court affirmed the denial of the motion to amend and, adopting the magistrate judge’s recommendation, dismissed the complaint. We affirm. “We review de novo the district court’s grant of a [Rule] 12(b)(6) motion to dismiss, bearing in mind that all well-pleaded allegations in the complaint are accepted as true and viewed in the light most favorable to the nonmoving party.” Stidham v. Peace Officer Standards & Training , 265 F.3d 1144, 1149 (10th Cir. 2001) (quotation and alteration omitted). The district court thoroughly and 1 John Doe remains unknown and unserved. The district court informed Mr. Walker by order dated December 20, 2000, that he must provide sufficient information so that this defendant could be identified. Mr. Walker never provided further identifying information. Mr. Walker has waived his right to appellate review of the dismissal of this John Doe defendant because he did not raise any objections to the dismissal of this defendant in his objections to the magistrate judge’s report and recommendation, see Key Energy Res. Inc. v. Merrill (In re Key Energy Res. Inc.) , 230 F.3d 1197, 1199-1200 (10th Cir. 2000), or in his opening brief on appeal, see Coleman v. B-G Maint. Mgmt. of Colo., Inc. , 108 F.3d 1199, 1205 (10th Cir. 1997). -2- accurately described Mr. Walker’s allegations, as contained in his amended complaint and his verified statement of facts filed in response to the motion to dismiss. Thus, we only briefly summarize them here. Mr. Walker returned to the apartment he shared with his wife on the morning of September 28, 1999, after an argument with her the evening before. He could not unlock the door, and the apartment maintenance manager told him his wife had changed the locks and requested he not be allowed inside the apartment. Nevertheless, Mr. Walker admits he manipulated the locks on the door and entered the apartment. The maintenance manager called the police. Officer Disner and an unidentified fellow officer arrived, and were told by the maintenance manager that there was an unwanted person in the apartment. The officers knocked on the door, but Mr. Walker was unable to answer at the time. The officers again knocked on the door and then forcibly entered the apartment. The officers handcuffed Mr. Walker. After searching his wallet, the officers told Mr. Walker he was being arrested for a violation of a restraining order. Although Mr. Walker’s wife had previously obtained a restraining order against him, it was later determined that the restraining order had been vacated prior to September 28, 1999. The officers briefly searched the apartment, and then arrested Mr. Walker for criminal mischief for manipulating the locks and for violating a restraining order. -3-  Mr. Walker contends Officer Disner violated his constitutional rights because he did not obtain a search warrant prior to entering his apartment and arrested him without probable cause. We agree with the district court that Officer Disner is entitled to qualified immunity because the facts, taken in the light most favorable to Mr. Walker, do not show that Officer Disner violated a constitutional right. See Saucier v. Katz , 533 U.S. 194, 200 (2001). Absent exigent circumstances, police may not enter a citizen’s home without a warrant. Payton v. New York , 445 U.S. 573, 590 (1980). Here, Mr. Walker admits that the police responded to a call of a suspected burglary and were told by the apartment maintenance manager that an unwanted person was in the apartment. He admits that he manipulated the locks to enter the apartment and that he did not respond to the officers’ initial knock. Because the officers had received a burglary call, and upon arriving at the apartment, observed signs of a burglary, Officer Disner’s entry into, and brief search of, the apartment were lawful pursuant to the emergency exception to the warrant requirement. See United States v. Tibolt , 72 F.3d 965, 970-71 (1st Cir. 1995) (holding that responding to report of possible burglary is exigent circumstance authorizing warrantless entry into home). -4-  Furthermore, these same facts are sufficient to demonstrate that Officer Disner had probable cause to believe Mr. Walker had committed a criminal offense. A police officer may arrest a person without a warrant if he has probable cause to believe that person committed a crime. Probable cause exists if facts and circumstances within the arresting officer’s knowledge and of which he or she has reasonably trustworthy information are sufficient to lead a prudent person to believe that the arrestee has committed or is committing an offense. Romero v. Fay , 45 F.3d 1472, 1476 (10th Cir. 1995) (quotations and citations omitted). Although Mr. Walker contends that Officer Disner lacked probable cause to arrest him for violating the restraining order, he ignores the fact that he was also arrested for criminal mischief for manipulating the locks on the apartment door. He offers no argument why Officer Disner lacked probable cause to arrest him for this charge. The district court correctly ruled that Mr. Walker failed to assert the violation of a constitutional right. Mr. Walker alleges it was error for the district court to deny his motion to file a third amended complaint on grounds of futility. We review the district court’s denial of a motion to amend a complaint for abuse of discretion. See Ramirez v. Okla. Dep’t of Mental Health , 41 F.3d 584, 596 n.9 (10th Cir. 1994). Officer Disner’s motion to dismiss had been pending for two months when Mr. Walker filed his motion to amend. He did not detail the changes he sought -5- to make in his amended complaint or offer any justification for the proposed amendment. We find no abuse of discretion. We AFFIRM the district court’s judgment. We remind Mr. Walker to continue making partial payments until the entire balance of the appellate filing fee is paid. Entered for the Court Bobby R. Baldock Circuit Judge -6- 

634 So.2d 268 (1994) Norman L. TILLMAN and Judith A. Tillman, his wife, Appellants/Cross-Appellees, v. Michael J. HOWELL and Linda Howell, his wife, Appellees/Cross-Appellants. Nos. 92-0259, 92-2005. District Court of Appeal of Florida, Fourth District. March 30, 1994. George P. Ord, Alley, Mass, Rogers & Lindsay, P.A., Palm Beach, for appellants, cross-appellees. Richard A. Kupfer, Richard A. Kupfer, P.A., West Palm Beach, and Popkin & Shirpin, P.A., Boca Raton, for appellees, cross-appellants. HERSEY, Judge. Norman and Judith Tillman appeal from a final judgment of foreclosure of their mortgage held by Michael and Linda Howell. The Howells appeal from a final judgment for damages awarded to the Tillmans. The Tillmans negotiated with the Howells to purchase a home being constructed by Michael Howell's construction company, Audobon *269 Homes. The transaction was consummated, and, because closing took place before completion of construction, the Tillmans gave the Howells a promissory note in the amount of $110,000.00 secured by a mortgage on the premises. The purpose of this note was to ensure satisfactory completion of construction. The balance ($443,000.00) of the total purchase price of $553,000.00 was paid at closing. The Tillmans moved in and began to encounter problems which they attributed to construction defects. They filed suit. During the pendency of that litigation, the house flooded, which was allegedly caused by leakage from an improperly connected water pipe. During the course of the repairs necessitated by that flooding, a second flood occurred when a carpenter installing the new baseboard accidentally drove a nail into a pipe. When the note and mortgage came due, the Tillmans, because of the problems they had encountered, refused to pay the balance. Consequently, the Howells filed their foreclosure action. The two cases were consolidated and tried together. Following the rehearing process, the following awards were made in an amended final judgment: In the foreclosure action, the Howells were awarded the principal sum of $110,000.00 together with interest in the amount of $42,229.84 for a total of $152,229.84; In the damages action, the Tillmans were awarded damages in the amount of $62,614.27 together with an amount of $22,000.00 for constructive eviction, resulting in a total award of $84,614.27. The court then held that the Tillmans were entitled to have their award set off against the Howells' judgment, reducing their ultimate liability to $67,615.57 with interest from the date of the final judgment, August 15, 1991. Foreclosure was ordered. Orders were also entered on the respective parties' motions for attorneys' fees and costs. During the trial process the court ruled that the Tillmans could not recover damages caused by the second flooding from the Howells because those damages resulted from an unforeseeable, independent intervening cause. As noted earlier, in February of 1989 the Tillmans experienced flooding problems due to an improperly soldered pipe connection. The flooding caused significant damage to some of the hardwood floors and cabinets. Near the end of the repair process, the trim carpenter, while nailing a baseboard, drove a nail through another water pipe which caused further flooding and further damage. The Tillmans argue that the carpenter's negligence was foreseeable. They contend that the improperly soldered pipe necessitated repairs, and, as part of that particular repair process, they incurred additional damages. The Tillmans cite cases which hold that a negligent party is not absolved of liability when his/her conduct sets a chain of events causing injury in motion. See, e.g., Gibson v. Avis Rent-a-Car System, Inc., 386 So.2d 520 (Fla. 1980). They also cite several cases which hold a tortfeasor liable for injuries the plaintiff incurs as a result of intervening medical malpractice. See, e.g., Stuart v. Hertz Co., 351 So.2d 703 (Fla. 1977). The Howells maintain that the question of what is an independent, intervening cause is a question for the fact finder, and that the cases cited by the Tillmans merely support sending the question to the fact finder instead of deciding the proximate cause issue as a matter of law. Secondarily, the Howells complain that the Tillmans did not give them a chance to fix the floor, and rather hired their own coterie of workers to repair the damage. They also argue that after the first flood the Tillmans replaced the floor with a much more expensive one, and therefore the Howells believe they should not now have to pay that much more for the damages. We agree with the result reached by the trial court and advocated on appeal by the Howells, but not for the stated reasons. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979). The Tillmans' action is based upon breach of contract. In a case involving unfinished construction, the supreme court, in Grossman Holdings Ltd. v. Hourihan, 414 So.2d 1037 (Fla. 1982), adopted subsection 346(1)(a) of the Restatement (First) of Contracts (1932) as the law of Florida in measuring damages in an action *270 for breach of contract. That subsection provides: (1) For a breach by one who has contracted to construct a specified product, the other party can get judgment for compensatory damages for all unavoidable harm that the builder had reason to foresee when the contract was made, less such part of the contract price as has not been paid and is not still payable, determined as follows: (a) For defective or unfinished construction he can get judgment for either (i) the reasonable cost of construction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste; or (ii) the difference between the value that the product contracted for would have had and the value of the performance that has been received by the plaintiff, if construction and completion in accordance with the contract would involve unreasonable economic waste. While Grossman involved a suit by an owner against a contractor for unfinished construction, the rationale has been applied to causes of action involving construction defects as well. See Tree Const. Corp. v. Caplinger, 446 So.2d 245 (Fla. 4th DCA 1984); see also Andalora v. Lindenberger, 576 So.2d 354 (Fla. 4th DCA 1991). As early as 1854, as explained in Hadley v. Baxendale, 9 Ex. 341, 156 Eng.Rep. 145 (1854), the damages recoverable for breach of contract have been limited to: those which are the natural and proximate result of the breach, or which, in the ordinary course of events, would naturally result from a breach, and can reasonably be said to have been foreseen or contemplated by the parties at the time when they made the contract as a probable or natural result of a breach... . (Citation and footnotes omitted.) Further it is said that "damages which do not arise naturally from a breach of the contract, or which were not within the reasonable contemplation of the parties at the time the contract was made, are not recoverable." Williams v. Atlantic Coast Line R. Co. 56 Fla. 735, 48 So. 209, 211 (Fla. 1908), citing Brock v. Gale, 14 Fla. 523 (Fla. 1874). In essence it may be said that under present Florida law one liable for the tort of negligence must answer for all of the natural, direct and proximate consequences of his tortious conduct, whereas one who breaches a contract is answerable only for damages that were or reasonably should have been in the contemplation of the contracting parties. Application of that principle to this issue on appeal requires an affirmance. In sorting out the conflicting damage claims, the trial court determined that prejudgment interest should be added to the amount due on the promissory note before offsetting that figure against the Tillmans' damages for construction defects. This was error. The purpose of the note and mortgage was to ensure satisfactory completion of construction. To the extent that performance was less than satisfactory and the structure defective, there was a failure of consideration. The amount due on the promissory note should have been reduced by the construction damages before computation of an amount for prejudgment interest. See Konover v. Hochman, 439 So.2d 994 (Fla. 4th DCA 1983). See also, semble, Manning v. Clark, 89 So.2d 339 (Fla. 1956). As to this point on appeal we reverse. The trial court refused to permit the Tillmans to recover prejudgment interest because it was not pled. The cases cited in support of that holding all predate Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212 (Fla. 1985), the landmark case on this subject. Prejudgment interest is an element of damages, not a cost or a fee, and its entitlement follows any award for liquidated damages. We have discussed but have never before clearly ruled on this issue. See Napp v. Carman, 576 So.2d 361 (Fla. 4th DCA 1991); Otis Elevator Co. v. Scott, 551 So.2d 489 (Fla. 4th DCA 1989), disapproved on other grounds, 572 So.2d 902 (Fla. 1990). We do so now and hold that it need not be specially pled. See, e.g., Getelman v. Levey, 481 So.2d 1236 (Fla. 3d DCA 1985), rev. denied, 494 So.2d 1150 (Fla. 1986). We reverse as to this point. *271 Finally, we address the award of damages to the Tillmans of $22,000.00 for "constructive eviction." Without belaboring the point, constructive eviction comes from the law of landlord and tenant and is an element of the damages recoverable by the tenant where, due to the fault of the landlord, he is actually or constructively turned out of possession. We need not consider the esoteric question of whether this concept should be applicable in the context of builder-homeowner. In this case the Tillmans recovered the cost of moving, storage and living quarters made necessary by construction defects and the repair process. They were not entitled in addition to the fair rental value of their home. That clearly would constitute an impermissible double recovery. We reverse as to this element of damage awarded the Tillmans. In all other respects we affirm the issues presented for our review. To recap, for the guidance of the parties, counsel, and the trial court: The Tillmans' award is to be reduced by $22,000.00 and they are to be awarded prejudgment interest on their damage claim. The Howells' award is to be computed by first subtracting the amount of the award of damages to the Tillmans from the principal amount the Tillmans owe on the promissory note. Then, prejudgment interest is to be computed on the remaining balance only. We affirm in part; reverse in part, and remand for recomputation of the amounts due as required by our opinion. AFFIRMED IN PART; REVERSED IN PART; REMANDED. PARIENTE, J., concurs. FARMER, J., dissents and concurs with opinion. FARMER, Judge, concurring and dissenting. If the original tortfeasor can be held liable as a matter of law for additional injuries later caused to the victim of the original accident by a negligent treating physician, Stuart v. Hertz Co., 351 So.2d 703 (Fla. 1977), why then shouldn't the original tortfeasor be equally responsible as a matter of law for additional property damages later caused to plaintiff's property by a negligent repairing artisan? Because the possible negligence of a repairman hired to fix the damage caused by the original tortfeasor's conduct occurs just as frequently in the spectrum of human experience and is thus just as foreseeable as the doctor's, I think he should. Here the builder's negligence created a latent construction defect which led to a flood of the premises causing substantial damage. While repairing that damage, a carpenter drove a nail through a pipe and caused additional flooding and damage. The trial court found the repairing carpenter's negligence to be an "unforeseeable intervening cause which broke the chain of negligence." I distinguish that legal conclusion from a theoretically possible factual finding that the court did not make: that the particular damage caused by the carpenter was itself uniquely unexpected as unrelated to his misplaced nail. She did not find, (e.g., as a factual matter) that his damage was too remote from his assigned task to be chargeable to the defendant. Thus, I challenge a categorical legal ruling, not a particularized factual one. There is no logical reason to charge negligent actors with the later negligence of treating doctors but not of treating carpenters — or, for that matter, of plumbers, mechanics, electricians, or any other professional, artisan or laborer employed to effect a cure of the original actor's delict. Surely, no one would suggest that doctors as a class are so much more frequently negligent than, say, carpenters that we should charge the defendant with the subsequent negligence only of the doctors but not of the carpenters. It is unassailably a common occurrence for repairmen themselves to be negligent even while curing the effects of another person's prior negligence. Nor should the fact that plaintiff selected and hired the carpenter make any difference. Patients select their doctors, their tortfeasors do not. For me, the repairing carpenter's negligence is "the type of harm that has so frequently resulted from the same type of negligence *272 that `"in the field of human experience" the same type of result may be expected again.'" Gibson v. Avis Rent-Car System Inc., 386 So.2d 520, 522-23 (Fla. 1980). As such, the harm resulting from the carpenter's later negligence is, as a matter of law, within the scope of harm attributable to defendant's initial negligence; if it is within the scope of harm it is legally deemed foreseeable. Gibson, 386 So.2d at 522. I think we err by applying the special breach of contract rule employed in Grossman Holdings Ltd. v. Hourihan, 414 So.2d 1037 (Fla. 1982), adopting section 346(1)(a) of Restatement (First) of Contracts (1932), as Judge Hersey has done here. I reach this conclusion on two procedural grounds and one substantive. In the first place, it was defendant who argued the independent, intervening cause defense instead of the Hourihan defense. Second, the trial court expressly accepted defendant's contention but said nothing about these damages being outside the contemplation of the contracting parties. On these procedural grounds, I think defendant waived the Hourihan analysis in the trial court. But even if it had been preserved, I think it inapplicable. Hourihan involved a builder constructing a new house facing to the northwest, rather than the southeast as planned and agreed. Before construction began, the buyers brought this mistake to the attention of the builder "and remonstrated against construction of a mirror image of the house they had contracted for." 414 So.2d at 1038. The builder refused to change the plans and began construction. The buyers sued. The trial court found that the builder had breached the contract but refused to award money damages for two reasons. First, specific performance would have been wasteful and out of proportion to the result thus obtained. Second the value of the house had increased substantially since contracting. The district court concluded that the economic waste doctrine did not apply to residential construction, and that the builder's breach was willful and intentional, thus concluding that the proper measure of damages was the amount necessary to make the house conform to the contract. There is no economic waste involved in the present equation. No one contended below that the admitted cost of restoring plaintiffs to the position they would have enjoyed without the flood would itself result in economic waste out of all proportion to the good being restored. The Comment to Restatement section 346(1)(a) states that its provisions were intended to reach those cases in which "the value of the finished product is much less than the cost of producing it after the breach has occurred." Hourihan, 414 So.2d at 1039. The Comment goes on to explain: "Sometimes defects in a complete structure cannot be physically remedied without tearing down and rebuilding, at a cost that would be imprudent and unreasonable." Id. There is not a shred of evidence in this record to indicate that this is such a case. Hence the rule adopted in Hourihan is simply inapplicable to this case. We should thus reverse the trial court's intervening cause decision. In all other respects, I agree with the court's opinion.

143 So.2d 17 (1962) Josephine DEL VECCHIO, Petitioner, v. Samuel DEL VECCHIO, As Executor of the Estate of Domenico Del Vecchio, Deceased, Respondent. No. 31607. Supreme Court of Florida. June 29, 1962. *18 Fuller Warren, Miami, for petitioner. Patton & Kanner and William H. Morrow, Jr., Miami, for respondent. CALDWELL, Justice. This case is here on a petition for writ of certiorari based upon an alleged direct conflict between the decision of the District Court of Appeal[1] and the decision of this Court in the case of Weeks v. Weeks.[2] The two decisions are in direct conflict on the same point of law, and this court has jurisdiction under Section 4(2), Article V, Constitution of Florida, F.S.A. *19 The cause was instituted in the circuit court by the petitioner against the respondent, as executor of the estate of petitioner's deceased husband, to have set aside an antenuptial agreement entered into between her and her deceased husband in 1946. The petitioner, then employed in a restaurant as a waitress and cashier, and the deceased first met in 1939 when she was living in the District of Columbia, in a rented house owned by him. The friendship between the petitioner and the deceased was more than casual for some years prior to the death of the deceased's former wife in 1945, after which they were married and lived together until his death in May, 1958. At the time of the marriage the deceased was 68 years of age and the petitioner was 35. She had assets valued at approximately $8,000 and the deceased was a man of considerable means who owned, together with his son, a chain of hardware stores in Washington, D.C. It appears the son was the moving party in promoting the antenuptial agreement, the reason being his desire to protect his interest in the hardware business. By the terms of the agreement the petitioner released all interest in property located in Washington, District of Columbia, of which the prospective husband was then seized and, in return, the deceased agreed to convey to the petitioner, as a tenant by the entirety, a home in Washington, D.C. It does not appear that, prior to the execution of the agreement, full disclosure was made to the petitioner of the nature and extent of the prospective husband's property, nor that she had independent advice as to her legal rights. It does appear that the petitioner was conversant with the fact that the deceased and his son were proprietors of a hardware business in the city and that he owned other property. The chancellor found that, at the time of the marriage, decedent was worth about a half-million dollars and that no full and fair disclosure was made to the petitioner of the extent of the decedent's holding. The antenuptial agreement was held to be invalid and set aside. On appeal the decree of the chancellor was reversed, the district court holding "* * * the establishment of the mere failure to disclose, where the facts and circumstances indicate that the individual knew or should have known of the other's financial status, would not, in the absence of other factors, render the antenuptial agreement void." It was held that, since the petitioner "knew or should have known that he was a man of considerable substance" the agreement was valid notwithstanding the fact that no disclosure was made of the husband's assets prior to the execution of the agreement. The Weeks case, supra, cited with approval the Murdock case[3] which, in essential part, held the rule to be: "The rule in this state is well settled that a man and woman who contemplate marriage may by an antenuptial contract, if there is full knowledge on the part of the intended wife of all that materially affects the agreement, settle their property rights in each other's estates. Yet it is held, if it appear that the provision made for the intended wife is disproportionate to the means of the intended husband, a presumption is raised in her favor that the execution of the agreement was brought about by a designed concealment of the amount of his property by the intended husband, and that the husband, or persons claiming through him, in order to sustain the agreement, have cast upon them the burden of proof to show that the intended wife, at the time she executed the agreement, had full knowledge of the nature, character, and value of the intended husband's property, or that the circumstances were *20 such that she reasonably ought to have had such knowledge." The district court did not follow the Weeks case in the case at bar and a conflict resulted, giving this Court jurisdiction. Where, as in this case, the provision made for the wife is, upon the face of the agreement, disproportionate to the means of the husband the burden, under the Weeks rule, is cast upon the executor to show that the wife, at the time she executed the agreement, had or reasonably ought to have had full knowledge of the husband's property. The subject of antenuptial agreements has not heretofore been squarely presented to this Court. The Weeks case, supra, involved a separation agreement which, although not the principal question in the case, led to the establishment of precedent for both antenuptial and separation agreements. Inasmuch as such agreements are in harmony with the public policy and often conducive to marital tranquility, it seems necessary that we now re-examine the rule and express our views with more particularity. A valid antenuptial agreement contemplates a fair and reasonable provision therein for the wife, or, absent such provision, a full and frank disclosure to the wife, before the signing of the agreement, of the husband's worth, or, absent such disclosure, a general and approximate knowledge by her of the prospective husband's property. The term "approximate" is, for this purpose, held synonymous with "near", "close to" or "approaching". If the provision made by the agreement is not fair and reasonable then it should be made to appear that the wife, when she signed, had some understanding of her rights to be waived by the agreement. In any event she must have signed freely and voluntarily, preferably, but not necessarily a required pre-requisite, upon competent and independent advice. Inadequacy of provision for the wife does not in itself vitiate an antenuptial agreement. If, when she signed the contract freely and voluntarily, she had some understanding of her rights and had been fully informed by the husband as to his property or if, notwithstanding the husband's failure to disclose, she had or reasonably should have had a general and approximate knowledge of the character and extent of his property she will be bound. The questions of whether she had some understanding of her rights and had or reasonably should have had a general and approximate knowledge of her future husband's property are matters of fact to be determined by the chancellor upon the evidence and his finding thereon will not lightly be disturbed. In weighing the fairness and reasonableness of the provision for the wife the courts will consider the relative situation of the parties, their respective ages, health and experience, their respective properties, their family ties and connection, the wife's needs and such factors as tend to show whether the agreement was understandingly made. The basic criterion is the element of fairness between the parties, which will be evaluated in the light of the facts touching the husband's property and the question of whether the provisions made for the wife will enable her to live after the dissolution of the marriage ties in a manner reasonably consonant with her way of life before such dissolution and certainly no less confortably than before the marriage. The element of fairness should, of course, be measured as of the time of the execution of the agreement. Ordinarily the burden of proof of the invalidity of a prenuptial contract is on the wife alleging it but if, on its face, the contract is unreasonable a presumption of concealment arises, the burden shifts, and *21 it is incumbent upon the husband to prove validity. But in the application of this rule careful consideration of the several factors mentioned above is indicated. If, when the contract is made, the prospective husband was a man of the world and the prospective bride relatively inexperienced then clearly such presumption is indicated. But if, on the other hand, the prospective husband is a commonplace and elderly drab and the prospective bride a worldly-wise and winsome young woman the rule should be applied, if at all, with caution. The relationship between the parties to an antenuptial agreement is one of mutual trust and confidence. Since they do not deal at arm's length they must exercise a high degree of good faith and candor in all matters bearing upon the contract. The courts will no longer indulge the archaic presumption of dominance by the husband but they will scrutinize such agreements and will require good faith disclosure by the prospective husband of the material facts relating to the character and value of his property showing that the prospective bride possessed such general and approximate knowledge of his property as to enable her to reach an intelligent decision to enter into the agreement. Unless it be shown that the woman is, in fact, the dominant and moving party the burden is not upon her to inquire, but upon the man to inform. And while the disclosure should be full, fair and open, it need not be minutely detailed nor exact. The test is the adequacy of the knowledge of the woman — she must have had some understanding of her rights and a general and approximate knowledge of his property and resources. The basic issue is concealment, not the absence of disclosure, and the wife may not repudiate if she is not prejudiced by lack of information. Insofar as what we have said herein may be in conflict with former decisions of this Court such former decisions are modified. Certiorari is granted. The opinion and judgment of the district court is quashed with directions that the cause be remanded to the trial court for further proceedings and the taking of additional testimony if necessary and the entry of a decree not inconsistent with the views herein expressed. ROBERTS, C.J., and TERRELL and DREW, JJ., concur. THOMAS, THORNAL and O'CONNELL, JJ., dissent. NOTES [1] 132 So.2d 771 (Fla.App.3rd 1961). [2] 143 Fla. 686, 197 So. 393 (1940). [3] Murdock v. Murdock, 219 Ill. 123, 128, 76 N.E. 57, 59, (1905).

115 P.3d 201 (2005) 2005 MT 164 Krist MATTHEWS, Plaintiff and Respondent, v. DON K CHEVROLET and John Does 1 and 2, Defendants and Appellants. No. 04-232. Supreme Court of Montana. Submitted on Briefs August 18, 2004. Decided June 28, 2005. *202 For Appellants: John R. Quatman, Quatman & Quatman, Whitefish, Montana. For Respondent: Dean D. Chisholm, Kaplan & Chisholm, Columbia Falls, Montana. Justice JIM RICE delivered the Opinion of the Court. ¶ 1 Don K Chevrolet (Don K) appeals from the order entered in the Eleventh Judicial District Court, Flathead County, denying its motion to set aside the entry of the default and the default judgment awarding $185,000 in damages to Krist Matthews (Matthews). We affirm. ¶ 2 We restate the issue on appeal as follows: ¶ 3 Did the denial of Don K's motion to set aside the entry of the default and the default judgment constitute a slight abuse of discretion? FACTUAL AND PROCEDURAL BACKGROUND ¶ 4 Matthews is one of five employees whose employment was terminated by Don K in what he describes was a "housecleaning" by Don K's management. Of the five, Wade Fish was the first to challenge the termination by filing suit against Don K. The four other employees, including Matthews, who *203 were all, like Fish, represented by Dean Chisholm (Chisholm), sought to consolidate their claims into one action against Don K by moving to join Fish's action as additional parties. However, Don K, who was represented on all the claims by Jack R. Quatman (Quatman), opposed the request, and the District Court denied it, requiring the employees to file individual actions. ¶ 5 Matthews then filed his own action, alleging that Don K wrongfully terminated his employment and withheld wages. On or about September 11, 2003, Chisholm forwarded the summons and complaint, with an acknowledgment of service, to Quatman, who had previously advised Chisholm that he would accept service on behalf of Don K in all of the individual actions. The summons advised Don K that "in case of your failure to appear or respond, judgment will be taken against you, by default, for the relief prayed for in the Complaint," within twenty days after service of the summons. ¶ 6 On October 14, 2003, Quatman signed the acknowledgment of service and gave it, with the summons and complaint, to his legal assistant, who was to mail the acknowledgment of service to Chisholm, calendar the due date for filing of the answer, and open a file. The assistant mailed the signed acknowledgment of service to Chisholm, who filed it with the District Court. However, the assistant failed to calendar the answer's due date, and further, misfiled Matthews' summons and complaint in the Fish file. An answer was not filed within twenty days of Quatman's acknowledgment of service, and thereafter, on November 7, 2003, Chisholm filed a praecipe for default, which was entered by the Clerk of Court. ¶ 7 Chisholm then requested a hearing on entry of a default judgment and damages, which was set for December 11, 2003, and filed a notice of hearing with the Clerk of Court. On December 4, 2003, Chisholm wrote a letter to Quatman advising that Chisholm had caused a default to be entered against Don K in Matthews' action, stating "I am not thrilled about having taken the default, but frankly, after your client said he wanted to play hardball and requested Rule 11 sanctions against me, I am not entirely morose either." Chisholm further advised that a hearing had been scheduled on judgment and damages for December 11, 2003. However, no one attended the hearing on behalf of Don K and an appearance was not otherwise filed in the action. Following the hearing on December 11, 2003, for which Matthews traveled from Washington to testify, the District Court entered a default judgment against Don K for $185,000. ¶ 8 On December 18, 2003, a writ of execution was issued by the District Court requiring the sheriff to satisfy the judgment against the property of Don K. On January 7, 2004, Don K filed an ex parte motion to stay the writ of execution, which was granted by the District Court, and also filed a motion to set aside the default and the default judgment. The District Court did not rule on the motion within sixty days, and, therefore, it was denied by operation of Rule 60(c), M.R.Civ.P. Don K appeals therefrom, challenging the entry of the default and the default judgment. The amount of damages awarded by the District Court is not challenged. STANDARD OF REVIEW ¶ 9 In reviewing a default judgment, we are guided by the principle that every litigated case should be decided on its merits; judgments by default are not favored. Peak Dev., LLP v. Juntunen, 2005 MT 82, ¶ 8, 326 Mont. 409, ¶ 8. When an appeal is from a denial of a motion to set aside a default judgment, our standard of review is that only a slight abuse of discretion need be shown to warrant reversal. Peak, ¶ 8; Lords v. Newman (1984), 212 Mont. 359, 364, 688 P.2d 290, 293. The party seeking to set aside a default judgment has the burden of proof. Peak, ¶ 8. DISCUSSION ¶ 10 Did the denial of Don K's motion to set aside the entry of the default and the default judgment constitute a slight abuse of discretion? ¶ 11 Don K argues that the District Court should have granted its motion to set aside the default and the default judgment *204 because it satisfied the good cause criteria under Rule 55(c), M.R.Civ.P., and also satisfied the more stringent excusable neglect standard under Rule 60(b)(1), M.R.Civ.P. Further, Don K contends that the facts establish "extraordinary circumstances" which justify setting aside the default judgment pursuant to Rule 60(b)(6), M.R.Civ.P. ¶ 12 Recently, in Essex Ins. Co. v. Jaycie, Inc., 2004 MT 278, 323 Mont. 231, 99 P.3d 651, we clarified the standards to be applied in setting aside defaults and default judgments. We held that when the issue is setting aside an entry of default judgment under Rule 60(b)(1), M.R.Civ.P., either alone or in conjunction with an entry of default, we will apply the Blume standard. Essex, ¶ 12 (referencing Blume v. Metro. Life Ins. Co. (1990), 242 Mont. 465, 467, 791 P.2d 784, 786 (overruled in part on other grounds)). We clarified the criteria that must be satisfied by a defaulting party to set aside a default judgment, as follows: (1) the defaulting party proceeded with diligence; (2) the defaulting party's neglect was excusable; (3) the defaulting party has a meritorious defense to the claim; and (4) the judgment, if permitted to stand, will affect the defaulting party injuriously. Essex, ¶ 11. See also Peak, ¶ 11. Essex was decided while this case was pending, and the parties did not have the benefit of our holding for their briefing. Nonetheless, both parties have offered arguments in accordance with the Blume standard for setting aside a default judgment, and therefore, have provided an appropriate analysis, consistent with Essex, for our consideration. ¶ 13 On behalf of Don K, counsel argues that his failure to file an answer to Matthews' complaint was not due to mere carelessness or ignorance of the law, but was a result of his law practice being in a "state of confusion." He notes that his office relocated in "September 2003, at or about the same time as Matthews' complaint was served," and that his legal assistant was experiencing personal problems during that time. He explains that these problems contributed to his assistant's failure to calendar the answer and her misfiling of the summons and complaint in the Fish file, as well as to his inattentiveness in failing to make further inquiries on the matter. ¶ 14 Examination of the record reveals that there was ample opportunity to answer Matthews' complaint. Counsel's affidavit in support of the motion to set aside the judgment states that the move of his law practice occurred "late September through early October." Thus, the acknowledgment of service, mailed to counsel's office on or about September 11, 2003, arrived a few weeks before the move, and was not signed, which commenced the twenty-day time period to file an answer, until October 14, 2003, well after the move was completed. Matthews sought entry of default on November 7, 2003, four days after the twenty-day period had expired, approximately one month after the office move, and about fifty-seven days after the summons and complaint had originally been provided with the acknowledgment of service. ¶ 15 We do not doubt that the referenced personal and professional difficulties contributed to the failure to answer the complaint. However, even if we were to conclude that these problems constituted excusable neglect for failing to timely answer the complaint, that was not the end of the matter. We cannot ignore the fact that Chisholm thereafter forwarded a letter which gave notice that a default had been entered against Don K, and, further, advised of the scheduled hearing on Matthews' request for a default judgment and damages. Despite this notice, which Don K does not affirmatively challenge in its briefing on appeal[1], Don K neither participated in the default judgment hearing nor filed an appearance in the action. Following the hearing, for which Matthews traveled from out-of-state to testify, the District Court entered a judgment for damages, and thereafter, issued a writ of execution. At *205 that point, the lack of attention to Matthews' complaint was a serious disregard of the judicial process, and cannot be considered excusable neglect under Rule 60(b)(1), M.R.Civ.P., and the Blume test. "Such a conclusion would fail to recognize the significance of the entry of judgment and undermine respect for the courts." Peak, ¶ 16. So concluding, we need not address the additional elements of the Blume test. ¶ 16 We then turn to Don K's argument that this situation demonstrates "extraordinary circumstances" justifying setting aside the default judgment pursuant to Rule 60(b)(6), M.R.Civ.P. We note initially that Don K's argument here is summarily made with no offer or explanation of authority demonstrating that relief under Rule 60(b)(6) has been granted by this Court, or under equivalent rule by other courts, in these or similar circumstances. ¶ 17 We have clarified what situations in which Rule 60(b)(6), M.R.Civ.P. is to be applied: [R]elief is available under Rule 60(b)(6), M.R.Civ.P., for situations other than those enumerated in the first five subsections of the rule. Rule 60(b)(6) applies when the movant demonstrates each of the following elements: 1) extra-ordinary circumstances including gross neglect or actual misconduct by an attorney; 2) the movant acted to set aside the judgment within a reasonable time period; and 3) the movant was blameless. Bahm v. Southworth, 2000 MT 244, ¶ 14, 301 Mont. 434, ¶ 14, 10 P.3d 99, ¶ 14 (referencing Karlen v. Evans (1996), 276 Mont. 181, 190, 915 P.2d 232, 238); see also Klapprott v. United States (1949), 335 U.S. 601, 614-15, 69 S.Ct. 384, 390, 93 L.Ed. 266, 277 ("In simple English, the language of the `other reason' clause [of Rule 60(b)(6) is] for all reasons except the five particularly specified [in Rule 60(b)(1)-(5)]...."). Thus, had Don K established that the circumstances surrounding its failure to answer constituted excusable neglect, it would have been eligible for relief under Rule 60(b)(1), M.R.Civ.P., which is mutually exclusive from relief available under Rule 60(b)(6), M.R.Civ.P. ¶ 18 Further, we cannot conclude from our case law that counsel's actions constituted gross negligence or actual misconduct required by the Rule. In Lords v. Newman (1984), 212 Mont. 359, 688 P.2d 290, which addressed an entry of default, defendants argued that the district court erred in denying their motion to set aside the default in light of the actions of their attorney, Simmons. Contrary to defendants' instructions, Simmons entered a general appearance in an action on behalf of all the defendants, despite the fact that all of them had not yet been served, and despite the fact that he was not authorized to represent all of the defendants. Lords, 212 Mont. at 361, 688 P.2d at 291-92. This was the first and only action Simmons took in this case, as he then "essentially disappeared from sight," leaving the defendants, who had now appeared in the matter against their wishes, unrepresented. Lords, 212 Mont. at 361, 688 P.2d at 292. After making repeated inquiries, learning that Simmons had made an appearance, and learning that an entry of default had been entered, the defendants immediately retained new counsel and filed a motion to set aside the default, which the court denied. We reversed the district court on the basis of the attorney's conduct: In the case at bar, Simmons' actions do not constitute mere bungling of his duties or ineffective representation. Simmons totally abandoned his clients and disappeared from sight. To add insult to injury, before disappearing, Simmons made a general appearance on behalf of the clients who had neither been served with process nor authorized him to act. Under these circumstances we find it unconscionable to apply the general rule charging the client with the attorney's neglect. [Defendant's] testimony indicates that reasonable attempts were made to check on the progress of the case. Where an attorney's failure to represent a client constitutes actual mis-conduct, the client should be granted relief from the default. Lords, 212 Mont. at 367-68, 688 P.2d at 295. In contrast, counsel here did not appear without Don K's authorization, act in conflict with Don K's direct instructions or completely abandon Don K's interests. Indeed, counsel *206 was actively representing Don K in the four allied actions, and moved to set aside the default in this action. Clearly, any neglect arising from moving the office or personal problems did not rise to the misconduct at issue in Lords. ¶ 19 Don K argues that it "was never served and was totally blameless" and further asserted, by counsel's affidavit, that "[f]ailure to answer the complaint was not attributable to the client since the client did not know of the pending law suit." However, the record discloses that Don K had notice of this claim, with the other four plaintiffs' claims, early in the litigation, when Matthew and other plaintiffs attempted to consolidate their claims by joining Fish's action as co-plaintiffs. Don K opposed the consolidation of the claims, and wanted each plaintiff to file separate actions. It is incongruous for Don K to seek relief because of "the misfiling of Matthews' paperwork in a similar action involving the same client" within counsel's office, when it was Don K's litigation strategy which spawned the multiple suits in the first place. Under these circumstances, we cannot conclude that Don K is completely innocent in the matter or that "the movant was blameless" for purposes of Rule 60(b)(6), M.R.Civ.P. Therefore, in accordance with the general rule, any neglect of counsel here is properly charged to the client. ¶ 20 The District Court's denial of Don K's motion to set aside the entry of default and default judgment did not constitute a slight abuse of discretion. Affirmed. KARLA M. GRAY, C.J., JAMES C. NELSON and W. WILLIAM LEAPHART, JJ., concur. Justice JOHN WARNER, dissenting. ¶ 21 I must disagree with the Court's decision to affirm the default judgment against Appellant Don K Chevrolet. In my opinion the Court reaches the wrong conclusion because it applies the slight abuse of discretion standard to its analysis, rather than giving a liberal interpretation to the provisions of Rule 60(b), M.R.Civ.P., concerning relief from a default judgment. ¶ 22 The same year Montana became a state, this Court held that the correct standard for reviewing the denial of a motion to set aside a default is as follows: In the case of Watson v. San Francisco etc. R.R. Co., 41 Cal. [17] 20[, 1871 WL 1306], the court says: "As a general rule, however, in cases where, as here, the application is made so immediately after default entered as that no considerable delay to the plaintiff is to be occasioned by permitting a defense on the merits, the court ought to incline to relieve. The exercise of the mere discretion of the court ought to tend, in a reasonable degree at least, to bring about a judgment on the very merits of the case; and, when the circumstances are such as to lead the court to hesitate upon the motion to open the default, it is better, as a general rule, that the doubt should be resolved in favor of the application." The above, we think, recites the correct principle which should guide courts on a question of this kind. Benedict v. Spenddiff (1889), 9 Mont. 85, 88, 22 P. 500. With remarkable consistency, the Court has articulated the essence of this principle for 116 years. ¶ 23 In Brothers v. Brothers (1924), 71 Mont. 378, 230 P. 60, Justice Rankin remarked "[n]o great abuse of discretion by the trial court in refusing to set aside a default need be shown to warrant a reversal, for the courts universally favor a trial on the merits." Brothers, 71 Mont. at 379, 230 P. at 61. This led to the later statement in Madson v. Petrie Tractor & Equipment Co. (1938), 106 Mont. 382, 388, 77 P.2d 1038, 1040, "[s]ince courts universally favor trial on the merits, slight abuse of discretion in refusing to set aside a default judgment is sufficient to justify a reversal of the order." Thus, a new standard was born and this Court has since said that a slight abuse of discretion is all that is required to reverse a District Court order denying a motion to set aside a default judgment. To me, the modifier "slight" is more of a distraction than of any help, because a District Court either abuses its discretion or it doesn't. Nevertheless, the adjective does not impair application of the *207 underlying principle. So, if the standard is applicable, "slight" does no harm. ¶ 24 Several times in the recent past this Court has based its decision on whether a district court slightly abused its discretion concerning a default judgment, even though the motion to set aside such judgment was deemed denied because there was no ruling within the time provided by the Montana Rules of Civil Procedure. Peak Development, LLP v. Juntunen, 2005 MT 82, ¶ 7, 326 Mont. 409, ¶ 7, 110 P.3d 13, ¶ 7; Sun Mountain Sports, Inc. v. Gore, 2004 MT 56, ¶ 8, 320 Mont. 196, ¶ 8, 85 P.3d 1286, ¶ 8; Tschida v. Rowe, 2003 MT 192, ¶ 6, 316 Mont. 503, ¶ 6, 74 P.3d 1043, ¶ 6; In re Marriage of Winckler, 2000 MT 116, ¶ 1, 299 Mont. 428, ¶ 1, 2 P.3d 229, ¶ 1. In these cases it is possible that the district court exercised discretion by not ruling. Thus, application of the slight abuse of discretion standard in these opinions is not altogether unjustifiable. ¶ 25 However, in this case the District Court took the trouble to prepare and file a "Notice Of Denial" as follows: This matter is before the Court on Defendant's Motion To Set Aside Final Judgment Of Default. It was not the Court's intention to deny the motion by failing to rule within the required 60 day time period. The file was not calendered as a 60 day motion and when brought to the Court's attention the 60 day period had expired. The Court now enters the following: NOTICE The partys [sic] are hereby put on notice that by operation of law the Court is without jurisdiction to rule on Defendant's motion and it is deemed DENIED as of March 9, 2004. ¶ 26 Because of an acknowledged mistake in calendering this case, the District Court did not exercise any discretion at all. The slight abuse of discretion standard should not be applied under these circumstances. This Court makes the decision here by itself and should acknowledge that fact. ¶ 27 Considering the record presented, recognizing the policy that a decision on the merits is preferable, and applying the rule that when the circumstances are such as to lead the court to hesitate upon the motion to open the default, it is better, as a general rule, that the doubt should be resolved in favor of the motion to set aside and I must cast my vote for a trial on the merits. ¶ 28 A lawyer's misfiling of a pleading in another active file of the same client has been found sufficient to set aside a default judgment by the District Court, and such decision affirmed by this Court. Keller v. Hanson (1971), 157 Mont. 307, 485 P.2d 705. A substantial factor in the decision of the District Court to enter the default judgment in question, and in the decision of this Court not to set it aside, is that counsel for Don K Chevrolet did not appear even though he was sent a letter by Matthews' counsel advising him that a default had been entered and that a hearing for entry of a default judgment was scheduled. I too find this matter of significance. ¶ 29 According to Don K Chevrolet's counsel, he had no idea that a default had been entered. As soon as he discovered that the complaint had been misfiled in his office, he checked at the courthouse and found the default judgment. He immediately moved to set it aside. He filed a brief and an affidavit stating the reasons why his client had made no appearance. He did not mention the letter from Matthews' lawyer advising him a default had been taken, or the notice of the hearing to enter a default judgment, in either his brief or his affidavit. Copies of the letter and notice were appended to counsel for Matthews' response brief. Then, in his reply brief, which he refers to in his reply brief filed in this Court, counsel for Don K Chevrolet stated to the District Court: . . . Counsel has referred to a letter which he sent to the office noticing the default hearing date. That letter was never received at this office. Had it been received, I would have immediately filed a motion to set aside the default and I most definitely would had [sic] been at the court hearing. ¶ 30 The District Court, because of its own mistake, developed no record on this matter, and gave no consideration at all to whether *208 Don K Chevrolet's counsel actually did receive the letter and notice. There is no way for this Court to make a determination of the credibility of counsel's statement that the letter and notice were not received. This state of affairs is in no way the fault of Don K Chevrolet or its counsel. ¶ 31 The entry of a default judgment that includes $88,608 in punitive damages which requires proof by clear and convincing evidence, § 27-1-221(5), MCA; the understandable mistake of counsel; the short delay between the time of entry of the default judgment and the motion to set it aside; and the subsequent mistake which led to a complete lack of consideration by the District Court; cause me to hesitate. Thus, I am constrained by the time honored rule to resolve the doubt in favor of setting aside the judgment. I dissent. PATRICIA O. COTTER Joins in the dissent of Justice WARNER. NOTES [1] Don K does not mention the letter and notice in its opening brief. In its reply brief, Don K merely repeats the statement made in its District Court reply brief, that "[i]f that letter had been received [,] counsel would most certainly have attended the hearing and filed a Motion to Set Aside forthwith." Don K offered no evidence in the District Court to dispute the presumption that the letter and notice mailed to its counsel were received. See § 26-1-602(24), MCA.

679 F.2d 894 Board of Trade of City of Chicagov.Securities and Exchange Commission 81-2587 UNITED STATES COURT OF APPEALS Seventh Circuit 3/24/82 1 S.E.C. SEC ORDER OF AUG. 6, 1981, SET ASIDE

USCA1 Opinion UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT _________________________ No. 93-1046 UNITED STATES OF AMERICA, Appellee, v. JOSEPH BREWSTER, a/k/a PATRICK BREWSTER, Defendant, Appellant. _________________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Francis J. Boyle, Senior U.S. District Judge] __________________________ _________________________ Before Selya, Cyr and Stahl, Circuit Judges. ______________ _________________________ Richard K. Corley on brief for appellant. _________________ Edwin J. Gale, United States Attorney, and Gerard B. _______________ __________ Sullivan, Assistant United States Attorney, on brief for the ________ United States. _________________________ July 28, 1993 _________________________ SELYA, Circuit Judge. After selling drugs and a gun to SELYA, Circuit Judge. _____________ an undercover federal agent, defendant-appellant Joseph Patrick Brewster pled guilty to a two-count indictment charging him with distribution of cocaine, see 21 U.S.C. 841(a)(1) (1988), and ___ with being a convicted felon in possession of a firearm, see 18 ___ U.S.C. 922(g) (1988). Brewster appeals from the imposition of sentence, claiming that the district court impermissibly inflated the offense level applicable to the crimes of conviction, and, further, that the government violated his rights by manipulating a crucial sentencing factor. We affirm. I. BACKGROUND I. BACKGROUND We take the relevant facts from the pre-sentence investigation report (PSI Report) and the transcript of the sentencing hearing. See, e.g., United States v. Connell, 960 ___ ____ ______________ _______ F.2d 191, 192-93 (1st Cir. 1992). Over the course of a month, Special Agent Matthew Horace of the federal Bureau of Alcohol, Tobacco and Firearms, acting in an undercover capacity, met with appellant several times to discuss the possibility of buying drugs and guns. On June 3, 1992, their discussions came to fruition: Brewster sold Agent Horace a small amount of crack cocaine (for $20), and, within an hour of that transaction, also sold him an automatic weapon (for $100). Soon thereafter, a grand jury returned the indictment that undergirds this appeal. On October 27, 1992, appellant entered a plea of guilty to both counts of the indictment. The government agreed to 2 recommend a prison term at the low end of the guideline sentencing range (GSR), but without representing what the applicable range might be. In accepting Brewster's plea, the district court (prophetically, as matters turned out) warned appellant that it would be impossible to predict the severity of his sentence until the court examined the PSI Report and computed the GSR. In mid-December, the PSI Report emerged. Based on Agent Horace's assertion that Brewster sold him the gun with reason to believe that it would be used to protect a drug operation, the probation officer recommended a four-level increase in appellant's offense level pursuant to U.S.S.G. 2K2.1(b)(5).1 Seeking to forfend application of the enhancement, appellant propounded a written objection challenging the recommendation's factual basis. He also requested an evidentiary hearing. The district court granted the latter request, and convened a hearing on January 7, 1993. Appellant claimed that he had been blindsided because the government had not informed him, ____________________ 1The guideline provides: If the defendant used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense, increase by four levels. U.S.S.G. 2K2.1(b)(5) (Nov. 1992). 3 prior to his entry of a guilty plea, that facts existed sufficient to ground an enhancement under section 2K2.1(b)(5). The judge thereupon offered appellant the opportunity to withdraw his plea.2 After consulting with counsel, appellant declined the judge's invitation. The hearing proceeded. Agent Horace testified along the lines adumbrated in the PSI Report. He stated, in essence, that he told appellant from the outset both of his aspiration to become a drug dealer and of his need for a weapon to facilitate that nefarious plan. After cross-examining Horace, appellant renewed his objection to the use of Horace's testimony. The court again proposed that he retract his plea. When appellant demurred, the court overruled his objection. Appellant then testified to his own behoof, denying that he knew of any link between the weapon and Horace's planned drug trafficking at any time prior to the sale. Upon completion of the hearing, the district court made an explicit finding that appellant sold the firearm with knowledge of the buyer's intended (narcotics-related) use of the weapon. The court applied U.S.S.G. 2K2.1(b)(5) and sentenced Brewster to a prison term of fifty-one months (the high end of the resultant GSR). This appeal followed. II. PROPRIETY OF THE ENHANCEMENT II. PROPRIETY OF THE ENHANCEMENT Appellant challenges the district court's deployment of ____________________ 2To its credit, the government forthrightly conceded that it had not specifically informed appellant of Agent Horace's detailed version of the relevant events at any time prior to, or during, the change-of-plea hearing. 4 U.S.S.G. 2K2.1(b)(5) on two principal bases. We find both facets of the challenge to be unpersuasive. A. Reliance on Undisclosed Information. A. Reliance on Undisclosed Information. ___________________________________ Appellant argues that a sentencing court cannot rely on evidence not known to a defendant at the time he tenders his plea. We disagree. Absent bad faith and the district court found no bad faith in this instance the critical time for disclosure of sentence-related information is not prior to the taking of a plea, but prior to sentencing. See, e.g., Burns v. ___ ____ _____ United States, 111 S. Ct. 2182, 2186 (1991) (discussing the need ______________ for "full adversary testing" of facts relevant to a defendant's sentence); United States v. Berzon, 941 F.2d 8, 18 (1st Cir. _____________ ______ 1991) (explaining that a sentencing court may only rely on information in determining a defendant's sentence if the defendant has been given notice of the information and a fair opportunity to meet it); United States v. Curran, 926 F.2d 59, 63 _____________ ______ (1st Cir. 1991) (holding that a defendant should be given advance warning of, and an opportunity to challenge, information used to influence severity of sentence); United States v. Picard, 464 ______________ ______ F.2d 215, 220 & n.9 (1st Cir. 1972) (requiring that defendant and counsel receive some indication of the information which may influence the sentencing decision to ensure that the right to speak "in mitigation of punishment" is meaningful); see also Fed. ___ ____ R. Crim. P. 32. The district court scrupulously honored this principle 5 in the case at hand. The PSI Report discussed all the pertinent information in satisfactory detail. Through that medium, appellant received ample advance warning of Agent Horace's allegations (the PSI Report was made available to him on December 18, 1992, approximately three weeks before sentencing took place). He had an opportunity to challenge the allegations at an evidentiary hearing.3 He exercised the opportunity. No more is exigible. Relatedly, appellant argues that it was fundamentally unfair to "spring" the information on him only after he had entered a guilty plea. But, although sandbagging is never to be condoned, we see no unfairness here. Appellant was a percipient participant in the negotiations with Horace and, therefore, chargeable with knowledge of what was said. Moreover, the district court repeatedly offered him the opportunity to withdraw his plea after he had read the PSI Report and fully acquainted _____ himself with the adverse information. Having freely elected not to rescind his plea, appellant can scarcely be heard to complain that the timing of the prosecution's disclosure placed him at an unfair disadvantage. B. Sufficiency of the Evidence. B. Sufficiency of the Evidence. ___________________________ ____________________ 3We note that, in convening an evidentiary hearing, the district court, solicitous of appellant's rights and sensitive to his predicament, went the extra mile. Cf., e.g., United States ___ ____ _____________ v. Tardiff, 969 F.2d 1283, 1286 (1st Cir. 1992) (holding that a _______ defendant is not automatically, or even usually, entitled to a full-blown evidentiary hearing at the time of sentencing); United ______ States v. Shattuck, 961 F.2d 1012, 1014-15 (1st Cir. 1992) ______ ________ (similar). 6 The next question concerns the sufficiency of the evidence relied upon by the lower court in applying section 2K2.1(b)(5). Examining a district court's application of a sentencing guideline calls a bifurcated process into play: the court of appeals reviews the guideline's legal meaning and scope de novo, see United States v. St. Cyr, 977 F.2d 698, 701 (1st __ ____ ___ _____________ _______ Cir. 1992), but reviews the sentencing court's factbound determinations only to screen out manifestations of clear error. See id. ___ ___ As to meaning and scope, the guideline in question demands a four-level upward adjustment when the sentencing court finds that a defendant transferred a firearm with "knowledge, intent, or reason to believe" that it "would be used or possessed in connection with another felony." U.S.S.G. 2K2.1(b)(5). In United States v. Sanders, 990 F.2d 582, 585 (10th Cir. 1993), the _____________ _______ court, observing the dearth of expository comment anent this guideline, concluded that the Sentencing Commission promulgated section 2K2.1(b)(5) in an "explanatory vacuum" and, therefore, adopted a plain-meaning approach to its interpretation. We follow the Tenth Circuit's lead. The settled rule that courts should strive to apply the guidelines as written, see Stinson v. ___ _______ United States, 113 S. Ct. 1913, 1915 (1993); United States v. _____________ _____________ Jones, ___ F.2d ___, ___ (1st Cir. 1993) [No. 93-1189, slip op. _____ at 6], has a necessary corollary: in deciphering the guidelines, words in common usage, not specially defined, should be accorded their ordinary meaning. 7 Giving the phrase "in connection with" its ordinary meaning leaves no doubt but that the dispositive issue in this case turns on credibility. If Agent Horace's recital of the relevant events is accurate, then appellant sold the gun with reason to believe that his customer planned to use it in connection with drug trafficking, and a sufficient nexus exists between the weapon and the drug trafficking to warrant imposition of the enhancement. If, however, Brewster's account is true, then the existence of an adequate nexus becomes a much more dubious proposition. Since appellant's sufficiency challenge reduces to the bald assertion that Agent Horace's inculpatory testimony was not worthy of credence a question of fact we limit appellate review to the search for clear error.4 We discern none. The conflict in the evidence could scarcely be clearer. On one hand, Brewster implored the court below to credit his version of the events that the only time he heard Agent Horace ____________________ 4To be sure, appellant also argues that, as a matter of law, section 2K2.1(b)(5) does not contemplate enhancing a defendant's sentence based only on the uncorroborated testimony of one person. However, he cites no meaningful authority for this proposition, and it runs counter to all the usual rules that apply in the sentencing phase of a criminal trial. See, e.g., ___ ____ McMillan v. Pennsylvania, 477 U.S. 79, 91-92 & n.8 (acknowledging ________ ____________ that "[s]entencing courts have always operated without constitutionally imposed burdens of proof" when considering the level of a defendant's sentence); United States v. Tardiff, 969 _____________ _______ F.2d 1283, 1287 (1st Cir. 1992) (stating that "the sentencing court has broad discretion to determine what data is, or is not, sufficiently dependable to be used in imposing sentence"); U.S.S.G. 6A1.3 (explaining that, in sentencing, courts may consider any relevant piece of information that possesses "sufficient indicia of reliability to support its probable accuracy"). 8 discuss his intended use for the weapon was in court, and, court to believe Agent Horace who testified that Brewster knew of his intentions, no reasonable person would believe the self- furthermore, he adds on appeal that even if the agent had boasted aggrandizing pipe-dreams of a person who bought a mere $20 worth of crack cocaine. On the other hand, the prosecution urged the 9 from the deal. The government placed this layer of frosting on the cake, appellant says, for the sole purpose of bringing the fact. The district judge heard and saw the two protagonists. who buttressed this testimony with notes he had made soon after lie primarily within the realm of the district court. See St. ___ ___ judgment. prerogative indeed, his duty to make this sort of evaluative He chose to credit Agent Horace's version. It was his sentencing proceedings, as elsewhere, credibility determinations For all intents and purposes, that ends the matter. In his plans for the weapon from the start of the negotiations, and basis on which we can overturn the district court's credibility- based finding of fact. After all, "when there are two plausible and then, at the time of sale, when it was too late to retreat III. SENTENCING FACTOR MANIPULATION III. SENTENCING FACTOR MANIPULATION view cannot be clearly erroneous." Id. ___ views of the record, the sentencing court's adoption of one such his intended use for the firearm at all, he did so only once Appellant also contends that, if Agent Horace spoke of Cyr, 977 F.2d at 706. So it is here. There is no principled ___ section 2K2.1(b)(5) into play and, thus, increasing his likely sentence. This boils down to a claim of sentencing factor manipulation.5 See Connell, 969 F.2d at 194-97 (discussing ___ _______ criteria for potential claims of sentencing factor manipulation). We have previously expressed our concern that, particularly in sting operations, "exploitative manipulation of sentencing factors by government agents [may sometimes] overbear the will of a person predisposed only to committing a lesser crime." Id. at 196. That is an abiding concern but it is of ___ only marginal relevance here. The facts, as the district court supportably found them, see supra Part II(B), belie appellant's ___ _____ thesis. They do not so much as portray a case where, late in the day, an undercover agent deliberately raised the sentencing stakes in order to obtain a stiffer sentence for a criminal he was poised to arrest. Rather, Agent Horace's testimony credited, as we have said, by the district court makes it abundantly clear that appellant knew of his customer's proposed use for a weapon from the outset of their negotiations. When, as now, an offense-level enhancement results from a matter that formed part and parcel of the original negotiations between a government agent and his target, and the criminal venture proceeds on that basis, a claim of sentencing factor manipulation ____________________ 5Appellant describes the government's alleged activity as sentence entrapment. As we have pointed out, however, such phraseology tends to be misleading. We prefer the term "sentencing factor manipulation," which places the focus of judicial inquiry where it belongs on the government's activity not on whether the defendant would have committed the crime but for the government's influence. See Connell, 969 F.2d at 194. ___ _______ 10 will not lie. Accordingly, we reject this prong of Brewster's appeal. IV. CONCLUSION IV. CONCLUSION We need go no further. Because it clearly appears that the district court imposed a lawful sentence in a fair, unflawed proceeding, based on findings of fact that derive adequate support from the record, we summarily affirm the judgment below. Affirmed. See 1st Cir. Loc. R. 27.1. Affirmed. ________ ___ 11

32 F.Supp.2d 939 (1998) Chad J. WONSEY, Plaintiff, v. LIFE INSURANCE COMPANY OF NORTH AMERICA and Insurance Company of North America, Defendants. No. CIV. 98-40239. United States District Court, E.D. Michigan, Southern Division. December 18, 1998. Jeffrey D. Weisserman, Jaffe, Raitt, Detroit, MI, for Chad J. Wonsey, plaintiff. Peter A. Davenport, Noeske & Abbo, Troy, MI, for Life Insurance Company of North America, Insurance Company of North America, defendants. MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT GADOLA, District Judge. On September 11, 1998, plaintiff Chad J. Wonsey filed a motion for declaratory judgment against defendants Life Insurance Company of North America ("Life") and Insurance Company of North America ("INA"). The Court is being called upon to determine whether Wonsey has the legal right to assign to a third-party specific future payments due him pursuant to an annuity contract purchased by Life in his name. Defendants have thus far refused plaintiff's request to assign the payments. On October 13, 1998, defendants filed their response to plaintiff's motion. On October 22, 1998, plaintiff filed his reply brief. For the reasons set forth below, this Court will grant plaintiff's motion for declaratory judgment. I. FACTUAL BACKGROUND On December 15, 1980, Chad Wonsey sustained severe personal injuries as the result *940 of an automobile accident in Genesee County, Michigan. At the time of the accident, Wonsey was a minor, approximately six years of age.[1] On December 8, 1983, Wonsey's parents, on his behalf, entered into a Settlement Agreement and Release with INA, insurer for Le-Rob Corporation ("LeRob"). See Exh. A to plaintiff's motion. Pursuant to the settlement agreement, and in consideration for the full settlement and release of plaintiff's claims against Le-Rob, INA agreed to make future payments to plaintiff according to an agreed upon schedule.[2] In order to facilitate payment of benefits, INA purchased an annuity contract on plaintiff from one of its affiliates, Life Insurance Company of North America. On April 21, 1998, plaintiff, of adult age and legally competent to enter into contracts, entered into a Purchase Agreement with Singer Asset Financial Company, L.L.C. ("Singer"). See Exh. B to plaintiff's motion. The purchase agreement purported to assign specifically identified future payments from the annuity contract.[3] On the same date, plaintiff provided defendants with written notification of his decision to change the beneficiary designation of the settlement agreement and annuity contract to his estate. Plaintiff also directed defendants to change the address to which payments were to be forwarded and for defendants to acknowledge these changes in writing. See Exh. C to plaintiff's motion. To date, defendants have refused to comply with all of Wonsey's written requests, thereby impairing him from completing his assignment to Singer as envisioned in the purchase agreement. It must also be mentioned that the settlement agreement dated December 8, 1983 provides that plaintiff shall have no right to change the beneficiary of the policy or to assign the policy. As the agreement states, "it is understood and agreed that the Insurance Company of North America shall be the owner of the aforesaid annuity policy and the Plaintiffs should have: (1) no right to change the beneficiary of the policy...[and] (5) no right to assign the policy." See Exh. A to plaintiff's motion, p. 3. II. DISCUSSION The issue presented in the case at bar is whether the Court may set aside a provision in a structured settlement agreement which prohibits assignments of future payments to be made under an annuity policy. Plaintiff argues that he is entitled to assign all or part of his rights under the settlement agreement, despite the agreement's express language. In support of this position, plaintiff cites M.C.L. § 440.9318(4), Michigan's adoption of the Uniform Commercial Code's Article 9, Section 318(4), (hereinafter "Section 9-318(4)"). The Michigan statute provides that [a] term in any contract between an account debtor and an assignor is ineffective if it prohibits assignment of an account or prohibits creation of a security interest in a general intangible for money due or to become due or requires the account debtor's consent to such assignment or security interest. M.C.L. § 440.9318(4). Plaintiff also points to the official comment to U.C.C. Section 9-318(4), which states that "[s]ubsection (4) breaks sharply with the older contract doctrines by denying effectiveness to contractual terms prohibiting an assignment...under contracts of sale, construction contracts and the like." The Restatement of Contracts (Second), Section 322, also lends support in that "a contract term prohibiting assignment of `the contract' bars only the delegation to an assignee of the performance by the assignor of a duty or condition." RESTATEMENT (SECOND) OF CONTRACTS § 322(1). Defendants' response centers upon the contention that Article 9 explicitly states that it does not apply to policies of insurance. *941 See M.C.L. § 440.9104. As defendants note, Article 9 excludes from its scope "a transfer of an interest or claim in or under any policy of insurance except as provided with respect to proceeds...and priorities in proceeds...." M.C.L. § 440.9104 (emphasis added). Defendants further maintain that the language of the contract in this case is clear and unambiguous and must be enforced. Where a contract is not ambiguous, there is no room for construction. See Reynolds Spring Co. v. L.A. Young Ind., 101 F.2d 257 (6th Cir.1939); Stine v. Continental Casualty Co., 419 Mich. 89, 349 N.W.2d 127 (1984). Finally, defendants assert that assignments require a "complicated review process," whereby companies must "review substantial paper work" and determine whether the assignment appears to be legal. According to defendants, assignments should thus be disfavored, and are at odds with the intent of the parties. Defendants further maintain that assignments may be detrimental to beneficiaries who often suffer from the legal disabilities of minor status or physical and/or mental impairment. 1. WHETHER ARTICLE 9 OF THE U.C.C. APPLIES TO PLAINTIFF'S PROPOSED ASSIGNMENT OF FUTURE PAYMENTS UNDER THE SETTLEMENT AGREEMENT DATED DECEMBER 8, 1983 The issue presented is one of first impression for both state and federal courts located in Michigan. The critical question which first must be answered is whether Article 9 applies at all to plaintiff's proposed assignment of future payments. As mentioned above, if plaintiff is attempting to transfer "an interest or claim in or under [a] policy of insurance," then, with certain exceptions, Article 9 would not apply to a determination of the enforceability of the nonassignment clause. See M.C.L. § 440.9104(g). On the other hand, if the Court finds that plaintiff is not attempting to transfer an interest in a policy of insurance, then Article 9 would be applicable, and the non-assignment clause would be unenforceable pursuant to M.C.L. § 440.9318(4).[4] The exclusionary language of Article 9 is clear. Although the cases are not plentiful, courts have applied Section 9-104(g) to exclude various transactions from the scope of Article 9. In In re Duke Roofing Co., 47 B.R. 990 (E.D.Mich.1985), for example, the court excluded from Article 9 an assignment of unearned insurance premium refunds. Insurance payments will not be excluded, however, where such payments qualify as "proceeds" under Article 9.[5] This is the so-called "derivative insurance proceeds" rule, which only applies in the event of casualty loss of collateral subject to a previously perfected security interest.[6] The "derivative insurance proceeds" rule, however, is not applicable in the case at bar because the future payments *942 at issue do not constitute "proceeds," i.e., they are not payable by reason of loss or damage to previously secured collateral. See M.C.L. § 440.9306. In the instant case, payments are to be made pursuant to a structured settlement agreement entered into between plaintiff Chad Wonsey's parents and the Insurance Company of North America (INA). As the agreement explicitly states, "[INA] shall, in order to facilitate the payment of benefits specified herein, purchase...an annuity contract on the life of Chad Wonsey from Life Insurance Company of North America...." See Exh. A to plaintiff's motion, p. 2. The question thus becomes whether such an "annuity contract" qualifies as a "policy of insurance" under 9-104(g). Under Michigan law, it appears that an annuity contract does come within the definition of a "policy of insurance." See M.C.L. § 500.4000 et seq. (governing life insurance policies and certain annuity contracts); see also BLACK'S LAW DICTIONARY 90 (6th ed.1990)(defining "annuity policy" as "[a]n insurance policy providing for monthly or periodic payments to insured to begin at fixed date and [to] continue through insured's life"). As such, plaintiff is therefore precluded from invoking Article 9. Section 9-318(4) may not operate, in and of itself, to nullify the settlement agreement's prohibition on assignments. See M.C.L. § 440.9318(4). 2. SINCE ARTICLE 9 IS INAPPLICABLE, THE COURT MUST LOOK TO OTHER MICHIGAN STATUTORY LAW AND/OR THE COMMON LAW OF MICHIGAN, AS WELL AS TO ANY DEVELOPING TRENDS IN OTHER JURISDICTIONS In a case, such as the present one, where Article 9 has been held inapplicable, the court must apply state statutory law. See In re Duke Roofing Co., 47 B.R. 990, 992 (E.D.Mich.1985)(citing Thico Plan, Inc. v. Maplewood Poultry Co., 2 B.R. 550, 555 (Bankr.D.Me.1980)). In the case at hand, there is no Michigan statute which definitively resolves the issue presently before the Court. Consequently, this Court will look to Michigan common law, as well as to any developing trends in other jurisdictions. See id. Plaintiff has cited no Michigan case law addressing the issue of whether a court may set aside an anti-assignment provision in a structured settlement agreement providing for future payments to be made under an "annuity policy." Other jurisdictions, however, have dealt with similar issues. In Berkowitz v. Haigood, 256 N.J.Super. 342, 606 A.2d 1157 (N.J.Super. Ct. Law Div.1992), plaintiff, a chiropractic doctor, rendered medical services to defendant after the latter was involved in an automobile accident. Id. at 344, 606 A.2d 1157. Defendant had signed a document which purported to create a lien against the proceeds of his pending personal injury action. The document directed defendant's attorney to disburse the funds to plaintiff if certain conditions were satisfied. The New Jersey state court held that any proceeds derived from defendant's settlement of his claim for personal injuries were assignable. However, Berkowitz does not dispose of the issue in the instant case because the settlement agreement in Berkowitz contained no anti-assignment clause. In Fox-Greenwald Sheet Metal Co. v. Markowitz Bros., 452 F.2d 1346 (D.C.Cir. 1971), the district court addressed a similar issue in the context of a subcontractor's assignment. The subcontract in Fox-Greenwald contained a clause prohibiting assignments, which the court, after careful consideration of Maryland law, found to be inoperative. In reaching its decision the court engaged in the following commentary: [j]udicial holdings sustain overwhelmingly the proposition that a contractual ban on assignment ordinarily serves to protect the obligor alone, and in no way imperils the transaction as between assignor and assignee. "Where a term in a contract prohibits assignment and is not rendered ineffective by statute or otherwise, the term is to be construed, unless a different intention is manifested, ...to be for the *943 benefit of the obligor, and not to prevent the assignee from acquiring rights against the assignor ...." The obligor, of course, may gain from a valid and unwaived nonassignability provision the prerogative to resist or even nullify the assignment. That does not mean, however, that the assignee cannot compel the assignor to stand by his bargain where the obligor has not seen fit to interfere. And perhaps nowhere has the rule that an assignment offending such a provision normally binds the assignor to the assignee seen greater application than where the assigned claim was for monies due or to become due under a contract. Fox-Greenwald, 452 F.2d at 1351 (footnotes omitted and emphasis added). The holding in Fox-Greenwald has been codified in Restatement of Contracts (Second), Section 322(1), which states that "[u]nless the circumstances indicate the contrary, a contract term prohibiting assignment of `the contract' bars only the delegation to an assignee of the performance by the assignor of a duty or condition." RESTATEMENT (SECOND) OF CONTRACTS § 322(1). Even more to the point is Section 322(2), providing that "[a] contract term prohibiting assignment of rights under the contract, unless a different intention is manifested...is for the benefit of the obligor, and does not prevent the assignee from acquiring rights against the assignor or the obligor from discharging his duty as if there were no such prohibition." Id. § 322(2)(c). As the latest Restatement makes clear, the modern trend with respect to contractual prohibitions on assignments is to interpret these clauses narrowly, as barring only the delegation of duties, and not necessarily as precluding the assignment of rights from assignor to assignee. The rationale behind these cases is derived from the implicit recognition that the obligor, the party obligated to perform, would not suffer any harm by a mere assignment of payments under a contract. Harm to obligor would result, however, in cases involving personal services contracts or other situations where the duties owed to the parties may change depending on the identity of the assignee. See Hy King Assocs. v. Versatech Manufacturing Industries, 826 F.Supp. 231, 238 (E.D.Mich.1993)(Gadola, J.)(holding that under Michigan law, there was no valid assignment of exclusive sales representation contract between manufacturer and representative to corporation formed by representative). The instant case does not involve a situation where significant harm would result to defendant Life or defendant INA by the proposed assignment of rights to future payments. Nor is this a situation involving a delegation of duties under a personal services contract. Nonetheless, defendants strenuously argue that when a beneficiary of a structured settlement agreement decides to sell all or a number of his future payments, "it requires a complicated review process" and that "defendants [would be required] to review substantial paper work, and [to] determine if the assignment appears to be legal...and/or whether any guarantees or releases provided by the assignor...are satisfactory to fully and completely protect [defendants]...." The Court is not persuaded. The reasons asserted by defendants in objecting to the proposed assignment do not appear to amount to substantial harm or actual prejudice to defendants' interests, but merely center upon the necessary administrative tasks associated with the assignment's implementation. As such, defendants have not submitted sufficient reasons to justify disregarding the modern trend of upholding assignments in the face of contractual anti-assignment clauses. Plaintiff's position is further bolstered by several recent unpublished state court decisions recognizing a plaintiff's right to assign payments under a settlement agreement. See Owen v. Continental Casualty Co., Docket No. L-3196-98 (Super.Ct.N.J. Sept. 23, 1998); Horn v. Amica Mutual Ins. Co., Case No. 173646 (Super.Ct.Ca. Sept. 21, 1998); JUA Funding Corp. v. CNA Ins., Docket No. L-10824-97 (Super. Ct. N.J. June 3, 1998); In re Donna M. Meisinger, Case No. 98MR45 (Chancery Div. Il. Apr. 2, 1998); In re Joann Minson, Case No. 98-P-104 (Probate Div. Il. Apr. 3, 1998); Rusyn v. Travelers Casualty and Surety Co., Case No. RIC 311592 (Super.Ct.Ca. November 5, 1998). Although the Owen and JUA Funding decisions expressly rely upon New Jersey's version of Article 9, the other cases cited above *944 do not specifically reference that provision. Most persuasively, the California state court in Rusyn allowed plaintiff to assign his interest in structured settlement benefits. The court held that the prohibition set forth in the settlement agreement regarding the assignment of the rights to periodic payments is "void and of no force or effect." See Rusyn ¶ 1(a). At the hearing held on December 16, 1998, defendant was able to cite only one case wherein a court has prohibited assignment of periodic payments under a structured settlement agreement. See Johnson v. First Colony Life Ins. Co., 26 F.Supp.2d 1227 (C.D.Ca. 1998). In that case, the parties entered into an agreement containing a "non-assignability clause," in settlement of a personal injury claim. The district court ultimately granted defendants' motion for summary judgment, and thus denied plaintiffs' request to assign the periodic payments. Although the facts in Johnson, at first blush, appear similar to those of the instant case, there is a crucial difference which serves to distinguish the two cases. In Johnson, the court placed great weight on the fact that plaintiffs never explain how an express prohibition against assignment...is beneficial to them. To the contrary, it seems plain that, because the clause mirrors language in [Internal Revenue Code] § 130, relating to the tax treatment of the assignee of the liability, the clause was included solely for the benefit of the defendants. Id. at 1229-30. In the case at bar, by contrast, plaintiff has been able to "overcome the presumption" that the nonassignability clause is for the benefit of defendants. See id. at 1230. As previously discussed, plaintiff was a nine year old minor child at the time of the execution of the original settlement agreement. There has been no showing or suggestion that the anti-assignment clause in this case was designed as a tax benefit for defendants. Rather, it appears more likely to have been seen as a protective measure to safeguard the interests of plaintiff, until such time as he reached adulthood. Given this critical factual difference distinguishing the two cases, this Court is not persuaded to follow the Johnson court's rationale motivating its denial of plaintiffs' request to assign future periodic payments. In light of plaintiff's strong showing of a modern trend in other jurisdictions favoring the assignment of periodic payments under structured settlement agreements, the prohibitions against such assignments having been held to be unfair restraints on alienation, this Court will grant plaintiff's motion for declaratory judgment. As discussed above, this is not a situation involving a delegation of duties under a personal services contract. Moreover, defendants' argument of prejudice allegedly resulting from the assignment is unconvincing. Accordingly, defendants Life Insurance Company of North America and Insurance Company of North America will be instructed to honor the proposed assignments of future payments to Singer Asset Financial Company, L.L.C. ORDER NOW, THEREFORE, IT IS HEREBY ORDERED that plaintiff Chad J. Wonsey's motion for declaratory judgment is GRANTED; a declaratory judgment in accordance with this order shall be entered forthwith. SO ORDERED. DECLARATORY JUDGMENT The Court, having granted plaintiff Chad J. Wonsey's motion for declaratory judgment, and after a hearing conducted on December 16, 1998, the Honorable Paul V. Gadola, presiding, It is hereby ORDERED that defendants Life Insurance Company of North America and Insurance Company of North America shall honor plaintiff's assignment of contract rights to Singer Asset Financial Company, L.L.C.; It is further ORDERED that defendants shall honor and process plaintiff's change of beneficiary and mailing address; It is further ORDERED that the respective parties shall be liable for their own costs and attorneys' fees. NOTES [1] Plaintiff Chad Wonsey was born on September 11, 1974. [2] The following schedule of payments was agreed upon: $9,000 at age 18; $10,000 at age 19; $11,500 at age 20; $13,000 at age 21; $20,000 at age 25; $30,000 at age 30; $44,000 at age 35; $63,500 at age 40; $94,500 at age 45; $149,750 at age 50. Settlement Agreement dated December 8, 1983, Exh. A to plaintiff's motion. [3] The future payments subject to assignment were (1) the $20,000 payment due September 11, 1999, the $30,000 payment due September 11, 2004, and the $44,000 payment due September 11, 2009. [4] It should be noted that Article 9 "applies to security interests created by contract including pledge, assignment, chattel mortgage, chattel trust, trust deed, factor's lien, equipment trust, conditional sale, trust receipt, other lien or title retention contract, and lease or consignment intended as security." M.C.L. § 440.9102(2)(emphasis added). In the instant case, as per the Purchase Agreement dated April 21, 1998, Wonsey has attempted to assign certain assets (i.e., the future payments) to Singer Asset Finance and thereby has attempted to grant Singer a security interest in said payments. See Exh. B to plaintiff's motion, ¶ 2. [5] "Proceeds" are defined as "whatever is received upon the sale, exchange, collection or other disposition of collateral, or proceeds. Insurance payable by reason of loss or damage to the collateral is proceeds, except to the extent that it is payable to a person other than a party to the security agreement." M.C.L. § 440.9306 (emphasis added). [6] As one bankruptcy court in Minnesota noted, UCC section 9-104(g) provides that Article 9 does not apply to any "interest or claim in or under" an insurance policy. See Minn.Stat. § 336.9-104(g). The only exception is in the case of so-called "derivative insurance proceeds." The reason for the derivative insurance proceeds exception is that a creditor's Article 9 security interest normally extends to the proceeds of its collateral as well as the collateral itself. See Minn.Stat. § 336.9-306(2). Where the creditor requires the debtor to insure the collateral and the collateral is subsequently destroyed, the insurance proceeds are in essence proceeds from the disposition of the collateral. See PPG Industries, Inc. v. Hartford Fire Ins. Co., 531 F.2d 58, 60-61 (2d Cir.1976); In re Reda, Inc., 54 B.R. 871, 875 (Bankr.N.D.Ill.1985). In such a case section 9-306(1) makes clear that these "derivative insurance proceeds" are to be treated the same as any other proceeds of the collateral. Minn.Stat. § 336.9-306(1). In re Investment and Tax Svs., Inc. v. Norwest Bank Minn., N.A., 148 B.R. 571, 573 (Bankr. D.Minn.1992).

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON WILLIAM HENRY PRESTON, ) ) Petitioner, ) C. C. A. NO. 02C01-9610-CC-00338 ) vs. ) LAKE COUNTY STATE OF TENNESSEE, ) ) No. 96-7524 ) FILED Respondent. ) Feb. 24, 1997 Cecil Crowson, Jr. Appellate Court Clerk ORDER This matter is before the Court upon the state’s motion to affirm the judgment of the trial court under Rule 20, Rules of the Court of Criminal Appeals. The case before this Court represents an appeal from the trial court’s denial of the petitioner’s petition for writ of habeas corpus. The record was filed on October 3, 1996, and the petitioner filed his brief on October 22, 1996. The petitioner was originally indicted on six counts of aggravated rape in January 1989, and the petitioner pled guilty to the same in June 1989. In the present appeal, the petitioner, relying in part upon State v. Roger Dale Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App. June 20, 1996), contends the judgment entered against him is void because the indictment failed to allege the mens rea of the offense charged. Having reviewed the state’s motion in light of the petitioner’s response and the entire record on appeal, we conclude that the motion is well-taken and should be granted. The trial judge dismissed the petitioner’s petition stating that “allegations concerning the sufficiency of the indictment are not subject to habeas corpus relief.” It is well established that challenges to the sufficiency of an indictment cannot be tested in a habeas corpus proceeding. See Haggard v. State, 475 S.W.2d 186, 187 (Tenn. Crim. App. 1971); Brown v. State, 445 S.W.2d 669, 674 (Tenn. Crim. App. 1969). A panel of this Court recently held the same in a capital case. Barber v. State, No. 01C01-9408-CR-00281 (Tenn. Crim. App., Feb. 23, 1995).  Nonetheless, we have considered the substance of the petitioner’s claim and determine it to be without merit. Hill represents a direct appeal from a case involving an indictment rendered subsequent to the 1989 revisions to the Criminal Code. Conversely, the appeal in the present case stems from a denial of a petition for writ of habeas corpus and involves an indictment issued prior to the 1989 changes in the Code. The opinion in Hill was based upon this Court’s interpretation of T.C.A. § 39- 11-301(c), which was enacted in 1989. That statute provides, in pertinent part, that “[a] culpable mental state is required within this title unless the definition of the offense plainly dispenses with a mental element.” Prior to 1989, however, the Criminal Code did not contain a comparable statute. Accordingly, the decision in Hill does not control our review of the issue raised herein. At the time of the offense in this case, aggravated rape was defined as the “unlawful sexual penetration of another accompanied” by certain enumerated aggravating circumstances, including that the victim is less than thirteen (13) years old. T.C.A. § 39-2-603 (1982). The indictment at issue before us charged that the petitioner “unlawfully, and feloniously, did commit the offense of Aggravated Rape by engaging in the unlawful sexual penetration . . . of a child less than thirteen (13) years of age.” This language was sufficient under the law as it existed at the time. As noted above, the Criminal Code did not contain a provision similar to § 39-11-301(c) (1989). The statutory requirements for an indictment were found in § 40-1802 (now § 40-13-202 (1990)), which provided simply that: The indictment must state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such a manner as to enable a person of common understanding to know what is intended, and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment. Furthermore, in Campbell v. State, 491 S.W.2d 359, 361 (Tenn. 1973) (emphasis supplied), while addressing the sufficiency of an indictment charging the offense of murder, our Supreme Court stated the following: While it seems clear that the indictment in Witt was insufficient in that it failed to charge an element, that the murder was committed unlawfully, in either the language of the statute or common law or words of equivalent import, the decision is confusing because of the language, 2  ‘fatally defective in omitting the charge that the offense was committed feloniously, or with malice aforethought; and containing no words of equivalent import.’ It is clear, however, that had the indictment used the words ‘feloniously’ or ‘unlawfully’, it would have been sufficient. We agree with this proposition. By containing the words found in the language of the statute, the indictment at issue here sufficiently apprised the appellant of the offense charged under the law at the time, and is therefore valid. Thus, the petitioner’s attack must fail. For the reasons stated above, it is hereby ORDERED, pursuant to Rule 20, Rules of the Court of Criminal Appeals, that the judgment of the trial court dismissing the petition for writ of habeas corpus is affirmed. Costs of this appeal shall be assessed against the petitioner. Enter, this the ___ day of January, 1997. __________________________________ JOE B. JONES, PRESIDING JUDGE __________________________________ PAUL G. SUMMERS, JUDGE __________________________________ DAVID G. HAYES, JUDGE 3 

[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED No. 98-6147 U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT 2/01/99 D. C. Docket No. CV-97-L-140-S THOMAS K. KAHN CLERK HERBERT A. SLAMEN, Plaintiff-Appellant, versus PAUL REVERE LIFE INSURANCE COMPANY, a corporation, Defendant-Appellee. ________________________ Appeal from the United States District Court for the Northern District of Alabama _________________________ (February 1, 1999) Before DUBINA and BARKETT, Circuit Judges, and JONES*, Senior Circuit Judge. BARKETT, Circuit Judge: Appellant Herbert Slamen appeals from an adverse post-trial order dismissing his claim for disability insurance benefits under the Employee Retirement Income Security Act of 1974, 29 U.S.C. _______________ *Honorable Nathaniel R. Jones, Senior U.S. Circuit Judge for the Sixth Circuit, sitting by designation. §§ 1001, et seq. (“ERISA”).1 Slamen contends that his disability insurance policy was not governed by ERISA and that the federal district court lacked subject matter jurisdiction over his suit against the Paul Revere Life Insurance Co. for refusing to pay benefits under Slamen’s policy. Slamen contends that the district court should have remanded the case to the Alabama state courts, permitting Slamen’s state law breach of contract and tort claims to proceed. BACKGROUND On February 1, 1981, Slamen’s solely-owned dental practice established a health plan providing health and life insurance coverage from the Centennial Life Insurance Company for Slamen and his employees.2 This plan did not provide disability benefits to any employee. In 1985, Slamen purchased a disability insurance policy from Paul Revere, which only covered himself. As with the health and life insurance policies, the premiums under the disability insurance policy were paid by Slamen’s professional corporation, “Herbert A. Slamen, D.M.D., P.C.” On December 11, 1996, as a result of Paul Revere’s refusal to pay benefits under Slamen’s disability insurance policy, Slamen filed this action in the Circuit Court for Jefferson County, Alabama alleging that Paul Revere’s refusal to pay was in breach of contract and was tortious. Paul Revere removed the case to federal court and Slamen sought a remand to the state courts. The district court denied the motion to remand and dismissed Slamen’s state law claims as preempted 1 Although this appeal arises from the district court’s resolution of Slamen’s ERISA claim, Slamen’s argument focuses on the district court’s denial of his motion to remand the case to the Alabama state courts. 2 The insurer on the life and health insurance provided to Slamen’s employees has since changed. Since 1984, Slamen’s employees participate in the Comprehensive Security Trust, underwritten by the Vulcan Life Insurance Company. 2 by ERISA, allowing Slamen leave to amend for the purpose of stating an ERISA claim. After a bench trial, the district court entered judgment for Paul Revere on Slamen’s ERISA claim. This appeal followed. DISCUSSION The sole issue raised on appeal is whether Slamen’s disability insurance policy is an ERISA employee welfare benefit plan. If Slamen’s disability insurance policy is governed by ERISA, the district court correctly recharacterized Slamen’s claims as ERISA claims and denial of the motion to remand was proper because ERISA claims arise under federal law. Whitt v. Sherman Int’l Corp., 147 F.3d 1325, 1329-30 (11th Cir. 1998). However, if Slamen’s disability insurance policy is not an ERISA plan and Slamen was not entitled to seek relief under ERISA, “no federal question jurisdiction exists” and the case must be remanded to the state courts. Id. at 1330. ERISA defines an employee welfare benefit plan as any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, [or] disability . . . . 29 U.S.C. § 1002(1). In Donovan v. Dillingham, 688 F.2d 1367 (11th Cir. 1982) (en banc), we set forth five requirements that must be established for an employee welfare benefit plan to fall within ERISA’s scope. “[A] welfare plan requires (1) a ‘plan, fund, or program’ (2) established or maintained (3) by an employer or by an employee organization, or by both, (4) for the purpose of providing medical, surgical, hospital care, sickness, accident, disability . . . benefits . . . 5) to participants or their beneficiaries.” Id. at 1371. “[A] ‘plan, fund, or program’ under ERISA is 3 established if from the surrounding circumstances a reasonable person can ascertain the intended benefits, a class of beneficiaries, the source of financing, and procedures for receiving benefits.” Id. at 1373. However, not all welfare benefit plans that meet these five criteria are governed by ERISA. As Donovan explains, [t]he gist of ERISA’s definitions of employer, employee organization, participant, and beneficiary is that a plan, fund, or program falls within the ambit of ERISA only if the plan, fund, or program covers ERISA participants because of their employee status in an employment relationship, and an employer or employee organization is the person that establishes or maintains the plan, fund, or program. Thus, plans, funds, or programs under which no . . . employees or former employees participate are not employee welfare benefit plans under Title I of ERISA. Id. (footnotes omitted); 29 C.F.R. § 2510.3-3(b) (1998) (“[T]he term ‘employee benefit plan’ shall not include any plan, fund, or program . . . under which no employees are participants covered under the plan.”). Thus, in order to establish an ERISA employee welfare benefit plan, the plan must provide benefits to at least one employee, not including an employee who is also the owner of the business in question. See Williams v. Wright, 927 F.2d 1540, 1545 (11th Cir. 1991); 29 C.F.R. § 2510.3- 3(c)(1) (1998) (“An individual and his or her spouse shall not be deemed to be employees with respect to a trade or business, whether incorporated or unincorporated, which is wholly owned by the individual or by the individual and his or her spouse.”); see also Peterson v. American Life & Health Ins. Co., 48 F.3d 404, 407 (9th Cir. 1995) (“Neither an owner of a business nor a partner in a partnership can constitute an ‘employee’ for purposes of determining the existence of an ERISA plan.”); Meredith v. Time Ins. Co., 980 F.2d 352, 357 (5th Cir. 1993) (“These regulations prevent Meredith from being simultaneously an employer and an employee.”). 4  Slamen argues that the disability insurance policy he purchased from Paul Revere in 1985 was not an ERISA plan because he wholly owned the dental practice and was the only person covered under the disability insurance policy. Thus, by virtue of § 2510.3-3(c)(1), he argues that he could not be considered an employee for purposes of determining whether the disability insurance policy was an ERISA plan. We agree. Slamen’s disability insurance policy covered only himself. No employees received any benefits under the plan and there is nothing in the record showing that the disability insurance policy bears any relationship to the health and life insurance benefits that Slamen provides to his employees. On the contrary, the two policies were purchased at different times, from different insurers, and for different purposes. The first policy covers Slamen’s employees as well as himself, while the second policy only covers Slamen and was not designed to benefit Slamen’s employees. In light of these facts, we are not persuaded by Paul Revere’s argument that ERISA nonetheless applies here because Slamen had in place other insurance for his employees. In Kemp v. IBM Corp., 109 F.3d 708 (11th Cir. 1997), we held that “non-ERISA benefits do not fall within ERISA’s reach merely because they are included in a multibenefit plan along with ERISA benefits.” Id. at 713. Applying this principle, we held that an employer’s retirement education assistance benefits were not benefits protected by ERISA and that their inclusion in a broader multibenefit plan did “not turn the non-ERISA benefit into an employee welfare benefit plan.” Id. By analogy, Slamen’s disability insurance policy – which is not, by its terms, an ERISA plan – is not converted into an ERISA plan merely because Slamen also provides ERISA benefits to his employees. See Zeiger v. Zeiger, 131 F.3d 150, 1997 WL 737659, at * 1 (9th Cir. Nov. 25, 1997) (“A non-ERISA plan is not converted into an ERISA plan merely because an employer also sponsors a separate 5 benefits plan subject to ERISA.”). Indeed, in Robertson v. Alexander Grant & Co., 798 F.2d 868 (5th Cir. 1986), the Fifth Circuit applied this very reasoning in holding that ERISA did not apply to a plan covering only partners. The court rejected the argument that ERISA applied because the plan also covered principals, a class of employees, finding that this claim ignores the fact that the plans, however similar, are two separate plans. The plan covering the partners does not pay any benefits to principals, and the plan covering principals does not pay any benefits to partners. Since the plans are separate, the plan covering partners covers only partners, and the district court correctly ruled that the plan does not cover employees other than partners. Id. at 871-72; see also In re Watson, 161 F.3d 593, 596 n.4 (9th Cir. 1998) (treating benefit plan that only provided benefits to physician owner separately from plan for nurse employees because “they are independent plans under ERISA”). This reasoning is equally applicable here.3 Moreover, Paul Revere’s argument is inconsistent with the purpose of excluding benefit plans that provide benefits only to employers from ERISA’s broad scope. ERISA excludes employer benefit plans from its broad scope because “[w]hen the employee and employer are one and the same, there is little need to regulate plan administration.” Meredith, 980 F.2d at 358. In light of the clear exclusion of benefit plans covering only owners from ERISA’s scope, we think that it makes little sense to treat a benefit plan, which covers only a business owner such as Dr. Slamen, 3 Paul Revere offers us a number of cases from other federal courts of appeal to support their assertion that we should consider the overall insurance coverage offered by Slamen, rather than the disability insurance policy, but those cases are distinguishable. See Peterson, 48 F.3d at 407-08 (finding that the American benefit plan that only covered a partner was an ERISA plan because it “originally covered a non-partner employee in addition to Peterson and his partner”); Madonia v. Blue Cross & Blue Shield, 11 F.3d 444, 448 (4th Cir. 1993) (recognizing that owner of corporation could not be sole participant in employee benefit plan, but finding ERISA applied because “MNA’s plan benefitted employees other than Dr. Madonia”). 6 as a component of the employer’s employee benefit program. Instead, we agree with Robertson that an employer benefit program must be analyzed separately from an employee benefit program absent evidence – not present here – showing that the two programs are related.4 In conclusion, Slamen’s disability insurance policy is not an ERISA plan because all the benefits flow to the owner, Dr. Herbert Slamen. Because the plan is not governed by ERISA, Slamen’s action for the recovery of benefits did not arise under ERISA and the district court was without federal jurisdiction over Slamen’s claim. Accordingly, the district court erred in denying Slamen’s motion to remand. The judgment of the district court is REVERSED with instructions to remand this case to the Alabama state courts. 4 Nor does the fact that the premiums were paid by Slamen’s professional corporation, rather than Slamen himself, dictate a contrary result. As we have said, to establish that the plan in this case is governed by ERISA, Paul Revere would have to show that an employee other than Dr. Slamen received benefits under the disability insurance policy. Paul Revere has failed to make this showing and the clear import of the ERISA regulations is that Dr. Slamen cannot be considered an employee of the professional corporation which he owns. 7 

105 F.2d 988 (1939) JUSTIN HAYNES & CO., Inc., v. FEDERAL TRADE COMMISSION. No. 359. Circuit Court of Appeals, Second Circuit. July 10, 1939. Munn, Anderson & Liddy, of New York City (Orson D. Munn and John H. Glaccum, both of New York City, of counsel), for petitioner. W. T. Kelley, Chief Counsel, Federal Trade Commission, Martin A. Morrison, Asst. Chief Counsel, and S. Brogdyne Teu, II, Reuben J. Martin, and James W. Nichol, Sp. Attys., all of Washington, D. C., for respondent. Before SWAN, AUGUSTUS N. HAND, and CLARK, Circuit Judges. SWAN, Circuit Judge. The petitioner is a New York corporation which sells and distributes in interstate commerce under the trade name of Aspirub a medical preparation for external use containing 1.5 per cent. of aspirin. It has advertised the curative properties of its preparation in glowing terms, placing special stress upon the aspirin constituent. In March, 1936, the Commission filed a complaint against the petitioner charging that its advertising was false and deceptive and *989 constituted unfair methods of competition in commerce contrary to the provisions of the Federal Trade Commission Act, 15 U.S.C.A. § 45. The gravamen of the complaint is that Aspirub has no therapeutic value as aspirin because of its negligible aspirin content and because aspirin cannot be absorbed into the body through the skin. After extensive hearings an order was entered on April 21, 1938, which in substance forbids the petitioner to use the trade name Aspirub and to represent that its preparation accomplishes to any substantial extent the beneficial effects of aspirin or is absorbable through the skin in an amount sufficient to produce any beneficial therapeutic effect. This order the petitioner asks us to set aside, its main contention being that the Commission's findings of fact in support of the order are not sustained by any substantial evidence. The essential findings are that only an insignificant amount of the aspirin in the petitioner's compound is absorbed into the human body when applied dermally (fols. 107, 111) and that it is of little or no therapeutic value for the various pains and ailments which it is represented to relieve (fol. 110). These findings are supported by the testimony of the three expert witnesses called by the Commission; and in the light of such testimony there can be no doubt that the petitioner's advertisements were grossly exaggerated and misleading. It is true that these witnesses had no personal experience with Aspirub and based their opinions upon their general medical and pharmacological knowledge. They were, however, well-qualified expert witnesses, and the fact that other experts called by the petitioner expressed a contrary opinion and testified to experiments cannot enable the petitioner to contend successfully that there was no substantial evidence to support the Commission's findings. That this court is not permitted to pass upon the weight of the evidence is too well established to require the citation of authorities. The petitioner also contends that Aspirub is the only medical preparation for external use containing aspirin and is therefore not in competition with any other product in interstate commerce. But the Commission's finding as to competition is supported by evidence. Witness Manss of the Bayer Company testified that in so far as Aspirub is recommended as a relief for aches and pains and as an alleviant for colds he regards it as in competition with his company's product Aspirin, as well as in competition with other preparations offered for external or internal use. Indeed, that it actually or potentially competes with other aspirin products seems self evident; the petitioner itself advertises its preparation as a "new convenient way to use aspirin." Federal Trade Commission v. Raladam Co., 283 U.S. 643, 51 S.Ct. 587, 75 L.Ed. 1324, 79 A.L.R. 1191, is distinguishable, since there no proof was given as to competition. Finally, it is urged that the Commission's order does not restrain "unfair methods of competition," but is directed against conduct which is, at most, only "misbranding," contrary to the Pure Food and Drugs Act, 21 U.S.C.A. § 1 et seq. The 1938 amendment to section 5 of the Federal Trade Commission Act, 15 U.S.C.A. § 45, expressly includes "unfair or deceptive acts or practices in commerce." This amendment was approved March 21, 1938, which was after the hearings in the case at bar had closed but before the Commission had issued its order. In favor of the petitioner we shall assume that the amendment is not applicable; therefore, if the order is to be supported, it must be as a restraint of "unfair methods of competition in commerce." But we entertain no doubt that false and deceptive advertising of an article in competition with other articles in commerce falls under that definition and was within the Commission's jurisdiction. See Federal Trade Commission v. Winsted Hosiery Co., 258 U.S. 483, 42 S.Ct. 384, 66 L.Ed. 729; Federal Trade Commission v. Royal Milling Co., 288 U.S. 212, 53 S.Ct. 335, 77 L.Ed. 706. Order affirmed.

USCA1 Opinion UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 92-1647 JAMES SINGLETON, Plaintiff, Appellant, v. UNITED STATES OF AMERICA, Defendant, Appellee. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Jos Antonio Fust , U.S. District Judge] ___________________ ____________________ Before Selya, Cyr and Boudin, Circuit Judges. ______________ ____________________ Richard J. Shea for appellant. _______________ Carlos A. P rez, Assistant United States Attorney, with whom ________________ Daniel F. Lopez-Romo, United States Attorney, and Jos A. Quiles- _____________________ ________________ Espinosa, Senior Litigation Counsel, were on brief for appellee. ________ ____________________ June 10, 1994 ____________________ CYR, Circuit Judge. Petitioner James Singleton appeals CYR, Circuit Judge. _____________ from a district court order dismissing his motion for post- conviction relief, see 28 U.S.C. 2255, from a judgment of ___ conviction for possessing marijuana, with intent to distribute, in violation of the Maritime Drug Law Enforcement Act (MDLEA).1 See 18 U.S.C. 2; 46 U.S.C. App. 1903(a), (c), (f). Along ___ with a surfeit of lesser grounds, we must assess whether Single- ton was denied effective assistance, see Strickland v. Washing- ___ __________ ________ ton, 466 U.S. 668 (1984), based on trial counsel's failure to ___ object to a jury instruction which effectively directed a verdict on an essential element of the crime charged. We affirm the district court judgment. I I BACKGROUND BACKGROUND __________ Shortly after midnight on January 5, 1988, the United States Coast Guard Cutter DAUNTLESS made radar contact with a vessel approaching on the high seas from the direction of Haiti. Suspecting that the vessel might contain illegal Haitian immigrants, the DAUNTLESS attempted to establish radio communica- tion, but to no avail. Shortly thereafter, Coast Guard Ensign Pulver approached to within thirty yards of the unidentified vessel in a boarding craft, and noted the name MARILYN E and the ____________________ 1Singleton's conviction was upheld on direct appeal in United States v. Doe, 921 F.2d 340 (1st Cir. 1990). _____________ ___ letters "KA" and "JN" on the stern but no home port designation or flag. Pulver made voice contact with a person aboard the MARILYN E who explained that the vessel was en route from King- ston Bay, Jamaica, and bound for Kaison Bank, in the Bahamas, to fish. Ensign Pulver obtained consent to board the MARILYN E from codefendant Willey Gordon, the master. Pulver and the boarding crew found Gordon, Singleton and four others on board the MARILYN E. The MARILYN E was leaky and in serious disrepair. The scant fishing gear on board was inoperable and the vessel was not provisioned for an extended voyage. Shortly after boarding, Pulver asked the master for the certificate of documentation. Gordon asserted that though the MARILYN E was of Jamaican registry, she was carrying no documen- tation. At that point, codefendant Earl McLeish volunteered that he knew where the documentation papers were kept, and soon produced a Coast Guard "bill of sale" form and an expired United States Certificate of Documentation.2 Asked what was in the hold, Gordon responded that it contained ice. Whereupon Pulver requested and received permission to open the hold, which was ____________________ 2Though both documents suggested United States registry, neither the bill of sale nor the expired certificate of documen- tation constituted proper documentation of registry. The bill of sale memorialized a 1986 sale of the MARILYN E by one Clyde Randolph Eubanks to one Hubert Henderson, and was acknowledged in Cateret County, North Carolina. The certificate of documentation was registered to Eubanks but had expired more than one and one- half years earlier. 3 foundtocontainbalesofmarijuanaweighingapproximately3,750 pounds.3 Ensign Pulver requested authorization from the Command- er of the DAUNTLESS to arrest the captain and crew of the MARILYN E. But because the procedures to be followed in arresting the crew, and seizing the vessel, would depend on the nationality of the MARILYN E, Pulver continued to question Gordon. Asked whether there were any flags aboard the MARILYN E, Gordon at first said there were none, but then corrected himself by saying he believed there was one flag forward. Upon overhearing Ensign Pulver's question to Gordon, Singleton located a United States flag and a plain yellow quarantine flag in the fore of the vessel.4 Thus, it remained unclear whether the MARILYN E was a United States vessel, as the United States flag and the dated documentation papers suggested, a Jamaican vessel, as Gordon claimed, or a stateless vessel. In order to ensure the legality of the ensuing arrests and seizure, Ensign Pulver initiated a formal request to obtain ____________________ 3To this point, Singleton's only statement to the Coast Guard had been: "I'm James Singleton and I'm from the United States." 4Our opinion on direct appeal merely stated that the flag was yellow. Doe, 921 F.2d at 342. The district court opinion ___ dismissing appellant's section 2255 motion states that "[t]he yellow flag was later identified as being a flag from Quebec." Singleton v. United States, 789 F. Supp. 492, 494 (D.P.R. 1992). _________ _____________ The confusion is entirely understandable, but we note that the yellow flag in question is a signalling flag indicating "quaran- tine." Howard L. Andrews & Alexander L. Russell, Basic Boating: ________________________________________ ______________ Piloting and Seamanship 65 (2d ed. 1974). In nautical circles, _______________________ it is known, colloquially, as "Quebec," the international phonet- ic representation for the letter "Q," see The ARRL Handbook for ___ ______________________ the Radio Amateur 38-4 (Kirk A. Kleinschmidt ed.) (67th ed. __________________ 1990). 4 Jamaican consent to the enforcement of United States drug laws aboard the MARILYN E,5 and simultaneously sought authorization from the Coast Guard Commandant in Washington, D.C. Several hours later, with authorization from the Coast Guard Commandant and the consent of the Jamaican government, the six persons on board the MARILYN E were arrested and transferred to the DAUNT- LESS, whereupon Miranda warnings were administered to each. Shortly thereafter, the Coast Guard Cutter MOHICAN rendezvoused with the DAUNTLESS, took custody of the MARILYN E, and set out to tow her to Puerto Rico. The MARILYN E proved unseaworthy, however, and she sank (with most of her illicit cargo) en route. II II DISCUSSION DISCUSSION __________ A. The Erroneous Jury Instruction A. The Erroneous Jury Instruction ______________________________ Singleton contends that the trial judge effectively withdrew from the jury a material element of the crime charged under 46 U.S.C. App. 1903(a); viz., whether the MARILYN E was ____ ____________________ 5Had Gordon's unsubstantiated claim of Jamaican registry proven valid, Jamaican "consent" would have been necessary to secure jurisdiction under the criminal statute pursuant to which Singleton and the other defendants were indicted. See 46 U.S.C. ___ App. 1903(c)(1)(C) (authorizing enforcement of United States drug laws on, inter alia, "a vessel registered in a foreign _____ ____ nation where the flag nation has consented or waived objection to the enforcement of United States law by the United States"). 5 "a vessel subject to the jurisdiction of the United States," within themeaning of theMDLEA.6 The jury wasinstructed asfollows: Well, in this particular case, one of the elements that you will have to decide is whether this was a vessel of the United States and there is no real controversy in my _____ __ __ ____ ___________ __ __ own mind about that. The parties, the evi- ___ ____ _____ ____ ___ ____ dence is there. There is [sic] exhibits that _____ __ _____ tell you that this vessel was registered, ____ ______ ___ __________ documented in the United States . . . . __________ __ ___ ______ ______ [46 U.S.C. App. 1903] says basically this, it is unlawful for any person on board a vessel of the United States or on board a vessel subject to the jurisdiction of the United States and in this particular case, I already pointed to you out [sic.] the fact that there is no real controversy about that __ ____ ___________ _____ ____ fact . . . That is what you have to decide, ____ possess with the intent to manufacture and distribute a controlled substance and then sub-section C is the one that defines a ves- sel subject to the jurisdiction of the United States and I have already told you that the _ ____ _______ ____ ___ ____ ___ Marilyn E, with the papers that we have on _______ _ hand, is a vessel subject to the jurisdiction __ _ ______ _______ __ ___ ____________ of the United States. . . . __ ___ ______ ______ . . . If I were to read the elements of this offense, I would tell you as follows: I would tell you that you would have to find in each particular case that each defendant was located on board a vessel subject to the jurisdiction of the United States when this happened. . . . ____________________ 6At the time of Singleton's arrest and conviction, the MDLEA provided: It is unlawful for any person on board a vessel of the United States, or on board a vessel subject to the jurisdiction of the United States, to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance. 46 U.S.C. App. 1903(a) (Supp. 1987). A subsequent amendment extended jurisdiction over a "citizen of the United States . . . aboard any vessel." See Pub. L. 100-690, 7402(a), Oct. 21, ___ 1988, 102 Stat. 4181 (amending 46 U.S.C. App. 1903(a)). 6 (Emphasis added.)7 In its ruling dismissing Singleton's section 2255 motion, see Singleton v. United States, 789 F. Supp. 492, 495 ___ _________ ______________ (D.P.R. 1992), the district court recognized the fair import of the challenged instruction to be that the jurisdictional element of the crime charged had been established to the satisfaction of the court. See United States v. Potes, 880 F.2d 1475, 1478 n.1 ___ _____________ _____ (1st Cir. 1989) ("Because this jurisdictional requirement was an element of the offense, and because it depended upon factual as well as legal determinations, it was for the jury to decide whether it had been satisfied."). The district court ruled, nonetheless, that any error was harmless. Id. at 501-04.8 On ___ appeal, Singleton insists that this instructional error could not have been harmless since it relieved the jury of its ___ responsibility to determine whether the government had proven an essential element of the crime beyond a reasonable doubt. We observe at the outset that the established "princi- ple that collateral review is different from direct review resounds throughout our habeas jurisprudence." Brecht v. Abra- ______ _____ hamson, 113 S. Ct. 1710, 1719 (1993). A presumption of finality ______ ____________________ 7Singleton's trial counsel neither requested an instruction on the jurisdictional element, nor objected to the instruction given. 8The harmlessness ruling was based on the conclusion that the MARILYN E was a "vessel of the United States" under 46 U.S.C. 12111(c)(1), which provides that "until a certificate of documentation is surrendered with the approval of the Secretary, a documented vessel is deemed to continue to be documented . . . ." The government concedes that the quoted provision was enacted after these events took place. 7 attaches to criminal convictions once all direct appeals have been exhausted. Barefoot v. Estelle, 463 U.S. 880, 887 (1983); ________ _______ United States v. Frady, 456 U.S. 152, 164-65 (1982). Post- ______________ _____ conviction relief on collateral review is an extraordinary remedy, available only on a sufficient showing of fundamental unfairness. Brecht, 113 S. Ct. at 1719. Trial errors, even those ______ that implicate Seventh Amendment concerns, are subject to strin- gent "harmless error" review in a collateral proceeding. Id. at ___ 1723 (Stevens, J., concurring). We recently had occasion to survey the developing "harmless error" jurisprudence in a section 2254 case where the petitioner sought to overturn his state court conviction on the basis of an erroneous jury instruction. See Libby v. Duval, 19 ___ _____ _____ F.3d 733, 738-40 (1st Cir. 1994). In Libby, we identified the _____ appropriate "harmless error" inquiry as whether the government can demonstrate that the erroneous instruction "did not have a substantial and injurious effect or influence in determining the jury's verdict." Id. at 18 & n.15; see also Brecht, 113 S. Ct. at ___ ___ ____ ______ 1722 (quoting Kotteakos v. United States, 328 U.S. 750, 776 _________ ______________ (1946)).9 The "actual prejudice" review required under Brecht ______ ____________________ 9Libby and Brecht arose under 28 U.S.C. 2254. Thus, one _____ ______ significant element in the rationale underlying Brecht namely, ______ comity concerns based in federalism is plainly lacking in a collateral proceeding arising under 28 U.S.C. 2255. Neverthe- less, we think the Brecht rationale fundamentally anchored in ______ _____________ traditional concerns for finality operates with like vigor in the federal habeas context: "granting habeas relief merely because there is a 'reasonable possibility' that trial error contributed to the verdict, Chapman v. California, 386 U.S. 18, _______ __________ 24, is at odds with the historic meaning of habeas corpus -- to afford relief to those whom society has 'grievously wronged.'" 8 must encompass the record as a whole. Id.; Libby, 19 F.3d at ______ __ _ _____ ___ _____ 740. Under the well-seasoned Kotteakos standard, therefore, _________ trial error is deemed harmless only if the record as a whole permits the reviewing court to conclude: "with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error." [Kotteakos, 328 U.S. at 765. This test] "is _________ satisfied if it is 'highly probable' that the challenged action did not affect the judg- ment." United States v. Hernandez-Bermudez, _____________ __________________ 857 F.2d 50, 53 (1st Cir. 1988). United States v. Wood, 924 F.2d 399, 402 (1st Cir. 1991) (quoting _____________ ____ United States v. Ladd, 885 F.2d 954, 957 (1st Cir. 1989)). Thus, _____________ ____ the Singleton conviction can withstand collateral review only if it is determined, based on the entire trial record, that the government has demonstrated that a reasonable jury would have found that the jurisdictional element required for conviction under section 1903 was established beyond a reasonable doubt notwithstanding the erroneous instruction. The present inquiry under Kotteakos and Brecht requires _________ ______ close examination of the MDLEA and its jurisdictional predicates. The MDLEA in force in January 1988 proscribed possession, with intent to distribute, marijuana "on board a vessel of the United States or a vessel subject to the jurisdiction of the United __ States." 46 U.S.C. App. 1903(a) (Supp. 1987) (emphasis added). Section 1903(c) provides in pertinent part that the term "vessel subject to the jurisdiction of the United States" includes: ____________________ Brecht, 113 S. Ct. at 1721 (secondary citations omitted). ______ 9 (A) A vessel without nationality; (B) A vessel assimilated to a vessel without nationality, in accordance with Article 6(2) of the 1958 Convention on the High Seas; and (C) A vessel registered in a foreign nation where the flag nation has consented or waived objection to the enforcement of United States law by the United States. See 46 U.S.C. App. 1903(c). Thus, jurisdiction would exist ___ under the MDLEA if the MARILYN E were (1) American, as a vessel of the United States; (2) Jamaican, since Jamaican authorities consented to her boarding; (3) a vessel without nationality; or (4) a vessel assimilated to a vessel without nationality.10 Section 1903(c)(1)(B) provides that a "vessel assimi- lated to a vessel without nationality" in accordance with Article 6(2) of the Convention on the High Seas comes within the ambit of the MDLEA. United States v. Passos-Paternina, 918 F.2d 979, 982 _____________ ________________ (1st Cir. 1990), cert. denied, 499 U.S. 982 (1991), and cert. _____ ______ ___ _____ denied 111 S. Ct. 2809 (1991). Article 6(2) provides that "[a] ______ ship which sails under the flags of two or more States, using them according to convenience, may not claim any nationalities in question with respect to any other state, and may be assimilated to a ship without nationality." Convention on the High Seas, Art. 6(2), opened for signature, Apr. 29, 1958, 13 U.S.T. 2312, _____________________ T.I.A.S. No. 5200, quoted in United States v. Ayaraza-Garcia, 819 _________ _____________ ______________ ____________________ 10The trial record amply supports the district court finding that section 1903 jurisdiction was never contested at trial. Indeed, the government and the defendants paid little attention to it. Although there can be no doubt that the jury instruction was premised, however improvidently, on the correct impression that section 1903 jurisdiction was a non-issue as far as the parties were concerned, this weakness in the government's trial presentation is no less vigorously pressed on collateral review. 10 F.2d 1043, 1046-47 (11th Cir.), cert. denied, 484 U.S. 969 _____ ______ (1987); see also United States v. Garate-Vergara, 942 F.2d 1543, ___ ____ _____________ ______________ 1554-55 (11th Cir. 1991), modified, 991 F.2d 662 (11th Cir.), ________ cert. denied, 114 S. Ct. 481 (1993); Passos-Paternina, 918 F.2d _____ ______ ________________ at 982 ("the clear purport of [Article 6(2)] requires that a vessel which sails under the authority of two or more nations be considered 'assimilated to a vessel without nationality.'"). In the context of the MDLEA, Article 6(2) is broadly interpreted, and reaches beyond the literal thrust of its "flying two flags" language to encompass conduct amounting to conflicting claims of nationality. Id. (surveying cases). ___ As to the registry of the vessel, the record reveals that Captain Gordon was evasive, claiming at various times that the MARILYN E carried neither flags nor documentation. Although the captain asserted that the MARILYN E was of Jamaican registry, and a crew member claimed to have sailed out of Kingston Bay, the scant documentation, and the only flags found on board, suggested United States registry. Further, the MARILYN E was not flying the flag of any nation at the time she was sighted, nor did she bear her home port designation or other registry information. See United States v. Matute, 767 F.2d 1511, 1513 (11th Cir. 1985) ___ _____________ ______ (finding absence of home port designation "a clear indication that the crew wanted to be able to manipulate the vessel's 'nationality' on short notice"). Section 1903(c)(1)(B) was meant to encompass this precise sort of ambivalent behavior. See id. ___ ___ (holding that use of Colombian flag and Venezuelan registry 11 papers is "precisely" what statute and Article 6(2) contemplat- ed); Passos-Paternina, 918 F.2d at 981-83 (holding that conflict- ________________ ing claims of registry and carrying different flags "were tanta- mount to sailing under the authority of more than one nation under convenience"). The uncontroverted evidence that the captain and crew repeatedly provided the Coast Guard with equivocal and contradictory registry information satisfies us that a properly instructed jury would have concluded that the United States met its burden of proving, beyond a reasonable doubt, that the MARILYN E was a "vessel subject to the jurisdiction of the United States" within the meaning of 46 U.S.C. 1903. B. Ineffective Assistance of Counsel B. Ineffective Assistance of Counsel _________________________________ The Sixth Amendment provides that criminal defendants are entitled to the effective assistance of trial counsel. Strickland, 466 U.S. at 687. "But 'the Constitution does not __________ guarantee a defendant a letter-perfect defense or a successful defense; rather the performance standard is that of reasonably effective assistance under the circumstances then obtaining.'" Lema v. United States, 987 F.2d 48, 50 (1st Cir. 1993) (quoting ____ _____________ United States v. Natanel, 938 F.2d 302, 309-10 (1st Cir. 1991)). ______________ _______ "The habeas court must evaluate the [challenged] conduct from counsel's perspective at the time, considering the totality of the circumstances before it, and making every effort to eliminate the distorting effects of hindsight." Id. (citations and quota- ___ tions omitted). We indulge "a strong presumption that counsel's 12 conduct falls within a wide range of reasonable professional assistance." Id. (citing Strickland, 466 U.S. at 689). Besides ___ __________ bearing the burden of proving that trial counsel's performance was not within this wide range of reasonable professional assis- tance, Singleton must establish that counsel's performance was sufficiently prejudicial to undermine confidence in the outcome of the trial. Strickland, 466 U.S. at 693-94. Singleton asserts __________ prejudice from several alleged lapses on the part of trial counsel.11 First, he points out that trial counsel did not attempt to suppress the evidence seized aboard the MARILYN E. The uncon- troverted record evidence reveals, however, that the master of the MARILYN E consented to the Coast Guard boarding. Moreover, the MARILYN E was subject to boarding simply on the basis of a reasonable pre-boarding suspicion that she was a stateless vessel. See United States v. Alvarez-Mena, 765 F.2d 1259, 1268 ___ ______________ ____________ (5th Cir. 1985) ("Coast Guard need have only a 'reasonable suspicion' that a vessel is subject to United States law before effecting a seizure of the vessel in international waters."); accord Potes, 880 F.2d at 1478 (dicta). As the MARILYN E flew no ______ _____ flag, bore no home port designation, and could not be raised by radio, there was an adequate basis for the reasonable suspicion needed to stop and board her. See Alvarez-Mena, 765 F.2d at 1268 ___ ____________ ____________________ 11As it resulted in no "prejudice" within the meaning of Strickland, see supra pp. 5-12, we need give no further consider- __________ ___ _____ ation to the "ineffective assistance" claim that trial counsel failed to challenge the jury instruction on section 1903 juris- diction. 13 (finding abundant reasonable suspicion where, inter alia, vessel _____ ____ "flew no flag, and had no stern markings indicating home port or country"). And, of course, Ensign Pulver obtained Captain Gordon's permission before opening the hold. Second, Singleton claims prejudice from counsel's failure to challenge the adequacy of the Miranda warnings. See _______ ___ Miranda v. Arizona, 384 U.S. 436 (1966). The crew received _______ _______ Miranda warnings just prior to their transfer to the DAUNTLESS, _______ moments after their arrests. Although he did speak with Coast Guard personnel before being formally arrested, Singleton has not identified any evidence illegally obtained prior to receiving Miranda warnings. Our review suggests but one possibility; viz., _______ ____ Singleton's admission that he was "from the United States," see ___ supra note 3. But the uncontroverted testimony of Ensign Pulver _____ makes clear that Singleton volunteered this admission. Thus, even assuming that Singleton was in "custody," this statement was not made in response to interrogation. See Miranda, 384 U.S. at ___ _______ 467 (rule applies to "in-custody interrogations"). We find no colorable basis for a cognizable Miranda claim. _______ Third, Singleton faults counsel's failure to move for a separate trial. As a general rule, joinder for trial is proper if issues of fact and law overlap and the practical benefits of a joint trial outweigh each defendant's interest in a separate trial. See, e.g., United States v. Arruda, 715 F.2d 671, 677-81 ___ ____ _____________ ______ (1st Cir. 1983). Singleton has not demonstrated that counsel's 14 failure to press for a separate trial was outside the wide range of reasonable professional assistance. Significantly, codefendant McLeish unsuccessfully moved for severance early in the proceedings. Like Singleton, McLeish pursued a "hitchhiker" defense, claiming that he had been picked up serendipitously by the MARILYN E while adrift at sea. In light of the lack of success with which McLeish's request for severance was met, we cannot say that trial counsel's performance was deficient under the Sixth Amendment. See United States v. ___ _____________ Pellerito, 878 F.2d 1535, 1540 (1st Cir. 1985) (codefendants' _________ failed efforts are relevant in assessing other counsel's decision not to pursue similar tactics). Indeed, the McLeish motion bears all the earmarks of a stalking-horse strategy. "Effectiveness does not require that counsel jump through every conceivable hoop, or engage in futile exercises." Id. (citing United States ___ ______________ v. Cronic, 466 U.S. 648, 656 n.19 (1984) ("useless charade" not ______ required); United States v. Levy, 870 F.2d 37, 38 (1st Cir. 1989) _____________ ____ (similar)). In any event, there has been no showing of prejudice to Singleton resulting from the joint trial. C. Defaulted Claims C. Defaulted Claims ________________ Several additional claims advanced by Singleton suffer from various forms of procedural default, and essentially repre- sent attempts to recast arguments already rejected in connection with the "ineffective assistance" claim.12 Singleton attempts, ____________________ 12The defaulted claims include an attempt to raise the groundless Miranda claim. See supra p. 14. _______ ___ _____ 15 to no avail, see Lopez-Torres v. United States, 876 F.2d 4, 5 ___ ____________ ______________ (1st Cir.), cert. denied, 493 U.S. 979 (1989), to revisit the _____ ______ defaulted claim relating to improper joinder for trial, though it was neither raised before the trial court nor on direct appeal. Furthermore, Singleton challenges his 360-month sentence as having been based on a sentencing guideline determination that he was responsible for possessing, with intent to distribute, 3,750 pounds of marijuana, whereas there was no evidence that he knew the weight, and no evidence that the bales lost at sea contained marijuana. Not only was a substantially similar argument reject- ed on direct appeal, see Doe, 921 F.2d at 347, but "[i]ssues ___ ___ disposed of in a prior appeal will not be reviewed again by way of a 28 U.S.C. 2255 motion," United States v. Dirring, 370 F.2d _____________ _______ 862, 864 (1st Cir. 1967), cited in Barrett v. United States, 965 ________ _______ _____________ F.2d 1184, 1190 n.11 (1st Cir. 1992). Additionally, this argu- ment does not appear in the section 2255 motion, but first emerged in Singleton's supplemental appellate brief. See Dziur- ___ ______ got v. Luther, 897 F.2d 1222, 1224 (1st Cir. 1990) (holding ___ ______ claims not raised in section 2255 motion will not be reviewed on appeal). Finally, further review of Singleton's challenge to the sufficiency of the evidence, addressed and rejected on direct appeal, Doe, 921 F.2d at 346, is also foreclosed, Tracey v. ___ ______ United States, 739 F.2d 679, 682 (1st Cir. 1984). _____________ Affirmed. Affirmed. ________ 16

Case: 19-10101 Document: 00515060919 Page: 1 Date Filed: 08/02/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 19-10101 August 2, 2019 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. HORACIO DOMINGUEZ-VILLALOBOS, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 5:18-CR-76-1 Before WIENER, HAYNES, and COSTA, Circuit Judges. PER CURIAM: * Horacio Dominguez-Villalobos was convicted of illegal reentry after deportation and was sentenced above the guidelines range to 36 months of imprisonment, to be followed by three years of supervised release. He appeals. Dominguez-Villalobos first challenges the substantive reasonableness of his sentence, arguing that his sentence is greater than necessary to satisfy the sentencing goals set forth in 18 U.S.C. § 3553(a). * 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: 19-10101 Document: 00515060919 Page: 2 Date Filed: 08/02/2019 No. 19-10101 In reviewing a non-guidelines sentence for substantive reasonableness, we consider “the totality of the circumstances, including the extent of any variance from the Guidelines range, to determine whether as a matter of substance, the sentencing factors in section 3553(a) support the sentence.” United States v. Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir. 2012) (internal quotation marks and citation omitted). The district court’s decision to vary above the advisory guidelines range was based on permissible factors that advanced the objectives set forth in § 3553(a). See United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006); § 3553(a)(1), (a)(2). Among the reasons the district court cited for the upward variance were the defendant’s “13 prior convictions. 12 of which received no criminal history points,” the nature of some of those crimes, and a prior illegal reentry sentence of 24 months that did not deter the defendant. Although the 36-month sentence is more than twice the 14 months at the top of the applicable guidelines range, we have upheld much greater variances. See, e.g., United States v. Key, 599 F.3d 469, 475-76 (5th Cir. 2010). Based on the totality of the circumstances, including the significant deference that is due to a district court’s consideration of the § 3553(a) factors, the sentence imposed was not substantively unreasonable. See Gerezano- Rosales, 692 F.3d at 400-01. Dominguez-Villalobos also contends that his sentence exceeds the statutory maximum punishment for the offense charged in the indictment and that his guilty plea was unknowing and involuntary because he was not instructed on an essential element of the offense. Regarding the validity of his guilty plea, Dominguez-Villalobos contends that the district court failed to advise him that the felony provision of 8 U.S.C. § 1326(b)(1) was an essential element of the offense. As to his sentence, Dominguez-Villalobos asserts that it exceeds the two-year maximum set forth in § 1326(a) and, thus, violates the 2  Case: 19-10101 Document: 00515060919 Page: 3 Date Filed: 08/02/2019 No. 19-10101 holding in Apprendi v. New Jersey, 530 U.S. 466 (2000). As he correctly concedes, these arguments are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). See United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007). For the first time on appeal, Dominguez-Villalobos challenges the standard condition of supervised release that requires him to permit a probation officer to visit him at any time at home or elsewhere. He argues that the visitation condition is unreasonable under the Fourth Amendment and under applicable statutes and is unconstitutionally overbroad. He concedes that review of this issue is limited to plain error. See United States v. Jones, 484 F.3d 783, 792 (5th Cir. 2007). In United States v. Cabello, 916 F.3d 543, 544 (5th Cir. 2019), this court found no plain error in the imposition of the visitation condition. Dominguez- Villalobos correctly concedes that this argument is foreclosed by Cabello, but he seeks to preserve the issue for further review. The judgment of the district court is AFFIRMED. 3 

Warner IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN ON REMAND NO. 3-92-422-CR WILLIE EDWARD WARNER, APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT NO. 41,421, HONORABLE STANTON B. PEMBERTON, JUDGE PRESIDING This cause is before us on remand from the Texas Court of Criminal Appeals. Willie Edward Warner was convicted of the offense of bond jumping and failure to appear. Tex. Penal Code Ann. § 38.11(a), (f) (West 1989). The jury found enhancement allegations true and assessed punishment at confinement for twenty-five years. This Court originally affirmed the trial court's judgment. Warner v. State, No. 03-92-422-CR (Tex. App.--Austin Oct. 13, 1993) (not designated for publication). The court of criminal appeals granted Warner's petition for discretionary review and held that this Court erred in holding that appellant failed to properly object to the introduction of extraneous offense evidence. Warner v. State, No. 1341-93 (Tex. Crim. App. Feb. 16, 1994) (not designated for publication). The court of criminal appeals remanded the cause to this Court to consider appellant's point of error in light of its decision that appellant's complaint was adequately preserved for appeal. Id. We will reverse the conviction and remand the cause for a new trial. BACKGROUND On September 1, 1990, a complaint was filed against appellant for aggravated assault with a deadly weapon. Appellant was arrested and the magistrate set bond at $1500 conditioned upon appellant's instanter appearance before the district court. Appellant made bond on October 22, 1990. On April 27, 1991, appellant was indicted and the bond was continued. Appellant failed to appear for the pretrial docket on July 12, 1991, whereupon his bond was forfeited and an arrest warrant was issued. On December 10, 1991, appellant was arrested in Bell County. After a trial, appellant was acquitted of the offense of aggravated assault. Subsequently, on May 27, 1992, the State filed an indictment for bond jumping and failure to appear. A trial on the merits was held on June 29, 1992. At trial, appellant's defense was that he did not receive notice of the pretrial docket date. See Tex. Penal Code Ann. § 38.11(c) (West 1989) (reasonable excuse for failure to appear is defense to prosecution for bail jumping). DISCUSSION Appellant contends the trial court improperly allowed the State to introduce into evidence, during the guilt-innocence phase of his trial, enhancement allegations contained in the April 27 aggravated assault indictment. (1) These allegations reflected two prior felony convictions. Appellant contends that the prejudicial effect of the enhancement allegations outweighed their probative value. Tex. R. Crim. Evid. 403, 404(b). Evidence of other crimes, wrongs, or offenses is not admissible to prove the defendant's propensity to commit crime and that the defendant acted in conformity therewith. Tex. R. Crim. Evid. 404(b). The evidence may be admitted to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. Extraneous offense evidence that logically serves any of these purposes is admissible subject only to the trial court's discretion to exclude it if the danger of unfair prejudice substantially outweighs its probative value. Tex. R. Crim. Evid. 403; Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990). (2) The State argued at trial and on appeal that the enhancement paragraphs contained in the indictment for aggravated assault were necessarily admitted because they were relevant to appellant's intent in failing to appear, an element of the bond jumping offense. Tex. Penal Code Ann. § 38.11(a) (West 1989). The State also argued that the enhancement paragraphs were relevant to the issue of motive. The State explains on appeal that a person facing a third degree felony charge with a maximum punishment of ten years' imprisonment and a fine of up to $10,000 is more likely to appear in court than a person facing habitual offender punishment of twenty-five years' to life imprisonment. See Tex. Penal Code Ann. § 12.34, .42(d) (West Supp. 1994) (providing range of punishment for third degree felony offenses and habitual offenders). Appellant concedes that this argument is plausible but argues that the trial court should have disallowed the introduction of the enhancement paragraphs into evidence because of the danger of unfair prejudice. Tex. R. Crim. Evid. 403. We review the trial court's ruling regarding the admissibility of the enhancement paragraphs applying the abuse of discretion standard. Montgomery, 810 S.W.2d at 391. In so doing, we measure the trial court's ruling against the criteria relevant to a rule 403 decision. Id. at 392. Relevant criteria include (1) whether the ultimate issue was seriously contested by the opponent, (2) the State's need for the evidence and the availability of other convincing evidence to establish the ultimate issue to which the extraneous conduct was relevant, (3) the degree of the probative value of the evidence and whether it was particularly compelling, and (4) whether the misconduct was of such a nature that a jury instruction to disregard it for any reason but its proffered purpose would be futile. Id. at 392-93. When the record reveals that one or more of the relevant criteria illuminates a risk that the probative value of the evidence is substantially outweighed by unfair prejudice, we must conclude that the trial court acted irrationally in failing to exclude it, and therefore abused its discretion. Id. at 393. (3) The record reveals that the State had other convincing evidence of appellant's intent. The State called both the attorney who represented appellant during his trial for aggravated assault and appellant's bondsman as witnesses. Both testified that appellant failed to keep in regular contact with them in order to receive notification of his court date. Although this testimony was refuted by appellant, it is evidence of an intent to fail to appear. See Richardson v. State, 699 S.W.2d 235, 238 (Tex. App.--Austin 1985, pet. ref'd) (evidence that defendant engaged in course of conduct designed to prevent him from receiving notice shows intent to fail to appear). Likewise, the State had other means of establishing appellant's motivation not to appear because he faced lengthy incarceration if convicted. Rather than introduce the enhancement paragraphs to inform the jury that appellant had previously been convicted of armed bank robbery and possession of a firearm by a felon, the State could have presented evidence that appellant faced enhanced punishment because of unspecified prior convictions. To establish motivation based on an increased range of punishment, the State had no need to inform the jury of the particular details of a particular offense committed at a particular time in the past. Indeed, the State elicited testimony from appellant's former attorney about the increased range of punishment appellant faced due to the enhancement paragraphs. Montgomery emphasizes our long tradition of evaluating the need for evidence of extraneous offenses in the face of a rule 403 objection. The trial court's inquiry into the State's need for admitting the extraneous offenses breaks down into three subparts: Does the proponent have other available evidence to establish the fact of consequence that the extraneous misconduct is relevant to show? If so, how strong is that other evidence? And is the fact of consequence related to an issue that is in dispute? Montgomery, 810 S.W.2d at 390. In order to reliably balance the probative value of extraneous offenses against their potential for unfair prejudice, the trial court must inquire what other evidence the State has relevant to intent or motivation. "When the proponent has other compelling or undisputed evidence to establish the proposition or fact that the extraneous misconduct goes to prove, the misconduct evidence will weigh far less than it otherwise might in the probative-versus-prejudicial balance." Id. (citations omitted). Here the State had no need to introduce the details of the enhancement paragraphs when the increased range of punishment was established by other reliable undisputed evidence. By failing to inquire into the State's need to admit into evidence the particular details of the enhancement paragraphs, the trial court ignored one of the "relevant criteria reasonably conducing to a risk that the probative value of the tendered evidence is substantially outweighed by unfair prejudice." Id. at 393. We conclude that in this instance the trial court abused its discretion in failing to exclude the enhancement paragraphs. In light of the foregoing, the probative value of the enhancement paragraphs does not outweigh the unfair prejudice that results in admitting evidence that provides the particular details of prior felony convictions at the guilt-innocence stage of trial. Such evidence creates the potential for a decision made on an improper basis. Appellant's credibility is diminished in the eyes of the jury. The jury could infer that appellant's failure to appear conformed to his conduct and nature as a convicted criminal. Finally, the admission of enhancement allegations to the jury at the outset of the trial may have jeopardized appellant's presumption of innocence. See Frausto v. State, 642 S.W.2d 506, 509 (Tex. Crim. App. 1982) (citing Martinez v. State, 588 S.W.2d 954, 956 (Tex. Crim. App. 1979) (holding that state may not read enhancement allegations to jury in order to inform them of range of punishment at beginning of trial)); see also Tex. Code Crim. Proc. Ann. art. 36.01(a)(1) (West Supp. 1994) (precluding reading enhancement portions of an indictment or information until the punishment face of the trial). It is unlikely that these dangers would have been neutralized by a limiting instruction to the jury. (4) We next turn to the question of whether the trial court's error in admitting the enhancement paragraphs was harmless. Tex. R. App. P. 81(b)(2). Our analysis does not focus on the propriety of the outcome of the trial, but on the integrity of the process leading to appellant's conviction. Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989). The factors we consider are the source of the error, the nature of the error, whether and to what extent the error was emphasized by the State, the collateral implications of the error, how much weight a juror would probably place on the error, and whether declaring the error harmless would encourage the State to repeat it with impunity. Id. In order to evaluate the nature and effect of the trial court's error, it is necessary to review the evidence upon which appellant's conviction was based. The State did not show that appellant received actual notice of his trial date. Rather, it sought to establish that appellant maintained a course of conduct intended to prevent his attorney, bondsman, or other authority from notifying him that his appearance in court was required. Appellant's attorney in the aggravated assault case testified that it was his usual practice to advise his clients released on bond to keep in touch with him on a regular basis. He also stated that he called appellant's home before the July 12 hearing and left a message with his mother requesting that appellant return his call. Appellant's mother denied receiving the call. Appellant's bondsman testified that his clients are required to call in every Monday so that they may be notified of upcoming court dates. According to his records, which were introduced into evidence, appellant stopped calling the bondsman's office after April 29, 1991. Appellant, however, maintained that he continued to call his bondsman's office every week until he received notice that his bond had been forfeited on September 16, 1991. The bondsman also testified that it was his practice to notify his clients by mail of court dates, but he did not maintain a copy or record of any letter sent to appellant. He further stated that he sent an employee to look for appellant at his home on July 12, 1991, when appellant did not appear at the pretrial docket, but could provide no record of this. Two sheriff's deputies also testified that they returned to appellant's home two or three times to serve the warrant for his arrest for bond jumping because they did not find appellant at home. The crux of appellant's argument was that he relied on his bondsman to notify him of court dates and continued to call him every week until he learned his bond had been forfeited. This was refuted by the bondsman's records, which noted appellant's calls to the office from the time of his release on bond until late April 1991. No subsequent notations appeared. The jury essentially was asked to judge the credibility of the bondsman and his records against appellant's credibility. The trial court's error in allowing the jury to learn of appellant's prior felony convictions likely impacted the jury's deliberations by presenting the jury with the choice of accepting either the testimony of the State's witness or that of a convicted felon. The jury was, in fact, instructed in the court's charge to consider appellant's prior convictions in its assessment of appellant's credibility and testimony. The State also emphasized the extraneous offense evidence in its closing statement, arguing that since appellant was a convicted felon, he was familiar with the criminal justice system and cognizant of the necessity to keep in touch with his attorney and bondsman. The State clearly used the evidence against appellant for a purpose beyond even the one for which it was allegedly introduced, to show appellant's motive in light of the punishment he would face as an habitual offender. Because of the State's emphasis of the evidence in an impermissible manner, and the likelihood that the extraneous offense evidence played a pivotal role in the jury's assessment of appellant's credibility, we cannot say the trial court's error in allowing the introduction of the enhancement paragraphs into evidence did not contribute to appellant's conviction and was therefore harmless. CONCLUSION Because the trial court abused its discretion in admitting into evidence the enhancement paragraphs and because their introduction constituted harmful error, we reverse appellant's conviction and remand the cause for a new trial. Bea Ann Smith, Justice Before Justices Aboussie, Jones and B. A. Smith Reversed and Remanded Filed: August 31, 1994 Do Not Publish 1. 1  The indictment for the offense for which the defendant allegedly failed to appear may be introduced into evidence in a bond jumping case. Euziere v. State, 648 S.W.2d 700, 703 (Tex. Crim. App. 1983). Unlike this cause, however, the indictment in Euziere was offered without enhancement paragraphs. 2. 2  Prior felony convictions may also be introduced to attack a witness' credibility. Tex. R. Crim. Evid. 609(a). The convictions in this cause, however, were more than ten years old and therefore inadmissible without a determination by the trial court that their probative value substantially outweighed their prejudicial effect. Tex. R. Crim. Evid. 609(b). Moreover, the State did not originally introduce the enhancement paragraphs in order to impeach appellant. 3. 3  Appellant argues that if no discussion of the relevant Rule 403 criteria appears in the trial-court record, we must conclude that the trial court erred in failing to properly exercise its discretion. See Flores v. State, 840 S.W.2d 753, 756 (Tex. App.--El Paso 1992, no pet.) (citing Montgomery, 810 S.W.2d at 392). We believe this argument misconstrues the court of criminal appeals' discussion of Rule 403 balancing in Montgomery. While the court of criminal appeals noted that appellate review of the trial court's balancing under Rule 403 would be facilitated by an "on the record articulation of the considerations that governed the trial court's decision," it does not hold that a trial court's failure to do so constitutes error. Montgomery, 810 S.W.2d at 393 n.4. 4. 4  The trial court's charge to the jury, in fact, exacerbated the prejudicial effect of the extraneous offense evidence. The charge instructed the jury to use the evidence in assessing appellant's credibility and the weight to be given to his testimony. No instruction was given limiting the jury's consideration of the enhancement paragraphs to its assessment of appellant's motive and intent, the elements for which the evidence was initially introduced.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: __________ 3 Filing Date: February 6, 2017 4 NO. 34,385 5 STATE OF NEW MEXICO, 6 Plaintiff-Appellee, 7 v. 8 RAQUEL PERCIVAL, 9 Defendant-Appellant. 10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 11 Benjamin Chavez, District Judge 12 Hector H. Balderas, Attorney General 13 Santa Fe, NM 14 John J. Woykovsky, Assistant Attorney General 15 Albuquerque, NM 16 for Appellee 17 Bennett J. Baur, Chief Public Defender 18 Santa Fe, NM 19 Josephine H. Ford, Assistant Public Defender 20 Albuquerque, NM 21 for Appellant  1 OPINION 2 WECHSLER, Judge. 3 {1} Defendant Raquel Percival was convicted in metropolitan court for aggravated 4 driving while under the influence of intoxicating liquor or drugs (aggravated DWI), 5 contrary to NMSA 1978, Section 66-8-102 (2010, amended 2016), and careless 6 driving, contrary to NMSA 1978, Section 66-8-114 (1978). She appealed to the 7 district court and that court affirmed her convictions. As a basis for her appeal to this 8 Court, Defendant argues, as she did in the district court, that the metropolitan court 9 incompletely instructed the jury with respect to her duress defense. Defendant also 10 argues that the metropolitan court’s misreading of an instruction during its oral 11 charge to the jury constituted fundamental error. We conclude that the jury 12 instructions as given did not constitute either reversible or fundamental error. We 13 therefore affirm Defendant’s convictions. 14 BACKGROUND 15 {2} On February 16, 2012, at approximately 2:45 a.m., Albuquerque Police 16 Department (APD) Officer Nicholas Sheill observed Defendant driving erratically on 17 Eubank Boulevard in Albuquerque, New Mexico. He also observed that Defendant’s 18 license plate lamp was not functioning. He followed Defendant’s vehicle for a short 19 time and then conducted a traffic stop.  1 {3} After approaching Defendant’s vehicle, Officer Sheill noted an odor of alcohol 2 emanating from her person. He also observed that Defendant had bloodshot eyes and 3 mildly slurred speech. Officer Sheill called for assistance, and APD Officer Charles 4 Miller arrived to conduct a DWI investigation. As a result of this investigation, 5 Officer Miller placed Defendant under arrest for aggravated DWI. She was also 6 charged with careless driving and an equipment violation. 7 {4} At trial, Defendant did not deny that she was guilty of the charged offenses but 8 instead claimed that certain circumstances required her to drive in violation of the 9 law. Specifically, Defendant testified that: (1) she was visiting a male friend and that 10 she planned to spend the night at his apartment; (2) she consumed alcohol at the 11 apartment; (3) after she consumed alcohol, her friend invited another man to the 12 apartment; (4) this person’s behavior and comments made her feel uncomfortable and 13 unsafe; and (5) fearing for her safety, she left the house while the two men were in 14 the backyard. Officer Sheill stopped Defendant shortly after she left her friend’s 15 apartment. 16 {5} Defendant tendered jury instructions that imbedded the absence of duress as 17 an essential element of aggravated DWI and careless driving. The metropolitan court 18 refused Defendant’s tendered instructions and instead gave, among others, UJI 14- 19 4506 NMRA, UJI 14-4505 NMRA, and UJI 14-5130 NMRA. 2  1 {6} During its oral charge to the jury, the metropolitan court read each jury 2 instruction. While reading UJI 14-5130, the metropolitan court misspoke; the result 3 was an incorrect articulation of the State’s burden of proof. Defendant did not object 4 to this incorrect recitation of the instruction. 5 {7} Defendant was convicted on all charges. After the district court affirmed the 6 convictions, Defendant filed this appeal. 7 STANDARD OF REVIEW AND PRESERVATION 8 {8} Appellate courts review a trial court’s rejection of proposed jury instructions 9 de novo, “because [the rejection] is closer to a determination of law than a 10 determination of fact.” State v. Ellis, 2008-NMSC-032, ¶ 14, 144 N.M. 253, 186 P.3d 11 245 (internal quotation marks and citation omitted). If the alleged error has been 12 preserved, we review for reversible error. State v. Benally, 2001-NMSC-033, ¶ 12, 13 131 N.M. 258, 34 P.3d 1134. If the alleged error has not been preserved, we review 14 for fundamental error. Id. An allegation of error is generally preserved by “[t]he 15 tender but refusal of an instruction[.]” Apodaca v. AAA Gas Co., 2003-NMCA-085, 16 ¶ 40, 134 N.M. 77, 73 P.3d 215. “A jury instruction which does not instruct the jury 17 upon all questions of law essential for a conviction of any crime submitted to the jury 18 is reversible error.” Ellis, 2008-NMSC-032, ¶ 14 (internal quotation marks and 19 citation omitted). Reversible error also occurs “if the jury is given two contradictory 3  1 instructions, each of which is complete and unambiguous, . . . because it is impossible 2 to tell if the error is cured by the correct instruction[.]” State v. Parish, 1994-NMSC- 3 073, ¶ 4, 118 N.M. 39, 878 P.2d 988. 4 {9} Defendant tendered alternate jury instructions that the metropolitan court 5 rejected. Defendant additionally argued that the uniform jury instructions, without 6 modification, could result in juror confusion. Because Defendant sufficiently 7 preserved this issue, we review for reversible error. With respect to the remaining and 8 unpreserved issue raised by Defendant on appeal, we review for fundamental error. 9 See Benally, 2001-NMSC-033, ¶ 16 (“[U]npreserved error in jury instructions is 10 ‘fundamental’ when it remains uncorrected, thereby allowing juror confusion to 11 persist.”). 12 UNIFORM JURY INSTRUCTION 14-5130 13 {10} UJI 14-5130 instructs on the issue of duress, stating, 14 Evidence has been presented that the defendant was forced to 15 ______________ under threats. If the defendant feared immediate great 16 bodily harm to himself or another person if he did not commit the crime 17 and if a reasonable person would have acted in the same way under the 18 circumstances, you must find the defendant not guilty. 19 The burden is on the state to prove beyond a reasonable doubt that 20 the defendant did not act under such reasonable fear. 21 (Footnote omitted.) In 1996, our Supreme Court amended the use notes 22 accompanying various justification-related uniform jury instructions to require that 4  1 the absence of the relevant consideration be added as an essential element. See 2 Supreme Court Order No. 96-8300 (Oct. 30, 1996) (amending the use notes to UJI 3 14-5101 to -5103 NMRA, UJI 14-5106 NMRA, UJI 14-5110 to -5111 NMRA, UJI 4 14-5120 NMRA, UJI 14-5132 NMRA, UJI 14-5170 to -5174 NMRA, UJI 14-5180 5 to -5184 NMRA). However, the use note accompanying UJI 14-5130 was not 6 amended at that time and does not require that the metropolitan court add the absence 7 of duress as an essential element of the charged offense. Contra, e.g., UJI 14-5181 8 Use Note 1 (“If this instruction is given, add to the essential elements instruction for 9 the offense charged, ‘The defendant did not act in self defense.’ ”). 10 {11} An analytical distinction exists between duress and other justification-based 11 defenses. Compare State v. Rios, 1999-NMCA-069, ¶ 12, 127 N.M. 334, 980 P.2d 12 1068 (“A defendant pleading duress is not attempting to disprove a requisite mental 13 state. Defendants in that context are instead attempting to show that they ought to be 14 excused from criminal liability because of the circumstances surrounding their 15 intentional act.” (citation omitted)), with State v. Armijo, 1999-NMCA-087, ¶ 14, 127 16 N.M. 594, 985 P.2d 764 (“[A] claim of self defense negates the element of 17 unlawfulness[.]”), and State v. Contreras, 2007-NMCA-119, ¶ 15, 142 N.M. 518, 167 18 P.3d 966 (“Mistake of fact is a defense when it negates the existence of the mental 19 state essential to the crime charged.” (internal quotation marks and citation omitted)), 5  1 and State v. Brown, 1996-NMSC-073, ¶ 21, 122 N.M. 724, 931 P.2d 69 (“Like 2 mistake and mental illness, a state of intoxication may also negate a required offense 3 element[.]”). This distinction—that duress excuses intentional conduct while the other 4 justification-based defenses negate an essential element of the charged 5 offense—supports the omission of UJI 14-5130 from Order No. 96-8300.1 As a result, 6 the metropolitan court did not err in refusing Defendant’s tendered instructions unless 7 the instructions given by the metropolitan court failed to “instruct the jury upon all 8 questions of law essential for a conviction[,]” Ellis, 2008-NMSC-032, ¶ 14, or were 9 facially erroneous, vague, or contradictory. Parish, 1994-NMSC-073, ¶ 4. 10 INTERPLAY BETWEEN THE CHARGED OFFENSES AND DURESS 11 Essential Elements 12 {12} To secure a conviction, the state must prove each of the essential elements of 13 the charged offense. State v. Osborne, 1991-NMSC-032, ¶ 40, 111 N.M. 654, 808 14 P.2d 624. “When the jury is not instructed on the essential elements of the crime, it 15 has not been instructed on the law applicable to the crime charged.” State v. Kendall, 16 1977-NMCA-002, ¶ 24, 90 N.M. 236, 561 P.2d 935, judgment reversed in part by 1 17 We are uncertain as to the rationale underlying the decision to include UJI 14- 18 5132, which addresses a defendant’s claim that the defendant escaped from prison as 19 a result of duress, in Order No. 96-8300. We leave this question to our Supreme 20 Court. 6  1 Kendall v. State, 1977-NMSC-015, 90 N.M. 191, 561 P.2d 464. The failure to instruct 2 on all questions of law is reversible error. Ellis, 2008-NMSC-032, ¶ 14. 3 {13} Defendant argues that the metropolitan court’s refusal to add the absence of 4 duress as an essential element to the charged offenses amounts to a failure to instruct 5 on all essential elements. The charges against Defendant included aggravated DWI 6 and careless driving. In support of her argument, Defendant cites Parish for the 7 proposition that “her duress claim put the element of unlawfulness factually at 8 issue[.]” 9 {14} In Parish, the defendant was attacked by several people while walking in Taos, 10 New Mexico. 1994-NMSC-073, ¶ 2. In response to this attack, the defendant shot and 11 killed one of his attackers. Id. The defendant claimed that his actions were in 12 self-defense, but the jury convicted him of voluntary manslaughter. Id. ¶ 3. 13 {15} The relevant statute defined “voluntary manslaughter” as “the unlawful killing 14 of a human being without malice . . . upon a sudden quarrel or in the heat of passion.” 15 Id. ¶ 5 (omission in original); NMSA 1978, § 30-2-3 (1994). However, the jury 16 instructions given by the district court did not instruct on the question of 17 unlawfulness, which is “the element of [the charged offense] that is negated by self- 18 defense.” Parish, 1994-NMSC-073, ¶ 8. Because the instructions did not instruct the 19 jury on an essential element of the charged offense, they were erroneous. Id. ¶ 13. 7  1 Parish, however, does not analyze a duress defense and is therefore distinguishable 2 from the present case. 3 {16} Our Supreme Court has adopted uniform jury instructions for both aggravated 4 DWI and careless driving. UJI 14-4506; UJI 14-4505. These jury instructions outline 5 the essential elements of each charge. 6 1. The defendant operated a motor vehicle; 7 2. Within three hours of driving, the defendant had an alcohol 8 concentration of sixteen one-hundredths (.16) grams or more in [one 9 hundred milliliters of blood;] [or] [two hundred ten liters of breath;] and 10 the alcohol concentration resulted from alcohol consumed before or 11 while driving the vehicle. 12 3. This happened in New Mexico, on or about the ___ day of 13 __________, ___. 14 UJI 14-4506 (footnotes omitted). 15 1. The defendant operated a motor vehicle on a highway; 16 2. The defendant operated the motor vehicle in a careless, inattentive 17 or imprudent manner without due regard for the width, grade, curves, 18 corners, traffic, weather, road conditions and all other attendant 19 circumstances; 20 3. This happened in New Mexico, on or about the ____ day of 21 __________, ____. 22 UJI 14-4505 (footnotes omitted). The metropolitan court gave UJI 14-4506 and UJI 23 14-4505 in this case. A conviction for careless driving requires a finding of intent. 24 See UJI 14-141 Use Note 1 (“This instruction must be used with every crime except 8  1 for the relatively few crimes not requiring criminal intent or those crimes in which the 2 intent is specified in the statute or instruction.”). Therefore, UJI 14-4505 must be 3 accompanied by UJI 14-141, which defines “general criminal intent.” It is this general 4 criminal intent that is negated by certain justification-based defenses. See, e.g, State 5 v. Gonzales, 1971-NMCA-007, ¶ 25, 82 N.M. 388, 482 P.2d 252 (“Intoxication may 6 be shown to negative the existence of the required intent.”). As a strict liability crime, 7 aggravated DWI does not require criminal intent. State v. Gurule, 2011-NMCA-042, 8 ¶ 18, 149 N.M. 599, 252 P.3d 823. 9 {17} As discussed above, duress and the other justification-based defenses are not 10 functionally equivalent.2 Duress does not negate an element of the charged offense 11 but instead excuses intentional conduct. Rios, 1999-NMCA-069, ¶ 12. For this 12 reason, including additional language addressing the absence of duress within UJI 14- 13 4506 or UJI 14-4505 would not negate any of the essential elements required for a 14 conviction of either offense, or the general criminal intent required for a conviction 15 of careless driving. This rationale encompasses the element of unlawfulness raised 16 by Defendant on appeal. Therefore, UJI 14-4506 and UJI 14-4505 as given 17 sufficiently “instruct[ed] the jury upon all questions of law essential for a 2 18 Defendant’s brief in chief and reply brief liken self-defense and duress by 19 misquoting Rios, 1999-NMCA-069, ¶ 12. Rios does not equate self-defense and 20 duress as implied by Defendant. 9  1 conviction[,]” when given in conjunction with UJI 14-5130. Ellis, 2008-NMSC-032, 2 ¶ 14. 3 Facially Erroneous, Vague, or Contradictory Jury Instructions 4 {18} Because the instructions given instructed on all questions of law, they 5 constitute reversible error only if they are facially erroneous, vague, or contradictory. 6 Parish, 1994-NMSC-073, ¶ 4. A jury instruction is facially erroneous if it presents 7 an incurable problem. State v. Cabezuela, 2011-NMSC-041, ¶ 21, 150 N.M. 654, 265 8 P.3d 705; Parish, 1994-NMSC-073, ¶ 4. A jury instruction is vague, or ambiguous, 9 if it is subject to more than one interpretation. Parish, 1994-NMSC-073, ¶ 4. None 10 of these conditions applies to the uniform jury instructions given in this case. 11 Contradictory jury instructions constitute reversible error if each instruction “is 12 complete and unambiguous . . . because it is impossible to tell if the error is cured by 13 the correct instruction[,]” or if “a reasonable juror would have been confused or 14 misdirected.” Id. However, in determining whether jury instructions are contradictory, 15 the “instructions must be considered as a whole[.]” Id. (internal quotation marks and 16 citation omitted). 17 {19} UJI 14-4506 and UJI 14-4505 as given outline the essential elements required 18 to convict Defendant of aggravated DWI and careless driving respectively. UJI 14- 19 5130 as given outlines conditions under which Defendant’s duress defense would (1) 10  1 excuse her conduct and (2) require a finding of not guilty. See UJI 14-5130 (“If the 2 defendant feared immediate great bodily harm to himself or another person if he did 3 not commit the crime and if a reasonable person would have acted in the same way 4 under the circumstances, you must find the defendant not guilty.”). Intuitively, jurors 5 need not consider a duress defense if they find that the state did not prove all of the 6 elements of the underlying offenses beyond a reasonable doubt. Cf. State v. James, 7 1971-NMCA-156, ¶ 18, 83 N.M. 263, 490 P.2d 1236 (noting that an outright finding 8 of not guilty by a jury negates the jury’s need to analyze the defendant’s insanity 9 defense), overruled in part by State v. Victorian, 1973-NMSC-008, ¶ 12, 84 N.M. 10 491, 505 P.2d 436. 11 {20} For this reason, UJI 14-5130 does not contradict either UJI 14-4506 or UJI 14- 12 4505. Instead, UJI 14-5130 is a necessary and complementary second step if a jury 13 concludes that a defendant is guilty beyond a reasonable doubt of each essential 14 element outlined in UJI 14-4506 or UJI 14-4505. This two-step process would not 15 confuse a reasonable juror. 16 {21} In both her brief in chief and reply brief, Defendant makes reference to our 17 Supreme Court’s holding in Parish, which provides that “an erroneous instruction 18 cannot be cured by a subsequent correct one[.]” 1994-NMSC-073, ¶ 4 (internal 19 quotation marks and citation omitted). This rule requires, of course, that the 11  1 instruction at issue actually be erroneous as a matter of law. Because the instructions 2 given in this case are not facially erroneous, vague, or contradictory, they do not 3 constitute reversible error. 4 ORAL CHARGE TO JURY 5 {22} Defendant additionally argues that the metropolitan court’s misreading of UJI 6 14-5130 in its oral charge to the jury constitutes fundamental error. “[U]npreserved 7 error in jury instructions is ‘fundamental’ [only] when it remains uncorrected[.]” 8 Benally, 2001-NMSC-033, ¶ 16. 9 {23} The metropolitan court read each instruction aloud to the jury. While doing so, 10 it misspoke, stating “[t]he burden is on the state to prove beyond a reasonable doubt 11 that the defendant acted under such reasonable fear” instead of “[t]he burden is on the 12 state to prove beyond a reasonable doubt that the defendant did not act under such 13 reasonable fear.” UJI 14-5130 (emphasis added). This misstatement could result in 14 juror confusion as to the State’s burden of proof. 15 {24} However, our review of the record leads us to believe that this error was 16 corrected by the correct articulation of the State’s burden in the written jury 17 instructions. As noted by the metropolitan court prior to its oral recitation of the 18 instructions to the jury, “You do not have to take notes on this, because this packet 12  1 that I’m going to read from will actually be given to you to take back to the jury 2 room.” 3 {25} In State v. Armendarez, 1992-NMSC-012, ¶ 11, 113 N.M. 335, 825 P.2d 1245, 4 the prosecutor erroneously recited the mens rea requirement in a first degree murder 5 case. The defendant did not object at trial but argued fundamental error on appeal. Id. 6 Our Supreme Court held that the written copies of jury instructions were sufficient 7 to overcome any potential prejudice caused by the prosecutor’s misstatement and 8 noted that jurors are presumed to follow the written instructions. Id. ¶ 13; see State 9 v. Smith, 2001-NMSC-004, ¶ 40, 130 N.M. 117, 19 P.3d 254 (“Juries are presumed 10 to have followed the written instructions.”). 11 {26} In a different context, this Court recently held that “the purpose of written jury 12 instructions relates directly to the [limited] ability of jurors to remember oral 13 instructions once they have retired to the jury room.” State v. Ortiz-Castillo, 2016- 14 NMCA-045, ¶ 12, 370 P.3d 797. This purpose is consistent with other New Mexico 15 cases requiring that written jury instructions be provided in order to “properly 16 enunciate the law on the subject.” Territory v. Lopez, 1884-NMSC-012, ¶ 10, 3 N.M. 17 156, 2 P. 364; see State v. Greenlee, 1928-NMSC-020, ¶ 27, 33 N.M. 449, 269 P. 331 18 (“Since 1880 it has evidently been the legislative policy that there should be an 13  1 authoritative record to which the jurors might refer to avoid misapprehension or 2 differences of opinion[.]”). 3 {27} The metropolitan court’s written instruction on duress, which was available 4 during the jury’s deliberations, correctly articulated the State’s burden with respect 5 to Defendant’s claim of duress. We thus conclude that the metropolitan court’s 6 misstatement did not go “uncorrected” such that fundamental error occurred. Benally, 7 2001-NMSC-033, ¶ 16; see, e.g., People v. Prieto, 66 P.3d 1123, 1142 (Cal. 2003) 8 (“[T]he misreading of a jury instruction does not warrant reversal if the jury received 9 the correct written instructions.”). 10 CONCLUSION 11 {28} For the foregoing reasons, we affirm. 12 {29} IT IS SO ORDERED. 13 ________________________________ 14 JAMES J. WECHSLER, Judge 15 WE CONCUR: 16 ________________________________ 17 JONATHAN B. SUTIN, Judge 18 ________________________________ 19 M. MONICA ZAMORA, Judge 14 

510 U.S. 1065 Trustees of the Welfare Trust Fund, Local Union No. 475, et al.v.Dunston, New Jersey Commissioner of Health, et al., ante, p. 944. No. 93-210. Supreme Court of United States. January 10, 1994. 1 Petition for rehearing denied.

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED April 23, 2008 No. 07-10920 Summary Calendar Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. DANIEL HALL Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 4:07-CR-3-9 Before JOLLY, DENNIS, and PRADO, Circuit Judges. PER CURIAM:* Daniel Hall appeals the sentence imposed following his guilty plea conviction for possession with the intent to distribute more than 50 grams of methamphetamine. Hall argues that the district court increased his offense level under U.S.S.G. § 3C1.1 and denied him a reduction for acceptance of responsibility based on an erroneous finding that he obstructed justice by committing perjury at the sentencing hearing. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  No. 07-10920 Because the recent Supreme Court decisions of Gall v. United States, 128 S. Ct. 586 (2007), Rita v. United States, 127 S. Ct. 2456 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007), did not alter this court’s review of the district court’s construction of the Guidelines or findings of fact, see United States v. Cisneros-Guiterrez, ___ F.3d ___, 2008 WL 383024 at *8 (5th Cir. Feb. 13, 2008), the district court’s interpretation and application of the sentencing guidelines are reviewed de novo, and its factual findings are reviewed for clear error. United States v. Juarez Duarte, 513 F.3d 204, 208 (5th Cir. 2008) (per curiam) (post-Gall and Kimbrough). The district court did not clearly err in finding that Hall committed perjury regarding the amount of methamphetamine attributable to him because the finding is supported by the testimony of Danny Paine and the information contained in the PSR. Moreover, the district court’s finding that Hall intentionally provided false testimony on a material issue with the intent to persuade the court to lower his sentence provided the requisite elements of a perjury determination and warranted application of the enhancement under § 3C1.1 and a denial of acceptance of responsibility. See United States v. Dunnigan, 507 U.S. 87, 94-95 (1993). AFFIRMED. 2 

767 N.E.2d 961 (2002) 329 Ill. App.3d 286 263 Ill.Dec. 235 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles E. BRAMLETT, Defendant-Appellant. No. 4-00-0991. Appellate Court of Illinois, Fourth District. April 16, 2002. *963 Jeff Page, of Noll Law Office, of Springfield, for appellant. John P. Schmidt, State's Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and Thomas R. Dodegge, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People. Justice TURNER delivered the opinion of the court: In October 1999, the State charged defendant, Charles E. Bramlett, with the offense of aggravated criminal sexual abuse, a Class 2 felony, in violation of section 12-16(c)(l)(i) of the Criminal Code of 1961 (Code) (720 ILCS 5/12-16(c)(l)(i) (West 1998)). In July 2000, the State filed an amended petition to proceed under the Sexually Dangerous Persons Act (Act) (725 ILCS 205/0.01 through 12 (West 1998)). In August 2000, defendant stipulated to two psychiatric evaluation reports and admitted the State had sufficient evidence to prove he was a sexually dangerous person. The trial court found defendant to be sexually dangerous and ordered him committed to the Illinois Department of Corrections for care and treatment. On appeal, defendant argues the trial court erred in allowing him to stipulate to evidence establishing him as a sexually dangerous person without first admonishing him pursuant to Supreme Court Rule 402 (177 Ill.2d R. 402) to determine the voluntariness of his stipulation. We affirm. I. BACKGROUND In October 1999, the State charged defendant with one count of aggravated criminal sexual abuse in violation of section 12-16(c)(l)(i) of the Code, alleging defendant, 17 years of age or older, committed an act of sexual conduct with A.T.A., under the age of 13 when the act was committed, in that he knowingly fondled the genitals of A.T.A. for the purpose of the sexual arousal or gratification of defendant. In January 2000, the State filed a petition to proceed under the Act (725 ILCS 205/0.01 through 12 (West 1998)). At a hearing on defendant's motion to dismiss the petition, the trial court granted the State leave to file the petition. The court also ordered defendant to be examined by two psychiatrists, Dr. Bohlen and Dr. Killian. In June 2000, the State indicated to the trial court the two psychiatrists had found defendant not to be a sexually dangerous person. The State also indicated defendant was arrested on new matters, and the State sought a court-ordered re-examination of defendant by the two psychiatrists. The trial court granted the State's motion for reexamination, noting the new charges against defendant were similar to his pending criminal case. In July 2000, the State filed an amended petition to proceed under the Act. The State alleged defendant was charged with one count of aggravated criminal sexual abuse based on an April 1999 incident. The petition alleged defendant resigned his position as custodian at an elementary school after being accused of lifting the dress and touching the legs of a 10-yearold girl in 1989. Further, in May 2000, defendant allegedly had incidents of sexual contact with a seven-year-old girl even after he was ordered by the court to have no contact with minor children. The State also alleged defendant was suffering from a mental disorder which had existed for more than one year prior to the filing of this petition, coupled with criminal propensities to the commission of sexual offenses, and has demonstrated propensities to acts of sexual assault or sexual molestation of children, making him a sexually dangerous person. In August 2000, the trial court conducted a hearing on the State's petition to proceed under the Act, which included the following exchange: *964 "THE COURT: It's my understanding, Miss Essenburg, the State at this time is willing to stipulate to the findings of Doctors Killian and Bohlen, who are qualified psychiatrists under the Sexually Dangerous Persons Act, and stipulate to the findings that at this time Mr. Bramlett is a sexually dangerous person as defined by Illinois law; is that correct? MS. ESSENBURG: The State is prepared to stipulate to that, Your Honor, yes. THE COURT: Miss Behnke, it's my understanding that Mr. Bramlett will * * * stipulate to the reports and the findings of the two doctors; is that correct? MS. BEHNKE: That is correct, Your Honor. THE COURT: And, Mr. Bramlett, is that your understanding; is that correct? DEFENDANT: Yes, sir. THE COURT: All right, we'll show then by stipulation of the parties then that the [c]ourt makes a finding that based upon the testimony of Doctors Bohlen and Killian, through their reports, that Mr. Bramlett suffers from a mental disorder which has existed for more than a year prior to the filing of the [p]etition, which is coupled with criminal propensities for the commission of sex offenses and that he has demonstrated propensities toward acts of sexual assault or sexual molestation of children. It is therefore my finding by this [c]ourt that he is therefore a sexually dangerous person." Thereafter, the trial court entered an order finding defendant had stipulated to the psychiatric reports and admitted the State had sufficient evidence to prove he was a sexually dangerous person. The court dismissed without prejudice defendant's charge of aggravated criminal sexual abuse. The court also ordered defendant committed to the custody of the Illinois Department of Corrections for care and treatment. This appeal followed. II. ANALYSIS Defendant first argues the trial court erred in allowing defendant to stipulate to evidence establishing him as a sexually dangerous person without first admonishing him pursuant to Supreme Court Rule 402 to determine the voluntariness of his stipulation. We disagree. The question presented in this case, whether the trial court was required to ascertain the voluntariness of defendant's stipulation establishing him as a sexually dangerous person, is a question of law, and such questions are reviewed de novo (Woods v. Cole, 181 Ill.2d 512, 516, 230 Ill.Dec. 204, 693 N.E.2d 333, 335 (1998)). The Illinois legislature has defined a sexually dangerous person under the Act as one who suffers from a mental disorder coupled with criminal propensities to the commission of sex offenses and has demonstrated propensities toward acts of sexual assault or sexual molestation of children. 725 ILCS 205/1.01 (West 1998). The Act serves the purpose of (1) protecting the public by sequestering sexually dangerous persons until such persons have recovered and are released and (2) subjecting sexually dangerous persons to treatment such that they may recover from the propensity to commit sexual offenses and be rehabilitated. People v. Trainor, 196 Ill.2d 318, 323-24, 256 Ill.Dec. 813, 752 N.E.2d 1055, 1058-59 (2001). The General Assembly, in passing the Act, sought the commitment of sexually dangerous persons for treatment instead of criminally punishing them for their *965 criminal sexual offenses. People v. Cooper, 132 Ill.2d 347, 355, 138 Ill.Dec. 282, 547 N.E.2d 449, 454 (1989). Our supreme court has stated "the Act does not promote traditional aims of punishment, such as retribution or deterrence. Rather, under the Act, the State has a statutory obligation to provide care and treatment for persons adjudged sexually dangerous." Trainor, 196 Ill.2d at 325, 256 Ill.Dec. 813, 752 N.E.2d at 1059. A proceeding under the Act is civil in nature. 725 ILCS 205/3.01 (West 1998). However, because of the loss of liberty a commitment can cause, the Act provides certain protections afforded to criminal defendants. People v. Eastman, 309 Ill.App.3d 516, 518, 243 Ill.Dec. 133, 722 N.E.2d 1202, 1205 (2000). For example, the State must prove the defendant is subject to confinement as a sexually dangerous person beyond a reasonable doubt. 725 ILCS 205/3.01 (West 1998); People v. Akers, 301 Ill.App.3d 745, 749, 235 Ill.Dec. 103, 704 N.E.2d 452, 454 (1998). Further, respondents have the right to demand a jury trial and to be represented by counsel in the proceedings. 725 ILCS 205/5 (West 1998). Likewise, a respondent under the Act is entitled to the effective assistance of counsel under the standard used in criminal cases. People v. Dinwiddie, 306 Ill. App.3d 294, 300, 239 Ill.Dec. 893, 715 N.E.2d 647, 652 (1999). In the case sub judice, defendant argues Rule 402 admonishments should have been given here because the proceedings were the equivalent of a guilty plea in a criminal case. We disagree. Rule 402 requires admonishments by the court in "hearings on pleas of guilty, or in any case in which the defense offers to stipulate that the evidence is sufficient to convict." 177 Ill.2d R. 402. The Supreme Court of Illinois has stated proceedings under the Act are not criminal proceedings. People v. Allen, 107 Ill.2d 91, 103, 89 Ill.Dec. 847, 481 N.E.2d 690, 696 (1985), affd, 478 U.S. 364, 106 S.Ct. 2988, 92 L.Ed.2d 296 (1986). The United States Supreme Court, in reviewing Allen, noted the Act "does not appear to promote either of `the traditional aims of punishment-retribution and deterrence.' " Allen v. Illinois, 478 U.S. at 370, 106 S.Ct. at 2992, 92 L.Ed.2d at 305, quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168, 83 S.Ct. 554, 567, 9 L.Ed.2d 644, 661 (1963). As the Act itself describes the proceedings as civil in nature, and as commitment under the Act does not constitute a criminal conviction, Rule 402 does not apply. Defendant also argues due process and fundamental fairness require the trial court to give admonishments before accepting defendant's stipulation. We disagree. This court has acknowledged "the importance of scrupulously ensuring the fairness of judicial proceedings that may result in indefinite commitment of a person determined to be sexually dangerous." People v. Antoine, 286 Ill.App.3d 920, 923, 222 Ill.Dec. 170, 676 N.E.2d 1374, 1376 (1997). In People v. Pembrock, 23 Ill. App.3d 991, 995, 320 N.E.2d 470, 473 (1974), affd, 62 Ill.2d 317, 342 N.E.2d 28 (1976), the First District, in deciding the reasonable doubt standard applied to proceedings under the Act, also addressed the Act as to the requirements of Rule 402 and due process. The court stated, in part: "Although we have held that a standard of proof of beyond a reasonable doubt must be used in sexually dangerous persons proceedings, we do not believe that other elements of the criminal process, such as admonitions regarding a right to a jury trial, a right to appeal and the consequences of a guilty plea, are also constitutionally required as has *966 been contended by defendant. We have noted above that the requirements of due process are not static but may vary depending upon the nature of the interests involved. While both the civil proceedings in question and criminal prosecutions may result in a loss of liberty, substantial differences exist between them. Foremost among these are that in a commitment under the Act there is no inference of moral blameworthiness since a finding of sexual dangerousness indicates that a defendant's inability to conform to the dictates of the law is the product of a mental illness and, secondly, commitment under the Act, unlike criminal incarceration, is not intended as punishment. Thus our supreme court has specifically rejected defendant's arguments regarding jury trial admonitions [citation] and right to appeal [citation]. Moreover, since commitment under the Act does not constitute a criminal conviction, Supreme Court Rule 402 [citation] does not apply." Pembrock, 23 Ill.App.3d at 995, 320 N.E.2d at 473-74. As we find the court's elaboration on the Act persuasive, we adopt its reasoning and find the requirements of due process do not require admonishments here as they are required in a plea of guilty in a criminal case. Our holding is also supported by our supreme court's conclusion that "due process of law does not require that the safeguards and procedural requirements surrounding the waiver of a defendant's right to jury trial in a criminal case be followed in a proceeding under the Sexually Dangerous Persons Act." People v. Studdard, 51 Ill.2d 190, 197, 281 N.E.2d 678, 681 (1972). We also note the Act provides an additional safeguard to guarantee the fairness and reliability of the proceedings. Section 4 requires the court to appoint two qualified psychiatrists to personally examine the defendant to determine if that person is sexually dangerous. 725 ILCS 205/4 (West 1998). The examining psychiatrists must then file a report with the court containing the results of their examination. 725 ILCS 205/4 (West 1998). Thus, the Act provides a defendant with adequate and necessary protections before he may be committed to the Department of Corrections. Defendant argues admonitions must still be given to determine the voluntariness of his stipulation. However, this court, has held there is no constitutional requirement that a defendant in a proceeding under the Act must be fit to stand trial. Akers, 301 Ill.App.3d at 751, 235 Ill.Dec. 103, 704 N.E.2d at 455. Similarly, there is no constitutional requirement that the trial court give admonishments to defendant to determine the voluntariness of a stipulation. In this case, defendant was represented by counsel who agreed, along with defendant, to stipulate to the findings of the two psychiatrists that defendant was a sexually dangerous person. The trial court received the stipulation and was privy to the reports and opinions from the two examining psychiatrists. No court has held due process also required the trial court to give the admonishments required for defendants in a criminal case, and we decline to hold the admonishments were constitutionally necessary. III. CONCLUSION For the reasons stated, we affirm the trial court's judgment. Affirmed. McCULLOUGH, P.J., and STEIGMANN, J., concur.

68 Md. App. 20 (1986) 509 A.2d 1217 WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY v. JACKSON BULLOCK, ET AL. No. 1281, September Term, 1985. Court of Special Appeals of Maryland. June 6, 1986. Kevin J. McCarthy (Charles E. Gallagher, Jr. and O'Malley, Miles, McCarthy & Harrell, on brief), Upper Marlboro, for appellant. Barry J. Dalnekoff (Joel L. Katz, Mark E. Mason and Katz & Dalnekoff, P.A. on brief), Annapolis, for appellee, Bullock. Frank Collins (Oren D. Saltzman and Jay S. Engerman, on brief), Baltimore, for appellees, Queen and Dunscomb. Argued before MOYLAN, WILNER and BISHOP, JJ. WILNER, Judge. Jackson Bullock was a claims adjustor employed by the Washington Metropolitan Area Transit Authority (WMATA). On the evening of September 10, 1982, while driving a car owned by WMATA on a purely personal errand, Mr. Bullock struck and injured two pedestrians, Regina Queen and Quantonia Discomb. Ms. Queen and Ms. Discomb filed claims against Bullock and WMATA. WMATA, which self-insures its vehicles, acknowledged the claims[1] and assigned them to one of its in-house adjustors, Robert Seabald, to handle. Mr. Seabald proceeded, for about 18 months, to receive information from the claimants' counsel and to discuss various aspects of the case with him. At no time during that period did Mr. Seabald suggest to counsel that there was a problem as to underlying coverage. In March, 1984, upon review of the claims by WMATA's acting claims manager, by an "outside" consultant, and by counsel, WMATA concluded that, because Bullock had been instructed not to use the car for personal errands, his use of it at the time of the accident was non-permissive and, as a result, there was no insurance coverage. WMATA then filed this declaratory judgment action in the Circuit Court for Anne Arundel County, seeking a declaration that Bullock was not acting as its agent or employee, that his use of the car was non-permissive, and that WMATA was not responsible for his conduct. Bullock, Queen, and Discomb denied that Bullock's use was non-permissive and asserted further that, by reason of laches, estoppel, and waiver, WMATA was precluded from denying that Bullock's use of the vehicle was permissive. Bullock, indeed, filed a counterclaim in which he asked the court to declare affirmatively that WMATA was obligated to defend the Queen/Discomb claims. After a non-jury trial, the court ruled against WMATA on a number of bases, each of which is challenged in this appeal. (1) Status of the Parties — Underlying Facts WMATA is a regional, quasi-governmental entity created by interstate compact to develop and operate a mass transit system in the District of Columbia and its Maryland and Virginia suburbs. See Md. Code Ann.Transp. art., § 10-204; also 1985-86 Md.Manual, p. 418. The compact provides, in ¶ 80, that WMATA is liable "for its torts and those of its directors, officers, employees and agents committed in the conduct of any proprietary function" and that "[t]he exclusive remedy for such ... torts for which the Authority shall be liable ... shall be by suit against the Authority." Paragraph 72 of the compact authorizes WMATA to self-insure "against liability for injury to persons or property" and provides that "[s]uch insurance coverage shall be in such form and amount as the board may determine...."[2] Pursuant to that authority, WMATA apparently elected to self-insure its vehicles in the District of Columbia.[3] WMATA concedes that it owned the vehicle driven by Bullock, that Bullock was its employee, and that he had permission to use the vehicle at work and to commute to and from work. The thrust of its argument is that Bullock was on a personal errand at the time, that he not only did not have permission to use the car for such a purpose but was expressly forbidden to do so, that that restriction is not against public policy, and that it has done nothing to preclude it from asserting the defense of non-permissive use. Bullock, for his part, concedes that he was on a personal errand and that, as a result, he was not acting within the scope of his employment at the time of the accident. His defense is based on the notion that his personal use of the vehicle was a permissive one and that WMATA is precluded from contending otherwise. It is undisputed that, when Bullock began employment with WMATA in 1972, he was given a company car that he could use for both business and personal use. The unrestricted use of the car was regarded by him, and by the other adjustors who had them, as part of their compensation. Periodically, WMATA announced policies restricting the personal use of company vehicles, but those policies were not effectively enforced against claims adjustors.[4] In February, 1982, WMATA decided to discontinue the assignment of cars on a "take-home basis" altogether, which would have precluded their use even for commuting. This new policy was announced in a memorandum of February 16, 1982, which, among other things, repeated the prohibition against using company cars "for other than official purposes." Regarding this new policy as an improper modification of their unwritten (and, from what we were told at oral argument, at-will) employment agreements, the adjustors protested. On March 10, 1982, ten of them, including Bullock, submitted a proposal "to lay to rest once and for all this demoralizing problem...." They offered two alternatives: (1) to "grandfather" the existing adjustors and permit them "the continued unrestricted and unrestrained use of a WMATA vehicle under the same conditions said employees have utilized and enjoyed since their employment with WMATA began," or (2) the adjustors would receive an immediate full grade step promotion retroactive to January 1, 1982, they would surrender their company cars on January 1, 1983, upon surrender they would receive a bonus of $3,000 plus free maintenance, fuel, insurance, and parking for the cars they bought to replace the company vehicles, and, as their replacement vehicles wore out, they would receive an additional $3,000 toward the cost of a second replacement vehicle. Management was apparently unwilling to accede to either of those proposals. William Chadwick, purportedly acting on behalf of himself and the nine other adjustors, did, however, negotiate an agreement with Delmer Ison, the acting director of the claims department, under which (1) the ten adjustors would receive a full grade step promotion effective April 16, 1982, (2) they would retain possession of the vehicles assigned to them until December 31, 1982, at which time the vehicles would be surrendered, and (3) the adjustors agreed "not to use the WMATA vehicle assigned to each of them for personal use." Although a senior official of WMATA expressed reservations about this agreement, WMATA fully lived up to its obligations under it. The adjustors, including Bullock, got their immediate raise and, with one exception, they were allowed to keep their vehicles until December 31, 1982. The exception was that, when Mr. Ison learned that Bullock was on a personal errand at the time of the accident, he took the car away from him immediately. The memorandum of this agreement was signed only by Chadwick, and Bullock never affirmatively acknowledged that he was bound by it. The evidence was uncontradicted, however, that Bullock knew of the agreement, that he accepted the benefits of it, that he never complained about it, and that he never denied being bound by it. There was also some evidence that the interim restriction on personal use was not strictly adhered to, that some of the adjustors continued to use the cars for uses that might be regarded as personal. There was no evidence that anyone in management above Mr. Chadwick, who, though part of the group of 10, was a claims supervisor, was aware of this continued use or in any way approved of it. In further defense of his position as to permissive use, Bullock presented as an expert witness Edward J. Birrane, Jr., a former Maryland Insurance Commissioner. Over objection, Mr. Birrane was allowed to testify, based on a telephone conversation with a former Motor Vehicle Administrator, that that former Administrator would "not accept a filing from a self insurer whose coverage was less broad than that required by the insurance commissioner of an insurance company" and that "for a self insured to effect an agreement such as the one that I have seen between WMATA and these particular adjusters is and ought to be contrary to the public policy of the State of Maryland, whose announced public policy is to make sure that any victim or person who suffers loss, damage, through the negligent operation of an automobile ought to be able to show that they are indemnified and this agreement seeks in specific reference as respects the countermanding of the allowance of personal use to deny indemnification which is the specific public policy of Maryland and in my opinion is an open invitation to fraud." On this evidence, the court announced findings that: (1) the April 8 change of policy was not binding on Bullock because he never "agreed" to it, (2) Bullock therefore had continued permission to use the car assigned to him for personal use, (3) he was, as a result, "operating [the car] with permission of WMATA even though he was using it for his own personal use at that time," (4) for a change in policy restricting personal use to be effective, notice of the change must be given not only to the affected employee but also to "potential claimants," (5) it would be against public policy to allow WMATA, as a self-insurer, to decline coverage "because of some alleged agreement between the employer and employee," and (6) "because of [its] long continued non-enforcement of the so-called company policy, [WMATA] would be estopped from denying coverage to Mr. Bullock for his alleged personal use at the time of this accident." These findings were translated into formal declaratory judgments. By order dated September 11, 1985, the court declared that Bullock was an employee of WMATA at the time of the accident, that Bullock was operating the vehicle "with the permission of WMATA," that WMATA "is estopped from denying that [Bullock] had permission and consent to operate the said vehicle," that Bullock's "use of the said vehicle was within the scope of that permission," that WMATA "waived" any claim that Bullock's particular use of the vehicle was non-permissive, and that WMATA is therefore obligated to defend the claims. (2) The Issues — Introduction As we observed earlier, WMATA challenges each of the court's findings and conclusions. To provide a proper context in which to consider the issues before us, we start with the fact that Bullock, though an employee of WMATA, clearly was not acting within the scope of his employment when the accident occurred. He conceded the point, both in the trial court through his answers to WMATA's request for admissions and in this Court. Compare, however, D.C. Code, § 40-408; but see Gaither v. Myers, 404 F.2d 216 (D.C. Cir.1968). Accordingly, WMATA would have no derivative liability as Bullock's employer; its liability can rest only upon its status as an insurer of the vehicle. The issue of WMATA's liability as an insurer is complicated by the fact, and the somewhat unclear nature, of its self-insurance. As noted, the compact (¶ 72) authorizes WMATA to self-insure in such form and amount as its board of directors determines, but the record is bare of any evidence as to what, if anything, the board determined. WMATA eventually obtained from the District of Columbia a Self-Insurer Certificate simply attesting that WMATA "has qualified as a Self-Insurer for the payment of benefits for personal injury protection benefits, bodily injury liability, property damage liability and uninsured motorist coverage, arising out of all of the operations now conducted by means of Motor Vehicles within the District of Columbia ...." (Emphasis added.)[5] The certificate does not set forth the nature, scope, or extent of the coverage provided within the District, and gives no indication at all of what, if any, coverage is afforded for accidents occurring outside the District. Although D.C.Code, § 40-453 requires the certificate to be "supplemented by an agreement by the self-insurer that, with respect to accidents occurring while the certificate is in force, he will pay the amounts that an insurer would have been obliged to pay under an owner's motor vehicle liability policy if it had issued such a policy to said self-insurer," no such agreement is in the record before us.[6] Nor is there any indication whether WMATA was obliged to comply with Maryland's required security laws or whether it had done anything to effect such compliance. The accident in question occurred in Maryland. We therefore have a situation in which (1) unlike most instances, there is no policy language to construe, (2) the only evidence of the nature and extent of coverage is that provided in the D.C.Code which, facially at least, appears to have no application outside the District, and (3) there is no indication at all of what coverage is afforded for vehicles such as the one operated by Bullock, registered in the District but operated in Maryland. Compare Hines v. Potomac Elec. Power Co., 305 Md. 369, 504 A.2d 632 (1986). In the end, we shall conclude that this case cannot properly be decided on this record, and we shall therefore vacate the judgments entered below and remand the case for further proceedings. We shall, however, for the guidance of the court on remand, address the findings heretofore made by the court. (3) Non-Permissive Use — Public Policy The trial court rejected WMATA's position essentially on three bases: (1) because Bullock had not "agreed" to the restriction on personal use, he was not bound by it; (2) it would be against public policy for WMATA to withdraw coverage for personal use without giving some kind of effective public notice to "potential claimants" that it was doing so; and (3) because it had not effectively enforced its ban on personal use, WMATA was estopped from asserting that ban as a defense. On the record before us, we disagree with each of those findings and conclusions. We begin with the question of public policy. To this point, it has not been regarded as against public policy in this State for an insurer to disclaim or deny coverage when an insured vehicle is being used by someone other than the "named insured" without the permission or beyond the scope of the permission of the "named insured." As the Court pointed out in National Grange Mut. Ins. v. Pinkney, 284 Md. 694, 399 A.2d 877 (1979), coverage of persons other than the named insured (or members of his household) arises only from what is generally referred to as an "omnibus clause" in an insurance policy, and "there is no provision in any Maryland statute to which we have been referred, or which we have found in our research, which requires an omnibus clause to appear in any motor vehicle liability insurance policy." Id., at 704-05, 399 A.2d 877.[7] National Grange also involved a company vehicle that an employee, Pinkney, was permitted to drive. The vehicle was insured under a policy providing coverage to the named insured and any other person while using the vehicle "with the permission of the named insured, provided his actual operation [was] within the scope of such permission...." Id., 696, 399 A.2d 877. There was a dispute of fact as to whether Pinkney had permission to use the vehicle for personal use: the company maintained that Pinkney's after-hours use was restricted to commuting directly to and from work and that he was never to carry more than one passenger; Pinkney stated that he was given unrestricted use. The accident occurred at 3:22 a.m. — long after his 5:00 p.m. quitting time — while Pinkney was carrying seven passengers. Notwithstanding the factual dispute as to the restriction on personal use, the circuit court granted summary judgment against the insurer and held it liable. The Court of Appeals noted that three alternative rules of construction had developed with respect to permissive use cases. The most expansive of these, sometimes known as the "liberal," or "initial permission," or "hell or high water" rule holds that "if the vehicle was originally entrusted by the named insured, or one having proper authority to give permission, to the person operating it at the time of the accident, then despite hell or high water, such operation is considered to be within the scope of the permission granted, regardless of how grossly the terms of the original bailment may have been violated." National Grange Mut. Ins., 284 Md. at 698, 399 A.2d 877, quoting 6C Appleman, Insurance Law and Practice § 4367 (Buckley ed. 1979). A second rule, denoted the "conversion" rule, recognizes that a particular use can so exceed the scope of initial permission as to become non-permissive but requires that the departure be such as would cause the user to be liable to the owner in an action for conversion. The third rule, considered to be "an intermediate position between the two more extreme rules," is known as the "minor deviation" rule. National Grange, 284 Md. at 699, 399 A.2d 877, quoting 12 G. Couch, Cyclopedia of Insurance Law § 45:462 (2d ed. R. Anderson 1964). It regards "minor deviations" as still being within the scope of permissive use. The National Grange Court observed that the Court had previously rejected the "liberal" rule and saw no public policy reason to change that view. In the end, it took an almost unique approach, rejecting all three rules and opting instead to construe, on a case-by-case basis, the particular wording of the omnibus clause at issue. At 706 (of 284 Md., 399 A.2d 877), it made the point: "We note specifically that all omnibus clauses do not contain the same language. Because these clauses are part of contracts, it follows that they must be interpreted pursuant to their terms on a contract by contract or case by case basis, and not by sweeping language saying that regardless of the exact provisions of the contract we shall interpret all similar, but not identical, contracts alike." Because the Court rejected the "liberal" rule, it concluded that the dispute as to whether Pinkney had permission to use the vehicle for personal errands was crucial, and that the circuit court therefore erred in deciding the case on summary judgment. Its parting message, at 707, 399 A.2d 877, was as follows: "If the trier of fact concludes after listening to all of the testimony that the actual operation of the vehicle was within the scope of the permission granted, then National Grange will be obliged to defend. Obviously, if the trier of fact believes that such actual operation was not within the scope of the permission granted, then National Grange is not obligated under the omnibus clause." National Grange, it seems to us, is flatly inconsistent with the notion that a permissive use restriction in an omnibus clause is in violation of public policy. Those courts that have decided to preclude permissive use restrictions as a matter of public policy have generally done so by adopting the "liberal" rule of construction, for indeed that rule rests clearly upon that very notion of public policy. In addition to 6C Appleman, supra, § 4367, quoted in National Grange, see Milbank Mut. Ins. Co. v. U.S. Fidelity, 332 N.W.2d 160, 166 (Minn. 1983); compare American Family Ins. Group v. Howe, 584 F. Supp. 369 (D.S.Dak. 1984); Travelers Indemnity Company v. Watkins, 209 So.2d 630 (Miss. 1968). Yet the Court rejected that rule and held that if Pinkney was indeed told not to use the vehicle for personal errands, there would be no coverage. A similar conclusion had earlier been reached in Goodwin v. Home Indemnity Co., 255 Md. 364, 258 A.2d 220 (1969), Cohen v. Am. Home Assurance Co., 255 Md. 334, 258 A.2d 225 (1969), and Federal Ins. Co. v. Allstate Ins. Co., 275 Md. 460, 341 A.2d 399 (1975), and it was confirmed subsequently in Bond v. Pennsylvania Nat'l Mut., 289 Md. 379, 424 A.2d 765 (1981). Bond involved an omnibus clause extending coverage to persons using the insured vehicle "with the permission of the named insured, provided his actual operation ... thereof is within the scope of such permission." The owner had given her daughter general use of the car, but had expressly forbidden the daughter to allow anyone else to drive it. In disregard of that instruction, the daughter allowed a friend to drive the car. The friend drove negligently, hit a pole, and injured a passenger. Affirming the denial of coverage, the Court held, at 386-87: "Unless some statute, regulation having the effect of a statute, or public policy is violated, (and none is suggested by the parties here) insurance, being contractual, is measured by the contract terms.[2] In this case the terms of the insurance agreement clearly require that the operator have permission of the named insured to drive the vehicle, and if that person does not, there is no coverage for her under this policy. Put another way — when the use being made of the automobile is operation of it, this insurance policy in unambiguous language specifies that the person operating the vehicle enjoy permission to do so from the named insured. See National Grange Mut. Ins. v. Pinkney, supra." In the footnote to the first sentence of that passage, the Court observed that the appellants had not urged that the omnibus clause was void as against public or legislative policy and that the Court therefore did not consider that issue. Whether the Court was merely stating a truism or was using that gratuitous footnote to suggest something more is not clear. In Jennings v. Government Employees Ins., 302 Md. 352, 488 A.2d 166 (1985), the Court dropped another pregnant footnote that may shed some light on the matter. In Jennings, the Court held that the "household exclusion" clause — the provision excluding from liability coverage injuries sustained by the named insured or members of his family living in his household — was against public policy. The thrust of the decision, supported by decisions in other States, was that the "exclusion of a large category of claimants, suffering bodily injury from accidents, is not consistent with [the mandatory insurance law]." If "any and all exclusions from this required liability coverage are valid as long as they are not expressly prohibited by statute," the Court continued, "the purpose of compulsory automobile liability insurance could be frustrated to a significant extent." Id., 360, 488 A.2d 166 (footnote omitted). It was in a footnote to that last statement that the Court considered the appellant's argument that the rejection of the "liberal" rule in National Grange Mut. Ins. v. Pinkney stood for the proposition "that adoption of mandatory liability insurance does not alter prior Maryland case law regarding liability insurance." That, said the Court, "is an overbroad interpretation of Pinkney. The instant case deals with a policy exclusion that would exclude classes of people. For example, family members of the named insured's household as well as the named insured are precluded from recovery. The person qua person is precluded from recovery. Pinkney, on the other hand, dealt with an exclusion based upon an action taken by a person — in that case, acquiring permission, or failing to do so, to drive the vehicle. In Pinkney, this Court stated `that the public policy of this State as enunciated by the General Assembly is that there should be liability coverage ... for any one person....' 284 Md. at 704, 399 A.2d 877." Jennings, 302 Md. at 360-61 n. 9, 488 A.2d 166. This distinction suggests to us that the Court has not changed the view expressed in National Grange, and that the permissive use limitation, involving "an action taken by a person" rather than the exclusion of a whole class of persons, is not against public policy. This view, we think, is generally supported by decisions in other States. Unless clearly operating under the "liberal" rule, the law seems to be as stated in Annot., Automobile liability insurance: permission or consent to employee's use of car within meaning of omnibus coverage clause, 5 A.L.R.2d 600, 651 (1949): "Where the employer has expressly forbidden his employee to use the employer's automobile for his own personal purposes, such use of the automobile by the employee in violation of orders is not deemed to be one with the permission of the employer within the meaning of the omnibus clause of the liability insurance policy." See also Boyd v. Liberty Mutual Insurance Company, 232 F.2d 364 (D.C. Cir.1956); Ditmyer v. American Liberty Insurance Company, 117 Ga. App. 512, 160 S.E.2d 844 (1968); McKee v. Travelers Insurance Company, 315 S.W.2d 852 (Mo. App. 1958); Olgin v. Employers Mut. Casualty Co., 228 S.W.2d 552 (Tex.Civ.App. 1950); and 6C Appleman, supra, § 4370. Absent some further word from the Court of Appeals, then, we conclude that the exclusion from coverage of non-permissive use or use beyond the scope of the owner's permission is not against public policy in Maryland. It follows that (1) an insurer, including a self-insurer, may exclude coverage for non-permissive use, (2) an employer, as the owner of the vehicle and the named insured, as self-insurer or under a policy, may permit an employee to use the vehicle generally but expressly forbid him from using it for personal errands, and (3) if, in violation of that limitation, the employee indeed uses the vehicle for a personal errand, the use may be regarded as non-permissive, thereby excluding it from coverage under a standard-type of omnibus clause. We know of no provision of Maryland law requiring an insurer, including a self-insurer, to give notice to "potential claimants" — which, essentially, means the entire world — of such a restriction. Indeed, it is hard to imagine how any such kind of notice could be effectively given. (4) Actual Or Implied Permissive Use The court's conclusion that Bullock in fact had permission to use the car for personal errands was based on its finding that Bullock never "agreed" to the restriction on personal use laid down in the April, 1982 memorandum, and that he therefore continued to enjoy the rights he had before that memorandum became effective. Its further conclusion that Bullock had some sort of "implied" permission to use the car for personal errands was based on its finding of "long continued non-enforcement" of the restriction. To some extent, it seems, that latter finding also underlay the court's determination that WMATA was estopped from denying permissive use or had waived its right to that defense.[8] We acknowledge that, to a large extent, these findings are factual ones to which, under Md. Rule 1086, we are required to give great deference. We find, however, that there is no substantial evidence in support of them, and, in some measure they rest on an incorrect interpretation of law. With respect to any actual permission, we are hard-pressed to find any support for the notion that Bullock did not agree to the compromise reached in April, 1982. As we observed earlier, he knew of the agreement and, even though he did not sign the memorandum of it, he accepted without protest all of its benefits, and he never said or did anything to suggest that he was not bound by it. He even acknowledged an awareness that he was not supposed to use the WMATA vehicle for personal errands. Mere silence — a mere refusal to admit being a party to it — cannot, under these circumstances, support a finding that he was not bound by it. See Porter v. General Boiler Casing Co., 284 Md. 402, 396 A.2d 1090 (1979), where the Court held that acceptance of a contract/offer "can be accomplished by acts as well as words; no formal acceptance is required," id., 409, and that: "Silence can also operate as acceptance. Where `services are rendered under such circumstances that the party benefited thereby knows the terms on which they are being offered [,i]f he receives the benefit of the services in silence, when he had a reasonable opportunity to express his rejection of the offer, he is assenting to the terms proposed and thus accepts the offer.'" Id., 412, quoting in part from Corbin, Contracts, § 75. Quite apart from whether Bullock did or did not assent to the April, 1982 compromise, the fact is that his assent or non-assent is simply immaterial. As the owner, WMATA was empowered to place whatever limitations it chose upon Bullock's use of the vehicle. If, as urged here, such a limitation amounted to a breach of Bullock's employment agreement, he might have some remedy under WMATA's personnel policies or under applicable labor laws. Putting aside the at-will nature of his employment, he might even have an action for breach of contract. But he may not, simply by ignoring the limitation, create insurance coverage where none otherwise exists. With respect to the "implied" permission — the so-called "non-enforcement" of the restriction — the evidence showed that, at least after April, 1982, WMATA definitely and unambiguously precluded the personal use of these vehicles. The fact that some of the adjustors continued, on some occasions, to use the vehicles to attend company-sponsored picnics or bowling league functions,[9] or even for other, more clearly personal uses, does not render the company policy void or ineffective. As we observed earlier, there was no evidence that anyone in the WMATA management above Mr. Chadwick knew of, much less acquiesced in, any such use. Indeed, as soon as Mr. Ison discovered the violation by Bullock, he enforced the policy by taking away the car and formally reprimanding Bullock. We thus have uncontroverted evidence of a clear company policy forbidding personal use, and, as noted in Bond v. Pennsylvania Nat'l Mut., 289 Md. 379, 385, 424 A.2d 765 (1981), "you cannot imply something in the face of an express statement to the contrary." (5) Estoppel/Waiver To the extent that the court's findings of waiver and estoppel rested on the alleged "non-enforcement" by WMATA, i.e., the alleged continued use of the cars for personal errands, they have no greater validity than the finding of implied permission, for the reasons expressed in part (4). To the extent they rest upon the handling of the claims by WMATA's adjustor — the delay in raising the question of coverage — they suffer from another weakness. Appleman, in Volume 16C, § 9361 states: "While an insurer may waive or be estopped from relying on a defense by its unreasonable delay in notifying the insured that it intends to rely on such defense, it will not be barred where such delay is not unreasonable, or the insured was not injured by the delay. Nor would the insurer generally be estopped, by its failure to deny liability, from denying the existence of coverage." (Emphasis added; footnotes omitted.) This last concept has been applied in Maryland. It rests on the "rule of law existing in this State that `[i]nsurance coverage cannot be established by waiver.'" St. Paul Fire & Mar. Ins. v. Molloy, 291 Md. 139, 146-47 n. 4, 433 A.2d 1135 (1981), quoting in part from Neuman v. Travelers Indemnity Co., 271 Md. 636, 319 A.2d 522 (1974). We examined that concept in Insurance Co. of N. Amer. v. Coffman, 52 Md. App. 732, 451 A.2d 952 (1982). Citing St. Paul Fire & Mar. Ins. and Neuman, we discerned "a distinction between defenses founded upon lack of basic coverage and those arising from the failure of the claimant to satisfy some `technical' condition subsequent. The former, it is apparent, may not be waived merely by the company's failure to specify them in its initial response to the claim, for the effect of that would be to expand the policy to create a risk not intended to be undertaken by the company." Coffman, 52 Md. App. at 742-43, 451 A.2d 952 (emphasis added). Cf. Zappone v. Home Ins. Co., 80 A.D.2d 661, 436 N.Y.S.2d 402 (1981), aff'd, 55 N.Y.2d 131, 447 N.Y.S.2d 131, 432 N.E.2d 783 (1982). The defense at issue here goes to basic coverage, not to some pre-condition to asserting the claim. The mere failure of the adjustor to raise the defense therefore cannot, by waiver or estoppel, create a coverage that would otherwise not exist. (6) Conclusion For the reasons stated in Parts (3), (4), and (5) of this Opinion, we conclude that the trial court erred in the declaratory findings that it made. For the reasons stated in Part (2), however, we believe that the case should be remanded pursuant to Md. Rule 1071 for further proceedings. The court should examine any agreement filed by WMATA pursuant to D.C. Code, § 40-453 along with any directive of the WMATA board pursuant to ¶ 72 of the compact indicating the "form and amount" of coverage. It should also explore any evidence as to how WMATA may have handled any other claims (if there were any other claims) arising from the personal use of company vehicles by adjustors after April, 1982. All of this should be examined in light of the financial responsibility laws of the District and of Maryland, in order that the precise nature of the coverage undertaken by WMATA as a self-insurer can be ascertained. See Hines v. Potomac Elec. Power Co., 305 Md. 369, 504 A.2d 632 (1986); Southern Home Ins. Co. v. Burdette's Leasing, 268 S.C. 472, 234 S.E.2d 870 (1977); Comorote v. Massey, 110 N.J. Super. 124, 264 A.2d 478 (1970); 6B Appleman, supra, § 4298. That, then, will determine whether, and to what extent, WMATA is liable on the Queen/Discomb claims. We also suggest, in parting, that the General Assembly may wish to consider whether there is a need for legislation addressing the problem of self-insured vehicles registered in other jurisdictions but operated on a regular basis in Maryland. JUDGMENTS VACATED; CASE REMANDED TO CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS; APPELLEES TO PAY THE COSTS. NOTES [1] Ms. Queen's claim was filed October 7, 1982. It is not clear when Ms. Discomb's claim was filed. The early correspondence shows only Ms. Queen as the claimant, but no one disputes Ms. Discomb's status as a claimant. [2] WMATA is governed by a board of six directors. See § 10-204, ¶ 5. [3] WMATA's vehicles, including the one driven by Bullock, are registered in the District. The D.C. Motor Vehicle Safety Responsibility Act (D.C.Code, § 40-401, et seq.) permits owners to self-insure their vehicles under certain circumstances. See, in particular, §§ 40-478 and 40-457. [4] A 1979 memorandum from the then-general manager allowed vehicles to be assigned on a "take-home basis" with the approval of the general manager or an assistant general manager but warned that "[t]he use of [WMATA] vehicles for other than official purposes is prohibited. Such use shall be cause for revocation of vehicle assignment or use and disciplinary action of the employee involved." That was repeated in a 1980 memorandum. But the personal use continued, and no sanctions were ever imposed. [5] The certificates actually in the record cover the years 1983 and 1984. There is no certificate in the record covering 1982. We were told at oral argument that a certificate was not required in 1982, although we can find no basis in the D.C. Code for such a statement. [6] Counsel for the claimants expressly represented to the Court at oral argument that the requirement of § 40-453 was not in the D.C. law in 1982. Our research shows that it was, and that counsel's representation simply is not correct. Section 40-453 has been part of the D.C. law since 1954. We do not appreciate such affirmative misstatements. [7] We have found nothing in the law or in the regulations of the Insurance Commissioner to suggest that, as a general proposition, that statement, if accurate in 1979, is not still accurate. It is certainly arguable, however — and we think meritoriously so — that where, as here, the vehicles are owned by a corporate-type entity, which has acquired them specifically for use by its employees, i.e., persons other than the named insured, public policy would indeed demand the kind of extended coverage normally provided in an omnibus clause. To hold otherwise — to allow such entities to exclude from coverage even permissive use by their employees — would be wholly inconsistent with the State's compulsory insurance law. See Jennings v. Government Employees Ins., 302 Md. 352, 488 A.2d 166 (1985). We shall assume, therefore, that the Court's statement to which this note refers was not intended to apply to this kind of case, and that extended coverage to employees, at least while using company vehicles within the scope of permission granted by the company, is required in Maryland. [8] It is not entirely clear whether the waiver-estoppel finding was based on this so-called "non-enforcement" policy or on the fact that WMATA waited 18 months to deny coverage. We shall address the first of these theories here and consider the second in part (5). [9] Most of the evidence offered to show continued personal use of the vehicles after April, 1982, had to do with attendance at these functions. It is not at all clear that using the cars to attend these company-sponsored events constituted a forbidden personal use. Cf. Coats & Clark's Sales v. Stewart, 39 Md. App. 10, 383 A.2d 67 (1978), discussing attendance at such events in terms of workmen's compensation coverage.

529 F.3d 1325 (2008) NATURAL ANSWERS, INC., a Florida Corporation, Brian A. Feinstein, Plaintiffs-Appellants, v. SMITHKLINE BEECHAM CORPORATION, a Pennsylvania Corporation, f.k.a. Beecham Holdings, Inc., d.b.a. GlaxoSmithKline, et al., Defendants-Appellees. No. 06-15084. United States Court of Appeals, Eleventh Circuit. June 13, 2008. *1326 Guy B. Bailey, Jr., Bailey & Dawes L.C., Miami, FL, for Plaintiffs-Appellants. Bruce S. Meyer, New York City, Edward Soto, Weil, Gotshal & Manges, LLP, Miami, FL, for Defendants-Appellees. Before TJOFLAT, MARCUS and WILSON, Circuit Judges. MARCUS, Circuit Judge: At issue in this trademark infringement case is whether SmithKline Beecham Corporation, SmithKline Beecham Consumer Healthcare, and GlaxoSmithKline Consumer Healthcare (collectively "GSK") infringed the trademark rights of Natural Answers, Inc. and its Chief Executive Officer Brian A. Feinstein (collectively "Natural Answers") in their unregistered mark HERBAQUIT LOZENGES, and whether GSK falsely advertised their product, Commit Lozenges, which was billed as "the first and only stop smoking lozenge." After thorough review, we affirm the district court's entry of final summary judgment for GSK. I. The facts essential to this appeal are straightforward. Natural Answers develops, manufactures, and markets a variety of herbal supplements, and from 2000 until 2002 it sold HerbaQuit Lozenges, which were designed to "help satisfy cravings related to the smoking habit," particularly the "psychological and habitual aspects of *1327 smoking." Although Natural Answers filed a federal trademark application for HERBAQUIT with the United States Patent and Trademark Office on April 12, 1994, and also filed an application for HERBAQUIT LOZENGES on May 27, 1995, neither application was approved, and the mark HERBAQUIT LOZENGES has never been registered as a trademark. Nonetheless, HerbaQuit Lozenges entered the market in January 2000 and were sold by Natural Answers in drugstores, supermarkets, convenience stores, and over the Internet. HerbaQuit Lozenges were an herbal product containing no nicotine, but were designed and marketed to help reduce and control tobacco cravings or to help quit smoking entirely. In March 2001, Natural Answers contacted GSK to solicit interest in forming a joint venture to promote HerbaQuit Lozenges. Although GSK expressed some initial interest in learning about Natural Answers's product, GSK ultimately declined that offer in April 2001. Notably, the sale of HerbaQuit Lozenges was discontinued in March 2002, after selling approximately 50,000 packages. Indeed, by November 2002, the website affiliated with HerbaQuit Lozenges was no longer operational, and neither the product nor its promotional materials have returned to the public market since that time. Natural Answers has conceded that it does not have the ability or resources to market HerbaQuit Lozenges. However, Brian Feinstein, the CEO of Natural Answers, testified that he sent a letter to Philip Morris in December 2003 to solicit a joint venture to promote HerbaQuit Lozenges. He said that Philip Morris responded to his solicitation by requesting further information. A deal was never struck between Natural Answers and Philip Morris, and Natural Answers presented no other evidence, documentary or otherwise, about their negotiations. On November 6, 2002, more than seven months after the sale of HerbaQuit Lozenges was discontinued, GSK launched the Commit Lozenges product, advertising it as "the first and only stop smoking lozenge." Commit Lozenges are an FDA-approved stop-smoking aid in the form of a fast-acting nicotine lozenge to relieve the withdrawal symptoms that may accompany smoking cessation. GSK began developing Commit Lozenges in January 1998, applied for FDA approval on the product in late 2000, and received FDA approval following clinical tests in October 2002. GSK has advertised Commit Lozenges in the national print media, on television, and over the Internet. They are sold primarily in pharmacies, supermarkets, and via the Internet. COMMIT is a registered federal trademark held by GSK since May 20, 2003. On October 20, 2004, Natural Answers filed this ten-count complaint against GSK in the United States District Court for the Southern District of Florida claiming: (1) Federal Trademark Infringement under 15 U.S.C. § 1125(a); (2) Federal Trademark Infringement Based on Reverse Confusion under 15 U.S.C. § 1125(a); (3) Federal Unfair Competition under 15 U.S.C. § 1125(a); (4) False Advertising under 15 U.S.C. § 1125(a); (5) Civil Theft of Trade Secrets under Fla. Stat. §§ 771.11, 772.103, 772.194, 812.014 and 812.081; (6) Common Law Trademark Disparagement; (7) Attempted and Actual Monopolization under the Sherman Act, 15 U.S.C. § 2; (8) Common Law Unfair Competition; (9) Common Law Trademark Infringement; and (10) Violation of Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), Fla. Stat. §§ 501.201-501.213. Natural Answers *1328 simultaneously moved for a temporary restraining order and preliminary injunction. GSK, in turn, moved to dismiss the complaint on November 29, 2004, and, on February 4, 2005, the district court dismissed the claims for civil theft of trade secrets and attempted and actual monopolization pursuant to Fed.R.Civ.P. 12(b)(6). On December 13, 2004 and January 12, 2005, evidentiary hearings relating to the motion for a temporary restraining order and preliminary injunction were conducted by a magistrate judge, who recommended denying the preliminary injunction. The district court adopted the magistrate judge's Report and Recommendation in its entirety. Thereafter, Natural Answers moved for partial summary judgment on its false advertising claim. Not surprisingly, GSK moved for summary judgment on all of Natural Answers's remaining claims. Soon thereafter, the district court granted GSK's motion for summary judgment in its entirety and denied Natural Answers's motion for partial summary judgment. First, the district court granted summary judgment against Natural Answers's false advertising claim, reasoning that Natural Answers had not been and was not likely to be injured as a result of GSK's advertisement of Commit Lozenges as "the first and only stop smoking lozenge," because HerbaQuit Lozenges and Commit Lozenges were never marketed or sold contemporaneously. The district court also granted summary judgment against Natural Answers on the false advertising and trademark disparagement claims concluding that GSK's advertisements were not false, because, under applicable federal statutes and regulations, Natural Answers was prohibited from marketing HerbaQuit Lozenges as a smoking cessation product. Second, the district court granted summary judgment against Natural Answers's federal and common law trademark infringement and unfair competition claims on the ground that no reasonable juror could conclude on this record that a likelihood of confusion exists between the marks HERBAQUIT LOZENGES and COMMIT as used by the parties. Finally, the district court granted GSK summary judgment on Natural Answers's FDUTPA claim, because it was premised solely on meritless claims of trademark infringement and false advertising. This timely appeal ensued. II. The claims brought by Natural Answers are comprised of either violations of the Lanham Act or violations of Florida's common law and statutes that are, in turn, based on actual violations of the Lanham Act. As a result, if Natural Answers cannot succeed on its Lanham Act claims, all of its claims necessarily fail. Our analysis, therefore, begins, and ultimately ends, with a determination that Natural Answers's asserted Lanham Act claims, seeking relief from unfair competition based upon theories of trademark infringement[1] (taking the form of direct trademark infringement, reverse confusion trademark infringement, and false designation of origin), *1329 and false advertising,[2] fail. We review a district court's grant of summary judgment de novo. Kingsland v. City of Miami, 382 F.3d 1220, 1225 (11th Cir.2004). Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In making this determination, "[w]e view the evidence and all factual inferences therefrom in the light most favorable to the non-moving party, and resolve all reasonable doubts about the facts in favor of the non-movant." Kingsland, 382 F.3d at 1226. A. To bring a trademark infringement claim under the Lanham Act, a plaintiff must hold a valid trademark. Under the Lanham Act, a trademark is deemed abandoned, and, thus no longer valid, "[w]hen its use has been discontinued with intent not to resume such use." 15 U.S.C. § 1127; see also Cumulus Media, Inc. v. Clear Channel Commc'ns, Inc., 304 F.3d 1167, 1173 (11th Cir.2002) ("[A] defendant who successfully shows that a trademark plaintiff has abandoned a mark is free to use the mark without liability to the plaintiff."); Tally-Ho, Inc. v. Coast Cmty. Coll. Dist., 889 F.2d 1018, 1022-23 (11th Cir. 1989) (per curiam) ("Trademark ownership is always appurtenant to commercial activity. Thus, actual and continuous use is required to acquire and retain a protectible interest in a mark.") (footnote omitted). "Abandonment is trademark law's way of recognizing that trademark rights flow from use." Cumulus Media, Inc., 304 F.3d at 1173 (quotation marks and citation omitted); 5 McCarthy on Trademarks and Unfair Competition § 17:1 (4th ed. 2001) (explaining that if a trademark holder ceases using a mark with an intent not to resume its use, the mark is deemed abandoned and "falls into the public domain and is free for all to use.... Abandonment paves the way for future possession and property in any other person"). Thus, a defendant must establish two elements in order to show that a plaintiff has abandoned his trademark: "[1] that the plaintiff has ceased using the mark in dispute and [2] that he has done so with an intent not to resume its use." Cumulus, 304 F.3d at 1174 (footnote omitted). For the purposes of abandonment, the Lanham Act defines "use" as "the bona fide use of such mark made in the ordinary course of trade, and not made merely to reserve a right in a mark." 15 U.S.C. § 1127. The Lanham Act directs that "[i]ntent not to resume [use] may be inferred from circumstances." Id. Such an intent cannot be far-flung or indefinite; rather there must be an intent "to resume use within the reasonably foreseeable future," Silverman v. CBS Inc., 870 F.2d 40, 46 (2d Cir.1989), in the United States, Imperial Tobacco Ltd. v. Philip Morris, Inc., 899 F.2d 1575, 1579 (Fed.Cir.1990). See also Grocery Outlet, Inc. v. Albertson's, Inc., 497 F.3d 949, 951 (9th Cir.2007) (per curiam) (finding "intent to resume use of the ... mark within the reasonably foreseeable future during the short period of alleged nonuse" prevented the mark from being abandoned). "Nonuse for 3 *1330 consecutive years shall be prima facie evidence of abandonment," 15 U.S.C. § 1127, which creates a "rebuttable presumption of intent not to resume use." Cumulus Media, Inc., 304 F.3d at 1174. Natural Answers has not used its mark in commerce for well over three years and, thus, GSK has the benefit of the rebuttable presumption of intent not to resume its use. The burden of production, although not the ultimate burden of persuasion, shifts to Natural Answers "to produce evidence that [it] either used the mark during the statutory period or intended to resume use." Id. at 1177. On this record, it is undisputed that the HERBAQUIT LOZENGES mark (which has never been registered) has not been used in commerce since, at the latest, March 2002. Drawing all reasonable inferences in favor of Natural Answers, as we must on summary judgment, no reasonable fact finder could determine that Natural Answers had used or evinced any intention to use the HERBAQUIT LOZENGES mark in the United States at any point after the product was removed from the market in March 2002. Indeed, Natural Answers has provided no evidence of actual and concrete plans to resume use in the reasonably foreseeable future. All it presented to the district court was the bare assertion by its CEO that it intended to resume use if it could find ample funding and the unsupported assertion that Philip Morris had requested more information from Natural Answers after it sent Philip Morris a letter soliciting a joint venture in 2003. Such putative negotiations amount to nothing more than an unsolicited proposal by Natural Answers that led nowhere. Quite simply, that is not enough. Indeed, if all a party had to do to avoid a finding of abandonment was to aver that it never intended to abandon the trademark, then no trademark would ever be abandoned, no matter how long its use had been withdrawn from the market, or how inchoate and speculative any intention to resume its use. See Imperial Tobacco Ltd., 899 F.2d at 1581 ("An averment of no intent to abandon is little more than a denial in a pleading, which is patently insufficient to preclude summary judgment on the ground the facts are disputed."). Because the record on summary judgment unquestionably demonstrates that Natural Answers has in no way undertaken "actual and continuous use" to "retain" an enforceable interest in HERBAQUIT LOZENGES, see Tally-Ho, Inc., 889 F.2d at 1022-23; 15 U.S.C. § 1127, Natural Answers does not hold a valid trademark upon which it can base a Lanham Act trademark infringement claim. B. Not only is Natural Answers barred from bringing a Lanham Act trademark infringement claim because it does not hold a valid trademark, it also lacks prudential standing to bring its separate Lanham Act false advertising claim. A Lanham Act false advertising claim arises when "[a]ny person who, on or in connection with any goods ... uses in commerce any ... false or misleading description of fact, or false or misleading representation of fact, which ... in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods[.]" 15 U.S.C. § 1125(a). The intent of this provision is to protect "commercial interests [that] have been harmed by a competitor's false advertising, and [to secure] to the business community the advantages of reputation *1331 and good will by preventing their diversion from those who have created them to those who have not." Phoenix of Broward, Inc. v. McDonald's Corp., 489 F.3d 1156, 1168 (11th Cir.2007), cert. denied, ___ U.S. ___, 128 S.Ct. 1647, ___ L.Ed.2d ___ (2008) (quoting Conte Bros. Auto., Inc. v. Quaker State-Slick 50, Inc., 165 F.3d 221, 234 (3d Cir.1998)). In Phoenix, this Court, as a matter of first impression, determined when a plaintiff has prudential standing to bring a Lanham Act false advertising claim. 489 F.3d at 1167. In that case, a class of Burger King franchisees sued McDonald's, their undisputed competitors in the fast food restaurant industry, alleging that McDonald's' promotional games advertisements constituted false advertising under the Lanham Act. We posited that five factors should be weighed to determine whether a plaintiff has prudential standing to bring a Lanham Act false advertising claim: (1) The nature of the plaintiff's alleged injury: Is the injury of a type that Congress sought to redress in providing a private remedy for violations of the [Lanham Act]? (2) The directness or indirectness of the asserted injury. (3) The proximity or remoteness of the party to the alleged injurious conduct. (4) The speculativeness of the damages claim. (5) The risk of duplicative damages or complexity in apportioning damages. Phoenix, 489 F.3d at 1163-64 (citing Conte Bros. Auto., 165 F.3d at 233). Applying these factors in Phoenix, we concluded that the plaintiffs lacked prudential standing, because, while there were "commercial interests ... harmed by a competitor's false advertising," and the plaintiffs were the most proximate class of persons subject to the alleged injury, the connection between the plaintiffs' asserted lost sales and increased promotional expenses and the defendant's false advertisements was tenuous, the nature of the alleged damages was speculative, and there was a risk of duplicative damages. Id. at 1169-73. Here, an application of the Phoenix factors undeniably establishes that Natural Answers lacks prudential standing to bring a Lanham Act false advertising claim. Indeed, not a single one of the five factors favors Natural Answers. In the first place, Natural Answers has not alleged the type of injury Congress sought to redress in the false advertising provision of the Lanham Act. As we explained in Phoenix, the purpose of the Lanham Act is to protect commercial interests from a competitor's false advertising and to protect the business community from having its reputation and goodwill diverted. 489 F.3d at 1168; see also 15 U.S.C. § 1127 (explaining that the Lanham Act is designed "to protect persons engaged in ... commerce against unfair competition"). This factor weighed in favor of prudential standing in Phoenix, because the plaintiffs alleged that the defendant was their direct competitor and that the defendant's false advertisements caused the plaintiffs to both lose sales and incur increased promotional costs. Id. Here, in sharp contrast, Natural Answers could suffer no such commercial or competitive injury, because it was no longer selling or promoting HerbaQuit Lozenges at the time of the alleged injury. Simply put, Natural Answers could not have lost any customers or potential customers. To the extent that Natural Answers suffered *1332 any injury at all, it did not sustain the kind of injury Congress was concerned about when it passed the Lanham Act. See id. at 1163 (explaining that "[t]he congressionally-stated purpose of the Lanham Act evinces a congressional intent to limit standing to a narrow class of potential plaintiffs possessing interests the protection of which furthers th[e] congressionally stated purpose" and denying standing to "parties that have not had their competitive or commercial interests affected by the defendant's conduct") (internal quotation marks omitted). Second, there is no direct relationship between GSK's conduct and the claimed injury. The "typical false advertising claim" is one where "a plaintiff alleges that it lost sales and/or market share as a result of the defendant's false or misleading representations about some characteristic of the defendant's product or services." Id. at 1169. Thus, in Phoenix, we found this factor weighed against standing. Here, the injury claimed is far more remote. Natural Answers alleges only that GSK misled smoking cessation consumers by claiming that Commit Lozenges was the "first and only stop smoking lozenge"; that this statement "more than likely influenced the purchasing decision of customers since GSK, an industry giant, can influence the purchasing decisions of customers"; and that, as a result, "[t]he HERBAQUIT LOZENGES mark was weakened." (Compl. ¶¶ 168, 173-74). Again, because Natural Answers was not selling or promoting HerbaQuit Lozenges at the time of the allegedly false advertising, it cannot claim to have suffered lost sales, lost market share, or increased promotional costs. In fact, all it can allege is that GSK's conduct "might" cause the value of the HERBAQUIT LOZENGES mark to "weaken" at some wholly unknown time if Natural Answers chooses to reintroduce it to the market. This factor, too, weighs against prudential standing. Further, GSK's allegedly false advertising obviously affects companies that actually sell smoking cessation products far more directly than it could affect Natural Answers. Moreover, the amount of Natural Answers's claimed damages is entirely speculative. This is not a case where the plaintiff has lost any sales or market share. Rather, Natural Answers has merely postulated that the weakening of its HERBAQUIT LOZENGES mark might cause it to lose sales in the future if it reenters the smoking cessation market. So indefinite a prediction of harm will not support standing. Finally, allowing Natural Answers to sue also presents a risk of duplicative damages. Id. at 1172. In Phoenix, we concluded that this factor weighed against prudential standing, because "[i]f we were to hold that Phoenix has prudential standing to bring the instant claim, then every fast food competitor of McDonald's asserting that its sales had fallen by any amount during the relevant time period would also have prudential standing to bring such a claim." Id. The instant case presents this problem in an even more extreme form. Indeed, if Natural Answers has prudential standing to bring this claim, then any company that ever had, will have, or, possibly, may have a smoking cessation product whose associated trademark could potentially be "weakened" would have prudential standing. In short, each of the five Phoenix factors weighs decidedly against finding that Natural Answers has prudential standing to bring a Lanham Act false advertising claim against GSK. C. Since Natural Answers is unable to bring an unfair competition claim under *1333 the Lanham Act under the theory of either false advertising or trademark infringement, it follows that the common law claims based on unfair competition and trademark infringement must fail as well. Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1193 n. 4 (11th Cir. 2001) ("Courts may use an analysis of federal infringement claims as a `measuring stick' in evaluating the merits of state law claims of unfair competition.") (quoting Investacorp, Inc. v. Arabian Inv. Banking Corp. (Investcorp) E.C., 931 F.2d 1519, 1521 (11th Cir.1991)). Thus, Natural Answers's common law trademark infringement claims must fail because it has abandoned the HERBAQUIT LOZENGES mark by not using it in commerce or maintaining any intent to use it in commerce since 2002. See Tally-Ho, Inc., 889 F.2d at 1023 n. 6 (explaining that common law trademark rights "can be lost through abandonment"). Similarly, Natural Answers's common law claim sounding in false advertising fails because, just as with the false advertising claim brought under the Lanham Act, Natural Answers does not have a commercial or competitive interest, lacks a direct injury, lacks proximity to the alleged conduct, and presents a speculative and potentially duplicative damages claim. See 5 McCarthy on Trademarks and Unfair Competition §§ 14:24, 27:2; see also Conte Bros. Auto., Inc., 165 F.3d at 230 (explaining that the Lanham Act's standing requirements, including those pertaining to false advertising claims, are codifications of the common law standing requirements). D. Finally, as Natural Answers concedes, its claim for a violation of the Florida Deceptive and Unfair Trade Practices Act rises or falls on the success of its trademark infringement and false advertising claims. The purpose of the FDUTPA is "[t]o protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce." Fla. Stat. § 501.202(2) (2006). To bring a claim under this Act, the plaintiff must have been aggrieved by the alleged unfair and deceptive act. See Citibank (South Dakota) N.A. v. Nat'l Arbitration Council, Inc., No. 3:04-cv-1076, 2006 WL 2691528, at *3 (M.D.Fla. Sept.19, 2006); State of Fla., Office of Atty. Gen., Dep't of Legal Affairs v. Tenet Healthcare Corp., 420 F.Supp.2d 1288, 1309 (S.D.Fla.2005) (citing Haun v. Don Mealy Imps., 285 F.Supp.2d 1297, 1308 (M.D.Fla.2003)). As we have made clear already, Natural Answers could suffer no injury as a result of the alleged trademark infringement, because it does not hold a valid mark in HERBAQUIT LOZENGES that is subject to infringement. Moreover, Natural Answers could suffer no injury as a result of the allegedly false advertising, because its product is not and has never competed with Commit Lozenges, and Natural Answers's complaint does not allege that it was injured in any manner as a consumer of Commit Lozenges. Thus, just as with its other claims, Natural Answers lacks standing to pursue a claim under the FDUPTA. In short, because Natural Answers cannot assert claims for unfair competition, trademark infringement, and false advertising under the Lanham Act, as well as its common law claims for unfair competition, trademark infringement, and trademark disparagement, and because there is no basis for its claim under FDUPTA, we affirm the district court's entry of final *1334 summary judgment for GSK.[3] AFFIRMED. NOTES [1] "Any person who shall, without the consent of the" trademark right holder, "use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive ... shall be liable" for trademark infringement. 15 U.S.C. § 1114(1). [2] Liability for false advertising arises when "[a]ny person who, on or in connection with any goods ... uses in commerce any ... false or misleading description of fact, or false or misleading representation of fact, which ... in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods[.]" 15 U.S.C. § 1125(a). [3] We need not and do not address the other grounds upon which the district court granted Appellees final summary judgment.

3 Mass. App. Ct. 538 (1975) 336 N.E.2d 877 COMMONWEALTH vs. JOSEPH D. ZALESKI. Appeals Court of Massachusetts, Hampden. September 8, 1975. October 22, 1975. Present: HALE, C.J., GRANT, & ARMSTRONG, JJ. William P. Homans, Jr. for the defendant. John T. McDonough for the Commonwealth. HALE, C.J. The defendant appeals under G.L.c. 278, §§ 33A-33G, following his conviction by a Superior Court judge sitting without jury on four indictments charging the forgery of certain checks and four charging the uttering of those checks. We summarize the facts which *539 could have been found by the judge from the conflicting testimony and from the exhibits, considering the evidence in the light most favorable to the Commonwealth. Commonwealth v. Burns, 362 Mass. 875 (1972). The defendant is the president and treasurer of Eastern Renovating Corporation (Eastern), a Connecticut corporation engaged in the business of repairing and renovating buildings. The defendant had operated the business for about twenty-five years, first as a sole proprietor and later in its present corporate form. In November of 1972 the defendant contacted Reverend Zator, pastor of St. Stanislaus Church in Chicopee, with respect to certain repairs to the church which the pastor had been contemplating. Eastern was engaged to make those repairs. On November 29, 1972, the defendant presented a document and a copy thereof to Reverend Zator, representing it to be a document required by "the insurance company" giving the defendant's employees permission "to go up to the steeple." The defendant placed both copies on the desk in front of Reverend Zator, folded so that only the third page of each was showing, on which were printed seven clauses, one being entitled "Insurance." Reverend Zator signed both the document and copy "St. Stanislaus Church by Reverend Fabian Zator" and affixed the date. He did not read the document and did not know what it contained. The signed and dated document introduced in evidence was a form of contract between Eastern and the church whereby Eastern undertook to perform certain described repairs for a total price of $50,700. A few days later another document and a copy thereof were presented to Reverend Zator who signed and dated both without reading either, having been given by the defendant to understand that the insurance company required the document for "a different kind of insurance." The signed and dated document was introduced in evidence and was in the form of an extra work order which included additional work on the rectory and on the church and called for a payment of $42,300 in addition to the original contract price. Eastern thereafter provided a substantial amount of labor and materials. *540 The amount billed by Eastern for the completed work was $93,000. On December 5, 1972, Reverend Zator paid Eastern $5,000 by delivering a check to the defendant, the check having been drawn on a Springfield bank on the account of the "Roman Catholic Bishop of Springfield, a corporation sole, for St. Stanislaus B.M. Church." The check was signed by Reverend Zator. On December 18, 1972, a check numbered 909 for $15,000, drawn on a Chicopee bank on the account of the "Roman Catholic Bishop of Springfield, a corporation sole, for St. Stanislaus Cemetery" was delivered to the defendant. That check was for the payment due when one third of the work had been completed. That check was also payable to Eastern and signed by Reverend Zator. On December 26, 1972, a check numbered 911 for $15,000, payable to Eastern was executed in the same manner, drawn on the same account, and delivered to Eastern. All three checks were on printed forms and were from the church's sequentially numbered supplies of checks. Each of the checks was immediately deposited to Eastern's account in a Connecticut bank. On December 5, 1972, at the time Reverend Zator delivered the $5,000 check to the defendant, the latter said, "Father, I'm new in this city here and I have to pay my men, my workers. They will not cash the check at the bank because they do not know me. Would you please sign a release authorizing me to cash this check?" The defendant then presented Reverend Zator with two forms which the latter signed. The words "pay to the order of" appeared on the slips; Reverend Zator saw no other words on them. The next day the defendant told Reverend Zator that the "permission slips" had fallen in some mud and been destroyed. He then requested that two replacements be signed. Upon being given the slips, Reverend Zator complied with the request. Thereafter the defendant filled in the blank spaces on each of the four slips so that they appeared to be checks numbered, dated, and drawn to the order of Eastern as follows: (1) check no. 4480, dated January 8, 1973, drawn *541 on the Springfield bank against the account of the Roman Catholic Bishop of Springfield, St. Stanislaus B.M. Church in the amount of $15,700; (2) check no. 4481, dated January 11, 1973, drawn on the Springfield bank against the account of the Roman Catholic Bishop of Springfield, St. Stanislaus B.M. Church in the amount of $8,300; (3) check no. 977, dated January 8, 1973, drawn on the Chicopee bank against the account of the Roman Catholic Bishop of Springfield, St. Stanislaus Cemetery, in the amount of $20,000; and (4) check no. 978, dated January 11, 1973, drawn on the Chicopee bank against the account of the Roman Catholic Bishop of Springfield, St. Stanislaus Cemetery, in the amount of $14,000. Those checks, although bearing numbers which were within the sequences of those in the checkbooks held by Reverend Zator, were made up on blank forms such as are available from legal or office supply houses. The bank names, account numbers and transit numbers were copied by the defendant from the checks previously given to him by Reverend Zator. All four of those checks were deposited in a newly opened account in Eastern's name in the Springfield bank. The first of the four checks cleared. There were insufficient funds in the two checking accounts to satisfy the remaining three, and payment of them was stopped. Such are the facts the judge could have found on the conflicting testimony. The factual questions raised by the defendant's denials of the various misrepresentations attributed to him were resolved against him at the trial; they are not open to reexamination in this court. On January 13, 1973, Reverend Zator complained to the chief of the Chicopee police department about those four checks and set in motion the complaint process which eventually resulted in the indictments upon which the defendant was convicted. 1. The defendant assigns as error the denial of his request for rulings of law that the evidence was insufficient to warrant findings of guilt. We consider Commonwealth v. Foster, 114 Mass. 311 (1873), to be controlling on that point. There the defendant was found guilty of uttering a *542 forged instrument. The defendant had induced one George Little to sign a note "Little & Co.," intending to represent the note as having been executed by a similarly named firm, James L. Little & Co. He then sold the note with that representation. In its holding the court stated that: "[i]f ... [the writing] is done at the dictation or request of another, and for his purposes and use, and his designs are fraudulent so as to make it forgery if he had written it himself, then the instrument is a forged one" and that "[i]f he signed it, without understanding its purpose, thoughtlessly, or from unfamiliarity with business matters, or being himself deceived, he might not be guilty of a criminal offense, and yet the instrument might be a forgery, so that one who procured it to be so made might be convicted either of the crime of forgery or of uttering a forged instrument." Commonwealth v. Foster, 114 Mass. at 320-321. The evidence warranted a finding that Reverend Zator thought he was signing "permission slips" to facilitate local check cashing by Eastern and that he did not know that he was signing a negotiable instrument. We hold, following the Foster case, that by falsely inducing Reverend Zator to put his signature on an instrument for a purpose he did not intend, the defendant committed forgery. We find nothing to the contrary in Putnam v. Sullivan, 4 Mass. 45 (1808), or in Commonwealth v. Baldwin, 11 Gray 197 (1858), upon which the defendant relies. We also note that in the latter case the court, in dictum, stated that "[forgery] may be the appending of a genuine signature to an instrument for which it was not intended." Id. at 198. 2. The defendant further assigns as error the denial of a request for a ruling to the general effect that intent to injure or defraud could not be found if the defendant filled in the blank spaces solely for the purpose of procuring the performance of a duty owed to him by the church. There is no question that both forgery and uttering a forged instrument require an intent to injure or defraud. Commonwealth v. Analetto, 326 Mass. 115, 118 (1950). We are thus left with only the question whether the requested ruling is a correct statement of law, for if it is not, the *543 request was properly denied. See Campanale v. General Ice Cream Corp. 314 Mass. 387, 389 (1943); Commonwealth v. Monahan, 349 Mass. 139, 170 (1965). The defendant relies on the statement in Commonwealth v. McDuffy, 126 Mass. 467, 471 (1879), to the effect that if a defendant uses fraudulent representations to obtain money that is rightfully due him, he cannot be convicted of obtaining money by false pretenses. It should be noted that McDuffy involved a liquidated claim while the present case does not. Even if we were to assume that statement to be applicable to a charge of forgery, it would not aid the defendant. Reverend Zator's signatures on the four instruments in question could have been found to have been obtained on December 5 and 6, 1972. On those dates only about four days work had been performed on a job which took more than a month to complete. The installment payment due on completion of one third of the work was not requested by the defendant until December 18. Thus, it would appear that on December 5 and 6 Eastern was owed nothing under the contract beyond the $5,000 which had already been paid to it.[1] "... [I]n a case where there is no evidence of a liquidated amount to be paid, or other ascertained duty due, the question dealt with in Commonwealth v. McDuffy does not arise...." Commonwealth v. Burton, 183 Mass. 461, 467 (1903). In Commonwealth v. Peakes, 231 Mass. 449 (1918) (decided under R.L. 1902, c. 209, § 1, the predecessor of G.L.c. 267, § 1), a conviction of forgery was upheld where the treasurer of a corporation fraudulently wrote checks as compensation for services allegedly performed by him on behalf of the corporation. The court held that "[h]is `belief' that he had a right to resort to forgery and other illegal *544 acts in collecting a debt which he claimed the corporation owed him, does not deprive the forgery of its criminal character, nor excuse its commission." Id. at 456. The court, in holding the McDuffy case inapplicable, recognized that that case went no further than to decide: "that if the sole purpose of a false pretence is to procure from the person deceived the performance of a duty owed by that person to the prisoner, like the payment of a liquidated debt which is in fact due, there is no intention to defraud," 231 Mass. at 457, quoting Commonwealth v. Burton, 183 Mass. at 466. It is unquestioned that the defendant's firm performed considerable work on the St. Stanislaus Church. The defendant's belief that money was or would become due to him (or Eastern) did not authorize him to resort to forgery to procure payment. This position is consistent with that taken by noted criminal law commentators. "It is not a defense that the person committing the forgery was or considered himself justly entitled to what he would obtain by means thereof." Wharton, Criminal Law and Procedure, § 647, p. 437 (Anderson ed. 1957). "And an intent to use an instrument to which the signature of another is wrongfully attached is fraudulent even if that other actually owes the forger the amount of money represented and this is merely a device used to collect the debt. These results are necessary because the social interest in the integrity of instruments is violated by the use of false writings, even under these circumstances." Perkins, Criminal Law, p. 354 (2d ed. 1969). Judgments affirmed. NOTES [1] The defendant testified that Reverend Zator signed the four slips on December 26, right after he had given the defendant a check for a requested installment payment, and that the work continued on until sometime in January. Thus, on the defendant's own story the work was not complete when the "permission slips" were signed and no sums could have been claimed by the defendant or Eastern to be then due and payable.

408 F.Supp.2d 160 (2006) Robert C. MULLINS, Petitioner, v. Fred G. BENNETT, Superintendent, Respondent. No. 00-CV-0136. United States District Court, W.D. New York. January 12, 2006. *161 *162 Jay Samuel Ovsiovitch, William Clauss, Federal Public Defender, Rochester, NY, for Petitioner. Loretta S. Courtney, Monroe County District Attorney's Office, Rochester, NY, for Respondent. DECISION AND ORDER BIANCHINI, United States Magistrate Judge. INTRODUCTION Petitioner, Robert C. Mullins ("Mullins"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in New York State Supreme Court (Monroe County) on two counts of first degree assault and two counts of second degree criminal possession of a weapon. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c). FACTUAL BACKGROUND Mullins's conviction stems from two separate assaults with a firearm that occurred in the City of Rochester. Under indictment # 454/94 filed July 14, 1994, Mullins was charged as an accomplice in the July 16, 1993, shooting of Everton Brown, and as a principal in the January 1, 1994, shooting of Bobby Lee. Mullins's severance motion was denied by Monroe County Court (Malloy, J.). Mullins was tried before a jury and found guilty of all counts in the indictment. The following factual recitation is taken from the briefs of the petitioner and district attorney on direct appeal. Citations to the trial transcript are those of the parties.[1] On July 16, 1993, Everton Brown ("Brown") was shot on the front porch of his home at 195 Adams Street in the City of Rochester. Brown had come to the front door in response to someone calling his name. T.157. When Brown opened the door, he was able to see the person who was calling him, and he identified Mullins as this individual at trial.[2] As soon as Brown came into sight, Mullins stepped aside and a man by his side began shooting at Brown. T.161. The shooter was never *163 identified. Brown turned and ran back inside the house, but the shooter continued firing shots, hitting Brown three times. T.162. At the time of trial, Brown still had a bullet lodged in his hip. Immediately following the assault, Brown was in the hospital for about two months. At the time of trial, he had not been able to work in two years. T.165, 172-74. Gladys Weems ("Weems"), Brown's girlfriend, told the police that she could identify Mullins as one of the two persons whom she saw on the night of the assault. At trial, however, she testified that she had done so only upon Brown's instruction, and that she now was certain that Mullins was not the person whom she saw that night. T.391-92. To rebut Weems's recanting testimony, the prosecution called Wendy Blaesi ("Blaesi"), an employee of the district attorney's office who had spoken with Weems. Blaesi testified that Weems told her that she (Weems) had changed her story and refused to identify Mullins at trial because she was afraid of Mullins. T.500-02. On January 1, 1994, Bobby Lee ("Lee") answered a knock on his front door and, when he stepped outside, found Mullins standing there. T.43. Lee knew Mullins from having worked for him as a deejay in the past. T.45. Lee testified that he and Mullins stood face-to-face and were talking for a while. According to Lee, Mullins was saying that he had been robbed and that he knew Lee knew the "niggers" who did it. T.45, 50. Lee described Mullins as "fidgety" during their conversation. Suddenly, Mullins pulled out a .38 caliber gun. Lee began to run away, but he fell down. Mullins then walked up and shot Lee twice as he laid on the ground. Several months after the shooting, however, Lee signed an affidavit for an investigator employed by the defense in which he stated that Mullins was not the shooter. Lee repudiated this affidavit at trial, stating that it was the result of intimidation by Mullins. T.105-30. Lee's girlfriend, Wanda Cajigas ("Cajigas") witnessed the assault from inside Lee's house and testified at trial that she recognized Mullins after having met him once on the night before the shooting. T.140-45. Some months after the January shooting, a .38 Beretta was recovered during an unrelated arrest of an individual who was not involved in the Lee and Brown incidents. According to the ballistics expert's examination of the bullet casings found at the crime scenes, this .38 Beretta was the same pistol that had been used to fire the shots at both Brown and Lee. T.314-16, 323-25. The expert testified that a spent bullet found at the scene of the Lee shooting was fired from the .38 Beretta and that a bullet recovered from the victim was consistent with having been fired from that pistol as well. (The remains of the second bullet were insufficient to make a final determination.) Mullins did not testify in his behalf or call any witnesses but rather relied upon a defense of mis-identification with respect to both incidents. The jury convicted Mullins of all counts in the indictment. He was sentenced to twelve years to life on each of the four counts, with the sentences for the two charges arising from each incident to be served concurrently to each other but consecutively to the sentences for the other incident. PROCEDURAL HISTORY Represented by new counsel, Mullins appealed to the Appellate Division, Fourth Department, of New York State Supreme *164 Court, which unanimously affirmed the conviction. People v. Mullins, 247 A.D.2d 885, 668 N.Y.S.2d 799 (4th Dept.1998). The New York Court of Appeals denied leave to appeal. People v. Mullins, 92 N.Y.2d 928, 680 N.Y.S.2d 469, 703 N.E.2d 281 (N.Y.1998). On June 17, 1999, Mullins petitioned the Appellate Division, Fourth Department, for a writ of error coram nobis on the ground that his appellate counsel was ineffective in failing to raise on direct appeal a properly preserved claim under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The Appellate Division denied Mullins's application in a summary order. Mullins appealed the decision to the New York State Court of Appeals; on January 12, 2000, that court dismissed the appeal because, at that time, denials of coram nobis applications were not appealable under New York's Criminal Procedure Law § 450.90(1). This pro se habeas petition pursuant to 28 U.S.C. § 2254 followed in which Mullins asserts three grounds for relief: (1) that he was denied his right to due process when the trial court denied his severance motion; (2) that he was denied his right to due process because the evidence was insufficient to convict him with respect to all four counts of the indictment; and (3) that he was denied his Sixth Amendment right to effective assistance of appellate counsel due to his attorney's failure to raise a Batson argument on direct appeal. In its answer to the petition, respondent argued that the severance claim and the evidentiary insufficiency claim were "without foundation or merit." Respondent also alleges that the insufficiency claim is unexhausted. On March 20, 2003, the Federal Public Defender's Office was appointed to represent Mullins. During a status conference held on April 21, 2003, respondent moved to dismiss the ineffective assistance of counsel claim on several grounds, including that the claim improperly was raised as part of an untimely second petition. The Court denied the motion in an order entered May 26, 2005 (Docket # 21), and directed respondent to bear the costs of producing the voir dire transcripts necessary for disposition of Mullins's ineffective assistance of counsel claim. The matter is now fully submitted and ready for decision. For the reasons set forth below, the petition is granted. DISCUSSION Exhaustion A petitioner must exhaust all available state remedies either on direct appeal or through a collateral attack of his conviction before he may seek a writ of habeas corpus in federal court. 28 U.S.C. § 2254(b)(1); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir.1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436, 131 L.Ed.2d 316 (1995). The exhaustion of state remedies requirement means that the petitioner must have presented his constitutional claim to the highest state court from which a decision can be obtained. See Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir.2000) (citing Grey v. Hoke, 933 F.2d 117, 119 (2d Cir.1991)). A claim is properly exhausted when the state court is fairly apprised of the claim's federal nature and of the factual and legal premises underlying the claim. Grey, 933 F.2d at 119-20. Respondent raises non-exhaustion as a defense only with respect to Mullins's insufficiency-of-the-evidence argument, stating that petitioner "failed to raise this in the New York State Court of Appeals." Respondent's Answer at 4 (Docket # 7). It appears, however, the Mullins has withdrawn his insufficiency-of-the-evidence claim. First of all, in his reply memorandum of law, Mullins only argued the ineffective *165 assistance of appellate counsel claim and the denial of severance claim. See Petitioner's Reply Memorandum of Law (Docket # 11). In addition, Mullins wrote that "[p]etitioner concedes to point II of respondent's answer." Petitioner's Memorandum of Law at 4 (Docket # 11). Mullins evidently is referring to Point II of respondent's memorandum of law, which is attached to its answer to the petition. In Point II, respondent argues that Mullins's insufficiency-of-the-evidence claim is without merit. See Respondent's Memorandum of Law at 4 (Docket #). In the last paragraph of the memorandum, respondent adds that the claim is also unexhausted for unspecified reasons; respondent provides no further argument on this point. Based upon Mullins's failure to argue the insufficiency claim in his reply memorandum of law, and his unequivocal statement that he does not contest respondent's arguments regarding his insufficient evidence claim, the Court concludes that Mullins has evidenced an intent to withdraw this claim. Accordingly, it is deemed withdrawn and will not be considered as one of Mullins's claims for habeas relief. Legal Standard Because the filing of this petition post-dates the enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), AEDPA's revisions of 28 U.S.C. § 2254 govern this proceeding. See Williams v. Taylor, 529 U.S. 362, 402, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). When Congress enacted Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), it "significantly curtailed the power of federal courts to grant the habeas petitions of state prisoners." Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir.2001) (citing Williams, 529 U.S. at 399, 120 S.Ct. 1495). A Federal court may not grant a habeas petition on a claim that was adjudicated on the merits in State court unless that adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1), (2). Thus, review under AEDPA is presumptively deferential to a denial of relief by the state court, assuming that the claim was adjudicated on the merits.[3] However, the Second Circuit has refused to interpret this so-called "AEDPA deference" as "blind obedience." Gutierrez v. McGinnis, 389 F.3d 300, (2d Cir.2004). Merits of the Petition 1. Denial of Severance Motion Mullins contends that he should have had separate trials with respect to the charges stemming from the Lee shooting and the Brown shooting. "Joinder of offenses rises to the level of a constitutional violation only if it actually render[s] petitioner's state trial fundamentally unfair and hence, violative of due process." Herring v. Meachum, 11 F.3d 374, 377 (2d Cir.1993) (quoting Tribbitt v. Wainwright, 540 F.2d 840, 841 (5th Cir.1976), cert. denied, 430 U.S. 910, 97 S.Ct. 1184, 51 L.Ed.2d 587 (1977)). The Second Circuit has explained that as a general rule in federal court, the decision whether to grant a severance is "`committed to the sound discretion of the trial judge.'" Grant v. Hoke, 921 F.2d 28, 31 (2d Cir. 1990) (quoting, inter alia, United States v. Casamento, 887 F.2d 1141, 1149 (2d Cir. 1989), cert. denied, 493 U.S. 1081, 110 S.Ct. *166 1138, 107 L.Ed.2d 1043 (1990)). A defendant seeking to overturn a denial of a severance motion, furthermore, must show that he was "so severely prejudiced by the joinder as to have been denied a fair trial, not that he might have had a better chance for acquittal at a separate trial." Id. (quotations and citations omitted); see also Herring, 11 F.3d at 377-78 (holding that a defendant claiming a due process violation based upon joinder of offenses "must, to succeed, go beyond the potential for prejudice and prove that actual prejudice resulted from the events as they unfolded during the joint trial") (quoting Tribbitt, 540 F.2d at 841 (joinder must "actually" render trial fundamentally unfair before habeas relief is appropriate)) (emphasis in original). The burden of proof borne by a petitioner seeking to overturn a state court conviction on the basis of improper denial of severance is "[a]t least" as great as that of a federal defendant on direct review. Id. (citation omitted). Mullins's main contention is that the trial court's instructions to the jury were constitutionally erroneous because they effectively allowed the jury to commingle the evidence with respect to the two separate assaults. In particular, Mullins points to the court's statement that "there are two sets of charges, two separate incidents, so the essential elements will be the same for each of the two incidents, although there is one that is a little different, because there is a claim that he [Mullins] acted as an accomplice. I will explain what that is." Petitioner's Reply Memorandum of Law at 3 (quoting T.576) (Docket # 11). This is not an incorrect statement. By "elements," the court was referring to the elements making up the criminal offense with which Mullins was charged. As the court stated, the two incidents led to Mullins being charged with the same offenses for both. Thus, the elements of first degree assault, for instance, would be the same regardless of whether the jury was considering the Brown shooting or the Lee shooting. Mullins thus has not made the required showing that joinder of the counts actually prejudiced his right to a fair proceeding. 2. Ineffective Assistance of Appellate Counsel — Failure to Raise Batson Claim As an initial matter, the Court notes that the constitutional right to effective assistance of counsel extends to appellate counsel. Sellan v. Kuhlman, 261 F.3d at 315 (citing Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985)). In deciding this claim, the issue before the Court is whether the Appellate Division unreasonably applied Strickland v. Washington, the clearly established Supreme Court precedent that governs resolution of ineffective assistance of counsel claims, to the facts of Mullins's case. A State court decision is an "unreasonable application" of Supreme Court precedent if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular case." Williams, 529 U.S. at 407-08, 120 S.Ct. 1495. To show that his counsel's representation was ineffective under Strickland, Mullins must establish that (1) the attorney's performance fell below an objective standard of reasonableness; and (2) the deficient representation prejudiced the defense. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The Strickland two-pronged standard applies equally to claims of ineffective assistance of appellate counsel. E.g., Claudio v. Scully, 982 F.2d 798, 803 (2d Cir.1992), cert. denied, 508 U.S. 912, 113 S.Ct. 2347, 124 L.Ed.2d 256 (1993). This Court then must view the claim through the lens of 28 U.S.C. § 2254(d)(1) in order to determine not whether the *167 state court was incorrect or erroneous in rejecting Mullins's ineffective assistance claim, but whether it was "objectively unreasonable" in doing so. Sellan v. Kuhlman, 261 F.3d at 315 (citing Williams, 529 U.S. at 409, 120 S.Ct. 1495 (O'Connor, J., for the Court, Part II)). The Second Circuit has held that for a state court's adjudication to be "objectively unreasonable," there must be "[s]ome increment of incorrectness beyond error[.]" Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000) (internal quotation marks and citations omitted); accord, e.g., Sellan, 261 F.3d at 315. However, "the increment need not be great; otherwise habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Id.; accord Sellan, 261 F.3d at 315. The failure to raise a meritorious argument based on purely state law grounds may form the basis of a federal habeas petition alleging ineffective assistance of appellate counsel: "[t]he claim whose omission forms the basis of an ineffective assistance claim may be either a federal-law or state-law claim, so long as the `failure to raise the state . . . claim fell outside the wide range of professionally competent assistance.'" Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.1994) (quoting Claudio v. Scully, 982 F.2d 798, 805 (2d Cir.1992) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052)). In attempting to establish that appellate counsel's failure to raise a state claim constitutes deficient performance, it is insufficient for the petitioner to show "merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to advance every nonfrivolous argument that could be made." Id. (citing Jones v. Barnes, 463 U.S. 745, 754, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)). Whether the neglected appellate issue is based on federal or state law, the burden rests on Mullins to show "that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Id. In assessing appellate counsel's performance, I must judge the conduct at issue on the basis of the facts of the particular case, viewed as of the time that counsel was preparing the appeal. Strickland, 466 U.S. at 690, 104 S.Ct. 2052. Furthermore, I must make every attempt to eliminate the distorting effects of hindsight from my evaluation of his performance. See Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); accord Mayo, 13 F.3d at 533. a. Appellate Counsel's Pursuit of Significantly Weaker Issues On direct appeal, counsel's two main points were that the severance motion should have been granted and that there was no proof beyond a reasonable doubt that Mullins was an accomplice in the shooting of Everett Brown. Petitioner's Appellate Brief at iii, attached as "Appendix B" to Respondent's Answer (Docket # 7). Counsel then addressed the arguments under four point headings: (1) the "single trial for the two assaults that were not otherwise factually connected was inherently prejudicial to the right of the defendant to receive a fair trial"; (2) there was "no proof beyond a reasonable doubt that Mullins was an accomplice in the assault on Everton Brown"; (3) joinder of the four counts of the indictment "cannot be justified on the basis of the admissibility of evidence of one assault as proof of the other"; and (4) the "prosecution deliberately did all it could to exaggerate the extent of the prejudice" caused by the joint trial. Points one and three both related to counsel's argument that severance was improperly denied; point two made an insufficiency-of-the-evidence argument, *168 and point four asserted that the prosecutor committed misconduct during the trial. i. The Issue of Denial of Severance The Appellate Division held that "[b]ecause the evidence with respect to the assault in which defendant was charged as a principal was admissible to establish identity and intent with respect to the assault in which he was charged as an accomplice, the criminal transaction were properly jointed under [New York Criminal Procedure Law] section 200.20(2)(b). Once the offenses were properly joined, Supreme Court `lacked statutory authority to sever.' We have examined defendant's remaining contentions and conclude that they are without merit." People v. Mullins, supra (citing, inter alia, People v. Bongarzone, 69 N.Y.2d 892, 895, 515 N.Y.S.2d 227, 507 N.E.2d 1083; People v. Lane, 56 N.Y.2d 1, 7, 451 N.Y.S.2d 6, 436 N.E.2d 456). Based upon my review of the applicable case law and statutory provisions, I must agree with petitioner that appellate counsel chose a particularly weak argument for appeal. A defendant may seek a discretionary severance only if the charges were joined pursuant to C.P.L. § 200.20(3)(c), which allows joinder of "offenses defined by same or similar statutory provisions." N.Y.Crim. Proc. Law § 200.20(3). Because the charges against Mullins were joined pursuant to C.P.L. § 200.20(3)(b), which provides for joinder when proof of one offense would be material and admissible in evidence upon a trial of the other offense, the trial court clearly had no statutory authority to sever. Thus, I agree with Mullins that it was pointless for appellate counsel to have bothered raising the severance argument. The insufficiency-of-the-evidence and prosecutorial misconduct arguments were somewhat stronger than the severance argument, but that is not saying much. The Appellate Division summarily rejected both arguments as without merit as well. I next examine the insufficiency claim solely for the purpose of evaluating appellate counsel's performance. ii. The Issue of Insufficiency of the Evidence Under the extremely stringent test set forth in People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 763, 508 N.E.2d 672 (N.Y.1987), the evidence was certainly sufficient to convict Mullins of the assault on Brown under an accomplice theory of liability. After all, to sustain a conviction, the court need only find that there is "any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged." Id. Moreover, it is quite rare for a defendant to prevail on an insufficiency claim, even on direct review. Appellate counsel's main argument in this regard was that it was not enough merely to prove that Mullins was present at the time of the Brown shooting in order to convict him an accomplice; rather the prosecution was required to show that the "reason [Mullins] was there was to facilitate the assault." Since there was no evidence introduced as to who actually fired the shots at Brown, counsel argued, there was no evidence that Mullins and the unknown shooter "planned or designed or agreed to the assault." Contrary to appellate counsel's contention, there did not need to be a pre-existing design or plan between the shooter and Mullins in order to convict Mullins as an accomplice.[4]*169 There was direct evidence-namely, the testimony of Brown, the victim-that Mullins called out to him several times to get him to come to the door. Once Brown opened the door, the shooter began firing. A rational trier of fact easily could have relied on this evidence to find that the prosecution had proved, beyond a reasonable doubt, that Mullins "intentionally aid[ed]" the shooter, see N.Y. Penal Law § 20.00, in assaulting Brown. Thus, this appeal choice by appellate counsel was, as a practical matter, a non-starter. iii. The Issue of Prosecutorial Misconduct The prosecutorial misconduct argument, which was intertwined with the severance issue, was a non-starter as well. Appellate counsel argued that the prosecutor improperly referred to the two assaults as a single event and that, "by mixing and matching" the two crimes, the jury was misled as to the nature and quality of the proof. The two examples given by appellate counsel in his brief were nothing more than strenuous advocacy on the part of the prosecutor, and they were not even improper argument. Appellate counsel did not come close to establishing a claim of prosecutorial misconduct. See, e.g., People v. Crump, 254 A.D.2d 742, 680 N.Y.S.2d 765 (4th Dept.1998) ("Prosecutorial misconduct warrants reversal only when the conduct has caused such substantial prejudice to the defendant that he has been denied due process of law or where the prosecutor's remarks, viewed in the totality of the circumstances, are so egregious as to deprive defendant of a fair trial.") (internal citations and quotation marks omitted). B. Analysis of the Batson Claim Returning now to Mullins's Batson claim, I note that Mullins faults appellate counsel for overlooking the stronger Batson claim in favor of pressing the foregoing weak issues. He asserts that "[g]iven the law as developed in the New York State Supreme Court, Appellate Division" concerning the Batson claim, there was a "reasonable probability" that the court reviewing Mullins's direct appeal "would have found the prosecutor's reasons for striking the sole black juror in the venire improper under Batson." Petitioner's Supplemental Memorandum of Law at 19 (Docket # 27). In Mayo v. Henderson, the Second Circuit quoted with approval the Seventh Circuit's instructions for examining a claim of ineffective assistance of counsel is based on failure to raise viable issues: [T]he district court must examine the trial court record to determine whether appellate counsel failed to present significant and obvious issues on appeal. Significant issues which could have been raised should then be compared to those which were raised. Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome. Mayo, 13 F.3d at 533 (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir.1986)). The Second Circuit has explained that "[t]o establish prejudice in the appellate context, a petitioner must demonstrate that there was a `reasonable probability' that [his] claim would have been successful before the [state's highest court].'" Mayo, 13 F.3d at 534 (quoting Claudio, *170 982 F.2d at 803) (footnote omitted in original). In Claudio, the Second Circuit held that appellate counsel's failure to raise a claim that petitioner, on a pre-trial appeal of the admissibility of his confession, was denied his right to the effective assistance of counsel under Article 1, § 6 of the state constitution, had a "reasonable probability" of success before the New York Court of Appeals despite the Appellate Division's decision to deny the claim. Thus, the Claudio panel found, the petitioner had proven the prejudice prong of Strickland. After concluding in Claudio that petitioner clearly was prejudiced by counsel's failure to argue the Article I, § 6 issue, the Second Circuit in also found that appellate counsel's performance fell "`outside the wide range of professionally competent assistance,'" id. (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). According to the Second Circuit, "[n]o reasonably competent attorney should have missed" the omitted claim "even though the Appellate Division ultimately rejected it," id. (noting that "the Appellate Division raised the claim sua sponte, conceded the important issue that the right to counsel had attached, and addressed more attention to the state constitutional claim than it did to the federal issue"). Mullins contends that appellate counsel was unreasonable in failing to include on direct appeal a Batson claim regarding the dismissal of the one black juror in the venire, Mamie Thompson, pursuant to the prosecutor's exercise of a peremptory strike. T.196. Defense counsel raised an objection based on Batson and requested that the prosecutor be directed to offer a race-neutral reason for striking her. The prosecutor responded as follows: The first point I would like to make is that all of the civilian witnesses and the victims in this a case are — or two separate cases, are African-Americans, so I think that lessens the impact, so to speak, for any type of racial confrontational aspects that might be evident in a case where you have an African-American on one side and Hispanics or White, or some other racial group on the other side. The other point that I wanted to make is the person in question here, to my knowledge, she appeared to be the only African-American person on the panel, she indicated that she did work, but the problem I had was that she worked at an agency which was — primarily dealt with social work. She had contact with many, many social workers who were her friends. And my preference is not to have people from that background. I would rather have people that are ready to make decisions, than people that are interested in perhaps solving problems or taking into account other societal factors, so that is one of the preferences I have in choosing jurors. I will note for the record, that Diane Niedermeier, who was a female white, and Connie Guerrieri, who is also a female white, both of them had ties to social work. Ms. Niedermeier was a Director of a substance abuse restart program. Connie Guerrieri had a Masters Degree in Social Work from the University of Buffalo. Both of those white jurors also were perempted [sic] by me. In addition, Mamie Thompson also indicated that she read Sigmund Freud, which set off a bell with me, indicating that perhaps tied her more closely to social work or sort of delving further into emotional and psychological causes that needed to be — that I am uncomfortable with, from a member of the jury. And she also couldn't remember how many kids she had. She said that she *171 had three kids, when she was questioned by the Court. And she, when I got back up there to re-question her, she indicated to me that she had four kids. And sometimes she couldn't remember, and she seemed to me to be a little bit skittish, again, a quality I am not comfortable with from a juror. T.196-98. The prosecutor also asserted that counsel's Batson objection was not timely made. However, it was made prior to the conclusion of jury selection, and it was not untimely. See People v. Bolling, 79 N.Y.2d 317, 321, 591 N.E.2d 1136, 582 N.Y.S.2d 950 (N.Y.1992) ("We conclude that a defendant may assert a claim that peremptory challenges are being used for discriminatory purposes when those challenges are exercised, regardless of whether jury selection has been completed.") Defense counsel responded that there did not seem to be "much in the way of contact" with social workers since Thompson worked in food service, and that any contact did not rise to a level of "having a lot of friends or much involvement in social work, certainly not the same as the other social workers that were stricken." The court denied counsel's motion for a mistrial and denied the Batson application, stating that he was "satisfied there were racially neutral reasons for the exercising of the peremptory challenge." T.200. The Supreme Court in Batson v. Kentucky held that the "State's privilege to strike individual jurors through peremptory challenges, is subject to the commands of the Equal Protection Clause," and thus it is forbidden to use of peremptory challenges solely for the discriminatory purpose of excluding persons of a particular race from serving on a jury. 476 U.S. at 89, 106 S.Ct. 1712. Such discriminatory use of peremptory challenges also violates the Equal Protection Clause of New York's State Constitution. See N.Y. Const., art. I, § 11; People v. Kern, 75 N.Y.2d 638, 649, 555 N.Y.S.2d 647, 652, 554 N.E.2d 1235, 1240 (1990). A "structural error," in contrast to a mere "trial error," undermines "`[t]he entire conduct of the trial from beginning to end'" and is not subject to harmless error review. Tankleff v. Senkowski, 135 F.3d 235, 248 (2d Cir.1998) (quoting Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). "Because the effects of racial discrimination during voir dire `may persist through the whole course of the trial proceedings,'" a Batson claim is a "structural error" that is not subject to harmless error review. Id. (quoting Powers v. Ohio, 499 U.S. 400, 412, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991)). Mullins acknowledges that there is New York state case law recognizing that a person's employment may constitute a legitimate race-neutral reason for excluding someone from a jury. In particular, the Fourth Department of the Appellate Division has held that a "person's employment or lack of employment may, in an appropriate case, constitute a legitimate race-neutral reason for exclusion[.]" People v. Duncan, supra (citing Colbert, Challenging the Challenge: Thirteenth Amendment as a Prohibition Against the Racial Use of Peremptory Challenges, 76 CORNELL L.REV. 1, 97-98 (1990); Serr and Maney, Racism, Peremptory Challenges, and the Democratic Jury: The Jurisprudence of a Delicate Balance, 79 J. CRIM. L. & CRIMINOLOGY, 1, 45 (1988)). However, the prosecutor's proffered reason for striking the jury must be case-specific, i.e., "related to the factual circumstances of the case or a particular jury issue[.]" Id.; accord People v. Smith, 266 A.D.2d 570, 699 N.Y.S.2d 104 (2d Dept.1999) ("Where a peremptory challenge is based upon a prospective juror's employment, the concerns regarding the employment must be related to the *172 factual circumstances of the case, and the qualifications of the juror to serve on that case."). Furthermore, even one racially-motivated challenge is sufficient to trigger the protections of Batson. E.g., People v. Jenkins, 75 N.Y.2d 550, 557, 555 N.Y.S.2d 10, 554 N.E.2d 47 (N.Y.1990). Mullins argues that because the prosecutor's peremptory challenge was based upon Thompson's place of employment, he was required to relate the concerns about the employment to the factual circumstances of his case and her qualifications to serve on the case. Because the prosecutor did not do this, as required by New York state law as developed in the Appellate Division's Fourth and other departments, Mullins asserts that he had a reasonable probability of success on appeal had counsel raised a Batson issue. I agree with Mullins that counsel was unreasonable in neglecting to brief this claim, and that this omission prejudiced Mullins on direct appeal. For example, in People v. Duncan, the prosecutor exercised a peremptory strike with respect to a prospective black female juror who was a "monitor technician" at a local hospital, citing concerns about her employment. In reversing the conviction in Duncan, the Fourth Department in its analysis cited with approval Williams v. State, 507 N.E.2d 997, 999 (Ind.Ct.App. 1987), in which court approved the peremptory exclusion of a prospective black juror in a rape case on the basis of her employment as a social worker. In Williams, the prosecutor's proffered reason was that, because of her employment as a social worker, the juror might have a liberal view of sexual behavior. Thus, the prosecutor was able to tie the concerns about the juror's employment to the subject matter of the charges against the defendant. As an example of a case in which the prosecutor's reason was not related to the case before the court, the Duncan court cited State v. Butler, 731 S.W.2d 265, 272 (Mo.Ct.App.1987), a case involving the prosecution of charges of robbery and armed criminal action. In Butler, the court rejected a prosecutor's explanation that in his experience, nurses were "compassionate" and would be "inclined to feel sorry for defendants." The court held that "the prosecutor's prior experience [was] not a reason `related to the case to be tried.'" Butler, 731 S.W.2d at 272 (quoting Batson, 476 U.S. at 97, 106 S.Ct. 1712). In Duncan, the prosecutor classified all persons who were "monitor technicians" as "easily satisfied," "not real concerned with what [they] [did] on a day-to-day basis" and stated that such persons "really don't give a damn." The prosecutor suggested that he did not want these qualities in persons involved in jury service on a serious criminal case, but, as the court said, he "articulated no basis for concluding that the prospective juror possessed these qualities or that she [the challenged juror] would be unable to perform diligently and attentively her jury responsibilities." People v. Duncan, supra. Even more important, in the Fourth Department's view, was that "the prosecutor failed to articulate any observation (appearance, demeanor, response to questions) that would place the juror within the stereotype or profile." The Fourth Department decried this type of "presumed group bias," stating that it was "not a legitimate basis for the exercise of a peremptory challenge." Id. (citing State v. Gilmore, 103 N.J. 508, 511 A.2d 1150(N.J)). I note that the Fourth Department's decision in Duncan was upheld by the state's highest court on appeal. At Mullins's trial, the prosecutor stated that his "preference" was "not to have people from that [a social work] background." *173 The prosecutor said that he "would rather have people that are ready to make decisions, than people that are interested in perhaps solving problems or taking into account other societal factors[.]" First of all, the prosecutor blatantly misrepresented Thompson's voir dire responses. Thompson never said that she had a background in social work-she was a food service supervisor who merely happened to be employed at a facility that provided mental health services. In response to the prosecutor's leading question, "So you know a lot of social workers that work there, as well, obviously?" Thompson replied, "Yes." Yet again, the prosecutor misstated her responses because, contrary to the prosecutor's direct statements and insinuations, Thompson never stated that she was "friends" with "many, many" social workers at her job. In any event, even if Thompson did have a background in social work, which she did not, as in Duncan, the prosecutor at Mullins's trial "did not relate his concerns about the prospective juror's employment to the factual circumstances of the case." People v. Duncan, supra; People v. Campos, 290 A.D.2d 456, 736 N.Y.S.2d 108 (2d Dept.2002). Secondly, the vague explanation proffered by the prosecutor is strikingly similar to the ones that were rejected in People v. Duncan and State v. Butler, which the Duncan court cited with approval. I do not believe that a reviewing court would disagree with the proposition that the prosecutor's reason for striking Thompson was "grounded in a stereotype of dubious validity" and there was "no evidence" that she "possessed the qualities supposedly inherent in that stereotype." People v. Duncan, supra. The prosecutor pointed out that he also struck two white females who had a "background" in social work, presumably making this claim to convince the trial judge that his motive in striking Thompson was non-discriminatory since he was consistently pursuing his avowed purpose of striking social workers regardless of race. Yet only one of them, Connie Guerrieri, actually had such a background: she had just received her masters degree in social work and was looking for a job. Like Thompson, Diane Neidemeier (the other juror struck because of her employment) merely worked at a facility that provided social services-she was an operations and facility operations manager for a local substance abuse service called the Catholic Family Center. T.141, 172. She affirmatively stated that her position was "strictly management" and that she had no background in social work whatsoever. However, simply because the prosecutor also relied upon the same improper stereotype about individuals with a supposed "background" in social work to peremptorily strike two white female jurors is of no moment. The fact remains that the prosecutor's concerns about the struck black female juror's employment were not related to the facts of Mullins's case, as New York state case law requires them to be. As Mullins aptly points out, the prosecutor had no issue with seating John Houston ("Houston"), who was a boiler operator at Monroe County's Iola health facility campus, which includes Monroe Community Hospital and Monroe County Health and Social Services. Surely, Houston could have, and probably did, come into contact with social workers while he was at his employment. Tellingly, however, Houston was a white male. Finally, I note that the prosecutor also described Thompson as "skittish" which was a quality he tried to avoid in a juror. However, this is a reason that the Appellate Division most probably would have found could not overcome the pretextual nature of the prosecutor's reason. See People v. Robinson, 226 A.D.2d 561, 640 *174 N.Y.S.2d 613 (2d Dept.1996) (noting that defense counsel's statement that he did not "get a good feel" from this prospective juror was "purely intuitive") (citing People v. Richie, 217 A.D.2d 84, 635 N.Y.S.2d 263 (2nd Dept.1995)). The Fourth Department has made clear that where a peremptory challenge is based upon a prospective juror's employment, "the concerns regarding the employment must be related to the factual circumstances of the case, and the qualifications of the juror to serve on that case." People v. Duncan, supra. Given that there was on-point, favorable precedent from the same court which was going to be reviewing Mullins's conviction, it was not reasonable for appellate counsel to overlook the Batson issue. Moreover, based on its statements in Duncan, there is a reasonable probability that the Fourth Department would have been receptive to Mullins's Batson claim and would have found the prosecutor's reason for striking Thompson to be pretextual. See People v. Duncan, supra ("To recognize the proffered explanation as valid and legitimate would, in our view, emasculate the constitutional protection recognized in Batson, and we refuse to do so."). As discussed above, the majority of appellate counsel's brief focused on the severance issue, which was not even a colorable state law claim. The remaining two issues were not precluded outright by statute, as the severance claim was, but they were barely viable — Mullins had no real chance of succeeding on those claims on appeal.[5] After reviewing the state case law and the complete transcript of the voir dire, I am convinced that, by comparison, the Batson issue was "clearly stronger" than those presented by counsel on direct appeal. There simply is no basis for saying that appellate counsel chose not to include the Batson issue because he was "winnowing out weaker arguments" and "focusing on" those more likely to prevail, Smith, 477 U.S. at 536, 106 S.Ct. 2661, 91 L.Ed.2d 434 (quotation omitted). Rather, counsel overlooked the strongest state law argument that his client had in favor of barely colorable claims. In light of the foregoing, I am compelled to conclude that it was an "unreasonable application" of Strickland for the Appellate Division to have resolved the deficient-performance aspect of Mullins's ineffective assistance of counsel claim against him. Cf. Sellan, 261 F.3d at 317 (in a post-AEDPA case, finding that appellate counsel was not deficient because the state court was aware that counsel raised other strong claims in her appellate brief and that in her professional judgment, at the time she filed her brief, the arguments she did raise were more likely to succeed than the argument that she omitted; in addition, the Appellate Division held that one claim raised on direct appeal was meritorious, though it ultimately found the error harmless). Moreover, given the Fourth Department's decision in People v. Duncan, there is a reasonable probability that the Batson claim would have been successful before that Court and that the New York Court of Appeals would not have reversed. Thus, Mullins is able to demonstrate that he was prejudiced by counsel's omission. *175 Habeas relief therefore is warranted on Mullins's Sixth Amendment claim. CONCLUSION Petitioner Robert C. Mullins's petition for a writ of habeas corpus is granted based on his claim that his appellate counsel was ineffective for failing to raise a Batson claim on direct appeal. The prisoner shall be released unless within sixty days the state commences prosecution or takes other action appropriate in light of this decision. This decision is stayed until all appellate proceedings are completed and a final mandate is received by this court. No certificate of appealability is granted with respect to petitioner's remaining claims, petitioner having made no substantial showing of the denial of a constitutional right. Petitioner is reminded that he may seek a certificate of appealability on these claims from the Court of Appeals for the Second Circuit. IT IS SO ORDERED. NOTES [1] For some reason, respondent never submitted the trial transcripts in connection with its answer. Respondent filed the original voir dire transcripts after being ordered to do so by the Court. [2] Brown apparently testified before the grand jury that he did not know who the two individuals outside of his house were. T.192. However, at trial, Brown stated that he did not recall his grand jury testimony, and that he knew all along that it was Mullins who was on the porch with the person who shot him, although he did not know Mullins's name at the time. T.194-95. [3] The Appellate Division's denial of Mullins's coram nobis application constituted an "adjudicat[ion] on the merits" under § 2254(d), despite its failure to discuss or make explicit reference to Mullins's Federal claim. Sellan v. Kuhlman, 261 F.3d 303, 314 (2d Cir.2001) Thus, I am required to apply the deference mandated under AEDPA to Mullins's claim. [4] Section 20.00 of New York's Penal Law provides that "[w]hen one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct." N.Y. Penal Law § 20.00. [5] I note that Mullins actually filed a grievance against his appellate counsel with the state Professional Performance Committee, which found that there had been a "failure of performance" on the part of Mullins's counsel. In particular, the committee found that counsel failed to communicate with his client and keep him informed as to the status of his appeal; failed to timely perform his duties in connection with perfecting his client's appeal; and failed to respond adequately to his client's complaint. See Letter dated June 17, 1999, attached as an exhibit to Docket # 4.

472 P.2d 997 (1970) Nemecio BACA, Administrator of the Estate of Eloy Baca, Deceased, Plaintiff-Appellee, v. Eloy BACA, Julio E. Lovato and Edward T. Sauer, d/b/a Liberty Bar, and Eloy Baca, Defendants-Appellants. No. 459. Court of Appeals of New Mexico. July 10, 1970. *999 Lorenzo A. Chavez, Melvin L. Robins, Albuquerque, for appellee. Robert G. McCorkle, James C. Ritchie, Bruce Hall, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, for appellants. OPINION OMAN, Judge. Defendants appeal from a judgment entered pursuant to a jury verdict awarding plaintiff damages in the amount of $24,500.00. We affirm. Plaintiff brought suit for the alleged wrongful death of decedent. The circumstances leading to the death, by viewing the evidence in its most favorable light in support of the verdict, [Williams v. Yellow Checker Cab Co., 77 N.M. 747, 427 P.2d 261 (1967); Cochran v. Gordon, 69 N.M. 346, 367 P.2d 526 (1961); Rein v. Dvoracek, 79 N.M. 410, 444 P.2d 595 (Ct.App. 1968)], were as follows: (1) Defendants, as partners, own and operate the Liberty Bar in Albuquerque. On May 13, 1967, defendant Lovato, who worked the daytime shift, was relieved at about 6:30 p.m. by defendant Baca, who worked the nighttime shift. (2) Rosendo Romero entered the bar as a patron at about noon, and from then until about 1:00 a.m. the following morning was consuming one drink of whiskey after another, and apparently also some beer, until he became so drunk he "* * * couldn't tell whether [he] was coming or going." He was at first being served these drinks by defendant Lovato, although Lovato knew him to be a petty thief, a purse stealer, and, consequently, a person who might cause fights. He was later served drinks by two of defendants' waitresses or barmaids, and he became a "drunk pest." (3) At about 12:30 a.m. or 1:00 a.m. on May 14, decedent entered the barroom, stopped at the bar to remark to defendant Baca that they had the same name, and talked briefly with Rosendo Romero. During this conversation with Romero, one of the barmaids observed Romero "punching" decedent. She considered this "horseplay" or "fooling around." (4) Decedent and Romero both went to the men's restroom at the rear of the barroom. In about five minutes someone called that there was a disturbance in the restroom, and defendant Baca investigated. He found Romero and decedent engaged in a "scuffle," or, as he also described it, a "shaking" or a "manhandling" of decedent by Romero. Decedent was offering no resistance. Defendant Baca "* * * told them to break it up and get out." (5) Defendant Baca then left the restroom and returned to his position behind the bar. Decedent and Romero followed him from the restroom. Romero was preceding decedent toward the exit, when he turned around and struck decedent, knocking him to the floor. (6) Decedent was unconscious for a few seconds, but revived shortly after defendant Baca used a wet towel to wipe blood from his face and head. At one time Baca stated "* * * it looked like he was bleeding from the right ear." He testified at the trial that he did not notice exactly where the blood was coming from, except it was in the area of the ear. (7) Defendant Baca ordered a barmaid to call the police. Policemen arrived shortly and talked with decedent for a period of about 10 to 20 minutes. Decedent told the police he wanted to be left alone. During this time another disturbance occurred involving a Mr. Barela. The police, in the confusion, thought Barela had struck decedent, and proceeded to arrest and escort him to the police car. About the time they arrived at the police car, decedent "passed out," and defendant Baca went outside and requested the police to take decedent along to jail because he was drunk. The police returned to the barroom, saw decedent was unable to care for himself, and assumed his condition was due to drunkenness. He was unable to walk, so was assisted by two policemen. (8) Prior to the scuffle in the restroom, decedent was able to walk *1000 `"straight," and did not appear to be intoxicated. He had nothing to drink in defendants' bar. After he had been struck and knocked down by Romero, defendant Baca noticed a change in his condition. He then appeared to be "more drunk or dazed." The only thing known to defendant Baca which could have caused this change was the blow by Romero and the consequent fall of decedent to the floor. (9) Defendant Baca never said anything to the police about seeing blood coming from or in the area of decedent's ear, but told them decedent was drunk and asked them to take him along to jail. (10) Decedent was observed by the jailer on two occasions during the morning hours of May 14 and he appeared to be sleeping. At about 10:00 a.m. the jailer observed mucus coming from decedent's nose and observed that decedent was having difficulty breathing. An ambulance was called and he was admitted to a hospital at about 11:00 a.m. He underwent brain surgery, but died two days later. The cause of death was the leakage of blood from a subdural hematoma into the brain stem. (11) There were differences in the opinions of the medical experts as to when and how rapidly the damage to the brain stem developed, and what the chances of saving decedent's life would have been had he been given early medical attention and an operation performed to remove the subdural hematoma. The one doctor testified he had operated on several hundred patients suffering from subdural hematomas, and that 90% of these operations had been successful. It was his opinion, as already stated above, that the brain stem damage resulted from a leakage of blood into the brain stem from the hematoma. Defendants first contend there is an absence of evidence from which the jury could have found defendant Baca knew or should have known decedent was likely to be struck by Romero, there is nothing this defendant could have done to prevent this assault on decedent by Romero, and the trial court should have directed a verdict for defendants. Defendant Lovato at least knew Romero to be a petty thief and purse stealer and a person who might cause trouble. Nevertheless, he and the barmaids served this person whiskey and beer over a period of about thirteen hours, during which time he became a drunken pest and so intoxicated that he recalls very little of what occurred and did not know whether he was coming or going. It is true there is no evidence of any prior tendency on the part of Romero to become violent when intoxicated, but one of the waitresses saw him punch decedent shortly after decedent entered the bar. This may or may not have been "horseplay," as she sought to characterize it at the trial. Defendant Baca personally investigated the incident in the restroom and observed Romero "scuffling" with or "shaking" or "manhandling" decedent, who was offering no resistance. This defendant ordered them to break it up and get out, and then proceeded ahead of them from the restroom and returned to his position behind the bar. He was an experienced bar operator, accustomed to troubles incited by persons under the influence of liquor, and knew that some people become emotional, uninhibited and violent when under the influence of intoxicants. Under these circumstances, and viewing the evidence in its most favorable light in favor of plaintiff and in support of the verdict, we are of the opinion that the evidence is sufficient to support a finding that defendants failed in their duty to exercise reasonable care to protect decedent against injuries from the conduct of Romero. As stated in Coca v. Arceo, 71 N.M. 186, 376 P.2d 970 (1962), in quoting from Peck v. Gerber, 154 Or. 126, 59 P.2d 675, 106 A.L.R. 996 (1936): "`A guest or patron of such an establishment has a right to rely on the belief that he is in an orderly house and that the operator, personally or by his delegated representative, is exercising reasonable *1001 care to the end that the doings in the house shall be orderly.'" The court further stated in the Coca case: "* * * The rule does not require a long and continued course of conduct to find that the proprietor had knowledge of the violent disposition of the other patron — all that is necessary is that there be a sequence of conduct sufficiently long to enable the proprietor to act for the patron's safety. It is not necessary that the proprietor know of a history of a series of offenses against the peace. * * *" Even disregarding the prior known proclivities of Romero to be a petty thief, a purse stealer and, consequently a potential troublemaker, defendants knew he was behaving violently towards decedent when defendant Baca personally observed him "shaking," "manhandling," or "scuffling" with decedent in the restroom. Under all the circumstances, we are unable to say, as a matter of law, that the course pursued by defendant Baca fell within the realm of reasonable care and constituted that degree of reasonable protection to which decedent was entitled from defendants. In addition to Coca v. Arceo, supra, see De Hart v. Travelers Ins. Co., 10 So.2d 597 (La. App. 1942); Carey v. New Yorker of Worcester, Inc., 245 N.E.2d 420 (Mass. 1969); Greco v. Sumner Tavern, Inc., 333 Mass. 144, 128 N.E.2d 788 (1955); Reilly v. 180 Club, 14 N.J. Super. 420, 82 A.2d 210 (App.Div. 1951); Gurren v. Casperson, 147 Wash. 257, 265 P. 472 (1928). Defendants rely upon Moore v. Yearwood, 24 Ill. App.2d 248, 164 N.E.2d 215 (1960); Huddleston v. Clark, 186 Kan. 209, 349 P.2d 888 (1960); Swanson v. Dugout, Inc., 256 Minn. 371, 98 N.W.2d 213 (1959); Romero v. Kendricks, 74 N.M. 24, 390 P.2d 269 (1964); Kingen v. Weyant, 148 Cal. App.2d 656, 307 P.2d 369 (1957); Schwartz v. Cohen, 204 Misc. 142, 119 N.Y.S.2d 124 (Sup.Ct. 1953). None of these cases require a position under the facts of this case different from that taken by us. Defendants' contention under their second point is that there is no evidence in the record to establish defendant Baca knew, or should have known, decedent needed medical attention, and that defendants discharged their duty owed to decedent by summoning the police. They contend the evidence fails to establish negligence on their part in failing to obtain medical attention for decedent. In our opinion, the evidence is sufficient to raise a question of fact as to whether defendants took reasonable action in caring for decedent. The duty owed decedent by defendants is defined in Restatement (Second), Torts § 314A at 118 (1965) as follows: "(2) An innkeeper is under a * * * duty to his guests [to take reasonable action] "* * * "(a) to protect them against unreasonable risk of physical harm, and "(b) to give them first aid after it [he] knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others." In Romero v. Kendricks, supra, in holding the circumstances of that case did not require defendants to furnish aid to plaintiff, the court stated: "* * * Neither she [the barmaid] nor Kendricks [operator of the bar] had any knowledge of what had occurred. Kendricks saw Romero at the door, did not observe any bleeding, and it was apparently his best judgment that if Romero needed aid, the quickest way he could obtain it would be at the police station. * * * [We] are of the view that there was no legal duty shown under the facts in evidence requiring Kendricks to take any other action than he did, particularly when there was no showing that Kendricks had any knowledge of the seriousness of the man's condition. * * *" In the present case defendants knew the facts leading up to the injury sustained by *1002 decedent; knew he was not intoxicated when he entered their bar; knew he had nothing to drink while at their bar; knew he was unconscious for a short time and bleeding from his ear immediately following the injury; knew he showed definite changes in his behavior and appearance after the injury; and knew he again lapsed into unconsciousness in about 10 to 20 minutes after sustaining the injury. Still defendants failed to tell the police of the bleeding from the right ear and of the noted changes in behavior and appearance after the injury, and asked the police to take him to jail because he was drunk. Under these circumstances, we cannot say, as a matter of law, that defendants discharged their duty to take reasonable care of decedent, that their duty to take reasonable care of him did not require the exercise of reasonable care in seeing he was furnished medical attention, or that turning him over to the police as a drunk discharged their duty of care. The cases of Steckman v. Silver Moon, 77 S.D. 206, 90 N.W.2d 170 (1958); Fitzgerald v. Chesapeake & O. Ry. Co., 116 W. Va. 239, 180 S.E. 766 (1935); and Plutner v. Silver Associates, Inc., 186 Misc. 1025, 61 N.Y.S.2d 594 (Mun.Ct. N.Y. 1946), upon which defendants rely, neither require nor suggest a result different from that we reach under the facts of this case. See Comment and Illustrations under Restatement (Second), Torts § 314A, supra; Middleton v. Whitridge, 213 N.Y. 499, 108 N.E. 192 (1915). Under their third point defendants urge that the trial court erred in refusing to give their tendered instructions relative to their duty to render aid to decedent. The trial court gave the following instruction: "You are instructed that if you find from the evidence that the defendant knew or should have known that plaintiff's decedent had sustained a serious injury while a patron in his bar, and knew or should have known that plaintiff's decedent was unable to obtain medical care for the injury, then it was the duty of defendant to exercise reasonable care under the circumstances to cause him to be furnished with medical care, and a failure on his part to do so is negligence." The trial court refused the following requested instructions tendered by defendants: "No. 12. A bartender who has no special training in or knowledge of first aid may satisfy any duty to render aid to a person injured in the bar if the bartender summons the police. "No. 18. You are instructed that the defendants had no duty to render aid to a person injured in their business premises unless the defendants had actual knowledge of the seriousness of the injury. "No. 19. If you find that Eloy Baca, deceased, was conscious and talked with police officers prior to or after his arrest, then you are instructed that there can be no liability against the defendants for not obtaining medical attention unless you find that the defendants prevented the police from obtaining medical attention for Eloy Baca, deceased. "No. 22. If you find that the police officers who arrested Eloy Baca, deceased, had the same knowledge or could have acquired the same knowledge in the exercise of reasonable care of the deceased's condition that the defendant Eloy Baca had, then the defendant Eloy Baca had no duty to obtain medical attention or to render aid to Eloy Baca, deceased." Defendants' position is that these requested instructions correctly state the law as announced in Romero v. Kendricks, supra. We disagree. Nothing stated in the Romero case even suggests that under facts, such as are present in the case before us, an operator of a bar satisfies his duty to take reasonable care of an injured guest by merely summoning the police; by doing nothing, because of the operator's inability to properly diagnose the gravity or seriousness of the injuries; by not actively *1003 preventing the police from obtaining medical attention for the injured guest; or because the police, by exercising reasonable care, could have learned as much about the injuries of the guest as were known to the bar operator. The duty owed by a bar operator to an injured guest is discussed above under the second point, and this duty is not automatically discharged for any of the reasons stated in the requested instructions which were refused. In their fourth point, defendants contend that even if the evidence supports a finding that they were negligent in the performance of their duty towards decedent, the evidence failed to establish that their negligence was the proximate cause of his death. This contention is predicated upon the position that neither of the medical doctors gave "* * * an opinion as a matter of reasonable medical probability that the man's [decedent's] life would have been saved had he been operated on sooner." It is true the one doctor gave as his opinion that decedent was doomed to death once he sustained the blow to his head. However, Doctor Pollay, the other doctor who testified, is a Neurosurgeon, Chief of the Division of Neurosurgery at the School of Medicine of the University of New Mexico, and the one who operated on decedent and had operated upon hundreds of other patients suffering from subdural hematomas during the preceding five years. He testified approximately 90% of these patients upon whom he had operated had survived. He also gave it as his opinion that the brain stem damage did not develop directly or immediately as a result of the injury sustained by decedent at the bar, but that it was a gradual development secondary to the subdural hematoma from which blood seeped creating the brain stem hemorrhage. This doctor never stated in so many words that decedent's life, as a medical probability, would have been saved had he been operated sooner, but this was not essential to plaintiff's case. See Sanders v. Atchison, Topeka & Santa Fe Railway Co., 65 N.M. 286, 336 P.2d 324 (1959); Rival v. Atchison, Topeka and Santa Fe Railway Co., 62 N.M. 159, 306 P.2d 648 (1957). What was required by way of proof on this issue was evidence from which the jury could properly have found a probability of recovery had earlier treatment been administered. Evidence which would support a mere possibility of recovery is not sufficient. Rival v. Atchison, Topeka and Santa Fe Railway Co., supra. We are of the opinion that the medical evidence was sufficient to support the required degree of proof, and that the jury's finding in this regard is supported by the evidence. Doctor Pollay testified in effect that had he treated decedent prior to the development of the hemorrhaging in the brain stem his chances for survival would have been far greater, and that in operating several hundred subdural hematomas during the prior five years his patients had recovered in 90% of the cases. This testimony supports a probability as opposed to a mere possibility of recovery. Probability is that which can reasonably and fairly convincingly be accepted as true or likely to happen, without being undeniably so or certain of occurrence. Whereas a possibility is that which falls within the bounds or limits of what may occur, be done, be conceived, or be attained within the framework of nature, custom, practices, or manners, although it may not seem probable. See Webster's Third New International Dictionary (1966). We are convinced our decision — that the above outlined evidence is sufficient to support a finding of a probability of recovery as opposed to a possibility of recovery — is not inconsistent with anything said in the following authorities upon which defendants rely. Bell v. Hotel Bentley, 32 So.2d 856 (La. App. 1947); Hebenstreit v. Atchison, Topeka & Santa Fe Railway Co., 65 N.M. 301, 336 P.2d 1057 (1959); Sanders *1004 v. Atchison, Topeka & Santa Fe Railway Co., supra; Rival v. Atchison, Topeka and Santa Fe Railway Co., supra; Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520 (1962); Buchanan v. Downing, 74 N.M. 423, 394 P.2d 269 (1964); Steckman v. Silver Moon, supra; Annot., 66 A.L.R.2d 1082, 1127 (1959); Annot., 135 A.L.R. 516, 517 (1941). In their fifth point, defendants attack the sufficiency of the evidence as to the worth of the life of decedent to warrant the submission of the case to the jury. In view of the holding in Stang v. Hertz Corporation, 81 N.M. 69, 463 P.2d 45 (Ct. App. 1969), that "* * * [p]roof of pecuniary injury is not a prerequisite to recovery of damages for wrongful death. * * *", defendants take the position that there is insufficient evidence as to the worth of decedent's life to warrant the submission to the jury of the question of damages. We are of the opinion that proof of a wrongful death of necessity implies recoverable damages. In the absence of pecuniary injury, the jury may still award such damages, compensatory and exemplary, as they shall deem fair and just, having regard to the mitigating or aggravating circumstances attending the wrongful act, neglect or default which results in the death. Stang v. Hertz Corporation, supra; § 22-20-3, N.M.S.A. 1953, The present worth of the life, in the absence of pecuniary injury to those entitled to the recovery, is arrived at upon the basis of the age, occupation, earning capacity, health, habits, and the probable duration of the life of decedent. Hall v. Stiles, 57 N.M. 281, 258 P.2d 386 (1953). In their sixth point, defendants claim the award of damages in the amount of $24,500.00 was so excessive as to entitle them to a new trial or a remittitur. They properly preserved this question for review by this court. Although the pecuniary injury to those entitled to an award of damages for wrongful death is to be considered by the trier of the facts, the absence of such injury does not preclude an award of substantial damages for the death. Stang v. Hertz Corporation, 81 N.M. 348, 467 P.2d 14 (1970); Stang v. Hertz Corporation, 81 N.M. 69, 463 P.2d 45 (Ct.App. 1969). Defendants contend the award is "* * * excessive because (a) the jury mistook the measure of damages and (b) the verdict resulted from passion, prejudice, partiality or sympathy." We disagree. The standard for determining whether a jury's verdict is excessive is quoted by defendants from the opinions in Vivian v. Atchison, Topeka and Santa Fe Railway Co., 69 N.M. 6, 363 P.2d 620 (1961), and Hall v. Stiles, supra. We agree with this standard, but the application thereof to the facts in the present case requires neither a new trial nor a remittitur. See also, Hughes v. Walker, 78 N.M. 63, 428 P.2d 37 (1967) and Schrib v. Seidenberg, 80 N.M. 573, 458 P.2d 825 (Ct. App. 1969). The absence of proof of any substantial pecuniary injury to those entitled to the recovery does not mean the jury was mistaken as to the measure of damages, nor does the amount of the award warrant our holding that the jury was motivated by passion, prejudice, partiality, sympathy, undue influence, or some corrupt motive resulting in palpable error. There is no fixed standard for measuring the value of a life, and, as in personal injury cases, wide latitude is allowed for the exercise of the judgment of the jury in fixing the amount of such an award. An appellate court should not hold an award of damages to be excessive except in extreme cases. See Lujan v. Reed, 78 N.M. 556, 434 P.2d 378 (1967); Chavez v. Atchison, Topeka and Santa Fe Railway Co., 77 N.M. 346, 423 P.2d 34 (1967). Defendants' final point is directed toward two instructions in which the court hypothesized facts, which, defendants claim, if found to be true, would justify or require a verdict against defendants. They rely upon § 21-1-1(51) (1), N.M.S.A. 1953 *1005 (Supp. 1969), and Garcia v. Barber's Super Markets, Inc., 81 N.M. 92, 463 P.2d 516 (Ct.App. 1969). We agree that the trial court did hypothesize facts which, if found by the jury to be true, would justify or require the jury to find defendants negligent, and we are of the opinion that the practice of hypothesizing facts in instructions, even to this extent, should be discontinued, in order to avoid questions concerning their propriety under § 21-1-1(51) (1), supra. However, we cannot say that a finding of the truth of the hypothesized facts in the instructions as to negligence would, by reason of this finding alone, justify or require a verdict against defendants. The judgment should be affirmed. It is so ordered. SPIESS, C.J., and WOOD, J., concur.

811 F.Supp.2d 18 (2011) CONSERVATION FORCE, et al., Plaintiff-Petitioner v. SALAZAR, et al., Defendants. Nos. 1:09-cv-00495 BJR, 1:10-cv-01262 BJR. United States District Court, District of Columbia. September 1, 2011. *21 John J. Jackson, III, Metairie, LA, for Plaintiff-Petitioner. Bradley Howard Oliphant, U.S. Department of Justice, Washington, DC, for Defendants. ORDER GRANTING DEFENDANTS' MOTION TO DISMISS CONSERVATION FORCE I, STRIKING PLAINTIFFS' MOTION FOR SUMMARY JUDGEMENT ON CONSERVATION FORCE I, DENYING DEFENDANTS' MOTION TO STAY CONSERVATION FORCE II, AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS CONSERVATION FORCE II BARBARA JACOBS ROTHSTEIN, District Judge. This matter comes before the court on: (1) Defendants' Motion to Dismiss Plaintiffs' *22 Second Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), and (2) Defendants' Motion to Dismiss or, Alternatively, to Stay Litigation.[1] The motions were filed in Conservation Force, et al. v. Salazar, et al., 1:09-cv-00495 (BJR) (Conservation Force I) and Conservation Force, et al. v. Salazar, et al., 1:10-cv-01262(BJR) (Conservation Force II). The facts that gave rise to Conservation Force I also form the basis for Conservation Force II. These cases concern the markhor, a wild goat species that lives in the rugged mountainous areas of Afghanistan, India, Pakistan, Turkmenistan and Uzbekistan. The sub-species at issue is the straight-horned markhor or Capra falconeri jerdoni, which inhabits the Torghar Hills of the Balochistan Province of Pakistan. In 1976, the United States Fish and Wildlife Service ("Service" or "FWS") listed the straight-horned markhor as endangered under the Endangered Species Act 16 U.S.C. §§ 1531-1534 ("ESA" or the "Act"). 41 Fed.Reg. 21,062, 24,067 (June 14, 1976). The parties to Conservation Force I and II are identical. The plaintiffs describe themselves as a group of hunter/conservation organizations (Conservation Force, Dallas Safari Club, Houston Safari Club, African Safari Club of Florida, Wild Sheep Foundation, Grand Slam Club/OVIS and the Conklin Foundation), individual permit applicants (Jerry Brenner, Steve Hornady, Barbara Lee Sackman and Alan Sackman), and international conservationists (Sardar Naseer A. Tareen of the International Union for Conservation of Nature ("IUCN") and the Society for Torghar Environmental Protection ("STEP"). Defendants are Kenneth Salazar, Secretary of Interior (the "Secretary"); Rowan Gould, Acting Director of the United States Fish and Wildlife Service (the "Director"); and the FWS. For the reasons outlined below, the court will GRANT Defendants' Motion to Dismiss Conservation Force I. The court will also DENY Defendants' Motion to Stay Litigation and GRANT in part and DENY in part Defendants' Motion to Dismiss Conservation Force II. I. BACKGROUND A. Statutory Background The ESA is "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). It is intended to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species." Hill, 437 U.S. at 180, 98 S.Ct. 2279 (quoting 16 U.S.C. § 1531(b)). The Act directs the Secretary to classify species whose survival is in danger as "endangered" or "threatened." 16 U.S.C. § 1533. A species is "endangered" if it "is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A species is "threatened" if it "is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. § 1532(20). The ESA permits individuals to petition the Secretary to list, downlist, or delist species. 16 U.S.C. § 1533(b)(3). After receiving a petition, the Secretary is obligated to, "[t]o the maximum extent practicable," make a finding within 90 days "as to whether the petition presents substantial *23 scientific or commercial information indicating that the petitioned action may be warranted" ("90-day finding"). 16 U.S.C. § 1533(b)(3)(A). Further, "[w]ithin 12 months after receiving a petition that is found . . . to present substantial information indicating that the petitioned action may be warranted," the Secretary must determine whether the petitioned action is warranted, is not warranted, or is warranted but is precluded by pending proposals concerning other species ("12-month finding"). 16 U.S.C. § 1533(b)(3)(B). The ESA also generally prohibits the importation of endangered and threatened species, and this prohibition explicitly includes hunting trophies. 16 U.S.C. § 1538(a)(1)(A), (c)(2); 50 C.F.R. §§ 17.21(b), 17.32. However, certain species may be imported under limited circumstances, such as "for scientific purposes or to enhance the propagation or survival of the affected species." 16 U.S.C. § 1539(a)(1)(A). Individuals requesting permission to import a listed species must apply for a permit and satisfy the application requirements. 16 U.S.C. § 1539(a); 50 C.F.R. §§ 17.22, 17.31(a). In addition, the ESA implements the participation of the United States in an international agreement called the Convention on International Trade in Endangered Species of Wild Fauna and Flora ("CITES"). CITES is designed to prevent the extinction of species due to international trade, providing that "[t]rade in specimens of [Appendix I] species must be subject to particularly strict regulation in order to not endanger further their survival and must only be authorized in exceptional circumstances." CITES, art. II(1). B. Factual Background and Procedural History Markhor populations have generally declined as a result of hunting, habitat modification, and competition with domestic livestock. 64 Fed.Reg. 51,499 (Sept. 23, 1999). However, the Torghar Hills population of the straight-horned markhor has increased substantially from approximately 100 animals in the mid-1980s to more than 2,000 today.[2] 64 Fed.Reg. at 51,500. The vitality of the population is attributed to the Torghar Conservation Project ("TCP"), a community-based conservation program initiated in early 1985 through the efforts of the local Pathan tribal chieftain and STEP, in consultation with professional wildlife biologists from the United States. (Conservation Force I, Dkt. No. 10 at 5-6.). TCP provides an incentive to conserve markhor and its habitat by providing economic benefit to the local community. See 64 Fed.Reg. at 51,500. Specifically, TCP limits the number of permits available for sport-hunted markhor trophies; the purchase of the permits provides significant economic benefit to the local community. (Conservation Force I, Dkt. No. 10 at 22-23.). In addition, TCP employs local Pathan tribesmen as game guards to protect the Straight-horned markhor from unauthorized hunting in the project area (an area of approximately 1,500 square kilometers). 64 Fed.Reg. at 51,500. Many of the game guards are former hunters who stopped killing markhor at the behest of the local Pathan tribal chieftain. Id. The game guards have virtually eliminated unauthorized hunting within the project area. Id. TCP is entirely self-sufficient, depending solely on revenues derived from trophy hunting fees *24 from international hunters. 64 Fed.Reg. at 51,500. The success of TCP has been recognized internationally. On August 18, 2003, the Service issued a Federal Register Notice announcement in which it found that TCP had "significantly enhanced" the markhor survival. 68 Fed.Reg. 49,512 (Aug. 18, 2003) ("[T]he Torghar Hills region of Pakistan has a successful community-based management program that has significantly enhanced the conservation of local markhor populations."). In addition, the 178 Parties of CITES have authorized and established a special trade quota for Pakistan of 12 markhors annually. Res. Conf. 10.15 (Rev. CoP14); 64 Fed.Reg. at 51,500. Finally, the Service has actively supported TCP through a grant program managed by the Division of International Conservation. (Conservation Force I, Dkt. No. 20, Ex. 1 at 2.). Plaintiffs contend that American hunters represent the largest market of sportsmen interested in hunting the straight-horn markhor, and most significantly, are willing to pay the highest price for the privilege of so doing. (Conservation Force I, Dkt. No. 10 at 23.). Plaintiffs claim that markhor hunts are currently sold for $45,000, but that American hunters, if they were able to import markhor trophies, would be willing to pay at least $150,000 per hunt. Id. 1. Petition to downlist the straight-horned markhor On March 4, 1999, the Service received a petition filed by Plaintiff Tareen on behalf of STEP and the IUCN Sustainable Use Specialist Group of Asia, requesting that the straight-horned markhor be reclassified from endangered to threatened. 64 Fed.Reg. 51,499. On September 23, 1999, the Service published its 90-day finding that the petition presented substantial information indicating that the action may be warranted (a positive substantial information finding) and that a status review of the entire species was being initiated. Id. To date, a 12-month finding has not issued. (Conservation Force II, Dkt. No. 1 at 12.). While waiting for the Service to issue the 12-month finding, Plaintiff Tareen alleges that he met with officials from the Services' Division of Scientific Authority on several occasions in the summer of 2004. Id. He alleges that during these meetings he was assured that despite the Service's delay in issuing the 12-month finding, the Service was continuing its comprehensive status review of the entire species Capra falconeri, and that downlisting the straight-horned markhor population of the Torghar Region was warranted. Id. Plaintiff Tareen also alleges that the Service represented that it would begin granting import permits for markhor trophies regardless of the downlisting. Id. 2. Applications to import straight-horned markhor trophies On December 19, 2003, Plaintiff Hornady submitted an application to import a personal sport-hunted straight-horned markhor trophy from Pakistan. (Conservation Force I, Dkt. No. 10 at 10.). He alleges that he submitted the application in reliance on the Service's announcement in 68 Fed.Reg. 49,512 that it intended to start issuing permits. Id. He took a straight-horned markhor in January 2004. Id. The Service did not act on the permit application for nearly six years. Id. The Service eventually denied the permit application by letter dated October 27, 2009 (later amended on November 3, 2009). (Conservation Force I, Dkt. No. 20 at Ex. 1.). Plaintiffs Barbara and Alan Sackman both took a straight-horned markhor under TCP in March 2008. (Conservation Force I, Dkt. No. 10 at 11.). Each filed an *25 import permit application on June 10, 2009. Id. Plaintiff Brenner took a straight-horn markhor as part of the TCP program in March 2009 and submitted an import permit application on June 10, 2009. Id. at 10. The Service denied all three applications by letters dated October 27, 2009 (later amended on November 3, 2009). (Conservation Force I, Dkt. No. 20 at Ex. 1.). The denial letters were identical in all respects. Id. In denying the permit applications, the Service conceded that the import requests were not for "purposes that are detrimental to the survival of the [straight-horned markhor] . . . [t]herefore, the criteria for authorization under CITES was meet [sic]." (Conservation Force I, Dkt. No. 20, Ex. 1 at 1.). The Service further recognized that "sports hunting plays a role in the management goals for [straight-horned markhor]. . . ." Id. at 2. Nevertheless, the Service found that there is "insufficient information" to determine whether the importation of the [straight-horned markhor] trophies would "enhance survival or propagation of the wood bison [sic] pursuant to Section 10 of the Act." Id. at 3. The Service went on to say that it was concerned that "there would be an increase in permit applications from U.S. citizens seeking importation of trophies . . . consequently one probable direct effect of issuing a permit would be the increase[d] pressure on the Pakistani government to authorize the lethal take of [straight-horned markhors]." Id. at 2. The Service noted that there are "only approximately 1,250 free-ranging endangered markhor in the wild . . . and [it] is concerned that an increase in demand could lead to an unsustainable increase in offtake." Id. 3. Conservation Force I On January 14, 2009, plaintiffs notified the Service of their intent to file suit ("NOI") pursuant to the 60-day notice requirement of Section 11 of the ESA. (Conservation Force I, Dkt. No. 11 at Ex. 1.). The NOI stated two perceived violations of the ESA: (1) failure to make the 12-month finding, and (2) failure to issue permits allowing importation of straight-horned markhor hunting trophies.[3]Id. In March 2009, Plaintiffs filed Conservation Force I. (Conservation Force I, Dkt. No. 1.). In it, plaintiffs object to the Service's failure to process the individual plaintiffs' import permit applications, failure to make a timely 12-month finding, and failure to undertake a required five-year status review of the markhor ESA listing. Id. Defendants moved to dismiss the complaint on jurisdictional grounds and for failure to state a claim. (Conservation Force I, Dkt. No. 4.). Plaintiffs amended the complaint on June 6, 2009 (Conservation Force I, Dkt. No. 7) and amended it a second time on June 22, 2009. (Conservation Force I, Dkt. No. 10.). Defendants moved to dismiss the second amended complaint on July 7, 2009 pursuant to 12(b)(1) and 12(b)(6). (Conservation Force I, Dkt. No. 11.). This motion is presently before the court. On August 26, 2009, plaintiffs moved for summary judgment. (Conservation Force I, Dkt. No. 16.). Defendants moved to stay the motion pending resolution of the motion to dismiss. The court granted defendants' stay request via a minute order issued on September 4, 2009. (Conservation Force I, Dkt. No. 17.). On October 27, 2009, the Service denied each of the individual plaintiffs trophy import permit applications (Conservation Force I, Dkt. No. 20), and on September 22, 2010, the court requested briefing on whether the case is moot in light of the Service's decision. (Conservation Force I, Dkt. No. 23.). The case was reassigned to this court on *26 November 29, 2010. (Conservation Force I, Dkt. No. 26.). 4. Conservation Force II On November 3, 2009, plaintiffs submitted a second NOI to the Service (Conservation Force II, Dkt. No. 1, Ex. 1) and, thereafter, filed Conservation Force II on July 23, 2010. (Conservation Force II, Dkt. No. 1.). The case was designated related to Conservation Force I. (Conversation Force II, Dkt No. 2.). In Conservation Force II, Plaintiffs challenge the Service's denial of the four import permits, and the Service's alleged failure to undertake a five-year status review of the markhor's ESA listing. (Conservation Force II, Dkt. No. 1 at 30-32.). Plaintiffs also argue that the denial of their import permits violates their right to due process pursuant to § 706 of the APA, and re-allege their objection that the Secretary has breached a bundle of his duties under the ESA. Id. at 33-38. Defendants move to dismiss these claims, as well as plaintiffs' allegations contained in Claims I and IV that the Secretary failed to meet his obligations under 16 U.S.C. § 1537(b) to encourage foreign conservation. (Conservation Force II, Dkt. No. 9 at 1.). In the alternative, Defendants move to stay the action pending resolution of Conservation Force I. Id. This motion is also before the court. The case was reassigned to this court on January 27, 2011. (Conservation Force II, Dkt. No. 12.). II. STANDARD OF REVIEW A. Fed.R.Civ.P. 12(b)(1) Under Rule 12(b)(1), a party seeking to invoke the jurisdiction of a federal court has the burden of establishing jurisdiction. U.S. Ecology, Inc. v. Dep't of Interior, 231 F.3d 20, 24 (D.C.Cir.2000); see also Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.2001) (a court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority."). A court considering a Rule 12(b)(1) motion to dismiss must give Plaintiffs all favorable inferences that may be drawn from the allegations of fact. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000). However, "the court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Nor need the court accept "a legal conclusion couched as a factual allegation," or "naked assertions [of unlawful misconduct] devoid of further factual enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). Further, in deciding a motion to dismiss for lack of subject matter jurisdiction, a court is not limited to the allegations set forth in the complaint, "but may also consider material outside of the pleadings in its effort to determine whether the court has jurisdiction in the case." Alliance for Democracy v. FEC, 362 F.Supp.2d 138, 142 (D.D.C.2005); see also Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C.Cir.1992). B. Fed.R.Civ.P. 12(b)(6) Rule 8 of the Federal Rules of Civil Procedure requires that a complaint contain "`a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to `give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). A complaint will survive a 12(b)(6) motion "when *27 the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. This approach allows a court to identify the factual allegations entitled to an assumption of truth, and then determine "whether they plausibly suggest an entitlement to relief." Id. at 1950-51. III. DISCUSSION A. CONSERVATION FORCE I Defendants have moved to dismiss Conservation Force I in its entirety. For the reasons discussed below, the court will grant the motion. Claim I, which is based on the Service's failure to timely issue a 12-month finding, is time-barred. Claims II and III, which challenge the Service's failure to process the plaintiffs' import permit applications are moot and/or fail to state a claim upon which relief can be granted. The Fourth Claim is time-barred to the extent that it relies on the Service's failure to issue a 12-month ruling, moot to the extent that the claim relies on the Service's failure to rule on plaintiffs' permit applications, and not judiciable to the extent that it alleges maladministration under 16 U.S.C. § 1540(g)(1)(A). Claim Five, the Service's failure to conduct a five-year status review, fails for lack of subject-matter jurisdiction. 1. Claim I: Failure to Issue 12-Month Finding Plaintiffs' first claim is a citizen-suit challenge to the Service's failure to make a 12-month finding that became due in March 2000. The ESA permits any individual to commence a civil suit alleging a failure of the Secretary to perform any act or duty under section 1533 that is nondiscretionary. 16 U.S.C. § 1540(g)(1)(C). The ESA prescribes no statute of limitations; therefore, 28 U.S.C § 2401(a), the general six-year statute of limitations for civil actions against the federal government, provides the applicable limitations period. Felter v. Norton, 412 F.Supp.2d 118, 124 (D.D.C.2006) ("Section 2401 is a general catchall statute that applies to all civil actions against the government. . . .") aff'd in relevant part, Felter v. Kempthorne, 473 F.3d 1255 (D.C.Cir. 2007); Kendall v. Army Bd. for Corr. Of Military Records, 996 F.2d 362, 365 (D.C.Cir. 1993) (Section 2401(a) applies to "all civil actions whether legal, equitable, or mixed.") The D.C. Circuit has long held that "section 2401(a) is a jurisdictional condition attached to the government's waiver of sovereign immunity," and as such, must be strictly construed. Spannaus v. U.S. Dep't of Justice, 824 F.2d 52, 55 (D.C.Cir. 1987) (citations omitted); W.Va. Highlands Conservancy v. Johnson, 540 F.Supp.2d 125, 138 (D.D.C.2008); P & V Enters. v. U.S. Army Corps of Eng'rs, 516 F.3d 1021, 1026 (D.C.Cir.2008). This is significant because a jurisdictional statute of limitations "cannot be overcome by the application of judicially recognized exceptions such as waiver, estoppel, equitable tolling, fraudulent concealment, the discovery rule, and the continuing violations doctrine." W.Va. Highlands Conservancy, 540 F.Supp.2d at 138 (quoting Felter, 412 F.Supp.2d at 122). Instead, a "single violation. . . accrues on the day following the deadline" and a suit challenging such a violation is barred if filed outside the six-year limitation period. Center for Biological Diversity v. Hamilton, 453 F.3d 1331, 1335 (11th Cir.2006). The expiration of the statute of limitations is "construed as a bar to the court's subject matter jurisdiction, and thus a proper subject of a motion to dismiss under Federal Rule 12(b)(1)." Felter, 412 F.Supp.2d at 122. Plaintiffs filed their petition requesting that the straight-horned markhor be reclassified from endangered to threatened *28 on March 4, 1999. (Conservation Force I, Dkt. No. 11 at 9.). Therefore, the statutory deadline for publishing the 12-month finding on the downlist petition was March 4, 2000. Id. Allowing for the ESA's 60-day notice requirement, see 16 U.S.C. § 1540(g)(2)(C), plaintiffs could have maintained their suit on May 4, 2000. Accordingly, plaintiffs' action accrued on that day. Plaintiffs concede that the six-year limitations period began to run on May 4, 2000, and that they did not file Conservation Force I until March 3, 2009, nearly nine years after the claim accrued. However, plaintiffs argue that May 4, 2000, was merely the first violation of section 1533 and that each day that passed without action by the Secretary created an additional cause of action triggering anew that statute of limitations. See Conservation Force I, Dkt. No. 14 at 13-14. Plaintiffs' argument is without merit. As previously discussed, supra at pages 27-28, courts in this Circuit do not apply the doctrine of continuing violations to § 2401(a). See, e.g., P & V Enters., 516 F.3d at 1026 citing Spannaus, 824 F.2d at 55.[4] As such, this court finds that the Service's violation of the 12-month finding deadline was a one-time event on which the statute of limitations expired on March 4, 2006. Therefore, Claim I is time-barred and must be dismissed.[5] 2. Claim II: Violation of Due Process Plaintiffs' second claim alleges violations of their due process rights. Plaintiffs argue that the markhor trophies are their "personal chattel property" in which they have a protected property interest. (Conservation Force I, Dkt. 14 at 19.). They allege that the Service's failure to process their import permits has left them in purgatory: their personal property has been constructively forfeited, yet they cannot challenge the forfeiture because the Service has failed—for years—to process *29 the permit applications. This, plaintiffs allege, constitutes a deprivation of their protected property interest and is therefore in "violation of both the due process clause . . . and section 706(2)(B) of the [APA]." (Conservation Force I, Dkt. 14 at 18.). It is unclear from the pleadings whether plaintiffs allege a violation of their substantive or procedural due process rights.[6] Regardless, Claim II fails because plaintiffs are unable to demonstrate either a fundamental right to or a constitutionally-protected interest in the markhor trophies.[7] A substantive due process claim has two, distinct features: first, the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, "deeply rooted in this Nation's history and tradition." Moore v. East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531, (1977) (plurality opinion); Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674 (1934) ("so rooted in the traditions and conscience of our people as to be ranked as fundamental"). Second, substantive due process cases must have a "careful description" of the asserted fundamental liberty interest. Conservation Force v. Salazar (Snow Lepard), 677 F.Supp.2d 1203, 1210 (N.D.Cal. 2009) (citing Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997)). Likewise, in order to state a claim for procedural due process, plaintiffs must address two distinct elements: a deprivation of a constitutionally-protected property interest and a denial of adequate procedural protections. Brewster v. Board of Educ. of Lynwood Unified School Dist., 149 F.3d 971, 983 (9th Cir. 1998). Plaintiffs claim a fundamental property right to the markhor trophies, and by extension, a fundamental right to possess the trophies in the United States. They do not state how these rights are deeply rooted in the country's history or tradition. In the context of importing endangered species, the elementary issue is not whether a party has a property interest in the specimen, but whether the party has a legal right to possess the specimen in the United States. See B-West Imports v. United States, 880 F.Supp. 853, 863 (CIT 1995), aff'd, 75 F.3d 633 (Fed.Cir. 1996) (ban on importation of Chinese defense articles did not violate due process because "[i]t is well settled that no one has a constitutionally-protected right to import products excluded by Congress"). Moreover, even if plaintiffs had received the requested permits, the permits convey only a revocable right to possess the specimen in the United States. The government retains the authority to modify, suspend, or revoke the permit at any time. See Conti v. United States, 291 F.3d 1334, 1342 (Fed.Cir.2002) (holding that permit bestowed a revocable license, not a Fifth Amendment property right); United States v. Fuller, 409 U.S. 488, 493, 93 S.Ct. 801, 35 L.Ed.2d 16 (1973) (stating no *30 property rights are created in permits and licenses); Alves v. United States, 133 F.3d 1454, 1457 (Fed.Cir.1998) (same). If the permit was revoked, plaintiffs would no longer be entitled to possess the trophies in the United States, and therefore, no longer have a cognizable property interest in the specimens. Therefore, at most, plaintiffs could have acquired a right to possess the trophies, but no fundamental right or constitutionally-protected property interest in the actual specimen. Furthermore, the government has a compelling interest in protecting endangered species. See TVA v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) ("Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording [the conservation of] endangered species the highest of priorities. . . ."). The strict permitting requirements of CITES and the ESA are the least restrictive means to promote this compelling interest. See Snow Lepard, 677 F.Supp.2d at 1211 (citing United States v. Adeyemo, 624 F.Supp.2d 1081, 1090 (N.D.Cal.2008)).[8] Accordingly, because plaintiffs are unable to demonstrate that they have a fundamental right to or a constitutionally-protected property interest in the markhor trophies, plaintiffs' due process claim fails. Claim II must be dismissed. 3. Claim III: Failure to Process Trophy Import Permit Applications Plaintiffs assert that the Secretary's failure to process permit applications for the importation of straight-horned markhor trophies violates his responsibilities under the ESA and its implementing regulations. The ESA expressly prohibits the importation of endangered species, including specimens of those species killed abroad. 16 U.S.C. § 1538(a)(1)(A). The ESA does, however, authorize a "limited exception" to this general ban. Specifically, an individual seeking to import an endangered species may do so "for scientific purposes or to enhance the propagation or survival of the affected species. . . ." Id. at § 1539(a)(1)(A). In order to import an endangered species, an applicant must apply for a permit and satisfy specific criteria set forth in 50 C.F.R. § 17.22. After receiving such an application, the Service determines whether or not a permit should be issued. 50 C.F.R. § 17.22(a)(2). Plaintiffs assert that they have completed all of the requirements for a permit application under 50 C.F.R. 17.22 and 50 C.F.R. 13.21. Nevertheless, plaintiffs "have spent 10 years beseeching the `offices of the department' to start doing their job, to no avail." (Conservation Force I, Dkt. No. 14 at 25.). Accordingly, plaintiffs bring this claim pursuant to § 706(1) and (2) of the APA to "compel the Secretary to perform his statutorily mandated responsibility to process particular permits[.]" Id. at 26. It is unclear from the pleadings whether plaintiffs seek to compel the Secretary to process their individual permit applications, or whether they seek to alter the Secretary's handling of all permit applications that have been, or may be, filed for the importation of straight-horned markhors. Regardless, either argument fails. While this litigation was pending, the Service denied the four individual plaintiffs' applications for import permits. (Conservation Force I, Dkt. No. 20 at 1.). Accordingly, if plaintiffs seek injunctive relief with regard to their permit applications, *31 the claim is moot and the court lacks subject-matter jurisdiction. Conservation Force v. Salazar (Wood Bison), 715 F.Supp.2d 99 (D.D.C.2010) (plaintiffs' claims regarding the Service's alleged failure to process import permit applications were moot, because, while the litigation was pending, the Service denied the outstanding Wood Bison import permit applications); Monzillo v. Biller, 735 F.2d 1456, 1459 (D.C.Cir.1984) (when action sought to be compelled "ha[d] already occurred," injunctive and declaratory relief claims were moot). Plaintiffs argue that a live controversy exists because the plaintiff-organizations have members who wish to and will participate in future markhor hunts, and because one organization "will always have an interest in the outcome of any claims [related to the processing of import permits]." (Conservation Force I, Dkt. No. 24 at 5.). These arguments are unavailing. Possible future applicants, as courts have long recognized, amount to mere "potential plaintiff[s] who, like any other member of the public, might voice concern over future harm that could be inflicted as a result," of an agency's program, but "who lacked the standing needed to have a federal court decide the merits of the a particular and immediate dispute." National Wildlife Fed'n v. Dep't of Interior, 616 F.Supp. 889, 892 (D.D.C.1984). Similarly, an organization's ongoing interest in a topic, without a particular and immediate dispute, is also insufficient because the interest is purely of a "hypothetical character." Id. Thus, the interested organizational plaintiffs here are left "indistinguishable from any other citizen or group that might wish to have a clarification of law from an Article III court—not for the purpose of addressing a particular harm—but for mere `convenience.'" Id. (internal quotation, citation omitted). If, instead, plaintiffs seek to challenge the Service's handling of all permits that have been, or may be filed, for importation of markhor trophies, the court is prohibited from reviewing such a claim. Under the APA, a court's review is limited to a "final agency action." See 5 U.S.C. § 704; Lujan v. National Wildlife Fed'n, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) ("under the general review provisions of the APA, the `agency action' in question must be `final agency action.'"). A "final agency action," in turn, is limited to "an identifiable action or event." Lujan, 497 U.S. at 899, 110 S.Ct. 3177. This requirement, that a final action be limited to "an identifiable action or event," precludes federal court jurisdiction over suits seeking broad, programmatic relief. Lujan, 497 U.S. at 891, 110 S.Ct. 3177 ("respondent cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made.") (emphasis in original). The APA's bar on programmatic challenges "is motivated by institutional limits on courts which constrain [their] review to narrow and concrete actual controversies." Sierra Club v. Peterson, 228 F.3d 559, 566 (5th Cir.2000). In limiting review to particular actions, rather than programmatic attacks, courts "avoid encroaching on the other branches of government, [and] continue to respect the expert judgment of agencies specifically created to deal with complex and technical issues." Id. This prohibition applies equally to an agency's alleged "failure to act." 5 U.S.C. § 551(13) ("agency action" is defined to include an agency's "failure to act"); Norton v. Southern Utah Wilderness Alliance ("SUWA"), 542 U.S. 55, 63, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). While the court is sympathetic with plaintiffs' understandable frustration in dealing with an agency that appears to be so dilatory in its obligations as to border *32 on dysfunctional, this is exactly the type of broad programmatic challenge that is prohibited by the APA.[9]SUWA, 542 U.S. at 64, 124 S.Ct. 2373 (APA precludes broad programmatic attack); Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (litigant cannot seek wholesale improvement of this program by court decree); Sierra Club, 228 F.3d at 566 ("past, ongoing, and future timber sales approved by Forest Service" not limited to discrete final agency actions); Friends of the Earth v. U.S. Dep't of Interior, 478 F.Supp.2d 11, 25 (D.D.C. 2007) (off-road vehicle authorization at 18 park units not "discrete" agency action). Accordingly, Claim III is not subject to judicial review and must be dismissed. 4. Claim IV: Breach of Bundle of ESA Duties Plaintiffs' Fourth Claim alleges that the Service's practices violate § 1537(b) of the ESA. This section mandates that the Secretary cooperate with foreign nations' conversation programs. See 16 U.C.S. § 1537(b). Plaintiffs allege that the Service has impeded cooperation in two ways: (1) by failing to issue the 12-month finding on the downlisting request, and (2) by failing to process import permits in a timely manner. (Conservation Force I, Dkt. No. 14 at 29.). To the extent that the § 1537(b) allegations are based on the 12-month finding, the claim is time-barred. To the extent the allegations are based on the Service's failure to process plaintiffs' permit applications, the claim is moot. Accordingly, Claim IV must be dismissed. 5. Claim V: Failure to Perform 5-Year Status Review Finally, Plaintiffs object to the Service's failure to perform a five-year review of the status of the markhor ESA listing pursuant to 16 U.S.C. 1533(c)(2). Defendants argue that this claim must be dismissed because plaintiffs' January 14, 2009 NOI did not include notice that plaintiffs intended to bring suit on this claim. The court agrees. Under the ESA, a prospective plaintiff must provide written notice to the Secretary at least sixty days before suing for an alleged ESA violation. See 16 U.S.C. § 1540(g)(2). "This requirement is `mandatory and jurisdictional.'" Conservation Force v. Salazar (Wood Bison), 715 F.Supp.2d 99, 103; quoting Research Air v. Norton, No. 05-cv-623 (RMC), 2006 WL 508341 at *10 (D.D.C. 2006). As a waiver of sovereign immunity, the 60-day notice provision must be complied with strictly, and it cannot be avoided by equitable, "flexible," or "pragmatic" considerations. Hallstrom v. Tillamook County, 493 U.S. 20, 26-28, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989). The January 14, 2009 NOI states that plaintiffs intend to file suit based on the Service's "illegal practice of not issuing trophy import permits for `endangered' listed species under the `enhancement' provisions of the ESA" and based on the Service's failure to make "a 12-month finding on the petition to downlist the markhor in Pakistan." (Conservation Force I, Dkt. No. 11, Ex. 1.). The NOI does not reference the Service's alleged failure to complete a five-year status review. Id. Accordingly, Claim V must be dismissed for lack of notice. See Friends of Animals v. Salazar, 670 F.Supp.2d 7, 13 (D.D.C.2009) ("failure to provide sixty-day notice prior to bringing its claim" requires dismissal). B. CONSERVATION FORCEII On October 27, 2009, the Service denied each of the trophy import permit applications *33 submitted by the individual plaintiffs. (Conservation Force I, Dkt. No. 21.). On November 3, 2009, plaintiffs submitted a second NOI, notifying the Service that they intended to bring suit based on the Service's "failure to conduct a five-year review of the markhor in the Torghar Region of Pakistan," and for "violat[ing] [] the ESA in den[ying] [] the markhor import applications of [plaintiffs]." (Conservation Force II, Dkt. No. 10, Ex. 2.). On July 23, 2010, plaintiffs filed Conservation Force II. (Conservation Force II, Dkt. No. 1.). Defendants now move to dismiss Conservation Force II Claims II and III in their entirety, and Claims I and IV to the extent that those claims are based on the Service's alleged violation of § 1537(b) of the ESA. (Conservation Force II, Dkt. No. 9.). Defendants assert that Claim II—the Service's alleged failure to undertake the five-year status review—must be dismissed because plaintiffs failed to provide the requisite 60-days notice prior to bringing suit on this claim. Defendants argue that Claim III—denial of plaintiffs' due process rights—must be dismissed because plaintiffs do not have a constitutionally protected property in an import permit. Defendants also argue that the § 1537(b) allegations in Claims I and IV must be dismissed because maladministration claims are not judiciable under the APA. 1. Claim II: Failure to Perform Five-Year Status Review Defendants argue that Claim II, the Service's failure to perform the five-year status review, must be dismissed for lack of subject-matter jurisdiction because plaintiffs failed to file a timely 60-day notice of intent to sue on this claim. Defendants concede that the second NOI specifically referenced the Service's failure to perform the five-year status review, but argue that the notice was not timely because the parties were already litigating the issue in Conservation Force I. Therefore, defendants argue, the Service was not given a sufficient "litigation-free window" within which to correct its error. "The purpose of the 60-day notice provision is to put the agencies on notice of a perceived violation of the statute and an intent to sue." Sw. Ctr. For Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 520 (9th Cir.1998) (internal quotation marks omitted). "When given notice, the agencies have an opportunity to review their actions and take corrective measures if warranted. The provision therefore provides an opportunity for settlement or other resolution of a dispute without litigation." Id. (emphasis added) (internal quotation marks omitted). Here, plaintiffs submitted the second NOI on November 3, 2009 and did not file Conservation Force II until July 23, 2010, well after 60 days had passed. Nevertheless, defendants argue that plaintiffs failed to satisfy the purpose of the rule, which is to give the Service an opportunity to take corrective actions, if warranted, prior to litigation commencing. Defendants argue that since the parties have been litigating this issue since early 2009 when Conservation Force I was filed, the Service has never been given a "litigation-free window" within which to take corrective action. The court agrees. When plaintiffs submitted their intent to sue letter in November 2009, the parties were already litigating the same five-year review claim in Conservation Force I. Thus, plaintiffs did not give the Service an opportunity to "review [its] action and take corrective measures" relating to the five-year review prior to being sued. Because plaintiffs failed to provide the Service with a litigation-free window to take corrective action or to otherwise resolve the dispute, plaintiffs have not satisfied the ESA notice requirement. See Hallstrom v. Tillamook County, 493 U.S. 20, 26-28, 110 S.Ct. 304, *34 107 L.Ed.2d 237 (1989) (statutory 60-day notice requirements are "mandatory conditions precedent" and failure to comply with the notice requirement requires dismissal of action); Wood Bison, 715 F.Supp.2d at 104 (dismissing claim for failing to comply with 60-day notice requirement, but noting that plaintiff can bring a new suit after they have provided proper statutory notice); Friends of Animals, 670 F.Supp.2d at 13 (dismissing claim for failing to provide 60-day notice). Allowing plaintiffs to cure their jurisdictional failure simply by bringing a new lawsuit while litigating the claim in another action would eviscerate the purpose of the 60-day notice requirement. See Hallstrom, 493 U.S. at 32, 110 S.Ct. 304 (requiring dismissal "after years of litigation and a determination on the merits"); Friends of Animals, 670 F.Supp.2d at 13 (rejecting plaintiffs' request to cure defect by amendment of complaint and dismissing claim). Accordingly, Claim II must be dismissed. 2. Claim III: Denial of Plaintiffs' Due Process Rights Plaintiffs allege that the Service's improper, arbitrary and capricious denial of their enhancement permits constitutes a deprivation of the constitutionally mandated process in the Fifth Amendment, as well as § 706(2)(b) of the APA. Plaintiffs concede that they do not have a constitutionally protected interest in "any kind of permit, anywhere, at any time." Id. at 10. Nevertheless, they contend, they do have "legal protection from arbitrary, capricious and irrational denials and fundamentally unfair treatment" and a right "to genuine permit application processing and a rational determination." Id. at 10-11. This court agrees. However, as previously discussed in Section III(A)(2), this is not a due process claim that can be maintain pursuant to § 706 of the APA. Accordingly, Claim III must be dismissed.[10] 3. Claims I and IV: Section 1537(b) Allegations In Claim I, plaintiffs seek judicial review of the Service's denial of the individual plaintiffs' trophy import permit applications. (Conservation Force I, Dkt. No. 10 at 13.). The claim raises seven different statutory violations. Id. citing 16 U.S.C. §§ 1533, 1536, 1537 and 1539. In Claim IV, plaintiffs assert that the Secretary has violated a number of his duties under the ESA, in particular, the Secretary's duty to "encourage" foreign nations to "provide for the conservation of fish or wildlife. . . ." Id. at 14 citing § 1537(b). Defendants move to dismiss Claims I and IV to the extent that the claims are based on section 1537(b) violations. The ESA citizen suit provision provides, in relevant part, that: any person may commence a civil suit on his own behalf—(A) to enjoin any person, including the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof; or . . . (C) against the Secretary where there is alleged a failure of the Secretary to perform any act or duty under section [4] of this title which is not discretionary with the Secretary. 16 U.S.C. § 1540(g)(1). Defendants assume, incorrectly, that plaintiffs bring the § 1537(b) claims pursuant to subsection (C). However, in their opposition to defendants' motion to dismiss, plaintiffs clarify that the claims are filed pursuant to subsection (A). (Conservation Force I, Dkt. No. 14 at 27.). Presumably plaintiffs *35 concede that the alleged violations of § 1537(b) would not be actionable under subsection (C). See, e.g., Conservation Force v. Salazar (Wood Bison II), 753 F.Supp.2d 29, 34 (D.D.C.2010) (it is unambiguous that subsection (C) only covers violations of Section 4 of the ESA). Nevertheless, plaintiffs fare no better under subsection (A). The Supreme Court has interpreted subsection (A) to allow an individual to bring suit only to enforce the substantive provisions of the ESA, not to challenge the Service's implementation and administration of the Act. Bennett v. Spear, 520 U.S. 154, 174, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997); Conservation Force (Snow Leopard) v. Salazar, 677 F.Supp.2d 1203, 1211-1212 (N.D.Cal.2009). In Bennett, the Court held that the term "violation" in the citizens-suit provision must be interpreted in a manner that is consistent with how the term is used elsewhere in the Act. Bennett, 520 U.S. at 174, 117 S.Ct. 1154. The Court reasoned that interpreting the term "violation" broadly (as plaintiffs seek to have the court do here) would render the other parts of the citizen-suit provision superfluous. See id. The Court thus held that the term "`violation' . . . cannot be interpreted to include the Secretary's maladministration of the ESA," and, accordingly, such claims are "not subject to judicial review under [the citizens-suit provision of the ESA]." Id. at 174, 117 S.Ct. 1154; see also, Earth Island Institute v. Albright, 147 F.3d 1352, 1357 (Fed. Cir.1998) ("the Supreme Court has clarified that the ESA offers no independent jurisdiction to challenge a federal agency's implementation of the Act"). Plaintiffs' allegations that the Service failed to cooperate with Pakistani's conservation program alleges nothing more than maladministration of the ESA. Adjudicating errors on the part of the Secretary in administering the ESA "would effect a wholesale abrogation of the APA's `final agency action' requirement." Bennett, 520 U.S. at 174, 117 S.Ct. 1154. "Merely because plaintiffs feel that defendants' actions do not adequately cooperate with other nations' conservation programs does not logically lead to the conclusion that a `violation' of ESA has occurred." Snow Lepard, 677 F.Supp.2d at 1211-12 (dismissing ESA § 1537(b) claims as "nothing more than maladministration" claims and, thereby, not actionable under section 1540(g)(1)(A)). Accordingly, plaintiffs' § 1537(b) claims are not subject to judicial review under § 1540(g)(1)(A). Nor do plaintiffs' § 1537(b) allegations fare better under the general review provision of the APA. See Lujan, 497 U.S. at 882, 110 S.Ct. 3177 (because ESA does not provide judicial review of claim, general review provisions and limitations of APA apply by default). Plaintiffs' allegations that the Secretary violated § 1537(b)'s broad "encouragement" mandate lacks the requisite specificity to support judicial review under the APA. See Norton v. Southern Utah Wilderness Alliance ("SUWA"), 542 U.S. 55, 66, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). In SUWA, environmental groups brought suit pursuant to the APA to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). The groups claimed (much as plaintiffs do here) that the government had violated a broad statutory mandate to manage wilderness study areas "in a manner so as not to impair the suitability of such areas for preservation as wilderness." SUWA, 542 U.S. at 59, 124 S.Ct. 2373 (quoting 43 U.S.C. § 1782(c)). The Supreme Court rejected the claim, holding that the APA did not empower a court to compel general compliance with such broad statutory mandates. Id. at 66-67, 124 S.Ct. 2373. *36 As the Court made clear, "a claim under § 706(1) [of the APA] can proceed only where a plaintiff asserts that an agency failed to take a discrete action that it is required to take." SUWA, 542 U.S. at 64, 124 S.Ct. 2373 (emphasis in original). In the case of the non-impairment mandate, the Court noted that "[w]hile Section 1782(c) is mandatory as to the object to be achieved . . . it leaves [the government] discretion to decide how to achieve that objective [and] assuredly does not mandate, with the clarity necessary to support judicial action under § 706(1)" a specific agency action. Id. at 66, 124 S.Ct. 2373. Accordingly, the Court found that the claim "lack[ed] the specificity requisite for agency action," and thus was not subject to judicial review under the APA. Id. The APA limitations, the Court explained, are intended to (a) protect agencies from undue judicial interference and (b) protect courts from having to enter "general orders compelling compliance with broad statutory mandates" that would "inject[] the judge into day-to-day agency management." Id. at 66-67, 124 S.Ct. 2373. Like SUWA, plaintiffs challenge a broad statutory mandate. Like the non-impairment mandate, § 1537(b) is mandatory only in the object to be achieved ("encouragement"), not in requiring any specific action. Indeed, while the Secretary has a general mandate to "encourage" foreign countries to "provide for" conservation, § 1537(b) leaves the government unfettered discretion to decide how to achieve the objective. The elements of what such an action might entail, including, among other things, its manner, timing, scope, nature and limits, are undefined. Accordingly, plaintiffs attempt to compel compliance with this broad statutory mandate fails for the same reasons articulated in SUWA. In addition, the fact that § 1537(b) provides no guidance or meaningful standard against which to judge what constitutes "encouragement" of a foreign country's conservation efforts is also fatal to plaintiffs' claim. An agency action is reviewable "except to the extent that agency action is committed to agency discretion by law." 5 U.S.C. § 701(a)(2); Association of Irritated Residents v. EPA, 494 F.3d 1027, 1030-31 (D.C.Cir.2007). Agency action is considered committed to agency discretion when there is "no law to apply," that is, where there are no "standards, definitions, or other grants of power [that] deny or require action . . . or confine an agency within limits as required by the Constitution." Diebold v. United States, 947 F.2d 787, 789 (6th Cir.1991) (quoting S. Doc. No. 248, 79th Cong., 2d Sess. 212, 275 (1946)). "Review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion." Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). Simply put, there are not standards for this court to apply to adjudicate whether the Secretary failed to "encourage" foreign nations within the meaning of § 1537(b). As such, the § 1537(b) allegations are not reviewable under the APA. See Association of Irritated Residents, 494 F.3d at 1030-31 (court lacked subject-matter jurisdiction where action was committed to agency discretion by law). For the foregoing reasons, the § 1537(b) allegations contained in Claims I and IV must be dismissed. IV. CONCLUSION For the reasons explained above, the court hereby: 1. GRANTS Defendants' Motion to Dismiss Conservation Force I; 2. STRIKES Plaintiffs' Motion for Summary Judgement (Conservation Force I, Dkt. No. 16); *37 3. DISMISSES in its entirety Conservation Force I; 4. DENIES Defendants' Motion to Stay Conservation Force II; 5. GRANTS in part and DENIES in part Defendants' Motion to Dismiss Conservation Force II. The 16 U.S.C. § 1537(b) allegations contained in Claims I and IV are not subject to judicial review under 16 U.S.C. § 1540(g)(1)(A) or the APA and are DISMISSED. Plaintiffs' allegations in Claims I and IV that the Service arbitrarily and capriciously denied the import trophy permits remain. Claim II is DISMISSED due to lack of subject-matter jurisdiction. Claim III is DISMISSED for failure to state a claim upon which relief can be granted; 6. In as much as Defendants' Motion to Dismiss has been denied as to portions of Claims I and IV, the Government should file the administrative record for this matter. In addition, the parties are instructed to proceed with any additional motions promptly; and 7. The parties should meet and confer so as to provide the court with an updated report as to what issues remain in the case and what motions will be brought. Said report shall be filed with the court no later than 30 days from the date of this order. NOTES [1] In issuing this order, the court did not consider Defendants' Supplemental Authority filed on August 31, 2011. (Conservation Force I, Dkt. No. 32; Conservation Force II, Dkt. No. 15.). [2] Defendants appear to contest this number, alleging that there are only "1,250 free-ranging endangered markhors in the wild. . . ." See Conservation Force I, Dkt. No. 20, Ex. 1 at 1. [3] As of January 14, 2009, the permit denials had not issued. [4] In 2006, the D.C. Circuit Court appeared to contemplate that the doctrine of continuing violations could reset the § 2401 limitation period. See The Wilderness Society v. Norton, 434 F.3d 584, 588 (D.C.Cir.2006). In Wilderness Society, the plaintiffs alleged "continuous violations by the government" because the park service had chronically failed to undertake various legal obligations with respect to management of wilderness in the National Parks System. Id. at 589. The district court dismissed the case as time-barred. The Wilderness Society v. Norton, 2005 WL 3294006 at *6 (D.D.C. Jan. 10, 2005). On appeal, the D.C. Circuit affirmed the dismissal, but on alternate, lack of Article III standing, grounds. However, in dictum the court stated that under the circumstances of the case, "it is unlikely that [plaintiff's] complaint would be held by this court to be time-barred by 28 U.S.C. § 2401(a)." Id. In the time since Wilderness Society was issued, the Supreme Court decided John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008). In that case, the Supreme Court affirmed that the statute of limitations under § 2501 is jurisdictional and, as such, a court may not consider whether "equitable considerations warrant extending [the] limitations period." Id. at 134, 128 S.Ct. 750. This ruling is significant because § 2501 and § 2401 contain substantially similar language and both statutes are Congressional waivers of sovereign immunity. W.Va. Highlands Conservancy, 540 F.Supp.2d at 142. In addition, since issuing its opinion in Wilderness Society, the D.C. Circuit has affirmed its prior holding in Spannaus that "section 2401(a) creates a `jurisdictional condition attached to the government's waiver of sovereign immunity." P & V Enters., 516 F.3d at 1026-27. Based on this holding, D.C. district courts have been compelled to hold that § 2401 is jurisdictional, and thereby, not subject to the doctrine of continuing violations. See e.g. W.Va. Highlands Conservancy, 540 F.Supp.2d at 143; Bigwood v. Defense Intelligence Agency, 770 F.Supp.2d 315, 318 (D.D.C.2011); Keohane v. United States, 775 F.Supp.2d 87 (D.D.C.2011); Terry v. U.S. Small Business Admin., 699 F.Supp.2d 49, 54 (D.D.C.2010). [5] Because Claim I is time-barred, it is not necessary for the court to address defendants' remaining objections to the claim. [6] It appears that plaintiffs conflate the two. [7] Defendants contend that plaintiffs' due process claim must be dismissed because it is an independent constitutionally-based claim and, as such, is barred by the APA. Plaintiffs counter that they are not alleging an independent due process claim, but rather, the claim is brought pursuant to section 706(2)(b) of the APA. Section 706(2)(b) provides a remedy where agency action is "contrary to a constitutional right, power, privilege or immunity." 16 U.S.C. § 706(2)(b). "Plaintiffs [assert] a claim under the APA . . . Plaintiffs have alleged a violation of the 5th amendment [only] because it is essential to name the constitutional violation in order to legitimate a claim under section 706(2)(b)." (Conservation Force I, Dkt. 14 at 18.). Therefore, it is not necessary for this court to rule on defendants' contention that the due process claim is barred by the APA. [8] Defendants assume, incorrectly, that plaintiffs also claim a protected property interest in the trophy import permits. Plaintiffs make no such allegation. (See Dkt. No. 14 at 21 ("Plaintiffs have not, will not, and never intended to claim a property interest in enhancement permits.") (emphasis in original)). [9] The court notes that there appears to be a pattern of dilatory action on the part of the Service. See, e.g., Conservation Force (Wood Bison II), 753 F.Supp.2d at 35 (stating "to be sure, multi-year delays to process plaintiffs' permit applications certainly do not indicate an efficient permit processing system"). [10] The court notes, however, that plaintiffs' assertion that the Secretary's denial of the permits was "arbitrary, capricious, and an abuse of discretion" may be brought pursuant to § 706 of APA, which plaintiffs assert in Claim I.

63 So.2d 247 (1953) LOOP v. UNITED STATES FIDELITY & GUARANTY INS. CO. No. 20014. Court of Appeal of Louisiana, Orleans. February 23, 1953. Jones, Walker & Waechter and George Denegre, New Orleans, for plaintiff-appellant. Weiss & Weiss and Harold Marx, Jr., New Orleans, for defendant-appellee. JANVIER, Judge. Plaintiff, having obtained from defendant insurance company a policy of theft insurance, seeks recovery for the purchase price of a ring which he had given to his wife and which disappeared under circumstances which plaintiff contends entitled him to recover under the policy. From a judgment dismissing this suit he has appealed. The facts are not in dispute. The policy which was issued to plaintiff by defendant company provided for coverage against theft from the premises or a depository and theft away from the premises, and it contained, among other definitions, the provision that: "The word `theft' includes larceny, burglary and robbery. Mysterious disappearance of any insured property, * * * shall be presumed to be due to theft." The ring had been purchased from a local jeweler about two months before its disappearance, and there is no dispute as to the amount of the purchase price. On the day on which it disappeared, Mrs. Loop, the wife of plaintiff, selected this ring from several others at her home and put it on the ring finger of her right hand, and, with her husband, drove to the business *248 section of New Orleans, which was about three miles from her residence. She carried in her hands a pair of gloves but did not put them on. They parked the car at a garage in the business district and Mrs. Loop walked a few city blocks to a store on Canal Street, and after a short time there, she walked to her husband's office in the Cotton Exchange Building. They then went to the garage and got the car and drove to the residence of friends in the upper part of the City of New Orleans. When they arrived there Mrs. Loop, being proud of the ring, wished to show it to her friend, and then, for the first time, discovered that it was not on her finger. Plaintiff contends that these facts show a "mysterious disappearance"; that a mysterious disappearance creates a presumption of theft; that there is no evidence which rebuts the presumption, and that therefore it must be held that the loss resulted from theft, and that as a consequence, there must be a recovery on the policy sued on. It is quite true that such a policy provision may be relied upon wherever the facts do not themselves belie the presumption. Consequently, if the facts made it even remotely possible to accept with any reasonable certainty the presumption that there was a theft, it would necessarily follow that, as a result of this presumption, the so-called mysterious disappearance would justify a recovery. But we are of the opinion that the facts do not admit of the acceptance of the presumption that the loss resulted from theft. And it is quite clear that Mrs. Loop herself was of the opinion that there had been no theft, and that she had merely lost the ring from her finger somewhere during the course of the two and a half hours which elapsed between the time at which she left her residence and the time at which she discovered the loss. In the first place, she says that she did not report the loss to the police or to the agent of the insurer until about three weeks after it had occurred, for the reason that "I kept hoping somebody would come back with it." In her statement made to the insurance adjuster a day or so after she finally reported the loss, she said: "In summing up this matter I feel that I lost the ring and that it was not missing as a result of a theft. Because of this opinion I did not make a report of the loss to the Police Department." In that statement she also said: "I feel reasonably certain the ring was not stolen from my home, but I can't account for the disappearance of the ring except for the possibility that it slipped off my finger." There is not one word in the record which suggests that some one forcibly slipped the ring off her finger. If she had taken it from her finger in order to wash her hands and had placed it some where in the washroom and had forgotten to put it back on her finger and had then returned to the washroom and found it missing, it would have been possible to classify that loss as a mysterious disappearance and to accept the presumption that there had been a theft, but where there is no fact which can be pointed to as evidencing the remotest possibility of theft, we find it impossible to classify the disappearance as mysterious and to accept the presumption that there was a theft. Counsel for both parties have directed our attention to two cases, both from other jurisdictions, in which a similar clause in a theft policy was considered. These cases are Davis v. St. Paul Mercury & Indemnity Company, 227 N.C. 80, 40 S.E.2d 609, 169 A.L.R. 220, and Caldwell v. St. Paul Mercury & Indemnity Company, 210 Miss. 320, 49 So.2d 570. In the Davis case, the Court defined a mysterious disappearance within the meaning of the policy as [227 N.C. 80, 40 S.E. 2d 611]: "any disappearance or loss under unknown, puzzling or baffling circumstances which arouse wonder, curiosity, or speculation, or circumstances which are difficult to understand or explain. A mysterious disappearance is a disappearance under circumstances which excite, and at the same time baffle, *249 wonder or curiosity. Webster, New Int. Dic." "A disappearance under circumstances which excite, and at the same time baffle, wonder or curiosity." In a comment on the Davis case in 169 A.L.R., page 257, the commentator referred to that decision, saying: "* * * By this decision the court very soundly limited the effect of the new clause to its proper objective namely, to effect a somewhat larger measure of protection against theft to the insured, and refused to change it from a theft policy to a policy covering every loss due to mysterious disappearance. In doing so the court, in the opinion of this writer, not only reached a correct legal conclusion but, at the same time, helped to preserve a provision which is extremely valuable to the insured and which, if it had obtained the construction adopted by the trial court, very probably would be discarded by the insurance companies in future contracts as unduly extending their risks." In the Caldwell case it was held that even where a theft policy contains such a provision, a jury must take into consideration "speculations or surmises generated by the circumstances surrounding the mysterious disappearance. [210 Miss. 320, 49 So.2d 572]." In the Davis case, the Court said: "The surrounding facts and circumstances, if any, which tend to show that the property was lost or mislaid or that its disappearance was not in fact due to theft are to be considered by the jury in arriving at a verdict, the burden of proof being at all times on the plaintiff." It is our opinion that, where such a clause is relied on as raising a presumption of theft, a court must take into consideration all "the surrounding facts and circumstances," and, from these facts and circumstances, must reach the conclusion that there has been some possibility that there was a theft before it can apply the presumption that merely because the insured article has been lost, there has been a mysterious disappearance and consequently a theft. We feel that the evidence of Mrs. Loop herself makes it impossible to accept such a presumption, and we conclude that the ring was not lost as a result of theft. Thus we agree with the conclusion reached by the district judge that: "* * * this ring was lost, and that the circumstances under which it was lost do not constitute `Mysterious Disappearance'. There is nothing mysterious about the manner in which the ring disappeared." Accordingly, the judgment appealed from is affirmed at the cost of appellant. Affirmed.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) JOSEF F. BOEHM, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-2173 (ABJ) ) FEDERAL BUREAU OF ) INVESTIGATION, et al., ) ) Defendants. ) ____________________________________) MEMORANDUM OPINION Plaintiff Josef Franz Boehm brings this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2006), and the Privacy Act, 5 U.S.C. § 552(a) (2006). Plaintiff’s complaint challenges defendants’ responses to written requests that he made to the Federal Bureau of Investigations (“FBI”), the Executive Office for United States Attorneys (“EOUSA”), and the Criminal Division (“CRM”) of the United States Department of Justice (“DOJ”). The requests sought copies of any records in agency files from the years 2000 to 2009 that mention or concern Joseph Franz Boehm. All three agencies have now responded to plaintiff’s requests by conducting searches, disclosing some responsive records, and providing their reasons for withholding others. Defendants have filed a motion for summary judgment. Defs.’ Mot. for Summ. J. (“Defs.’ Mot.”) [Dkt. # 36]. Plaintiff opposes the motion, challenging the adequacy of the agencies’ searches and their withholdings. Pl.’s Response to Defs.’ Mot. for Summ. J. (“Pl.’s Opp.”) [Dkt. # 42]. Because the agencies conducted adequate searches, but they have not provided adequate explanations for some of their withholdings, the Court will grant in part and deny in part defendants’ motion.  BACKGROUND Plaintiff is currently incarcerated at the Seagoville Federal Correctional Institution in Seagoville, Texas. Compl. [Dkt. # 1] ¶ 1. In 2004, he pled guilty to one count of conspiracy to commit the crime of sex trafficking of children, in violation of 18 U.S.C. §§ 371 and 1591(a)(1), and one count of conspiracy to distribute controlled substances to persons under age twenty-one, in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A), and 859(a). Court Minutes, United States v. Boehm, Case No. 3:04-cr-00003-JWS (D. Alaska Nov. 22, 2004) [Dkt. # 692]; see also Hardy Decl. [Dkt. # 36-5] ¶ 5. In May 2005, he was sentenced in the United States District Court for the District of Alaska to approximately eleven years in prison. Judgment, United States v. Boehm, Case No. 3:04-cr-00003-JWS (D. Alaska May 16, 2005) [Dkt. # 779-1]. On June 22, 2009, plaintiff submitted written requests to the FBI, the EOUSA, and the CRM under the Privacy Act and FOIA. Ex. A to Luczynski Decl. [Dkt. # 36-4] (EOUSA); Ex. B to Hardy Decl. (Criminal Division of DOJ); Ex. A to Argall Decl. [Dkt. # 36-2] (FBI). All of the requests stated: I am requesting access to all records in agency files, including but not limited to all documents and records concerning Josef Franz Boehm . . . for the years between 2000 and 2009 inclusive. . . . This is an all-inclusive request and includes any document, wherever located, in which the name of Josef Franz Boehm is made mention or listed including investigations of persons or business entities other than Josef Franz Boehm. Id. The requests included plaintiff’s date of birth, social security number, register number, place of birth, and the criminal case number of the offense for which he is currently incarcerated. Id. I. Request to the EOUSA The EOUSA acknowledged receipt of plaintiff’s request by letter dated August 18, 2009. Ex. B to Luczynski Decl. On August 27, 2010, it responded to the request. Ex. C to Luczynski Decl. The response stated that the records plaintiff sought were located in a system of records 2 that is exempt from the access provisions of the Privacy Act. Id. However, pursuant to FOIA, the EOUSA released 92 pages of responsive material in full and 128 pages in part. Id. In addition it withheld 1,545 pages of responsive material under FOIA Exemptions 3, 5, 7(C), 7(D), and 7(F), as well as grand jury material. Id. The letter also stated that the EOUSA had located records that originated with the FBI and that those the records were being referred to the FBI for review and for direct response to plaintiff. Id. The letter also notified plaintiff of the procedure for appealing the EOUSA’s decision. Id. According to the declaration of David Luczynski, Attorney Advisor for the EOUSA, the EOUSA referred 2,414 pages of material to the FBI. Luczynski Decl. ¶ 6. In addition, on October 27, 2010, the EOUSA referred to the FBI case audiotapes and DVDs that had been compiled prior to plaintiff’s prosecution. Id. ¶ 7. The EOUSA also received a four-page referral letter sent by the CRM on March 14, 2011. Id. ¶ 8. II. Request to the CRM On July 21, 2009, the CRM sent plaintiff a letter acknowledging its receipt of his request and notifying him that additional information was required. Ex. 2 to Cunningham Decl. [Dkt. # 36-3]; Cunningham Decl. ¶ 7. Plaintiff provided the additional information to the agency, Ex. 3 to Cunningham Decl., and the agency acknowledged receipt on August 31, 2009, Ex. 4 to Cunningham Decl. The CRM’s first substantive response to plaintiff’s request stated that all of the responsive documents uncovered by its search were exempt from disclosure under FOIA Exemption (7)(A) because the records related to an open and ongoing law enforcement proceeding and release could reasonably be expected to interfere with the proceeding. Ex. 5 to Cunningham Decl. However, the agency later determined that the records should no longer be withheld under Exemption 7(A), but that the FBI – not the CRM – was the proper processing 3 agency for the records because they had originated with the FBI. Cunningham Decl. ¶ 14. The CRM then forwarded the records to the FBI for processing and direct reply to plaintiff. Id. The CRM also received 202 pages of material from the FBI, which the CRM later determined to have originated from the EOUSA and the U.S. Marshals Service. Id. ¶¶ 15, 16. The CRM forwarded the documents to the originating agencies. Id. The CRM did not identify any responsive materials that had originated with it. See id. ¶ 17. III. Request to the FBI The FBI acknowledged receipt of plaintiff’s request by letter dated July 8, 2009. Ex. B to Argall Decl. On September 14, 2009, it responded to the request by a second letter. Ex. C to Argall Decl. That response stated that the material requested was located in an investigative file which is exempt from disclosure pursuant to FOIA Exemption 7(A). Id. It further stated that plaintiff could file an appeal by writing to the DOJ Office of Information Policy, and that any appeal must be received within sixty days from the date of the response letter. Id. The Office of Information Policy has no record of receiving a notice of appeal from plaintiff, Argall Decl. ¶ 10, and plaintiff does not claim that he filed one, see Pl.’s Opp. at 7–8 (arguing that failure to exhaust does not preclude the Court from hearing plaintiff’s claims). IV. Documents referred to the FBI from other agencies By letter dated November 12, 2010, the FBI informed plaintiff that it had received approximately 4,791 pages of material from other agencies that had originated with the FBI, and that the material might be responsive to his request. Ex. C to Hardy Decl. [Dkt. # 36-6]. The FBI determined that all of this material was exempt from disclosure under the Privacy Act. Hardy Decl. ¶ 26. However, the FBI eventually released 1,359 pages of responsive material under FOIA, of which 431 pages were released in full and 928 pages were released in part. Id. 4 ¶ 27; see also Exs. E, G, J, M, O to Hardy Decl. [Dkt. # 36-6]. The FBI also released sixteen responsive CDs containing audio and two responsive DVDs containing video to plaintiff under FOIA. Hardy Decl. ¶ 27. The FBI withheld 2,763 pages in full, of which 628 pages were withheld because they were duplicates of other released pages and 2,135 pages were withheld under FOIA exemptions and/or a court order sealing them. Id. V. Procedural Background Plaintiff, acting pro se, filed the complaint in this action on November 16, 2009. The complaint alleges that “defendants have failed, refused, and neglected to comply with Plaintiff’s reasonable requests for records, documents, and discovery.” Compl. ¶ 10. It seeks an order requiring defendants to produce all documents responsive to his request, including without limitation, all Brady and Jenks Act material relevant to his criminal case, all communications about him by the United States Attorney’s Office, all FBI 302 reports concerning him, all in- house agency reports, documents, and records naming him, and all material exculpatory or impeaching documents concerning the criminal investigation of him. Compl. at 3. After defendants notified the Court and plaintiff of their withholdings, the Court ordered plaintiff to notify the Court whether he intended to challenge some or all of the FOIA exemptions and, if so, to indicate to the Court whether he wanted to designate a representative sample or have defendants propose the sample and allow him to supplement it. Minute Order (June 29, 2011). In response, plaintiff filed a motion for Vaughn index, [Dkt. # 19], and a notice of intent to challenge the asserted FOIA exemptions, [Dkt. # 20] (“Notice of Intent”). Plaintiff requested that he designate the representative sample. Notice of Intent. Defendants opposed plaintiff’s motion and requested that the Court order defendants to designate a representative sample within thirty days, and order plaintiff to designate supplemental material within thirty days after 5 defendants’ designation. [Dkt. # 21]. By Minute Order of September 30, 2011, the Court ordered defendants to prepare a representative sample of documents that they were withholding under FOIA exemptions, transmit the sample to plaintiff accompanied by a letter explaining the representative nature of the sample, and file a notice of designation with the Court by October 31, 2011. The Court further ordered plaintiff to designate any supplemental material and file a notice of designation with the Court by December 1, 2011. Defendants filed their notice of designation on October 31, 2011. [Dkt. # 22]. The EOUSA has filed a declaration by David Luczynski, an Attorney Advisor with the EOUSA who is responsible for matters related to FOIA, Luczynski Decl. ¶ 1, that states that the EOUSA reviewed all of the responsive documents and prepared a 200-page sample out of unredacted and partially redacted pages. Luczynski Decl. ¶ 9 & n.1. According to the declaration, the sample was chosen to be “both a fair representative of all the FOIA Exemptions taken, and to also reflect the wide variety of documents contained within the release.” Id. ¶ 9. The sample was sent to plaintiff on October 28, 2011. 1 Id. ¶ 9. In addition, the EOUSA provided a Vaughn index of all of the documents in the representative sample as well as a supplemental Vaughn index of a 154- page representative sample of the 1,545 pages of documents that were withheld in full. Id. ¶¶ 9, 10. According to Luczynski, “[t]hese records are selected as a fair and accurate representation” of the withheld documents. Id. ¶ 10. The FBI has submitted a declaration by David M. Hardy, the Section Chief of the Record/Information Dissemination Section, Records Management Division of the FBI, Hardy Decl. ¶ 1, which states that the FBI has designated a representative sample consisting of 422 pages, one CD, one DVD, and one audiotape. Id. ¶ 24; Ex. P to Hardy Decl. [Dkt. # 36-7]. 1 The same sample was filed on the public docket in this action on April 30, 2013. Notice of Filing of Representative Sample [Dkt. # 45]. 6 According to the declaration, this sample is representative of documents that were both withheld in part and withheld in full. Hardy Decl. ¶ 24. In addition, the FBI provided a Vaughn index of all of the documents in the representative sample along with a key to the codes used in the Vaughn index. Hardy Decl. at 8–13 (“FBI Vaughn Index”); Summary of Justification Categories, Hardy Decl. at 17–18. The Hardy declaration states that the indexed documents are representative of all the FOIA exemptions cited and reflective of the variety of documents contained within the responsive records. Hardy Decl. ¶ 24. Plaintiff did not designate any supplemental material in response to defendants’ designations. On January 18, 2012, the Court entered a scheduling order for dispositive motions. Sched. Order [Dkt. # 26]. Defendants filed a motion for summary judgment on November 23, 2012. Defs.’ Mot. Counsel subsequently entered an appearance on behalf of plaintiff, Notice of Appearance [Dkt. # 39]; see Minute Order (Jan. 25, 2013), and plaintiff filed an opposition to defendants’ motion through counsel, Pl.’s Opp. Defendants filed their reply on April 11, 2013. Defs.’ Reply to Pl.’s Response to Mot. for Summ. J. (“Defs.’ Reply”) [Dkt. # 44]. STANDARD OF REVIEW Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the “initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must “designate specific facts showing there is a 7 genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the non-moving party; a fact is only “material” if it is capable of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing a party’s motion, the court must “view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the summary judgment motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam). ANALYSIS I. The Privacy Act The Privacy Act provides: Each agency that maintains a system of records shall . . . upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him . . . to review the record and have a copy made of all or any portion thereof in a form comprehensible to him . . . . 5 U.S.C. § 552a(d)(1). Thus, any material that is subject to the disclosure provision of the Privacy Act must be a “record” that is, in turn, contained in a “system of records.” Fisher v. Nat’l Inst. of Health, 934 F. Supp. 464, 468 (D.D.C. 1996). When a plaintiff challenges an agency’s withholding of documents under the Privacy Act, the court determines de novo whether the withholding was proper, and the burden is on the agency to sustain its action. 5 U.S.C. § 552a(g)(2)(A); Doe v. United States, 821 F.2d 694, 697– 98 (D.C. Cir. 1987) (finding that in this context, de novo means “a fresh, independent determination of ‘the matter’ at stake,” and the court need not give “deference . . . to the 8 agency’s conclusion”) (en banc); see also Skinner v. DOJ, 584 F.3d 1093, 1096 (D.C. Cir. 2009). “[T]he [Privacy] Act ‘safeguards the public from unwarranted collection, maintenance, use, and dissemination of personal information contained in agency records . . . by allowing an individual to participate in ensuring that his records are accurate and properly used.” McCready v. Nicholson, 465 F.3d 1, 7–8 (D.C. Cir. 2006), quoting Bartel v. Fed. Aviation Admin., 725 F.2d 1403, 1407 (D.C. Cir. 1984). Defendants assert that all of the records at issue here fall under an exemption to disclosure, codified at 5 U.S.C. § 552a(j)(2) (“Exemption j(2)”). Exemption j(2) applies if: (1) the records are stored in a system of records that has been designated by the agency to be exempt from the Privacy Act’s disclosure requirements, and (2) the system of records is “maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal law[s]” and consists of “information compiled for the purpose of a criminal investigation.” 5 U.S.C. § 552a(j)(2); see also Defs.’ Mem. in Support of Mot. for Summ. J. (“Defs.’ Mem.”) [Dkt. # 36-1] at 9–10. Plaintiff has not opposed defendants’ assertion of Exemption (j)(2) over any of the material at issue in this case, so the Court may properly treat defendants’ assertion as conceded. See McMillan v. Wash. Metro. Area Transit Auth., 898 F. Supp. 2d 64, 69 (D.D.C. 2012), citing Howard v. Locke, 729 F. Supp. 2d 85, 87 (D.D.C. 2010) (“It is well understood in this Circuit that when a plaintiff files an opposition to a motion . . . addressing only certain arguments raised 9 by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.”). 2 II. FOIA “[A]ccess to records under [FOIA and the Privacy Act] is available without regard to exemptions under the other.” Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C. Cir. 1987). Accordingly, the Court will next turn to plaintiff’s FOIA claims. The purpose of FOIA is to require the release of government records upon request and to “ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” Nat’l Labor Relations Bd. v. Robbins Tire & Rubber Co., 437 U.S. 214, 220, 242 (1978). At the same time, Congress recognized “that legitimate governmental and private interests could be harmed by release of certain types of information and provided nine specific exemptions under which disclosure could be refused.” FBI v. Abramson, 456 U.S. 615, 621 (1982); see also Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d 918, 925 (D.C. Cir. 2003) (“FOIA represents a balance struck by Congress between the public’s right to know and the government’s legitimate interest in keeping 2 In addition, the Court is satisfied that defendants have met their burden to show that Exemption (j)(2) applies to any responsive records covered by the Privacy Act. With respect to the FBI records, the Hardy declaration states that the records relate to investigations and/or matters within the FBI’s investigatory authority, and were compiled as a result of the coordinated legitimate law enforcement efforts between local law enforcement and the FBI to investigate child sex trafficking and drug violations. Hardy Decl. ¶ 26. And with respect to the EOUSA records, the Luczynski declaration states that plaintiff’s entire request pertains to criminal investigations, and therefore the responsive records were necessarily compiled for law enforcement purposes. Luczynski Decl. ¶ 15. Criminal case files maintained by U.S. Attorney’s Offices are part of the DOJ Privacy Act System of Records and are designated by the agency as exempt from the Privacy Act’s disclosure requirements under 28 C.F.R. § 16.81(a)(4). See Adionser v. DOJ, 811 F. Supp. 2d 284, 301 (D.D.C. 2011) (finding records from criminal case files to be exempt from disclosure under Exemption (j)(2), affirmed by No. 11-5093, 2012 WL 5897172, at *1 (D.C. Cir. Nov. 5, 2012); Plunkett v. DOJ, -- F. Supp. 2d --, Civ. A. No. 11- 0341(RWR), 2013 WL 628546, at *11 (D.D.C. Feb. 20, 2013) (same). 10 certain information confidential.”). The Supreme Court has instructed that “FOIA exemptions are to be narrowly construed.” Abramson, 456 U.S. at 630. To prevail at the summary judgment phase in a typical FOIA action, an agency must satisfy two elements. First, the agency must demonstrate that it has made “a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). “[A]t the summary judgment phase, an agency must set forth sufficient information in its affidavits for a court to determine if the search was adequate.” Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995), citing Oglesby, 920 F.2d at 68. Such agency affidavits attesting to a reasonable search “are afforded a presumption of good faith[,]” Defenders of Wildlife v. U.S. Dep’t of Interior, 314 F. Supp. 2d 1, 8 (D.D.C. 2004), and “can be rebutted only ‘with evidence that the agency’s search was not made in good faith.’” Id., quoting Trans Union LLC v. FTC, 141 F. Supp. 2d 62, 69 (D.D.C. 2001). Second, an agency must show that “materials that are withheld . . . fall within a FOIA statutory exemption.” Leadership Conference on Rights v. Gonzales, 404 F. Supp. 2d 246, 252 (D.D.C. 2005). After asserting and explaining its exemptions, an agency must release “[a]ny reasonably segregable portion of a record” and provide it to the requesting party, “after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). Once a FOIA request has been processed, a plaintiff is required to exhaust all administrative remedies before bringing an action to compel disclosure of documents. See 28 C.F.R. § 16.9(c) (2012); Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004). Failure to exhaust such remedies bars the lawsuit. See Banks v. DOJ, 813 F. Supp. 2d 132, 138–39 (D.D.C. 2011) (granting agency’s motion for summary judgment in FOIA action where the plaintiff failed to 11 file an administrative appeal before filing the lawsuit); Schwaner v. Dep’t of Army, 696 F. Supp. 2d 77, 81 (D.D.C. 2010) (same). A plaintiff is deemed to have exhausted his administrative remedies with respect to his FOIA request when an agency “fails to comply with the applicable time limit provisions” of FOIA. 5 U.S.C. § 552(a)(6)(C)(i). The agency has twenty days to make an initial determination, and following an administrative appeal of a FOIA decision, twenty days to make a determination on the appeal. 5 U.S.C. § 552(a)(6)(A)(i)–(ii). The district court reviews the agency's action de novo, and “the burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B); accord Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Once the case comes to court, “FOIA cases are typically and appropriately decided on motions for summary judgment.” Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009). In any motion for summary judgment, the Court “must view the evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in his favor, and eschew making credibility determinations or weighing the evidence.” Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir. 2008); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, where a plaintiff has not provided evidence that an agency acted in bad faith, “a court may award summary judgment solely on the basis of information provided by the agency in declarations[.]” Moore, 601 F. Supp. 2d at 12. 1. Defendants are entitled to summary judgment as to the documents that originated with the FBI and that were located at the FBI at the time the request was received because plaintiff failed to exhaust his administrative remedies. Defendants first argue that summary judgment is warranted for the subset of documents that originated with the FBI and that were located at the FBI at the time the request was received by the agency. Defs.’ Mem. at 5. These documents were processed by the FBI and, in a letter dated September 14, 2009, plaintiff was informed that the FBI was withholding them under 12 FOIA exemption 7(A) and that they were exempt from the Privacy Act’s disclosure requirement. 3 Ex. C to Argall Decl. In addition, the letter informed plaintiff that he could file an appeal by writing to the Director of the Office of Information Policy for DOJ within sixty days. Id. Defendants assert that the Office of Information Policy never received an appeal from plaintiff, Argall Decl. ¶ 10, and therefore that plaintiff’s challenge in this Court to the FBI’s withholding of these records is barred for failure to exhaust administrative remedies. Plaintiff does not claim that he filed an administrative appeal of the FBI’s decision. Rather, he argues that failure to exhaust does not preclude judicial review of his challenge. Pl.’s Opp. at 7–8. Plaintiff is correct that “the exhaustion requirement is not jurisdictional because the FOIA does not unequivocally make it so.” Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003). “[S]till, as a jurisprudential doctrine, failure to exhaust precludes judicial review if the purposes of exhaustion and the particular administrative scheme support such a bar.” Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004) (internal quotation marks omitted), quoting Hidalgo, 344 F.3d at 1258–59. And “the FOIA’s administrative scheme favors treating failure to exhaust as a bar to judicial review.” Hidalgo, 344 F.3d at 1259. Moreover, permitting plaintiff to obtain judicial review without exhausting his administrative remedies in this case would undermine the purpose for the exhaustion requirement: “preventing premature interference with agency processes, affording the parties and the courts the benefit of the agency’s experience and expertise, or compiling a record which is adequate for judicial review.” Id. (alterations and internal quotation marks omitted), quoting Ryan v. Bentsen, 12 F.3d 245, 247 (D.C. Cir. 1993). Since plaintiff did not object to the FBI’s decision before the Office of Information Policy, the 3 FOIA exemption 7(A) applies to records or information compiled for law enforcement purposes when their production could reasonably be expected to interfere with enforcement proceedings. 5 U.S.C. § 552(b)(7)(A). 13 agency has not had a chance to reconsider its initial decision in light of his objections, and this Court does not have before it the record that such a review would have produced. Plaintiff argues that this case is distinct because the FBI has waived the affirmative defense of failure to exhaust by not raising it in a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) and not asserting it in the answer to plaintiff’s complaint. Pl.’s Opp. at 8. This is plainly wrong; defendants asserted the failure to exhaust defense with particularity as the “third defense” in their answer to plaintiff’s complaint. Answer [Dkt. # 4] at 2 & n.2. Accordingly, that defense has not been waived under Federal Rule of Civil Procedure 12(h). See Fed. R. Civ. P. 12(h)(2) (stating that failure to state a legal defense to a claim may be raised in any pleading allowed or ordered under Rule 7(a), which includes an answer to a complaint). Plaintiff also argues that the FBI should be estopped from raising the exhaustion defense because it continued to provide documents to plaintiff after he filed suit. Pl.’s Opp. at 8. This argument is misleading. While the FBI did continue to provide documents to plaintiff even after it asserted the exhaustion defense in this Court, they were documents that had been referred to the FBI from other agencies because they originated from the FBI but were housed in a different agency at the time of the request. See Hardy Decl. ¶¶ 6–23. Plaintiff offers no evidence that the FBI ever revisited its initial decision regarding the documents that originated from the FBI and were located at the FBI at the time the agency received the request. Those are the only records with which the FBI’s September 14, 2009 decision was concerned. Therefore, the Court will not consider whether such conduct would warrant estoppel. Consistent with the precedent from this circuit, the Court finds that plaintiff is barred for failure to exhaust administrative remedies from challenging the FBI’s decision on the subset of documents that originated from the FBI and were located at the FBI at the time of plaintiff’s 14 request. See also Love v. FBI, 660 F. Supp. 2d 56, 59–60 (D.D.C. 2009) (finding that the plaintiff’s failure to exhaust his administrative remedies barred his claim); Callaway v. U.S. Dep’t of Treasury, Civ. A. No. 04-1506(RWR), 2006 WL 6905083, at *4–5 (D.D.C. Apr. 26, 2006) (finding that the plaintiff’s challenge to some of the agency’s withholdings was barred for failure to exhaust administrative remedies because the plaintiff did not appeal the agency’s decision to the Office of Information Policy). 2. The defendant agencies performed adequate searches. Plaintiff next asserts that defendants did not perform adequate searches for records responsive to his request. To prevail in a FOIA case, the agency must demonstrate that it has made “a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Ogelsby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir 1990). “[A]t the summary judgment phase, an agency must set forth sufficient information in its affidavits for a court to determine if the search was adequate.” Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995), citing Ogelsby, 920 F.2d at 68. Such agency affidavits attesting to a reasonable search “are afforded a presumption of good faith,” Defenders of Wildlife v. U.S. Dep’t of Interior, 314 F. Supp. 2d 1, 8 (D.D.C. 2004), and “can be rebutted only ‘with evidence that the agency’s search was not made in good faith.’” Id., quoting Trans Union LLC v. Fed. Trade Comm’n, 141 F. Supp. 2d 62, 69 (D.D.C. 2001). To show that the CRM and the EOUSA performed adequate searches for information responsive to plaintiff’s requests, defendants have submitted declarations by John Cunningham III – a Trial Attorney in the CRM currently assigned to the FOIA and Privacy Act Unit, Cunningham Decl. ¶ 1; and David Luczynski. 15  The Cunningham declaration states that the CRM searched its central index of records, “which is the most comprehensive system of records maintained by the Division and contains information about people referred to in potential/actual cases and other matters of concern to the Criminal Division.” Cunningham Decl. ¶ 10. It used plaintiff’s name as a search term, as well as the names of the co-defendants in his criminal case. Id.; see also Ex. 3 to Cunningham Decl. In addition, since plaintiff had indicated in his submission of materials to the CRM that the sections of the CRM that he reasonably believed may contain responsive records were the Child Exploitation and Obscenity Section, the Narcotics and Dangerous Drugs Section, and the FOIA and Privacy Act Unit of the Office of Enforcement Operations, the CRM made specific requests to those units. Cunningham Decl. ¶ 10; see also Ex. 3 to Cunningham Decl. Responsive documents were found only in the Child Exploitation and Obscenity Section. Cunningham Decl. ¶¶ 10, 12. Those documents were originally withheld under FOIA Exemption 7(A), but that exemption was later determined to be inapplicable. Id. ¶¶ 13–14. However, the CRM determined that the documents had originated from the FBI, so they were referred to that agency for further processing. Id. ¶ 14. In addition, the CRM received materials from other agencies for processing, but it determined that none of those documents had originated with the CRM and it referred the material to the agencies where the materials had originated for further processing. Id. ¶¶ 15–16. The declarant states that in his experience, it is not unusual for the CRM to locate no original records in response to Privacy Act requests from federal inmates because it is not the agency responsible for prosecuting or investigating most federal criminal cases. Id. ¶ 17. Consistent with that experience, the declarant notes that plaintiff in this case was prosecuted by the United States Attorney’s Office in Anchorage, Alaska, and not by the CRM. Id. 16  The Luczynski declaration states that, upon receiving plaintiff’s request, the EOUSA forwarded it to the FOIA contact for the District of Alaska because each United States Attorney’s Office maintains the case files for criminal matters prosecuted by that office. Luczynski Decl. ¶ 12. The FOIA contact for the District of Alaska searched for records from the case files in plaintiff’s criminal case, and sent emails to the Assistant United States Attorneys in the Criminal Division to ascertain whether they had any responsive records. Id. To search for files, the FOIA contact used the “LIONS” system, which is a computer system used by United States Attorneys’ Offices to access databases which can be used to retrieve files pertaining to cases and investigations based on a defendant’s name, the internal administrative number for the case, and the district court case number. Id. The FOIA contact used plaintiff’s name as the search term. Id. According to the declarant, “[a]ll responsive documents to Plaintiff’s FOIA request would have been located in the [United States Attorney’s Office] for the District of Alaska . . . . There are no other record systems or locations within EOUSA or DOJ in which other files pertaining to Plaintiff’s name were maintained.” Id. 4 These affidavits establish that the agencies searched the databases that were likely to turn up documents responsive to plaintiff’s requests using search terms that correspond to the scope of the requests. In addition, because the EOUSA had employees who were familiar with plaintiff’s criminal case, it also requested additional documents from those individuals. The Court therefore finds, on the basis of defendants’ affidavits, that the searches were “reasonably calculated to uncover all relevant documents.” Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C. Cir. 1983). 4 Any challenge to the adequacy of the FBI’s search is barred by plaintiff’s failure to exhaust his administrative remedies for the reasons already explained by the Court. 17  Plaintiff’s main objection to the adequacy of the agencies’ searches is that they did not uncover all of the documents that he believes they should have. Pl.’s Opp. at 5–7. While the defendants have uncovered over 4,000 documents, plaintiff posits that the searches were deficient because he believes “the actual number of responsive documents currently in the government’s possession. . . total[s] around 15,000.” Boehm Decl. [Dkt. # 42-1] ¶ 4; see also Pl.’s Opp. at 5–6 (“[O]nly a fraction of the documents known to exist have to date been produced or even cited for exemption by defendants. Of the nearly 15,000 documents Plaintiff encountered as part of his criminal prosecution, only 4173 have been identified by defendants.”). But plaintiff provides no support for his belief that the government possesses 15,000 responsive documents or that a prosecution of an individual for the charges involved here would have generated that volume of paper. 5 In addition, his argument does not account for any withheld documents that originated from, and were in the possession of, the FBI at the time his requests were received – which this Court has already determined that it may not review because plaintiff failed to exhaust his administrative remedies to challenge the agency’s response to his request. In addition, plaintiff does not identify any problems with the way in which the search was conducted, but rather challenges the results of the search. However, “the issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.” Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984); Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (“[T]he adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.”); see also Adionser v. DOJ, 811 5 The government does not indicate how many documents were used in plaintiff’s criminal prosecution and since plaintiff ultimately pled guilty to the criminal charges against him, there is no list of government exhibits on the public docket for his criminal case. Case No. 3:04-cr- 00003-JWS (D. Alaska). 18 F. Supp. 2d 284, 293 (D.D.C. 2011) (rejecting a plaintiff’s challenge to the adequacy of a search because he challenged it “based on the results of the search rather than the actual method by which” the search was conducted). Plaintiff has provided no basis for the Court to find that the search in this case was inadequate. This case is therefore distinguishable from the case he cites, Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326–28 (D.C. Cir. 1999), in which the D.C. Circuit found a search for a particular document to be inadequate because the document was produced to the requester with pages missing, and there were other obvious places and sources likely to turn up the missing pages that had not been searched. Pl.’s Opp. at 5. Plaintiff also argues that defendants’ searches failed to uncover documents related to his criminal case that were mentioned in a report about prosecutorial misconduct in the case United States v. Theodore F. Stevens, Case. No. 08-cr-231 (D.D.C. 2009), and that would have been responsive to his request. Pl.’s Opp. at 6. According to plaintiff, this proves that the government did not act in good faith in searching for responsive documents. Id. While it is true that a plaintiff can rebut an agency’s initial demonstration of the adequacy of the search with evidence that the search was not made in good faith, see Trans Union LLC v. FTC, 141 F. Supp. 2d 62, 69 (D.D.C. 2001), plaintiff has not made a showing of bad faith here. First, the report that plaintiff cites does not contain any indication that the documents plaintiff claims should have been released were created and retained by the CRM or the EOUSA. See Callaway v. U.S. Dep’t of Treasury, 893 F. Supp. 2d 269, 275 (D.D.C. 2012), quoting Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152 (1980) (“The FOIA ‘only obligates [an agency] to provide access to those [documents] which it in fact has created and retained.”). Moreover, even if the agencies have the documents, there is some possibility that they have been legitimately 19 withheld in full under a FOIA exemption. And although plaintiff argues vigorously that the withholding of any of these documents would not be appropriate, Pl.’s Opp. at 6–7, that inquiry is not part of the assessment of the adequacy of the search and it will be addressed in connection with the Court’s assessment of defendants’ asserted FOIA exemptions on the merits. See infra Section 4. Since plaintiff has presented no evidence that the CRM and the EOUSA did not perform their searches in good faith, and since the agencies have demonstrated that their searches were reasonably calculated to uncover all relevant documents, the Court finds that the searches were adequate. 3. With certain exceptions, the Vaughn indices provided by defendants are adequate and the Court need not review the withheld documents in camera. Both the FBI and the EOUSA have provided plaintiff and the Court with Vaughn indices of a representative sample of the withheld documents. Contrary to arguments advanced by plaintiff, the fact that each entry in the indices is representative of other documents that have not been individually indexed does not reveal any deficiency in the quality of the indices. “Representative sampling is an appropriate procedure to test an agency’s FOIA exemption claims when a large number of documents are involved.” Bonner v. U.S. Dep’t of State, 928 F.2d 1148, 1151 (D.C. Cir. 1991). Moreover, defendants’ use of representative sampling complied with this Court’s directions. Defendants first proposed proceeding by sampling in their status reports of May 12, 2011, [Dkt. # 14], and June 27, 2011, [Dkt. # 15]. By Minute Order of June 29, the Court ordered plaintiff to notify the Court whether he intended to challenge some or all of the FOIA exemptions that defendants asserted and, if so, to indicate whether he wanted to designate a representative sample or have defendants propose the sample and allow him to supplement it as may be appropriate. Plaintiff proceeded to file a motion for Vaughn Index, [Dkt. # 19], and a 20 notice of intent to challenge the government’s asserted FOIA exemptions, [Dkt. # 20]. He did not oppose defendants’ proposal to proceed via sampling in either pleading and, in fact, in the notice of intent, he stated that he wanted to designate the representative sample. See Notice of Intent at 1. By Minute Order of September 30, 2011, the Court ordered defendants to prepare the representative sample of the documents it was withholding and transmit the sample to plaintiff along with a letter explaining the representative nature of the sample by October 31, 2011. The Minute Order also permitted plaintiff to designate any supplemental material by December 1, 2011. As explained above, defendants complied with the Minute Order, see Notice of Designation of Representative Sample, [Dkt. # 22], but plaintiff did not designate any supplemental material. At no point did plaintiff oppose defendants’ proposal to proceed via sampling. The Vaughn indices now at issue index each of the documents in defendants’ representative sample. So, the Court cannot find that the categorical nature of the indices is improper. See Bonner, 928 F.2d at 1151 (finding that since the representative sample was selected by agreement of the parties, “[t]here is therefore no attack on the sample’s capacity to represent the entire group of . . . documents”). Although plaintiff complains that the Vaughn indices include “generically-grouped categorical listings of documents,” Pl.’s Opp. at 10, both indices include specific descriptions of each representative document, whether it is being withheld in full or in part, and specific justifications for the withholding. See Hardy Decl. at 8–13, 17–18 (“FBI Index”); Attachments 1 & 2 to Luczynski Decl. (“EOUSA Index”). Along with this information, defendants have also provided the Court with a copy of all of the redacted representative documents. Ex. P to Hardy Decl. (FBI); Notice of Filing of Representative Sample [Dkt. # 45] (EOUSA). Except as noted 21 later in this Memorandum Opinion, defendants’ Vaughn indices and submissions satisfy the requirement that an agency withholding information must “provide a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.” Mead Data Cent., Inc. v. U.S. Dept. of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977). Plaintiff’s other objections to the adequacy of the Vaughn indices – that there is no way for the Court or plaintiff to determine where defendants searched for responsive materials or indicate which agencies were in possession of which documents, and that the searches turned up only a fraction of the nearly 15,000 documents it should have, Pl.’s Opp. at 10, – are merely restatements of his objections to the adequacy of the agencies’ searches, which this Court has already rejected. Accordingly, the Court finds defendants’ Vaughn indices to be adequate – except as specifically indicated later in this Memorandum Opinion – and the Court need not conduct an in camera inspection of the documents. See PHE, Inc. v. DOJ, 983 F.2d 248, 253 (D.C. Cir. 1993), quoting Schiller v. Nat’l Labor Relations Bd., 964 F.2d 120, 1209 (D.C. Cir. 1992) (“[I]n camera review is generally disfavored. It is ‘not a substitute for the government’s obligation to justify its withholding in publicly available and debatable documents.’”). 4. With certain exceptions, the FOIA exemptions defendants have invoked adequately justify their withholdings Plaintiff also challenges the specific FOIA exemptions under which defendants have withheld information. The Court will assess each of them. A. Exemption 3 Defendants relies on Exemption 3 to withhold information covered by 18 U.S.C. § 3509(d) and Federal Rule of Criminal Procedure 6(e). 22  FOIA Exemption 3 authorizes the government to withhold information that is: [S]pecifically exempted from disclosure by statute . . . if that statute (A)(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and (B) if enacted after the date of enactment of the OPEN FOIA Act of 2009 [enacted Oct. 28, 2009], specifically cited to this paragraph. 5 U.S.C. § 552(b)(3). Plaintiff concedes defendants properly invoked Exemption 3 to withhold the names and identifying information of child victims and witnesses in plaintiff’s prosecution pursuant to the Child Victims’ and Child Witnesses’ Rights Act, 18 U.S.C. § 3509(d), which statutorily prohibits disclosure of those types of information. Pl.’s Opp. at 12. However, he objects to defendants’ invocation of Federal Rule of Criminal Procedure 6(e) as a basis for withholding information concerning the grand jury proceedings in his criminal case. Defendants have withheld all information obtained pursuant to a grand jury subpoena that was contained in an FBI report of investigation, Hardy Decl. ¶ 40 & p. 11; names of grand jury witnesses, EOUSA Index at 1; and a draft indictment, EOUSA Supplemental Vaughn Index at 9. They justify the withholding under Federal Rule of Criminal Procedure 6(e), which bars disclosure of “matters occurring before [a] grand jury.” Defs.’ Mem. at 12. While Rule 6(e) is not so broad as to bar disclosure of all materials that a grand jury sees or hears, it does cover information that would “tend to reveal some secret aspect of the grand jury’s investigation such matters as the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of jurors, 23 and the like.” Senate of Puerto Rico v. DOJ, 823 F.2d 574, 582 (D.C. Cir. 1987) (internal quotation marks omitted). Plaintiff does not dispute that Federal Rule of Criminal Procedure 6(e) is a “statute” for purposes of Exemption 3 or that it prohibits disclosure of matters occurring before a grand jury. Pl.’s Opp. at 12–13; see also Fund for Constitutional Govt. v. Nat’l Archives & Records Serv., 656 F.2d 856, 867 (D.C. Cir. 1981). Instead, he argues that since there is no reasonable expectation that the identities of the testifying witnesses would remain secret, the withholding of that information is improper. 6 Pl.’s Opp. at 12–13. According to plaintiff, the names of most of the “purported victims who testified in the grand jury,” have been revealed to the public at the sentencing hearing, through television, radio, or other media, and through civil suits that some or all of the victims brought against plaintiff for which they gave depositions that have become a part of the public record. 7 Pl.’s Opp. at 13. However, plaintiff cites no case law to support the theory that the public disclosure of any of this type of information makes 6(e) inapplicable, and he has submitted no evidence that any of this information has actually been made public. He offers only conclusory assertions. Notwithstanding both parties’ failures to produce any case law on this issue, there is relevant precedent from this Circuit. Although “Rule 6(e) does not create a type of secrecy 6 Plaintiff also argues that it is improper to withhold the identities of individuals on the grand jury, Pl.’s Opp. at 12–13, but since there is no indication that this information is being withheld, the Court will not address that argument. 7 Although it is unclear whether plaintiff is also arguing that the public domain exception to the agencies’ assertions of Exemption 3 applies here, the Court notes that such an argument also fails. Under the public domain exception, information preserved in a public record is not exempt from disclosure through any FOIA exemption. See Marino v. DEA, 729 F. Supp. 2d 237, 244 (D.D.C. 2010). The requester bears the burden of demonstrating that the information sought is already in the public domain. See id., citing Davis v. DOJ, 968 F.2d 1276, 1279 (D.C. Cir. 1992). Plaintiff has not met that burden here. 24 which is waived once public disclosure occurs,” In re North, 16 F.3d 1234, 1245 (D.C. Cir. 1994), quoting Barry v. United States, 740 F. Supp. 888, 891 (D.D.C. 1990), the D.C. Circuit has found that “when information is sufficiently widely known” it can lose its character as Rule 6(e) material. In re Motions of Dow Jones & Co., 142 F.3d 496, 505 (D.C. Cir. 1998). In that case, the D.C. Circuit released the identity of a person subpoenaed to appear before the grand jury after his attorney had publicized that fact. Id.; see also In re North, 16 F.3d at 1245 (finding that Rule 6(e) did not bar release of a report containing grand jury material because the information in the report had been widely publicized); In re Grand Jury Subpoena, Judith Miller, 493 F.3d 152, 154 (D.C. Cir. 2007) (“Although not every public disclosure waives Rule 6(e) protections, one can safely assume that the ‘cat is out of the bag’ when a grand jury witness – in this case Armitage – discusses his role on the CBS Evening News.”). So although defendants casually dismiss plaintiff’s argument as “miss[ing] the mark,” Defs.’ Reply at 7, it has some teeth. The problem here, though, is that plaintiff has not supplied the Court with any evidence that the information being withheld was widely publicized or even disclosed to the public at all.8 Thus, there is no basis to conclude that the evidence withheld, which often does remain secret, has become such a matter of public record that Exemption 3 should not apply. Plaintiff also argues that the government’s assertion of Exemption 3 is too broad: “Nothing in the case law supports the proposition that the government can simply state that all responsive grand jury documents fall within the exemption . . . .” Pl.’s Opp. at 13. In this 8 The Court seriously questions whether information concerning the identity of minor witnesses would have been made part of the public record at the plea or at the time of sentencing. One cannot tell from a review of the criminal docket on PACER since the records that pre-date plaintiff’s attempts to obtain post-conviction relief were submitted in paper form before the District Court of Alaska made the change to electronic filing. But the fact that plaintiff’s new counsel sought access to records under seal, see Mot. Requesting Access to Docs. Filed Under Seal, United States v. Boehm, Case No. 3:04-cr-00003-JWS (D. Alaska July 16, 2010) [Dkt. # 1011], suggests that at least some aspects of the prosecution were not a matter of public record. 25 circuit, “[t]he disclosure of information ‘coincidentally before the grand jury [which can] be revealed in such a manner that its revelation would not elucidate the inner workings of the grand jury’ is not prohibited.” Senate of Puerto Rico, 823 F.2d at 582, quoting Fund for Constitutional Gov’t, 656 F.2d at 870. But the EOUSA has given more detailed descriptions of the withheld grand jury documents than plaintiff indicates. The Vaughn index describes the type of information that was withheld: the names of grand jury witnesses and other contextual information that could lead to the derivation of the name from letters that were exchanged by attorneys, EOUSA Index at 1, and a draft of a grand jury indictment, EOUSA’s Supplemental Index at 9. The Court is satisfied that this information would tend to reveal the secret workings of the grand jury and has been appropriately withheld. 9 See Senate of Puerto Rico, 823 F.2d at 582. However, the description of the one representative document that the FBI has withheld under Rule 6(e) is vague: “FBI FD-302 form, Information obtained pursuant to Federal Grand Jury subpoena.” Hardy Decl. at 11 (BOEHM-2738). The Hardy declaration does little more to clarify the basis for the withholding. Hardy states, “Exemption [3] has been asserted to protect information obtained pursuant to a Grand Jury Subpoena on page BOEHM-2738. Disclosure of this material would clearly violate the secrecy of the grand jury proceedings and could reveal the inner workings of the Federal Grand Jury that considered this case.” Hardy Decl. ¶ 40. But this description is not detailed enough for the Court to determine whether disclosure of the particular record would reveal some secret aspect of the grand jury’s investigation or whether the information was simply peripheral to the grand jury investigation. See Senate of Puerto Rico, 9 In addition, this information has been withheld under other FOIA exemptions that the Court will uphold. See EOUSA Index at 1 (also invoking Exemptions 7(C) and 7(F); EOUSA’s Supplemental Index at 9 (also invoking Exemption 3 and 5). 26 823 F.2d at 582. Is the FBI 302 an agent’s summary of material submitted to the grand jury pursuant to subpoena? A witness interview? Accordingly, the Court will remand representative document BOEHM-2738 and the other responsive documents it represents to the agency for closer review and supplementation of the basis for the withholding. Moreover, the Luczynski declaration explains that the U.S. Attorney’s Offices may not have even processed some documents that might have been responsive to plaintiff’s request if they were found to be “related to the grand jury.” Luczynski Decl. ¶ 11. But Rule 6(e) is not so broad; it shields matters “occurring before the grand jury.” So, the EOUSA has not provided a sufficient factual basis – or legal support – for its position that these materials are categorically exempt from not only disclosure but any FOIA processing. This set of materials will therefore also be remanded for further processing and a supplementation of the record. B. Exemption 5 Exemption 5 allows agencies to withhold records if the requested documents include “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency[.]” 5 U.S.C. § 552(b)(5). In determining whether a document was properly withheld under Exemption 5, a court must ensure that the document satisfies two conditions: (1) “its source must be a Government agency, and [(2)] it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). These privileges include the attorney work product and deliberative process privileges. Id. Because the documents originated from the FBI and from the EOUSA (which is a section within DOJ), the first prong is not at issue here. The Court 27 therefore will examine only the second prong of the standard articulated in Klamath: whether the withheld documents are protected by the claimed privilege. 532 U.S. at 8. Plaintiff concedes that “[t]o the extent that defendants have provided sufficient information regarding withheld documents that may be determined to be attorney work product or otherwise civilly privileged . . . those documents are likely properly withheld.” Pl.’s Opp. at 15. But he continues: “To the extent that such documentation contains witness statements or any other exculpatory or mitigating Brady materials[,] however, the government must segregate the exempted information and provide the remaining factual information.” Id. Plaintiff provides no support for the proposition that exculpatory or Brady materials cannot be withheld under Exemption 5. And although neither party provides any relevant precedent, there is case law from this circuit that expressly negates that theory. See Williams & Connolly v. Sec. & Exch. Comm’n, 662 F.3d 1240, 1245 (D.C. Cir. 2011) (“[D]isclosure in criminal trials is based on different legal standards than disclosure under FOIA, which turns on whether a document would usually be discoverable in a civil case. . . . If [plaintiff’s counsel] believes that its client should have received the notes during his criminal trial, FOIA is neither a substitute for criminal discovery . . . nor an appropriate means to vindicate discovery abuses . . . .”) (citations omitted). Plaintiff also argues – without pointing to any specific documents – that the Vaughn index is not sufficiently detailed and that there is no indication that the agency has released all segregable information. Pl.’s Opp. at 9–11. The Court disagrees. The FBI and EOUSA’s Vaughn indices as well as the EOUSA’s supplemental Vaughn index, combined with the explanations in the Hardy and Luczynski declarations, give detailed descriptions of the information that has been withheld, and reveal that the agencies released segregable 28 information. 10 Since plaintiff offers no evidence that the descriptions in the declarations are false, the Court finds them to be sufficient. See Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981) (“[I]t is now well established that summary judgment on the basis of such agency affidavits is warranted if the affidavits describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.”). Accordingly, the Court will uphold defendants’ Exemption 5 withholdings. C. Exemption 7(C) FOIA Exemption 7(C) exempts documents compiled for law enforcement that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). Because this is a lower standard than the standard for Exemption 6, which requires a “clearly unwarranted” invasion of privacy, id. 552(b)(6) (emphasis added), the Court will address Exemption 7(C) before it addresses Exemption 6. In order for particular records to qualify for this exemption, the agency must first demonstrate that the documents were compiled for law enforcement purposes. See Rural Hous. Alliance v. U.S. Dep’t of Agric., 498 F.2d 73, 80 (D.C. Cir. 1974). Both the Luczynski and Hardy declarations state that all of the information at issue was compiled for law enforcement purposes because it was compiled to as part of the investigation and criminal prosecution of plaintiff. Luczynski Decl. ¶ 21; Hardy Decl. ¶ 42. Plaintiff does not contest those assertions. 10 For example, document number 6 in the EOUSA’s Vaughn index is described as “a printout of . . . an online news article from the ‘Alaska News.’ The only redactions are handwritten notes on the margin which contained attorney thoughts and observations about the matter.” EOUSA Index at 3. 29  This Circuit has consistently held that, where a FOIA request for law enforcement records invokes the privacy interests of any third party mentioned in those records (including investigators, suspects, witnesses, and informants), the exemption applies unless there is an overriding public interest in disclosure. See Schrecker v. DOJ, 349 F.3d 657, 661 (D.C. Cir. 2003); Lewis v. DOJ, 609 F. Supp. 2d 80, 84 (D.D.C. 2009). So the first step in any Exemption 7(C) analysis is to determine whether any privacy interest exists, and then the court balances the privacy interest against the public interest in disclosure. See, e.g., People for the Ethical Treatment of Animals v. Nat’l Insts. of Health Dep’t of Health & Human Servs., 853 F. Supp. 2d 146, 154–59 (D.D.C. 2012). a) There is a privacy interest in the withheld information According to the Luczynski and Hardy declarations, as well as the Vaughn indices, the information withheld under Exemption 7(C) is identifying information – including names, addresses, phone numbers, e-mail addresses, social security numbers, license plate numbers, birth dates, job descriptions, ages, and photographs – of child victims, third parties of investigative interest, third parties who provided information to the FBI or local law enforcement, potential witnesses in plaintiff’s criminal case, other third parties, local law enforcement officers, FBI Special Agents, FBI support employees, and non-FBI federal governmental personnel. Hardy Decl. ¶¶ 45–46; Luczynski Decl. ¶¶ 21–23. “As a general rule, third-party identifying information contained in [law enforcement] records is ‘categorically exempt’ from disclosure.” Lazaridis v. U.S. Dep’t of State, -- F. Supp. 2d --, Civ. A. No. 10-1280(RMC), 2013 WL 1226607, at *12 (D.D.C. Mar. 27, 2013), citing Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 896 (D.C. Cir. 1995) (stating that under Exemption 7(C), an agency may “redact the names, addresses, or other 30 identifiers of individuals mentioned in investigatory files in order to protect the privacy of those persons”); see also Dunkelberger v. DOJ, 906 F.2d 779, 781 (D.C. Cir. 1990), quoting Stern v. FBI, 737 F.2d 84, 91–92 (D.C. Cir. 1984) (“Exemption 7(C) takes particular note of the ‘strong interest’ of individuals, whether they be suspects, witnesses, or investigators, ‘in not being associated unwarrantedly with alleged criminal activity.’”). Plaintiff concedes that the exemption applies to identifying information about child victims and witnesses. Pl.’s Opp. at 17. However, he argues that there is no privacy interest in the identities of the local law enforcement officers who have appeared in the press concerning his criminal case. 11 Id. It is well established that Exemption 7(C) protects the identities of local law enforcement officers. See, e.g., Thompson v. DOJ, 851 F. Supp. 2d 89, 99–101 (D.C. Cir. 2012); Negley v. FBI, 825 F. Supp. 2d 63, 70–73 (D.D.C. 2011); Adionser v. DOJ, 811 F. Supp. 2d 284, 299 (D.D.C. 2011). And while there is some support for the notion that a private citizen waives her privacy interest in information when she voluntarily brings that information into the public domain, see Nation Magazine, 71 F.3d at 896, plaintiff has not met his burden of showing that has occurred here. To establish that a privacy interest has been waived, the plaintiff bears the burden of showing that the information: “(1) is ‘as specific as the information previously released’; (2) ‘match[es] the information previously disclosed’; and (3) ‘was made public through an official and documented disclosure.’” McRae v. DOJ, 869 F. Supp. 2d 151, 165 (D.D.C. 2012), quoting Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990). Plaintiff has not met that burden here. As described above, plaintiff has presented no evidence that any 11 Plaintiff actually discusses the privacy interest in disclosure in the section of his opposition concerning Exemption 6, not Exemption 7(C). However, because both Exemptions 6 and 7(C) require a balancing of the privacy interest in the withheld information against the public interest in disclosure, the Court will consider his privacy interest arguments in assessing the government’s application of Exemption 7(C). 31 individual publicly disclosed his or her role in his criminal prosecution, much less that the information publicly disclosed is the same as the information being withheld. See Span v. DOJ, 696 F. Supp. 2d 113, 122 (D.D.C. 2010), quoting Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999) (“Because Span has not identified any specific information or . . . ‘the exact portions’ of a specific document that is in fact ‘preserved in a permanent public domain,’ his public domain challenge fails.”). Accordingly, the Court finds a substantial privacy interest in the withheld identifying information. b) The privacy interest at stake outweighs the public’s interest in disclosure. Where a legitimate privacy interest exists, the requester must “(1) show that the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake, and (2) show the information is likely to advance that interest.” Boyd v. DOJ, 475 F.3d 381, 387 (D.C. Cir. 2007), quoting Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004) (internal quotation marks omitted). The Supreme Court has determined that the only relevant public interest for purposes of Exemption 7(C) is “the citizens’ right to be informed about what their government is up to.” DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989) (internal quotation marks omitted). In determining whether to disclose a document, a court must weigh “the nature of the requested document and its relationship to the basic purpose of the Freedom of Information Act to open agency action to the light of public scrutiny.” Id. at 772, quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 372 (1976). “That purpose, however, is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency’s own conduct.” Id. at 773. Moreover, courts in this Circuit have consistently held that where an individual seeks law enforcement records that implicate the 32 privacy interests of a third party, the requester bears the burden of asserting the public interest at play. See, e.g., Boyd, 475 F.3d at 387; Lewis, 609 F. Supp. 2d at 84; Fischer v. DOJ, 596 F. Supp. 2d 34, 47 (D.D.C. 2009). Law enforcement records may be withheld under Exemption 7(C) “if the privacy interest at stake outweighs the public’s interest in disclosure.” Nation Magazine, 71 F.3d at 893 (citations omitted). Plaintiff argues that the public interest here is government wrongdoing. “Plaintiff is trying to obtain information to show that the government had a pattern of failing to disclose material information, specifically information relating to Bill Allen or anyone connected with him.” Pl.’s Opp. at 19. And plaintiff submits portions of reports about prosecutorial misconduct in the Theodore Stevens case that he claims prove that misconduct occurred in his case as well. See Att. 1, 2 to Boehm Decl. However, the portions of the reports plaintiff provides do not reveal any misconduct in his own criminal case – rather, they reveal prosecutorial misconduct in the Stevens case that arose because the prosecutor did not disclose information to the Stevens defense team that it had disclosed during plaintiff’s case. Id. So, those portions of the reports do not tend to suggest that prosecutorial misconduct occurred in plaintiff’s criminal case. See, e.g., Hodge v. FBI, 703 F.3d 575, 581 (D.C. Cir. 2013) (finding that a requester failed to establish a valid public interest because he did not “produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred”), quoting Favish, 541 U.S. at 174; Blackwell v. FBI, 646 F.3d 37, 41 (D.C. Cir. 2011) (same). Plaintiff also argues that withholding information as to which authorities investigated him for his criminal case raises Sixth Amendment concerns because “who these individuals were and who they spoke with is relevant to the determination of whether evidence was properly compiled and disclosed in his case.” Pl.’s Opp. at 19. This argument fails because, as described above, 33 disclosure in a FOIA case is governed by different standards than disclosure in a criminal case. The only factors relevant to the Exemption 7(C) analysis are the privacy interest and the public interest in disclosure. “That the [agency]’s denial of his FOIA requests may hinder his efforts to challenge his conviction or sentence . . . is irrelevant.” Pugh v. FBI, 793 F. Supp. 2d 226, 232– 33 (D.D.C. 2011), citing Oguaju v. United States, 378 F.3d 1115, 1116–17 (D.C. Cir. 2004). Because plaintiff has failed to identify any public interest that would overcome the privacy interest protected by Exemption 7(C), the Court concludes that defendants’ withholdings were proper. And because the withholdings were proper under Exemption 7(C), the Court need not consider Exemption 6. 12 D. Exemption 7(D) FOIA Exemption 7(D) protects against the disclosure of the identities of confidential informants. The provision states that “in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation,” any “information furnished by a confidential source” is exempt from FOIA’s disclosure requirement. 5 U.S.C. § 552(b)(7)(D). Under this exemption, a person is considered a confidential source “if the person provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred.” Parker v. DOJ, 934 F.2d 375, 378 (D.C. Cir. 1991). Plaintiff expresses doubt that the government actually used any confidential informants in this criminal case. See Pl.’s Opp. at 21 (“[T]here was never information revealed during the prosecution of Mr. Boehm that the government had any confidential sources. . . . there is no 12 According to the Hardy declaration, the FBI has also invoked Exemption 2 to protect internal telephone numbers of FBI personnel. Hardy Decl. ¶ 33. Because the Court finds that this information was properly withheld under Exemption 7(C), it will not reach Exemption 2. 34 indication that any discussions of confidentiality ever took place between witnesses and investigators.”). However, he provides no evidence that confidential informants were not used in his case or that the government ever represented to him that no confidential informants were used. So the Court must assess whether defendants have made a sufficient showing that the individuals being protected were confidential informants. There is no general “presumption that a source is confidential within the meaning of Exemption 7(D) whenever [a] source provides information [to a law enforcement agency] in the course of a criminal investigation,” DOJ v. Landano, 508 U.S. 165, 181 (1993), and a source’s confidentiality must be determined on a case-by-case basis, id. at 179–80. In this circuit, “the violence and risk of retaliation attendant to drug trafficking warrant an implied grant of confidentiality to a source.” Higgins v. DOJ, -- F. Supp. 2d --, Civ. A. No. 10-1485(RLW), 2013 WL 358177, at *12 (D.D.C. Jan. 30, 2013), citing Mays v. DEA, 234 F.3d 1324, 1329 (D.C. Cir. 2000). The Luczynski declaration provides that under Exemption 7(D), the EOUSA withheld “the identities of individuals and material that the individuals provided in connection with the investigation of plaintiff for violation of the federal criminal laws.” Luczynski Decl. ¶ 27. According to Lucynski, the withholdings include “information that was provided with an express assurance of confidentiality, as well as information from which the assurance of confidentiality could be reasonably inferred.” Id. The declaration, however, offers no explanation about how the EOUSA determined that an assurance of confidentiality existed. As to the information that was determined to have been provided under an express assurance of confidentiality, the declaration does not indicate what markings or labels on the documents lead the EOUSA to that conclusion. And as to the information that was determined to have been provided under an 35 implied assurance of confidentiality, the declaration does not explain whether the information concerned drug trafficking, or whether there was some other reason why the EOUSA concluded that the an assurance of confidentiality had been implied. So, the Court cannot find that the EOUSA has met its burden with respect to the material it has withheld under this exemption, and it will remand these documents to the agency for a supplementation of the basis for the withholding. The FBI provides a more detailed picture of the FBI records being withheld under this exemption. The Hardy declaration divides the types of information withheld into categories. First, the FBI withheld the confidential informant file numbers and permanent source symbol numbers of certain informants given express assurances of confidentiality. Hardy Decl. ¶¶ 61–65. Second, the FBI withheld the names and identifying data of, and information provided by, individuals who assisted in the investigation of plaintiff and others with an express assurance of confidentiality. Id. ¶¶ 66–68. According to the declaration, the express assurance of confidentiality is demarcated with designations of “Protected Identify,” “Cooperating Witness,” or “Cooperating Source.” Id. ¶ 66. This information is sufficient for the Court to determine that the information withheld was from confidential sources. Finally, the FBI withheld the names, identifying information and information provided by individuals under an implied assurance of confidentiality. Hardy Decl. ¶¶ 59–60. The Hardy declaration explains that the individuals “were reporting on distribution of cocaine to individuals under the age of 18, often for purposes of sexual gratification.” Id. ¶ 59. Therefore, according to the Hardy declaration, “it can be implied that these individuals would reasonably fear that disclosure of their identity would place them in danger, because other individuals who had 36 involvement with the defendants were not incarcerated, including traffickers in narcotics.” Id. ¶ 59. The declaration also states that the only information that has been withheld is the individual’s name and the information that the individual provided, but only to the extent that the information would identify the individual. Id. This description of the individuals and the withheld information makes clear that the individuals being protected were reporting on the type of activities that warrant an implied grant of confidentiality. Moreover, it provides a rationale for protecting the information so that the protected individuals will not be subject to reprisal and so that it does not dissuade others from reporting information in the future. Id. Accordingly, the FBI has demonstrated that withholding the information is proper. See Higgins, 2013 WL 358177, at *12–13. Plaintiff also claims that even if discussions of confidentiality did occur, “most testifying individuals in this case later publicly identified themselves via radio, newspaper stories, television interview, public lawsuits, or allowed their names to be used in a published book.” Pl.’s Opp. at 21. But, as already described, plaintiff provides no evidence that any informants in his case later publicly identified themselves, let alone evidence that they identified themselves in a way that would waive the protection of Exemption 7(D). See Parker, 934 F.2d at 378, quoting Dow Jones & Co. v. DOJ, 908 F.2d 1006, 1011 (D.C. Cir. 1990) (finding that the protection of 7(D) is only waived if “the exact information given to the FBI has already become public, and the fact that the informant gave the same information to the FBI is also public”). Plaintiff finally argues that since the government had no confidential sources, it is most likely claiming Exemption 7(D) to withhold information from “the sources that it did have under the erroneous theory that such an exemption may be claimed for anyone communicating with the government regarding a criminal investigation.” Pl.’s Opp. at 22. But since plaintiff has failed 37 to establish that the government did not utilize confidential sources – either with express or implied assurances of confidentiality – and since the government denies invoking Exemption 7(D) as broadly as plaintiff implies, Defs.’ Reply at 10; Luczynski Decl. ¶ 27; Hardy Decl. ¶¶ 59–68, and there is no evidence of bad faith, the Court will not adopt plaintiff’s theory. E. Exemption 7(E) Exemption 7(E) protects from disclosure law enforcement records “to the extent that the production of such . . . information . . . would disclose techniques and procedures for law enforcement investigations of prosecutions, or would disclose guidelines for law enforcement investigations of prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). Plaintiff does not dispute that the records at issue here were compiled for law enforcement purposes. Pl.’s Opp. at 22. “Exemption 7(E) sets a relatively low bar for the agency to justify withholding: Rather than requiring a highly specific burden of showing how the law will be circumvented, exemption 7(E) only requires that the [agency] demonstrate logically how the release of the requested information might create a risk of circumvention of the law.’” Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011) (alteration in original) (internal quotation marks omitted). The FBI is the only agency that has invoked Exemption 7(E) to withhold responsive records. It has withheld three types of records under that exemption. First are documents showing methods of data collection, organization and presentation contained in ChoicePoint reports and discussion of ChoicePoint records in FBI electronic communications. The Hardy declaration explains that although the data contained in the sources is publicly available, the manner in which the data is searched, organized and reported to the FBI is an internal technique that is not known to the public. Hardy Decl. ¶ 72. Therefore, the disclosure of the reports and 38 information about their design and makeup could enable criminals to employ countermeasures to avoid detection. Hardy Decl. ¶ 71. The D.C. Circuit has upheld the FBI’s withholding of records to protect methods of data collection, organization, and presentation contained in ChoicePoint reports under the same justifications that the FBI has provided here. Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011). Because the FBI has provided sufficient information for the Court to find that disclosure of the ChoicePoint reports and the electronic communications about them might create a risk of circumvention of the law, the Court finds the withholdings to be proper. Second, the FBI has withheld information in form FD-515 FBI Accomplishment Reports “which would reveal the use of specific investigative assistance or techniques in this case.” Hardy Decl. ¶ 73. FD-515 forms are used by FBI Special Agents to report investigative accomplishments, such as arrests, indictments, or convictions. Id. at 10 n.10. Only one FD-515 report appears on the FBI’s Vaughn index and the index indicates that it was withheld in part. Id. at 10. At least three courts in this district have upheld the agency’s withholding of an entire FBI- 515 form. Perrone v. FBI, 908 F. Supp. 24, 28 (D.D.C. 1995); Putnam v. DOJ, 873 F. Supp. 705, 717 (D.D.C. 1995); Delviscovo v. FBI, 903 F. Supp. 1, 3 (D.D.C. 1995). The Court finds that the FD-515 Accomplishment reports were appropriately withheld in this case based on the explanation in the Hardy declaration that disclosure of the special investigative assistance or techniques used in this case might reasonably create a risk of circumvention of those techniques. Other courts in this district have found that the ratings column of the form FD-515 is properly withheld under Exemption 7(E). See, e.g., Sellers v. DOJ, 684 F. Supp. 2d 149, 164 (D.D.C. 2010); Concepcion v. FBI, 606 F. Supp. 2d 14, 43 (D.D.C. 2009); Peay v. DOJ, No. 04-1859, 39 2007 WL 788871, at *6 (D.D.C. Mar. 14, 2007). Accordingly the Court will uphold the agency’s partial withholding of the representative FD-515 report. Third, the FBI has withheld an FBI/Police Operational Plan and information pertaining to the techniques used to facilitate the activity of a source. Hardy Decl. ¶ 73. Again, the Hardy declaration states that if criminals were alerted to this information, they would be able to alter their behavior in ways that would diminish the ability of law enforcement to rely on this type of information. Id. The Court finds that to be an appropriate justification for withholding the information under Exemption 7(E) because it explains how disclosure could reasonably be expected to risk circumvention of the law. Plaintiff’s objections to these withholdings are not clearly delineated. It appears that he objects to the withholding of any documentation relating to “improper coaching of testimony” because such a technique is not legal. Pl.’s Opp. at 23. But he cites no precedent for this assertion, and in any event, the description of the withheld materials reflect that they relate to investigatory techniques and not to witness preparation for Court testimony. Accordingly, the Court finds that the FBI’s withholdings under Exemption 7(E) are proper, that the Vaughn index describes the withheld material in sufficient detail, and that the FBI has met its burden of showing that all segregable material was released. F. Exemption 7(F) Exemption 7(F) exempts from disclosure information compiled for law enforcement purposes to the extent that disclosure “could reasonably be expected to endanger the life or physical safety of any individual.” 5 U.S.C. § 552(b)(7)(F). Again, plaintiff does not oppose defendants’ assertion that the documents at issue here were compiled for law enforcement purposes. Pl.’s Opp. at 23–24. In determining whether Exemption 7(F) applies, courts look for 40 some nexus between disclosure and possible harm and whether deletions were narrowly made to avert the possibility of such harm. Albuquerque Publ’g Co. v. DOJ, 726 F. Supp. 851, 858 (D.D.C. 1989). The Luczynski declaration reveals that the EOUSA has withheld identifying information about individuals who work for the government or who provided information in the course of an investigation under Exemption 7(F). Luczynski Decl. ¶¶ 29–30. According to the declaration, there may be individuals still at large who were involved with the cocaine trafficking and sexual exploitation of underage women that was the focus of the investigation into plaintiff. Id. ¶ 29. Although plaintiff argues that defendants proffer no evidence that the investigation into plaintiff concerned any violence, Pl.’s Opp. at 24, courts in this circuit typically consider a conspiracy to distribute cocaine to be “a violent enterprise, in which a reputation for retaliating against informants is a valuable asset . . . .” Mays, 234 F.3d at 1331. In addition, this exemption has generally been interpreted “to apply to names and identifying information of law enforcement officers, witnesses, confidential informants and other third persons who may be unknown to the requester.” Anotonelli v. Fed. Bur. Of Prisons, 823 F. Supp. 2d 55, 58 (D.D.C. 2009). Therefore, the Court finds that the EOUSA has established that disclosure of the withheld information – identifying information about informants and individuals who work for the government – could reasonably be expected to endanger the safety of those individuals by making them available to un-detained participants in the cocaine trafficking and sexual exploitation activities that were the focus of the investigation into plaintiff. On that basis, the Court finds that the EOUSA’s withholdings under Exemption 7(F) were proper. 41  According to the Hardy declaration, the FBI has asserted Exemption 7(F) to protect a law enforcement interview with plaintiff. Hardy Decl. ¶ 75. 13 The basis for the withholding is that the release of the interview could reasonably be expected to endanger the life and/or physical safety of plaintiff. Plaintiff challenges this justification, stating that “it seems unlikely that plaintiff, knowing the existence of this document, would seek its disclosure if doing so would result in a threat on his life . . . .” Pl.’s Opp. at 24. Generally this exemption protects the identities of federal employees, informants, and third persons who may be unknown to the requester, Durham v. DOJ, 829 F. Supp. 428, 434 (D.D.C. 1993), and neither party provides any case law about whether Exemption 7(F) can properly be asserted to protect the safety of the requester himself. The Court has identified only one relevant opinion from this district. Mosby v. Hunt, Civ. A. No. 09-1917(JDB), 2010 WL 2794250, at *1 (D.D.C. July 15, 2010), summarily affirmed 2011 WL 3240492 (D.C. Cir. July 6, 2011). In Mosby, the government asserted Exemption 7(F) over certain redactions under the theory that “release of the redacted information creates a safety risk mostly to plaintiff.” Id. The court observed that “by its terms, Exemption 7(F) protects ‘any individual,’” which could be read to include even the requester of the information. Id. at *1 (emphasis added). It ultimately decided that the redactions were proper because the agency “reasonably determined that the disclosure of the withheld information could ‘jeopardize the safety of individuals(s),’ [sic] including plaintiff.” Id. In a different case, Ray v. FBI, another court in this district declined to protect the identifying information of the FOIA requester in a document responsive to his request, even though the information was about the requester’s activities as a confidential informant, which 13 The pages being withheld are BOEHM 3853–3858. Hardy Decl. ¶ 75 n.38. 42 was entitled to protection under Exemption 7(D). 441 F. Supp. 2d 27, 37 (D.D.C. 2006) (“In light of [plaintiff’s] apparent waiver [of exemption 7(D)’s confidential informant protection], the Court is not inclined to protect plaintiff from information about himself.”) Here, the only individual that the FBI is seeking to protect is plaintiff. Hardy Decl. ¶ 75. Given that plaintiff has waived any concern for his own safety, the Court finds that Exemption 7(F) is inapplicable. However, since the FBI has also asserted Exemptions 6 and 7(C) over portions of the interview, See Hardy Decl. at 12, the Court will remand to the agency to release all portions of the interview that are being withheld under Exemption 7(F), but not under Exemptions 6 or 7(C). Finally, plaintiff opposes defendants’ assertion of Exemption 7(F) on the basis that most of the individuals whose information is being protected have already been publicly identified through their own lawsuits or actions or by way of the investigation into the Stevens case. Pl.’s Opp. at 25. As the Court has already discussed in detail, this argument fails because plaintiff fails to submit evidence that any particular individual publicly identified him or herself or that the information publicly disclosed is the same as the information being protected here. 5. Defendants have met their burden of showing that they extracted segregable portions of responsive records. FOIA expressly requires agencies to extract “[a]ny reasonably segregable portion of a record” and provide it to the requesting party “after deletion of the portions which are exempt.” 5 U.S.C. § 552(b)(9). “[I]t has long been the rule in this Circuit that non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions.” Wilderness Soc’y v. U.S. Dep’t of Interior, 344 F. Supp. 2d 1, 18 (D.D.C. 2004), quoting Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). Agencies and courts must “differentiate among the contents of a document rather than treat it as 43 an indivisible ‘record’ for FOIA purposes.” Abramson, 456 U.S. at 626. Regardless of whether a party actually challenges an agency’s determination on the segregability of requested records, a district court must not “simply approv[e] the withholding of an entire document without entering a finding on segregability, or the lack thereof.” Schiller v. Nat’l Labor Relations Bd., 964 F.2d 1205, 1210 (D.C. Cir. 1992) abrogated on other grounds by Milner v. Dep’t of Navy, 131 S. Ct. 1259, 1271 (2011) (internal quotation marks omitted); see also Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007) (“If the district court approves withholding without such a finding [of segregability], remand is required even if the requester did not raise the issue of segregability before the court.”). The district court’s findings of segregability must be “specific.” Sussman, 494 F.3d at 1116. The government bears the burden of demonstrating that no reasonably segregable material exists in the withheld documents. Army Times Publ’g Co. v. Dep’t of Air Force, 998 F.2d 1067, 1068 (D.C. Cir. 1993). The agency must “provide[] a ‘detailed justification’ and not just ‘conclusory statements’ to demonstrate that all reasonably segregable material has been released.” Valfells v. CIA, 717 F. Supp. 2d 110, 120 (D.D.C. 2010); see also Armstrong, 97 F.3d at 578 (affirming summary judgment where government affidavits explained non-segregability of documents with “reasonable specificity”). The government may meet its obligation of “reasonable specificity” with “[t]he combination of the Vaughn index and [agency] affidavits.” Johnson v. Exec. Office for U.S. Att’ys, 310 F.3d 771, 776 (D.C. Cir. 2002); see also Loving v. Dep’t of Def., 550 F.3d 32, 41 (D.C. Cir. 2008). Whether the Vaughn index is sufficient “turns on whether the agency has sufficiently explained why there was no reasonable means of segregating factual material from the claimed privilege material.” Wilderness Soc’y, 344 F. 44 Supp. 2d at 18. “[A] blanket declaration that all facts are so intertwined” is not sufficient to meet this burden. Id. at 19. The Court finds that, except where identified above, defendants have met their burden of showing with reasonable specificity that they disclosed all segregable material. Throughout the Hardy declaration, the declarant consistently identifies the specific information that the FBI has withheld from documents, i.e., names and identifiers, symbols, phone numbers, etc. And where full documents have been withheld, the Vaughn index in combination with the declaration and the copies of the representative sample documents that have been filed on the docket in this case explain why no segregable material could be released. See, e.g., Hardy Decl. ¶¶ 38, 48, 60, 68. Although the section of the Luczynski declaration labeled “Segregability” contains only a conclusory assurance that the EOUSA considered the segregability of the requested records and that no reasonably segregable non-exempt information was withheld, Luczynski Decl. ¶ 31, the Court finds that the EOUSA has also met its burden of showing with reasonable specificity that all segregable responsive information has been disclosed to plaintiff. As explained throughout this Memorandum Opinion, the Vaughn index and supplemental Vaughn index, the descriptions in the Luczynski declaration of the particular information withheld, and the copies of representative sample documents that have been filed on the docket together provide sufficient information about the particular information that was withheld and its ability to be segregated from non-exempt information. CONCLUSION For the abovementioned reasons, the Court will grant in part and deny in part defendants’ motion for summary judgment. The Court will remand for closer review and supplementation of the basis for the withholding: (1) the representative document found at page number BOEHM- 45 2738 and any documents it represents; (2) documents that the EOUSA has withheld under the explanation that they are “related to the grand jury”; and (3) information that the EOUSA has withheld under Exemption 7(D). The Court will also remand the representative document found at page numbers BOEHM 3853 to 3858, and any documents it represents, to the FBI for the release to plaintiff of all portions that are being withheld under Exemption 7(F), but not under Exemptions 6 or 7(C). A separate order will issue. AMY BERMAN JACKSON United States District Judge DATE: June 10, 2013 46 

565 F.2d 1059 UNITED STATES of America, Appellee,v.Ernest B. BOBERG, Appellant. No. 77-1429. United States Court of Appeals,Eighth Circuit. Submitted Oct. 10, 1977.Decided Dec. 2, 1977. Donald L. Wolff (argued), Paul J. Passanante, Clayton, Mo., on brief, for appellant. David M. Rosen, Asst. U. S. Atty. (argued), and Barry A. Short (former U. S. Atty.), St. Louis, Mo., on brief, for appellee. Before GIBSON, Chief Judge, BRIGHT, Circuit Judge, and TALBOT SMITH, Senior District Judge.* BRIGHT, Circuit Judge. 1 Ernest Boberg appeals his jury conviction on two counts of knowingly making false statements before a United States Grand Jury, in violation of 18 U.S.C. § 1623 (1970). Boberg contends that the Government failed to make a submissible case, that the trial court erred in refusing to allow him to withdraw a pretrial stipulation, and that a new trial should be granted on the basis of newly discovered evidence. We have reviewed Boberg's contentions and affirm the conviction. 2 The charges against Boberg flow from a 1974 Internal Revenue Service investigation of the tax liability of Thomas Richardson, a former mayor of Maplewood, Missouri. Richardson's records disclosed that between 1970 and 1972 he had received several payments from Boberg, a real estate developer and contractor who had built several apartment complexes in Maplewood. An IRS agent interviewed Boberg on several occasions, and during the course of these interviews Boberg admitted a payment of $300 as an "unsecured loan" to Richardson and payments of $1,500 and $1,200, which he characterized as finder's fees for Richardson's help in locating property on which Boberg built apartment complexes. Boberg made his business records available to the agent and, at the agent's request, signed a statement describing the nature of the payments. 3 In 1976, a federal grand jury investigating Richardson for allegedly accepting illegal payoffs in connection with his official duties called Boberg as a witness twice. In both sessions Boberg affirmed his previous signed statement that the $1,500 and $1,200 payments were finder's fees. 4 Following these appearances, the grand jury indicted Boberg on three charges. Count I charged that Boberg attempted to obstruct and impede justice by presenting the grand jury with a check stub that had been altered to conceal a $300 payment. As evidence, the Government introduced cancelled check No. 1309 from Boberg's company, dated January 28, 1972, and made to the order of "cash," and the corresponding check stub, which contained the notations "Maplewood City Hall" and "for trash cash." The Government also introduced a photocopy of the same check stub made by the IRS agent during his search of Boberg's records. The language on the photocopy read "Maplewood City Hall" and "for T.R. cash." The Government argued that Boberg, prior to testifying before the grand jury, had altered the stub to erase evidence of that payment to "T.R." or Thomas Richardson. The jury acquitted Boberg on that count. 5 Counts II and III charged that Boberg knew the $1,500 and $1,200 payments to Richardson were not finder's fees but nevertheless told the grand jury that they were, in violation of 18 U.S.C. § 1623. In particular, count II charged that Boberg willfully made a false declaration to the grand jury in testifying as follows: 6 Q. O.K. Now the $1,500 total that was generated. 7 A. Uh-huh. 8 Q. That was paid to Thomas Richardson for a finder's fee? 9 A. That's right. 10 Q. And that was for finding this land on Laclede Station? 11 A. Yes. . . . 12 Q. And then eventually you came to pay Richardson for telling you about this land? 13 A. For packaging it together, that's right. 14 Count III charged that Boberg willfully made a false declaration by testifying as follows: 15 Q. Now check # 715 for $1,200, you told the agent that you believed that that was a payment to Richardson as a finder's fee for finding the land on Lohmeyer? 16 A. Yes. . . . 17 Q. So this $1,200 would have gone to Richardson for the Lohmeyer land? 18 A. That's correct. 19 On these counts the Government argued that the payments were not finder's fees but were payoffs to enable Boberg to build his apartments without complying with the city's building code and zoning ordinance. As evidence that these payments were not "finder's fees," the sellers of the property testified that they had dealt solely with Boberg or his employee and not with Richardson. Indeed, one of the sellers testified that she was not approached by Boberg, but had initiated the sale of the property herself. The two payments were made in cash, not by check, and Boberg's books and records reflected payments for purposes other than a finder's fee. Although the jury acquitted Boberg on count I, the evidence introduced on that charge supported a conclusion that Boberg consistently attempted to conceal the nature of his payments to Richardson. In addition, the Government presented evidence that Boberg did not comply with a local zoning ordinance requiring one and one-half parking spaces for every apartment unit. The jury convicted Boberg on counts II and III. I. 20 Boberg moved for a judgment of acquittal at the close of the Government's case and again at the close of the trial, but the court denied his motions. On appeal, he contends that the court erred in submitting counts II and III to the jury because the prosecution failed to make a submissible case. 21 The Court of Appeals for the Fifth Circuit has set forth the elements that must be proved under 18 U.S.C. § 1623: 22 Five elements must be proved to establish a case under 18 U.S.C. § 1623 for perjury: (i) the declarant must be under oath, (ii) the testimony must be given in a proceeding before a court of the United States, (iii) the witness must knowingly make, (iv) a false statement, and (v) the testimony must be material to the proof of the crime. (United States v. Whimpy, 531 F.2d 768, 770 (5th Cir. 1976).) 23 Boberg argues that the Government failed to prove two of these elements beyond a reasonable doubt: (1) that the statements alleged in the indictment were false, and (2) that Boberg knew the statements were false when made. 24 After reviewing the record, we conclude that the Government introduced sufficient evidence to sustain the verdict. The Government's evidence showed payments made under suspicious circumstances and a pattern of concealing the true nature of the payments. Testimony of witnesses indicated that Richardson had played no part in finding or packaging the property purchased by Boberg, undermining Boberg's claim that the payments were "finder's fees." Moreover, the transcripts of testimony before the grand jury, along with testimony of the IRS agent who had interviewed Boberg, showed a pattern of inconsistent statements that could have affected the jury's assessment of Boberg's credibility. The Government's evidence was sufficient to support the jury's conclusion that Boberg knowingly made a false statement to the grand jury when he stated that the payments were finder's fees. When there is substantial evidence to support the jury's verdict, that verdict must stand. Hamling v. United States, 418 U.S. 87, 124, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Lambros, 564 F.2d 26 (8th Cir. 1977). II. 25 Boberg contends that the trial court erred in denying his request to withdraw from a stipulation that the Government's exhibit 19 included a true and accurate copy of ordinance No. 3279 of Maplewood. Section 1 of that ordinance provided that "one parking space shall be provided for each apartment dwelling unit." Above the word "one" the handwritten phrase "& 1/2" had been inserted. All other parts of the ordinance on the copy were typewritten. 26 During trial a disagreement arose as to the meaning of the stipulation, Boberg arguing that he merely stipulated that the copy of the ordinance was a true and accurate copy but that he did not concede that the copy communicated the true requirements of the ordinance. Throughout the trial and this appeal Boberg maintained the position that, either by law or by custom, the city required only one parking space per unit. When the court refused to recognize his interpretation of the stipulation, Boberg moved to withdraw the stipulation. The court denied the motion. 27 The record shows that the court's denial of the motion did not prejudice Boberg. The court's action neither bound Boberg to the stipulation nor allowed the Government to rely solely on the stipulation to prove its case. The court allowed Boberg to testify that he thought the city required only one parking space per unit and that other apartment complexes in the city afforded but one parking space per unit. In addition, Boberg's architect testified that he, too, thought the city required only one parking space. The Government introduced testimony by the current city engineer and the former building inspector of Maplewood that one and one-half parking spaces per unit were required. This contention of prejudicial error is therefore without merit. III. 28 After his conviction, Boberg discovered a compilation of city ordinances that, he claims, contain a provision requiring only one parking space per unit for his apartments. On the basis of this "newly discovered evidence," Boberg asks this court to grant him a new trial. Affidavits by Boberg and his attorney state that the new compilation of ordinances was not discovered until after the trial. 29 Boberg raises this issue for the first time on appeal. The proper procedure for obtaining a new trial on the basis of newly discovered evidence is by a motion to the trial court. Fed.R.Crim.P. 33. The decision whether to grant a new trial lies in the sound discretion of the trial court. United States v. Pope, 415 F.2d 685, 691 (8th Cir. 1969), cert. denied, 397 U.S. 950, 90 S.Ct. 973, 25 L.Ed.2d 132 (1970); Edwards v. United States, 361 F.2d 732, 734 (8th Cir. 1966). We therefore decline to reach this issue. IV. 30 We feel compelled to comment on the nature of this prosecution. The prosecutor's interrogation of Boberg before the grand jury consisted almost entirely of leading questions. The indictments rest upon Boberg's somewhat cryptic responses to those questions. This kind of interrogation always creates a great risk that the witness will misunderstand the questions or that the prosecutor will put words in the witness' mouth. We think that a grand jury witness, particularly one who may be the target of a prosecution, ought to be given a fair opportunity to respond fully to questions and not be limited to the "yes" or "no" that typifies answers to leading questions. We intend this comment as a fair warning to prosecutors that we shall strictly scrutinize for fairness any indictment and conviction for perjury before a grand jury that rests upon a witness' responses to leading questions asked by a United States Attorney or Assistant United States Attorney. In the present case, our reading of the record of the grand jury proceedings, supplemented by certain evidence presented at the trial, convinces us that the prosecutor's leading questions did not mislead Boberg as a grand jury witness. 31 Finding no prejudicial error, we affirm the conviction without prejudice to any motion to the district court for a new trial on the grounds of newly discovered evidence. See 2 C. Wright, Federal Practice and Procedure 535 (1969). * TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation

187 F.Supp. 445 (1960) CALIFORNIA COMPANY, Plaintiff, v. Fred A. SEATON, Secretary of The Interior, Defendant. Civ. A. No. 980-59. United States District Court District of Columbia. October 6, 1960. *446 Marvin J. Sonosky, John S. White, Washington, D. C., for plaintiff. Thomas L. McKevitt, Dept. of Justice, Washington, D. C., for defendant. WALSH, District Judge. This matter comes before the Court on a complaint for review, for declaratory judgment, and for injunctive relief. It arises from a decision rendered by the Secretary of the Interior with respect to oil and gas lease royalty determinations. The land in suit here is located in the Romere Pass Field in southern Louisiana, and is covered by four oil and gas leases, effective March 1, 1949, issued by the United States to the individual lessees under authority of the Mineral Leasing Act for Acquired Lands, 30 U. S.C.A. § 351 et seq., and governed by the leasing procedures of the Mineral Leasing Act of 1920, as amended, 30 U.S.C.A. § 22 et seq. In February of 1949 each of the lessees executed an operating agreement with the plaintiff. On July 31, 1951, the plaintiff, The California Company (the gas seller), entered into a contract with the Southern Natural Gas Company (the gas buyer) for the sale of its gas from the Romere Pass Field and other fields in southern Louisiana. This contract is for a term of 25 years and specifies a price of 12¢ per m. c. f. (1000 cubic feet) of gas for the first five years (April 1, 1954 to March 31, 1959) after the first delivery. Thereafter the price escalates each five years until a price of 16¢ per m. c. f. of gas is reached. The contract calls for delivery by plaintiff of gas suitable for transmission in the buyer's pipeline. The contract price was based on a gas that would not contain (1) in excess of 0.007 pounds of water per m. c. f.; (2) nor in excess of 0.2 gallons liquefiable hydrocarbons per m. c. f.; and (3) that it would be delivered to the buyer's pipeline at a pressure selected by the buyer *447 but not to exceed 800 p. s. i. (pounds per square inch). According to the plaintiff, the operational procedures at the Romere Pass Field necessary to handle the gas from the well to the gas buyer's pipeline consist of (a) separation, (b) compression, and (c) dehydration. It is the plaintiff's position that royalties may not be charged on costs and expenses incurred beyond the separation procedure, and plaintiff contends that it may deduct from the contract price certain charges representing the costs of gathering, compression and dehydration in order to arrive at a value for royalty computation. Plaintiff's computation is as follows: Contract price 12.00 per m. c. f. _____ Gathering .3 per m. c. f. Compression at 1.5¢ per stage 4.5 per m. c. f. Dehydration .25 per m. c. f. ====== Price on which Plaintiff computes royalty 6.95 Thus, in determining the royalty due the Government, the plaintiff would deduct costs totaling 5.05¢ per m. c. f. from the contract price of 12¢ and pay the royalty on 6.95¢ per m. c. f. With the delivery of gas to the buyer in late 1953 and early 1954, the Supervisor, Gulf Coast Region, U. S. Geological Survey, sent monthly statements of royalty due the United States on the basis of 12½ per cent of the 12¢ per m. c. f. The California Company did not honor the Supervisor's determination and made payments on the basis of 12½ per cent of 6.95¢. Correspondence was carried on between the parties with respect to the matter until May 21, 1957, at which time the Supervisor notified The California Company that failure to make royalty payments on the price of 12¢ per m. c. f. "constitutes non-compliance with the oil and gas operating regulations and a penalty for such non-compliance is provided in 30 CFR 221.53. If this default is not rectified within 30 days from receipt of this order to make delinquent royalty payments, the authority stated in 30 CFR 221.53 will be exercised. Your attention is called to a right of appeal from this order as provided in 30 CFR 221.66". The Supervisor's final notification was delayed until May 21, 1957, pending the outcome of an appeal filed by The Texas Company, 64 I.D. 76 (1957), involving a similar question, and which was decided adversely to the lessee. On June 6, 1957, the plaintiff appealed to the director, Geological Survey, and on September 27, 1957, the Director denied the appeal and affirmed the Supervisor. With respect to the deductions for gathering and compression which plaintiff claims in its computation to determine royalty due the Government, the decision of the Acting Director states: "1] Gathering `charge' applies only to movement of gas from tank battery stations Nos. 2 and 3 to tank battery station No. 1. Gas flowing directly from wells to tank battery station No. 1 not subject to this deduction. "2] It is not necessary to compress all gas produced in the field in order to raise it to the required 1000 p. s. i. pressure. It is estimated that about 70 percent of the gas is produced at a pressure sufficiently high that compression is unnecessary." On appeal to the Secretary of the Interior, the decision of the Acting Director was affirmed on February 20, 1959. Meanwhile, in May of 1959, the plaintiff paid under protest into a suspense account $50,000, the balance of the royalties the Government claimed was due. Since that date the plaintiff has paid the disputed amounts into the same suspense fund. The sole question presented here is whether the decision of the Secretary of the Interior is within his statutory and regulatory authority and in accordance with the terms of the contract where the Secretary finds that the royalties due *448 the United States under the lease are to be computed on a figure of 12¢ per m. c. f., which price is also the contract price at which the plaintiff sells the gas in question to the buyer and which the plaintiff alleges includes the costs incurred by it in making the gas suitable for the buyer's pipeline. For the reasons hereinafter indicated, it is the Court's opinion that the decision of the Secretary must stand (1) if it comes within the standards set by Congress in section 17 of the Mineral Leasing Act, and is authorized by and in compliance with that Act; (2) if the determination is in accordance with the Secretary's regulations which he is authorized by law to make; (3) if the contract between the Government and the plaintiff expressly reserved to the Secretary the power to fix the value of production of the gas lease at 12¢, and the determination is in accordance with the terms of said contract; and (4) if there is a reasonable and rational basis for the Secretary's determination. Under section 17 of the Mineral Leasing Act, as amended, 30 U.S.C.A. § 226, whenever, as in this case, the lands involved in the oil and gas lease are not located within any known geological structure, the leases made by the Secretary of the Interior are non-competitive, and the Act provides that "Such leases shall be conditioned upon the payment by the lessee of a royalty of 12½ per centum in amount or value of the production removed or sold from the lease." Moreover, the Secretary, under the provisions of 30 U.S.C.A. § 189, is "authorized to prescribe necessary and proper rules and regulations and to do any and all things necessary to carry out and accomplish the purposes [among other things] of sections * * * 223-229 * * *". Also, since so-called acquired lands (i. e., purchased as distinguished from public domain) are here involved, it is important to note that the Secretary of the Interior is authorized to lease these Government lands "under the same conditions as contained in the leasing provisions of the mineral leasing laws, subject to the provisions [t]hereof." 30 U.S.C.A. § 352. Because this was an acquired land lease, the Secretary of the Interior could not negotiate the lease without the approval of the executive department or independent establishment (The Bureau of Land Management, in this case) having jurisdiction over the lands. As noted, the Mineral Leasing Act provides for the Secretary to enter leases calling for the payment by the lessee of a royalty "in amount or value of the production". This term or phrase is not defined in the Act, and the legislative history of the Act is not helpful in defining the term. "Value" has been variously defined, but in the context in which it appears in this statute it is considered that it generally means "estimated or assessed worth" or "marketable price". 91 C.J.S. Value, p. 799. The courts on various occasions have held that "value" ordinarily means "market value", "fair market value", or "market value fairly determined". Pewee Coal Co. v. United States, 1958, 161 F.Supp. 952, 956, 142 Ct.Cl. 796. The word "production" meanwhile has been held to be a broad term which may designate a thing produced as well as the operation of producing. 72 C.J.S. Production, p. 1211. In a case involving the interpretation of an assignment of an oil and gas lease requiring development to a normal state of "production", Cole Petroleum Co. v. United States Gas & Oil Co., 1931, 121 Tex. 59, 41 S.W.2d 414, 416, the court construed the term as follows: "Looking to all the terms of the contract, developing the lease to a normal stage of production necessarily involved marketing oil or gas discovered in paying quantities in order to yield part of the oil or cash for the gas to the assignor, as well as profit to the assignee. * * * The stage of production was not reached by the preliminary steps of exploration and discovery. Successful exploration and discovery lay the basis for marketing of gas in such a state as to have a value and *449 to command a price. Black's Law Dictionary defines `production' in political economy as `the creation of objects which constitute wealth'. Gas or oil connected with a pipe line or other means of transportation to market is an object which constitutes wealth." One of the Secretary's statutory duties and functions is to make the acquired lands of the Government productive by entering into gas and oil leases with individuals and then setting a royalty of not less than 12½ per cent of the value of production. 30 U.S.C.A. § 226. The Secretary cannot effectively perform this duty without rather wide discretion to determine what the value of production will be. As noted above, the term "value of production" does not defy interpretation and there is authority for its close identification with a market or contract price. It is the Court's opinion, therefore, that the Secretary's base for the computation of royalty of 12¢ can be said to be one based on the "value of production", and is thus pursuant to section 17 of the Act, if, as is found later in this opinion, the determination is not arbitrary or capricious. The Court also finds that the language found in section 17 of the Act contains statutory guides which are sufficiently specific standards as to be sustainable against claims of unconstitutional delegation of legislative powers. Davis, 1 Administrative Law Treatise, §§ 2.03, 2.16. Continental Oil Co. v. United States, 9 Cir., 1950, 184 F.2d 802. As noted earlier, the Secretary is authorized to make regulations to accomplish the purposes of Section 226 (section 17 of the Act).[1] Such regulations have been held by the Courts to have the force and effect of statutes when not inconsistent with or repugnant to such statutes. Hodgson v. Midwest Oil Co., D.C.Wyo.1924, 297 F. 273. The pertinent operating regulations (Geological Survey) issued by the Secretary of the Interior relating to the determination of "value of production" appearing in 30 Code of Federal Regulations, read as follows: "§ 221.47 Value basis for computing royalties. The value of production, for the purpose of computing royalty shall be the estimated reasonable value of the product as determined by the supervisor, due consideration being given to the highest price paid for a part or for a majority of production of like quality in the same field, to the price received by the lessee, to posted prices and to other relevant matters. Under no circumstances shall the value of production of any of said substances for the purposes of computing royalty be deemed to be less than the gross proceeds accruing to the lessee from the sale thereof or less than the value computed on such reasonable unit value as shall have been determined by the Secretary. In the absence of good reason to the contrary, value computed on the basis of the highest price per barrel, thousand cubic feet, or gallon paid or offered at the time of production in a fair and open market for the major portion of like-quality oil, gas, or other products produced and sold from the field or area where the leased lands are situated will be considered to be a reasonable value." *450 "§ 221.50 Royalty on gas. The royalty on gas shall be the percentage established by the terms of the lease of the value or amount of the gas produced. "(a) Royalty accrues on dry gas, whether produced as such or as residue gas after the extraction of gasoline. "(b) If the lessee derives revenue on gas from two or more products, a royalty normally will be collected on all such products. "(c) For the purpose of computing royalty the value of wet gas shall be either the gross proceeds accruing to the lessee from the sale thereof or the aggregate value determined by the Secretary of all commodities, including residue gas obtained therefrom, whichever is greater." The pertinent royalty regulation involved here, 43 CFR 192.82, reads in part as follows: "§ 192.82 Royalty on production * * * * * * "(c) In determining the amount or value of gas and liquid products produced, the amount or value shall be net after an allowance for the cost of manufacture. The allowance for cost of manufacture may exceed two-thirds of the amount or value of any product only on approval by the Secretary of the Interior. "(d) The Secretary of the Interior may establish reasonable values for purposes of computing royalty on any or all oil, gas, natural gasolines, and other liquid products obtained from gas, due consideration being given to the highest price paid for a part or for a majority of production of like quality in the same field, to the price received by the lessee, to posted prices and to other relevant matters. In appropriate cases this will be done after notice to the parties and opportunity to be heard." One of the expressed purposes of section 17 of the Act is the recovery of royalties on gas leases based on the value of production. The operating regulation entitled "Value basis for computing royalties", 30 CFR 221.47 (quoted above) sets forth with some clarity the Secretary's guide lines for determining "value of production" when it states that it shall be the "estimated reasonable value of the product as determined by the supervisor", that due consideration must be given by the supervisor to, among other things, the "price received by the lessee", and to the provision that under "no circumstances shall the value of production of any of said substances for the purposes of computing royalty to be deemed to be less than the gross proceeds accruing to the lessee from the sale thereof * * *". Operating regulation 30 CFR 221.50 also applies the "gross proceeds" provision to the value of wet gas, while royalty regulation 43 CFR 192.82 is somewhat similar to portions of 30 CFR 221.47 in its establishment of guidelines for the supervisor. A review of these regulations leads the Court to the conclusion that they are not inconsistent with nor repugnant to the statutes here involved, and that the Secretary was within his regulatory authority in setting the base for computing royalties due the Government at 12¢ per m. c. f., absent, as the Court finds, arbitrariness and capriciousness in such determination. In the instant case there is also a contract (lease) which controls the rights of the respective parties to this controversy. That contract, section 3(e), expressly reserves to the lessor the right "to take royalties in amount or value of production." That the Secretary has authority to insert such a reservation of a right to determine and fix these values seems to be settled law.[2] United States v. Ohio Oil Co., 10 Cir., 1947, 163 F.2d *451 633. See also Continental Oil Co. v. United States, supra. Each lease, section 2(d) (2), also expressly provides that the Secretary of the Interior has the right to "establish reasonable minimum values for purposes of computing royalty on any or all * * gas * * * and other products obtained from gas; due consideration being given to the highest price paid for a part or for a majority of production of like quality in the same field, to the price received by the lessee, to posted prices and to other relevant matters * * *." Additional provisions on royalty appear in Schedule A [royalty on production] of the lease. Also, the preamble to each lease states that such lease will be subject to all reasonable regulations issued under the authority of the Act of August 27, 1947. The opinion of the Acting Solicitor in The Texas Company, 64 I.D. 76 (April 1, 1957), relied on by defendant, states: "* * * It [The Texas Company] admits that the gas when it comes from the wells is in an unmarketable condition but contends that when the gas is separated from the oil, which it admits is a part of the lease operation, the gas is in a marketable condition and that it needs no further treatment to be marketed. However, the appellant also states that the gas cannot be marketed until the pressure of the gas has been stepped up so that it can enter the market. It argues that the compression necessary to accomplish this cannot be called a process to change the condition of the gas to put it in a marketable condition because, it says, it is already in that condition when it leaves the separator. Appellant states that the facilities for the use of which the deductions were made are marketing facilities, and being such, the charge for the use of such facilities should have been allowed. * * * * * * "However, it would seem to be immaterial, for the purposes of this decision and under the provisions of the lease here involved, at which point the gas is determined to be in a marketable condition—when it leaves the separator or when the gas is under sufficient pressure to enter the market. The lease requires the lessee to market the production from the lease and until the gas from the wells is in such a condition that it can be sold in the market, it cannot be said that the lessee has fulfilled his obligations under the lease. The lessee has not shown that the gas can be marketed at the pressure with which it comes from the wells. "The appellant's duty to market the gas is not a covenant read into the lease by implication as was the situation in many of the cases cited by the appellant. Here the duty is expressly imposed under the terms of the lease. Section 2(m) of the lease makes the regulations of the Secretary of the Interior a part of the lease. One of those regulations (30 CFR 221.35) obligates the lessee to prevent the waste of oil or gas. To avoid the physical waste of gas, the lessee is required to consume it beneficially, to market it, or to return it to the productive formation. Another regulation (30 CFR 221.47) provides that the value of production, for the purposes of computing royalty, shall under no circumstances be deemed to be less than the gross proceeds accruing to the lessee from the sale thereof. Still another regulation (30 CFR 221.51(b)) sets forth the policy of the Department not to allow for the cost of boosting residue gas after the extraction of liquid hydrocarbon substances and not to allow other expenses incidental to marketing. While we are not confronted here with an allowance for the cost of boosting residue gas after the extraction of other substances, the appellant has advanced no sound reason why it should be relieved of this cost of marketing its oil well gas *452 when a lessee whose production goes to an extraction plant is required to bear the cost of boosting and other expenses incidental to the marketing of that residue. "In fulfillment of its express duty to market its gas, the appellant made a contract for the sale thereof. It agreed to deliver the gas at a given pressure presumably in order to sell the gas. It cannot reasonably expect the lessor to assume the cost of meeting the lessee's obligation in this respect." In the instant case, the Acting Director, Geological Survey in his opinion, took the position that the instant case was ruled by the decision in The Texas Company, supra, when he stated: "Much the same situation exists with respect to the situation in the Romere Pass field. The lessee has an express obligation to market the gas produced. In order to fulfill this obligation the lessees entered into a sales contract; such contract calling for the gas to be delivered at a given point in the Romere Pass field, at a specified pressure, and in certain condition with respect to its liquid hydrocarbon and water-vapor content. Article 7 of the contract specifically provides, `Seller, at its expense, shall install and operate and maintain such facilities for the compression of gas from each of the fields as may be necessary to deliver hereunder the maximum take specified. * * *' It is the obligation of the lessee, not the United States, to meet the terms of this contract. "Each of the deductions charged by The California Company for the purposes of computing royalty is for operations performed to place the gas produced, or for a portion of such gas, in such condition as to enter the market, i. e., in such condition as to fulfill the requirements of the gas sales contract and thus be taken into the gas pipeline system of Southern Natural. Consistent with the opinion of the Acting Solicitor * * * (64 I.D. 76) such deductions cannot be allowed for the purpose of computing royalties." The Deputy Solicitor, Department of Interior, in his opinion dated February 20, 1959, upholding the decision of the Acting Director, ruled as follows: "The company contends that neither the leases nor the regulations applicable thereto support the disallowance of these deductions. It contends that its obligation is to pay royalty to the United States on the net value of the gas and that the deductions made were for something other than production costs. Presumably, it feels that these deductions are in the nature of charges for either processing or marketing the gas, neither of which, it contends, it is required to bear. * * * * * * "As we understand the present appeal, no contention is made that any of the gas is `manufactured' as that term is used in the regulations. The product involved is gas which is sold for 12 cents per 1000 cubic feet, after it has been gathered to the point of delivery in the field designated in the sales contract and after so much thereof as requires it has been dehydrated and compressed to a condition suitable to enter the buyer's line. Whether these functions be called processing or marketing functions, they are certainly not `manufacturing' functions as that term is used in the leases and the oil and gas operating regulations. They are in the opinion of the Department and under The Texas Company decision, functions necessary to place the product—gas—in a marketable condition. They are obligations of the lessee. "* * * The provision in the present leases that the amount or value of gas shall be `net' after an allowance for the cost of manufacture cannot be read, as the appellant contends, to provide for the deduction of costs other than those of *453 manufacture. The appellant is attempting to read the provision as if, in the absence of any cost of manufacture, the cost of placing the product in a marketable condition for sale in the field is deductible. Such is not the meaning of the above-quoted provision of the leases involved in this Appeal. The interpretation placed on the leases by the Acting Director, Geological Survey, is consistent with the established policy of the Department * * *." As noted by the defendant in his brief, the contract having reserved to the Secretary the right to establish the basis for the computation of royalties, his determination should be sustained in the absence of fraud, bad faith, etc.[3] See Continental Oil Co. v. United States, supra, affirming United States v. General Petroleum Corp., supra; United States v. Ohio Oil Co., supra; Cf. Wilbur v. Texas Co., 1930, 59 App.D.C. 275, 40 F.2d 787. It has been determined that the Secretary has wide latitude in making value determinations under oil and gas leases. United States v. General Petroleum Corp., supra. The courts have also determined that the Secretary's discretion is greater when a controversy exists between private interests on the one hand and the Secretary, as guardian of the people, on the other, than when the Secretary is involved in a dispute between two private interests.[4] Seaton v. Texas Co., 1958, 103 U.S.App.D.C. 163, 256 F. 2d 718. While the courts have reversed the determinations of the Secretary in certain instances, normally it has been done only when his actions have been found to be unreasonable or plainly wrong. Chapman v. Sante Fe Pac. R. Co., 1952, 90 U.S.App.D.C. 34, 198 F.2d 498, certiorari denied 343 U.S. 964, 72 S.Ct. 1058, 96 L.Ed. 1361. This Court is of the opinion that due deference must be given executive judgment and that executive expertise cannot be ignored unless clearly wrong. The statute here is directory with respect to the Secretary setting a royalty which "shall not be less than 12½ per centum in amount or value of the production." This he claims to have done.[5] On the other hand, if the Secretary made a computation of royalty on a cost accounting basis, it is apparent he would encounter many problems as to what costs to include, which to exclude, and at what stage the gas would be so-called "production." Moreover, the lease did not call for such a computation. This is not to suggest that he take the easy way out and compute royalty on the contract price, which includes some, but not uniform m. c. f. costs of preparing the gas for production or marketing, merely because it involves less work for the Supervisor. However, it cannot be said here that using a base that is the same as the contract price of 12¢ is, as a matter of law, not the "value of production". It would appear that the Secretary could have, in his discretion, established some other price as the value of production that would have satisfied the statute. However, it cannot be said that he is clearly wrong in establishing a price, as the value of production, which is the same price as the contract price. For, *454 the value, or market price, of the gas, or production, is clearly evident in the condition at which it is sold or marketed and therefore, the Secretary's determination may be said to have a rational basis. Plaintiff meanwhile contends, in its supplemental brief, that no determination of the reasonable value of gas was ever made by the Secretary and no hearing was ever held. However, discussions were held between the Supervisor and the representatives of Plaintiff since 1953, and much correspondence was exchanged. The Supervisor wrote a letter to his superiors on June 19, 1957, explaining the reasons for his decision, and the Acting Director and the Secretary, in their opinions, have given reasons for their decisions. This, taken together with the billing to the plaintiff for 12¢, is considered to be sufficient determination of value.[6] There is no showing of any special hardship placed on the plaintiff by reason of the basis set for the royalty computation; and indeed, if there has been, the contract (in section 2(d) (4)) provides for procedures for seeking reductions in such cases. The Secretary here (and in The Texas Company case, supra) has chosen to interpret the term "production" as meaning all the gas in a marketable condition after it has gone through the operational procedures of separation, compression, and dehydration, such that it meets the buyer's minimum requirements. He then assigns a value of production of 12¢, which is the same as the contract price. The Court can find no fraud, dishonesty, arbitrariness, nor capriciousness in such a determination. It may be that it is harsh, but for such a reason the Court would not impose its judgment upon that of the Secretary.[7] In its final analysis, the question of the Secretary's determination of "value of production" appears to be one of mixed law and fact. To the extent it is factual, the Court will not interfere with it.[8] To the extent that a question of law is involved, the Court is satisfied that the Secretary acted within his statutory and regulatory authority, and that he exercised his discretion in this matter on a rational basis, and that his determination is not in contravention of the lease. Accordingly, the Court finds that the Secretary was within his lawful authority in collecting the royalties in the amount of 12¢ per m. c. f. in this case. The Court denies the injunctive and other relief sought by plaintiff. Counsel for defendant will submit findings of fact in accordance with this opinion and will submit an appropriate order. NOTES [1] Congress in enacting the 1954 amendment to section 17, while attempting to set rules, recognized the difficulty in trying to set up legislative rules. House Report No. 2238, U.S.Code Cong. & Adm. News, 1954, p. 2696: "It is recognized that a certain amount of administrative discretion and flexibility are necessary. Oil and gas are found under a great variety of types of terrain and localities. Many different and highly technical factors may be controlling in different cases. Legislative rules and standards which would be fair and equitable in one case might well prevent any operations at all in another. Therefore, the Secretary of Interior must have administrative discretion to deal with particular problems in particular areas as they arise." [2] See 17 C.J.S. Contracts § 319, where it is noted, in effect, that if there is no ambiguity in a contract it is the law of the parties and its terms will be enforced no matter how onerous it may be if that is the clear intention of the parties. [3] See United States v. General Petroleum Corp., D.C.S.D.Cal.1946, 73 F.Supp. 225, 253, where it is stated: "The court concurs in the test established by the cases cited above, and holds that the Secretary's value determinations must be sustained unless it has been established by the evidence that the Secretary was guilty of fraud, dishonesty, or bad faith, or that the exercise of judgment was capricious or so unreasonable as to be incapable of justification on any rational basis." [4] Of course, in this case the Court is asked to direct an entry of a judgment for a reduced royalty to the Government against the will of the Secretary. [5] Plaintiff acknowledges that 70% of the production here does not require compression which costs 4.5¢ per m. c. f. Therefore, to say that the Secretary is computing the royalty on this cost for all the gas is inaccurate. [6] It would seem that administrative procedures could be adopted by the Secretary to insure that lessees are fully advised in writing of reasons for determinations of value of gas productions and that some evidence of any hearings, informal or otherwise, be incorporated in the record in the event of possible appeal. [7] Plaintiff relies upon certain interpretations of the regulations made by Acting Secretary West in 1937, 56 I.D. 462. It is true, as the defendant points out, that the Acting Secretary was placing an interpretation on the regulations which increased the Government's royalties. Also, the defendant did not find that interpretation applicable in this case. [8] In Wann v. Ickes, 1937, 67 App.D.C. 291, 92 F.2d 215, 217, the Court said: "* * * [The] finding of fact by the Secretary is the vital point upon which the plaintiff's case must stand or fall. It is too well settled to require citation of authority that the determination by the Secretary of a question of fact, in a matter within his jurisdiction, is binding upon the courts. Nor will the courts entertain any inquiry as to the extent of his investigation and knowledge of the points decided, or as to the methods by which he reached his determination."

29 S.W.3d 788 (2000) 71 Ark.App. 316 MIDWAY AUTO SALES, INC. v. Mike CLARKSON. No. CA 00-254. Court of Appeals of Arkansas, Division IV. November 1, 2000. *789 James O. Strother, Springdale, for appellant. Zurborg & Spaulding, P.A., by: J. David Zurborg, Springdale, for appellee. JOHN B. ROBBINS, Chief Judge. Appellant Midway Auto Sales, Inc., sued appellee Mike Clarkson for breach of title after a 1986 Corvette it had bought from Clarkson was confiscated as a stolen vehicle by the Washington County Sheriff's office. Appellee then filed a third-party complaint against Larry Bowen, who had sold the car to him. At some time before April 1, 1998, Jimmy Haddock purchased the car with an open title from an individual in Oklahoma with a computer-generated check on a nonexistent bank account. On April 1, 1998, Mr. Haddock entered into negotiations to sell the Corvette to Mr. Bowen on an open title in exchange for a pickup truck, a camper trailer, and $1,000 in cash. Before consummating the sale, Mr. Bowen checked with the Oklahoma licensing agency and was informed that the car's title was free of encumbrances. He did not register the car. On June 11, 1998, Mr. Bowen sold the Corvette with the open Oklahoma title to appellee for $5,500. Clarkson also did not register the car. He sold it to Midway for $6,000 with the same open title on July 18, 1998. On July 24, 1998, the Corvette was confiscated by the sheriff's department as a stolen vehicle and was later released to the original seller. In his letter opinion, the circuit judge said that the original seller had the opportunity to void the sale and the certificate of title so that they did not pass into the hands of bona fide purchasers, which he found Clarkson and Mr. Bowen to be. He recognized the hardship to Midway but stated that Midway must take its recourse against someone other than the bona fide purchasers. Midway has appealed from the order of dismissal. Midway argues that Clarkson breached his warranty of title because the Corvette was confiscated as a stolen vehicle by the sheriff. According to Ark.Code Ann. § 4-2-312(1)(a) (Repl.1991), in a contract for sale, there is a warranty by the seller that the title conveyed is good and its transfer rightful. See Smith v. Russ, 70 Ark.App. 23, 13 S.W.3d 920 (2000). Clarkson relies on Ark.Code Ann. § 4-2-403 (Repl.1991), which recognizes the legal distinction between a sale of stolen goods and a sale of goods procured through fraud. Absent exigent circumstances, one *790 who purchases from a thief acquires no title as against the true owner. Eureka Springs Sales Co. v. Ward, 226 Ark. 424, 290 S.W.2d 434 (1956). However, under section 4-2-403, the result is different when property obtained by fraud is conveyed to a bona fide purchaser: (1) A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though: .... (b) The delivery was in exchange for a check which is later dishonored; or .... (d) The delivery was procured through fraud punishable as larcenous under the criminal law. This section of the Uniform Commercial Code has been explained as follows: Under 2-403, voidable title should be distinguished from void title. A thief, for example, "gets" only void title and without more cannot pass any title to a good faith purchaser. "Voidable title" is a murky concept. The Code does not define the phrase. The comments do not even discuss it. Subsections (1)(a)(d) of 2-403 clarify the law as to particular transactions which were "troublesome under prior law." Beyond these, we must look to non-Code state law. In general voidable title passes to those who lie in the middle of the spectrum that runs from best faith buyer at one end to robber at the other. These are buyers who commit fraud, or are otherwise guilty of naughty acts (bounced checks), but who conform to the appearance of a voluntary transaction; they would never pull a gun or crawl in through a second story window. Presumably these fraudulent buyers get voidable title from their targets, but second story men get only void title because the targets of fraud are themselves more culpable than the targets of burglary. .... Subsection (1)(b) of 2-403 deals with a more common occurrence: the "rubber check." Even when Bert Buyer pays Sam Seller with a check that returns to Sam marked "NSF," a good faith purchaser from Bert takes good title. .... Subsection (1)(d) of 2-403 provides that even where delivery was procured through criminal fraud, voidable title passes. Thus if Bert acquired goods from Sam with a forged check, a good faith purchaser from Bert would obtain good title. James J. White and Robert S. Summers, Uniform Commercial Code § 3-12 at 187-89 (4th ed.1995). In his letter opinion, the circuit judge relied on Pingleton v. Shepherd, 219 Ark. 473, 242 S.W.2d 971 (1951), which was decided before the Uniform Commercial Code was enacted. There, it was held that the appellee, who had purchased an automobile in good faith from an individual who had given the appellant a worthless check, had good title. In so holding, the court relied upon a provision of the Uniform Sales Act, Ark. Stat. Ann. § 68-1424, which stated: Where the seller of goods has a voidable title thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith, for value, and without notice of the seller's defect of title. The court held that a fraudulent purchase of personal property accompanied with delivery *791 is not void, but only voidable at the election of the seller; until it is avoided by the seller, the buyer has power to make a valid sale of the goods to a bona fide purchaser who has no notice of the fraud. See also Aclin v. Manhattan Credit Corp., 225 Ark. 1028, 287 S.W.2d 451 (1956). Section 4-2-403 is consistent with the court's decision in Pingleton v. Shepherd. Therefore, it follows that: (1) Mr. Haddock obtained a voidable title from the original seller, with whom he entered into a voluntary transaction of purchase; (2) until the sale was avoided by the original seller, Mr. Haddock had the power to transfer good title to a good-faith purchaser; (3) if Mr. Bowen was a good-faith purchaser, he had good title to convey to Clarkson, who would have conveyed good title to Midway; and, (4) if the title Clarkson conveyed to Midway was good, the warranty of title was not breached. Therefore, the issue is whether Mr. Bowen and Mr. Clarkson were good-faith purchasers. "Good faith" is defined at Ark. Code Ann. § 4-1-201(19) (Supp.1999) as "honesty in fact in the conduct or transaction concerned." Generally speaking, whether a party has acted in good faith in a commercial transaction is a question of fact. Adams v. First State Bank, 300 Ark. 235, 778 S.W.2d 611 (1989); Hollis v. Chamberlin, 243 Ark. 201, 419 S.W.2d 116 (1967). In bench trials, the standard of review on appeal is whether the judge's findings were clearly erroneous or clearly against the preponderance of the evidence. Smith v. Russ, supra. Mr. Bowen testified that, before consummating his purchase, he contacted the Oklahoma licensing agency and was informed that the Corvette's title was good. Mr. Clarkson testified that Mr. Bowen related this information to him. Relying on Aclin v. Manhattan Credit Corporation, supra, Midway argues that an individual cannot be a good-faith purchaser unless the vehicle is titled in the name of the seller. There, a certificate of title based upon a bill of sale, issued to the borrower, was held to be sufficient reason to assign innocent third-party status to the lender that had relied upon it. The case does not, however, hold that one cannot be a bona fide purchaser without a certificate of title in the name of the seller. Although it would have been obvious to Midway when it purchased the vehicle, Midway now makes much of the fact that neither Mr. Bowen nor Mr. Clarkson registered the vehicle; however, it has provided no citation to authority holding that this failure will prevent one's buyer from acquiring bona-fide-purchaser status. We hold that the circuit judge's finding that Mr. Clarkson and Mr. Bowen were good-faith purchasers is not clearly erroneous. Accordingly, Clarkson did not breach the warranty of title. Affirmed. NEAL, J., agrees. BIRD, J., concurs. SAM BIRD, Judge, concurring. I agree with the majority's decision, but only because it appears to be the result mandated by the existing Arkansas case law as set forth in Pingleton v. Shepherd, 219 Ark. 473, 242 S.W.2d 971 (1951), and similar cases that discuss the distinction between the status of the title to an automobile that has been acquired by fraud (in which case good title can be passed to subsequent purchasers until such time as the defrauded party successfully voids the transaction) and an automobile that is acquired by theft (in which case neither the thief nor a subsequent purchaser acquires any title to the automobile). Any person who acquires ownership of a motor vehicle in this state is required to register it within ten days[1] with the Department of Motor *792 Vehicles and receive a certificate of title to it. Ark.Code Ann. § 27-14-903(a)(1) (Repl.1994). Failure to do so is a Class C misdemeanor. Furthermore, the purchaser of a new or used motor vehicle for a consideration of $2,000 or more is required to pay a gross receipts tax on the vehicle at the time of registration. Ark. Code Ann. § 26-53-126 (Repl.1997). The sale or purchase of a motor vehicle on a so-called open title (a title certificate in which the name of the present seller is not identified as the owner of the automobile) is prima facie evidence that these requirements have not been met. Because of these registration and sales tax requirements, in my opinion the law of Arkansas, as it relates to the good-faith sale and purchase of motor vehicles, is outmoded, and it should be changed to provide that, except in the case of purchases of motor vehicles from authorized automobile dealers, any purchaser acquiring a motor vehicle on an open title is not a bona fide purchaser and can neither acquire nor transfer good title to it. The exception for purchasers from authorized motor vehicle dealers should apply only when such dealer acquired the motor vehicle directly from the person whose name is on the title. Otherwise, no transferee of a motor vehicle on an open title, whether acquired from one who got it by fraud or by theft, should qualify as a bona fide purchaser. The supreme court has held that where a purchaser of personalty knows that the price is inadequate, he is on notice of the infirmity of his seller's title and is, therefore, not a bona fide purchaser for value. Hollis v. Chamberlin, 243 Ark. 201, 419 S.W.2d 116 (1967). It seems to me that an even stronger reason exists to deny bona-fide-purchaser status to one who buys a motor vehicle with knowledge that there has been no compliance with either the registration or tax laws that are applicable to the transfers of motor vehicles in this state. NOTES [1] Effective January 1, 2000, the registration deadline was extended to thirty days. Ark. Code Ann. § 27-14-903(a)(1)(Supp.1999).

238 F.3d 853 (7th Cir. 2001) Bethesda Lutheran Homes and Services, Inc., et al., Plaintiffs-Appellants/Cross-Appellees,v.Gerald Born, et al., Defendants-Appellees,andThomas Schleitwiler, et al., Cross-Appellants. Nos. 99-4016, 99-4135 In the United States Court of Appeals For the Seventh Circuit Argued September 7, 2000Decided January 25, 2001 Appeals from the United States District Court for the Western District of Wisconsin. No. 99-C-427-S--John C. Shabaz, Chief Judge.[Copyrighted Material Omitted] Before Bauer, Posner, and Evans, Circuit Judges. Posner, Circuit Judge. 1 This dispute is before us for the third, and we trust last, time. See Bethesda Lutheran Homes & Services, Inc. v. Leean, 122 F.3d 443 (7th Cir. 1997), 154 F.3d 716 (7th Cir. 1998). In the first round, Bethesda, a private residential institution in Wisconsin for the mentally retarded, along with several current and would-be residents, brought suit under 42 U.S.C. sec. 1983 against a number of Wisconsin state and local officials, plus Jefferson County, where Bethesda's facility is located, challenging provisions of the federal Medicaid regulations, and state law governing the establishment of Wisconsin residency, as violations of the constitutional right to travel. The Medicaid provisions at issue (cited at 122 F.3d 447) authorized states that participate in the Medicaid program (half of the expense of which is defrayed by the federal government, the other half by the state) to decline to provide assistance to otherwise eligible persons who are not residents of the state, or even to residents who have gone out of state for care, unless the state of residency is unable to provide the services they need. These provisions discouraged certain nonresidents of Wisconsin from seeking medical care in Wisconsin. That state would have no obligation to enroll them in its Medicaid program, while the state of their residency, provided it was capable of treating them in- state, would have no obligation to reimburse their treatment costs in Wisconsin. They would be stuck in their home state. 2 All this would not have mattered had Wisconsin allowed these nonresidents to become residents. But the state law also challenged by the plaintiffs prevented this. And although this joint federal-state discouragement of medical- care shopping might well have powerful fiscal or other social merits to recommend it, we held that the one-two punch violated the Constitution and must be enjoined. We also held, however, that the plaintiffs could not obtain monetary relief from the defendant state officials insofar as they had been sued in their official capacity, since such suits are deemed to be suits against the state itself, thus bringing the Eleventh Amendment into play. We remanded for the entry of the injunction and for consideration of the other relief sought by the plaintiffs and not barred by the Eleventh Amendment. 3 The injunction was duly entered on remand. Bethesda thus became entitled to Medicaid reimbursement of future expenses incurred by it in serving these individuals, but not to reimbursement of expenses incurred before the legal bars were removed by our decision; that would have been monetary rather than injunctive relief. The only monetary relief sought on remand was against Jefferson County and was turned down by the district court on the ground that a municipal government cannot be held liable in damages under section 1983 if it committed the acts of which the plaintiff complains under the compulsion of federal and state law. In their second appeal the plaintiffs, while accepting the principle on which they had been denied damages, challenged its application to the facts, arguing that the officials of Jefferson County had wanted to deny these plaintiffs benefits regardless of federal or state law. Affirming the judgment for Jefferson County, we held that the county officials' state of mind was irrelevant in a case such as this where the officials were given no latitude by state or federal law to grant the benefits sought; their state of mind played no causal role in their actions. 4 In struggling against the proposition that Jefferson County was off the hook by virtue of having acted under the compulsion of state law, the plaintiffs had intimated that the county had not been compelled after all. We had said the opposite in our first opinion--specifically, that state law had forbade the county to certify the plaintiffs as county residents, a prerequisite to their being entitled under Wisconsin law to Medicaid benefits. In the second appeal the plaintiffs simply ignored that ruling. (They continue a pattern of selective forgetfulness in this round as well, failing even to cite our second opinion.) Yet that earlier ruling was the law of the case, and if the plaintiffs wanted us to depart from it they had to acknowledge the ruling and give reasons for our abandoning it. This they had failed to do, thus bringing into play the principle that "unchallenged determinations in a previous decision in the same case unquestionably bind the court in a subsequent appeal." 154 F.3d at 719. 5 Rather than accept the second decision, Bethesda brought a new case, the one before us today. Damages are sought in this case against the officials of the state and of Jefferson County who refused Medicaid benefits to the eight individuals who are coplaintiffs with Bethesda, several but not all of whom were plaintiffs in the previous suit, the one that was before us in the two previous appeals. The contention in the present suit is that the Medicaid regulations challenged in the previous suit, rather than unconstitutionally authorizing the defendants to deny benefits to nonresidents, as the plaintiffs had argued in that suit and we had agreed, had commanded them to pay those benefits, and it was in defying the command that the defendants had violated the plaintiffs' right to travel. The district court dismissed the new suit primarily on the ground that the defendants were entitled to a qualified (that is, good-faith) immunity from a suit for damages, as no rule of law that was clearly established when they acted forbade them to deny benefits to nonresident patients at Bethesda's facility. The judge found it unnecessary to reach most of the other grounds for dismissal urged by the defendants. 6 The plaintiffs have appealed; and the defendants cross-appeal from the district court's refusal to impose sanctions on the plaintiffs under Rule 11 of the Federal Rules of Civil Procedure. The judge thought the plaintiffs entitled to bring this suit for the purpose of urging us to overrule our previous decisions holding that state and federal law had unconstitutionally prevented the award of benefits. Unless we do so, the Eleventh Amendment, the principle that a county is not suable under 42 U.S.C. sec. 1983 in respect of acts done by it under compulsion of state or federal law, and the principle of qualified immunity combine to bar the plaintiffs from obtaining any monetary relief. 7 The appeal is frivolous on so many grounds that it is difficult to know where to begin. If the plaintiffs in this second suit were identical to the ones in the first, or in privity with those plaintiffs, then it would be obvious that the present suit was barred by the principle of res judicata, because the claim in the two suits is the same--that the state and county officials had denied the plaintiffs Medicaid benefits in violation of law. Not that all the arguments are the same, but for purposes of res judicata a claim is not an argument or a ground but the events claimed to give rise to a right to a legal remedy, e.g., United States v. County of Cook, 167 F.3d 381, 383 (7th Cir. 1999); Brzostowski v. Laidlaw Waste Systems, Inc., 49 F.3d 337, 339 (7th Cir. 1995); Prochotsky v. Baker & McKenzie, 966 F.2d 333, 335 (7th Cir. 1992); Wilkins v. Jakeway, 183 F.3d 528, 535 (6th Cir. 1999); Woods v. Dunlop Tire Corp., 972 F.2d 36, 39 (2d Cir. 1992), and they are the same in the two suits. 8 The plaintiffs are not identical, but this turns out to make no difference. First, insofar as Bethesda is concerned and those individual plaintiffs who were plaintiffs in the first suit as well, they cannot avoid the bar of res judicata by bringing in additional plaintiffs. Dreyfus v. First National Bank, 424 F.2d 1171, 1175 (7th Cir. 1970); United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 249 (9th Cir. 1992). The defense of res judicata is not avoided by joinder. Second, the newly added individuals (and this is doubtless true of the overlapping individual plaintiffs as well, though that is unnecessary to decide) are not proper parties, because they lack standing to sue, having no stake in the litigation. As the plaintiffs' lawyer acknowledged at argument, any recovery of benefits in this suit will go to Bethesda, which incurred the expenses of serving the individual plaintiffs until the injunction that was issued on remand from the first appeal gave them prospective relief. The plaintiffs are indigent, and Bethesda does not claim to be entitled to obtain any money from them, so it is not as if they were seeking monetary relief in order to satisfy a debt to Bethesda. They are seeking no relief. 9 So the suit is barred by res judicata, but it is also barred by the doctrine of judicial estoppel: a party that has won a suit on one ground may not turn around and in another case obtain another judgment on an inconsistent ground. E.g., Saecker v. Thorie, 234 F.3d 1010, 1014-15 (7th Cir.2000); Moriarty v. Svec, 233 F.3d 955, 962 (7th Cir. 2000); Lydon v. Boston Sand & Gravel Co., 175 F.3d 6, 12-13 (1st Cir. 1999). The plaintiffs argued in the first suit that the relevant Medicaid regulations and Wisconsin state law were unconstitutional. Having won that suit to the extent of getting the legal obstacles to Medicaid reimbursement removed, they could not turn around and in the next suit seek additional relief by arguing that the regulations and state law were constitutional after all and compelled the defendants to grant them benefits. It does not matter that the plaintiffs did not win everything they sought in their first suit. They won a judgment, and cannot now seek another judgment on an inconsistent ground. The doctrine of judicial estoppel would not apply to a new party, one that had not benefited from the judgment in the previous suit, but we have seen that the only new plaintiffs in this, the second suit, are actually not parties to it because they have no stake in its outcome. 10 The plaintiffs point out that the defendants did not argue judicial estoppel in the district court. But the doctrine is for our protection as well as that of litigants, and so we are not bound to accept a waiver of it. In re Cassidy, 892 F.2d 637, 641 (7th Cir. 1990); Motley v. New Jersey State Police, 196 F.3d 160, 163 (3d Cir. 1999); cf. Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597, 601 (9th Cir. 1996); 18 Moore's Federal Practice sec. 134.34[1] (3d ed. 2000); but cf. United States for Use of American Bank v. C.I.T. Construction Inc., 944 F.2d 253, 258 (5th Cir. 1991) (waiver binding except in "egregious" case). Its purpose is to protect the judicial system from being whipsawed with inconsistent arguments and to discourage the form of fraud that consists of withholding your best ground in the first of a series of suits because it is helpful to your opponent in that suit hoping to win that suit on a different ground and then spring your inconsistent best ground in a later suit in order to obtain additional relief. 11 There is more. The premise of the present suit is that our previous decisions were wrong. The plaintiffs argue that because there are new parties, the previous decisions are not binding. That premise is wrong, as we have seen, but forget that. The plaintiffs' lawyer does not understand the doctrine of stare decisis. It is res judicata that bars the same party from relitigating a case after final judgment, and the doctrine of law of the case that counsels adherence to earlier rulings in the same case. E.g., Vidimos, Inc. v. Wysong Laser Co., 179 F.3d 1063 (7th Cir. 1999); United States v. Becerra, 155 F.3d 740, 753 n. 15 (5th Cir. 1998); United States v. Unger, 700 F.2d 445, 450 (8th Cir. 1983). It is stare decisis that bars a different party from obtaining the overruling of a decision. The existence of different parties is assumed by the doctrine, rather than being something that takes a case outside its reach. Of course, stare decisis is a less rigid doctrine than res judicata. But it is not a noodle. For the sake of law's stability, a court will not reexamine a recent decision (our previous decisions are two and three years old, respectively) unless given a compelling reason to do so. E.g., Joy v. Penn-Harris-Madison School Corp., 212 F.3d 1052, 1066 (7th Cir. 2000); Snajder v. INS, 29 F.3d 1203, 1207 (7th Cir. 1994); In re Patterson, 825 F.2d 1140, 1147 (7th Cir. 1987); Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 527 (2d Cir. 1990); Brewster v. Commissioner, 607 F.2d 1369, 1373 (D.C. Cir. 1979) (per curiam). The reason might be a legislative change, a change in applicable regulations, a judicial decision dealing with a related or analogous issue, a change in the social or economic context of the issue, or some other important new information. Patterson v. McLean Credit Union, 491 U.S. 164, 173-74 (1989); United States v. Aman, 31 F.3d 550, 554 (7th Cir. 1994); Stewart v. Dutra Construction Co., 230 F.3d 461, 467 (1st Cir. 2000); Critical Mass Energy Project v. NRC, 975 F.2d 871, 876 (D.C. Cir. 1992) (en banc). The plaintiffs point to nothing of that kind. They make the same arguments that were made by the same counsel when rehearing of our first decision was sought. 12 The ground on which the district court dismissed the claim for damages against the defendants in their personal capacities, qualified immunity, was solid too. (The claims against them in their official capacity are barred by the Eleventh Amendment and, regarding those defendants who are employees of Jefferson County, by our previous affirmance of the dismissal of the claim for damages against the county.) Before we upheld the constitutional challenge in the first suit there was no case authority that made it unreasonable for the defendants to assume the constitutionality of their actions. Even more clearly, they had no obligation to foresee and accept the argument now made by the plaintiffs, which is that the regulations that the plaintiffs challenged in the previous suit actually compelled the defendants to grant the benefits sought rather than operating as a roadblock to those benefits. An argument that the plaintiffs' lawyer didn't think good enough to make in the first suit is now said to be so obviously sound that the defendants were clearly unreasonable to have failed to govern their behavior by it! 13 And for completeness we add that even if we were minded to consider the plaintiffs' new substantive arguments, we would reject them. The principal argument is that 42 C.F.R. sec. 435.403(m), which provides that "where two or more states cannot resolve which State is the State of residence, the State where the individual is physically located is the State of residence," clearly required Wisconsin to recognize the plaintiffs as citizens of Wisconsin. The precise meaning of this regulation is unclear, and we can find no cases interpreting it, but it clearly did not require the defendants to award benefits to these nonresidents on the ground that the regulation made them residents. For there is no indication of a dispute with another state. It is true that Illinois provided a document to some of the plaintiffs stating that they were not residents of Illinois, but it did so, as the accompanying correspondence made clear, as an accommodation to these plaintiffs, to help them to obtain Medicaid benefits in Wisconsin. There is no evidence that Illinois and Wisconsin actually disagree over, let alone that they cannot resolve, the issue of which state the plaintiffs are residents of. If Illinois' "helpful" action triggered the regulation, it would empower any state, without evidence, argument, or formalities, to force any other state to treat the first state's residents at no expense to the "exporting" state, provided only the residents were willing to travel to the other state for treatment. 14 We come last to the issue of sanctions. The appeal, as we have said, is frivolous; but so was the suit. Not because a party should be sanctioned for seeking a change in law, in this case a change in our ruling in the first appeal, but because, whatever the possible merit of the suit, it should have been obvious to any lawyer that relief was barred on multiple grounds, including res judicata, the Eleventh Amendment, judicial estoppel, and qualified immunity. So clear is this that we think it was unreasonable for the district court to deny relief under Rule 11. That denial is reversed and the matter returned to the district court for the assessment of a proper sanction. In addition we direct Bethesda to show cause within 21 days why sanctions for the filing of a frivolous appeal should not be imposed under Rule 38 of the Federal Rules of Appellate Procedure and section 1927 of the Judicial Code. 15 Affirmed in Part, Reversed in Part, Remanded with Directions, and Order to Show Cause Issued.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs July 27, 2010 STATE OF TENNESSEE v. MICHAEL PIERRE ADAMS Appeal from the Criminal Court for Hamilton County Nos. 266959, 267015, 267017, 269423 Don W. Poole, Judge No. E2010-00083-CCA-R3-CD - Filed November 1, 2010 The Defendant, Michael Pierre Adams, appeals as of right from the Hamilton County Criminal Court’s revocation of his community corrections sentences and order of incarceration. The Defendant contends that (1) the trial court’s revocation is erroneous and based upon insufficient proof and (2) the State failed to provide him with adequate discovery before the hearing. Additionally, the judgments of the trial court do not reflect that the Defendant was given credit for time served in community corrections. See Tenn. Code Ann. § 40-36-106(e)(4). Following our review, we affirm the judgments of the trial court but remand the case for correction of the judgments to reflect credit for time served in community corrections. Tenn. R. App. P. 3; Appeal as of Right; Judgments of the Criminal Court are Affirmed and Remanded for Correction of Judgments. D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and J AMES C URWOOD W ITT, J R., J., joined. Hannah C. Stokes, Chattanooga, Tennessee, for the appellant, Michael Pierre Adams Robert E. Cooper, Jr., Attorney General and Reporter; Sophie S. Lee, Assistant Attorney General; William H. Cox, III, District Attorney General; Lance Pope, Assistant District Attorney General; and Cameron Williams, Assistant District Attorney General, for the appellee, State of Tennessee OPINION On March 17, 2008, the Defendant pled guilty to three counts of aggravated burglary in cases 266959, 267015, and 267017. The Defendant was sentenced to three years, suspended, and placed on intensive probation for six years for each count with the sentences to be concurrent with each other. On September 17, 2008, a warrant was issued for the Defendant’s arrest for violating the conditions of his probation. Specifically, the probation violation was based upon the Defendant’s new arrest and charge for aggravated burglary in case 269423. On February 3, 2009, the Defendant pled guilty to the new aggravated burglary charge and was sentenced to serve six months followed by six years of community corrections. Regarding the three original charges, the trial court sentenced the Defendant to serve 11 months and 29 days with the balance of his sentence to be served in community corrections. The trial court ordered the Defendant’s sentence in 269423 to be served consecutively to the effective three-year sentence in the original cases for a total effective sentence of nine years. On April 28, 2009, a warrant was issued for the Defendant’s arrest for violating the conditions of his community corrections sentence by committing a new offense. At the revocation hearing, Chris Jackson of the Hamilton County Community Corrections office testified that he filed a violation report because the Defendant committed a new offense. Mr. Jackson testified that this new offense occurred on April 16, 2009, just three days after the Defendant had entered the more lenient second phase of the community corrections program. Mr. Jackson also testified that when he met with the Defendant on April 16, the Defendant did not advise him that he had committed a new offense. The Defendant had been charged with first degree murder, felony murder, attempted especially aggravated robbery, and aggravated burglary. Detective James Holloway of the Chattanooga Police Department testified that on April 16, 2009, he was assigned to investigate the murder of Steven Matthew Coyle. Detective Holloway further testified that during his investigation, the Defendant became a potential suspect and that after advising the Defendant of his Miranda rights, he interviewed the Defendant. The State introduced both a transcript and audio recording of the interview into evidence and played the audio recording for the court. In the Defendant’s statement to the police, he told Detective Holloway that he went to the victim’s house with several other men to steal marijuana from the victim. The Defendant also stated that he was aware that at least one person had a gun. Once they arrived at the victim’s house, the Defendant got out of the vehicle to serve as a lookout while someone else entered the house. The Defendant stated that he watched as one of the men entered the house and that at one point, the Defendant tried to warn him that there was someone in the house. Once the Defendant heard the gunshot, he and the other men returned to the car and fled the scene. The Defendant then stated that he spoke with Mr. Jackson and did not mention any of this to him. Several times during the revocation hearing defense counsel requested a continuance because she had not received a copy of the audio recording of the Defendant’s statement and -2- had only received the transcript of his statement the previous week. The State responded that the hearing had been scheduled for at least a month and the defense had already been granted several continuances. At the conclusion of the State’s proof, defense counsel argued that the State failed to prove the Defendant’s participation in the charged crimes and that the revocation hearing should be “continued until the murder charge is resolved and see if he, indeed, is found guilty of any of these charges.” The trial court rejected these arguments and found that the Defendant had violated the conditions of his community corrections sentence. The trial court then ordered the Defendant’s sentences into execution. ANALYSIS On appeal the Defendant contends that the record does not contain sufficient evidence to support the revocation of Defendant’s community corrections sentence. Specifically, the Defendant asserts that the State failed to meet its burden because he has not yet been convicted of any new offenses. Additionally, the Defendant objects to the fact that the State did not provide him with the statements of the other suspects in the victim’s murder and did not provide defense counsel with his own statement until a week before the hearing. The State responds that the proof at the revocation hearing established by a preponderance of the evidence that the Defendant committed a new crime. The State also responds that because the rules of evidence are more relaxed in a revocation hearing, defense counsel was timely provided the transcript of the Defendant’s statement. The decision to revoke a community corrections sentence rests within the sound discretion of the trial court and will not be disturbed on appeal unless there is no substantial evidence to support the trial court’s conclusion that a violation occurred. State v. Harkins, 811 S.W.2d 79, 82-83 (Tenn. 1991). Pursuant to Tennessee Code Annotated section 40-35- 311(e), the trial court is only required to find that the violation of a community corrections sentence occurred by a preponderance of the evidence. In reviewing a trial court’s findings, this court must examine the record and determine whether the trial court has exercised a conscientious judgment rather than an arbitrary one. State v. Mitchell, 810 S .W.2d 733, 735 (Tenn. Crim. App. 1991). Once there is sufficient evidence to establish a violation of a community corrections sentence, the trial court has the authority to revoke the community corrections sentence and order the original sentence to be served in confinement. Tenn. Code Ann. § 40-36-106(e)(4). Criminal conduct that is the basis of pending charges may serve as the basis for a revocation of a community corrections sentence. State v. Andrew B. Edwards, No. W1999- 01095-CCA-R3-CD, 2000 WL 705309, at *3 (Tenn. Crim. App. May 26, 2000), perm. app. denied (Tenn. Sep. 11, 2000). However, the trial court cannot rely solely on the mere fact of an arrest or an indictment. Id. Instead, the State must provide evidence “in order to -3- establish the . . . commission of another offense.” Id. Put another way, the State must produce evidence “to establish that the defendant committed the offense with which he has been charged.” State v. Lontrell Williams, No. W2009-00275-CCA-R3-CD, 2009 WL 3518171 at *3 (Tenn. Crim. App. Oct. 30, 2009). Additionally, a defendant’s right to due process is not violated when the trial court denies a continuance of the revocation proceedings until the disposition of the pending criminal charges. State v. Carden, 653 S.W.2d 753, 755 (Tenn. Crim. App. 1983). The defendant, at a revocation proceeding, is not entitled to all of the rights associated with a criminal trial but is entitled to some quantum of due process. State v. Wade, 863 S.W.2d 406, 408 (Tenn. 1993). A defendant is entitled to disclosure of the evidence against him. Id. (citing Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973)). However, a defendant receives adequate due process in this regard when the revocation petition “disclose[s] the nature of the evidence against him.” Practy v. State, 525 S.W.2d 677, 682 (Tenn. Crim. App. 1974). In Practy, the court concluded that the State adequately disclosed the nature of the evidence against a defendant when it included in the petition for revocation the name of the new offense. Id. at 679, 682. Based on the Defendant’s statement to Detective Holloway, the trial court found by a preponderance of the evidence the Defendant committed the new crimes charged. In his statement, the Defendant admitted that he and the other men went to the victim’s house to break in and steal marijuana from the victim. The Defendant also admitted that he knew at least one of the men had a gun and that he served as a lookout for the killer. These statements support the trial court’s decision to revoke the Defendant’s community corrections sentences and to order the sentences served in confinement. We conclude that the trial court exercised a conscientious judgment in arriving at its determination. Additionally, the petition for revocation lists as its basis the Defendant’s arrest and charge for first degree murder. This was sufficient to disclose the nature of the evidence against the Defendant. Furthermore, the only statement used at the revocation hearing was the Defendant’s, which the State provided to defense counsel a week before the hearing. Accordingly, the judgments of the trial court are affirmed. However, the judgments do not reflect that the Defendant was given credit for time served in community corrections. See Tenn. Code Ann. § 40-36- 106(e)(4). Accordingly, we remand the case for correction of the judgments to reflect credit for time served in community corrections. CONCLUSION -4-  Upon consideration of the foregoing and the record as a whole, the judgments of the trial court are affirmed. However, we remand the case to the trial court for correction of the judgments to reflect Defendant’s time served in community corrections. _________________________________ D. KELLY THOMAS, JR., JUDGE -5- 

161 Mich. App. 14 (1987) 410 N.W.2d 289 PEOPLE v. FOREMAN PEOPLE v. KIRKPATRICK Docket Nos. 86960, 86999, 88783. Michigan Court of Appeals. Decided June 16, 1987. Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Nathan T. Fairchild, Prosecuting Attorney, and Thomas C. Johnson, Assistant Attorney General, for the people. State Appellate Defender (by Peter Jon Van Hoek), for Jon Foreman. Patricia S. Slomski, for Wendy Kay Kirkpatrick. Before: R.B. BURNS, P.J., and GRIBBS and A.T. DAVIS,[*] JJ. GRIBBS, J. This is a consolidated appeal from the convictions and sentences of defendants, Jon Foreman and Wendy Kay Kirkpatrick. While the defendants had separate trials, the incidents which gave rise to their convictions arose out of the same events. As a result, most of the testimony at both trials was the same. In their appeals as of right, defendants raise three common issues and defendant Kirkpatrick raises two separate issues. On May 23, 1985, defendant Jon Foreman was convicted by a jury of four counts of first-degree criminal sexual conduct, MCL 750.520b(1)(a); MSA 28.788(2)(1)(a), and three counts of second-degree criminal sexual conduct, MCL 750.520c(1)(a); MSA 28.788(3)(1)(a). Foreman was sentenced to concurrent prison terms of twenty to forty years for each *17 CSC I count, and ten to fifteen years for each CSC II count. Foreman appeals as of right. We affirm. On August 1, 1985, defendant Wendy Kay Kirkpatrick was convicted by a jury of three counts of first-degree criminal sexual conduct, MCL 750.520b(1)(a); MSA 28.788(2)(1)(a), and two counts of second-degree criminal sexual conduct, MCL 750.520c; MSA 28.788(3). Kirkpatrick was sentenced to concurrent prison terms of twenty to forty years for each CSC I conviction and ten to fifteen years for each CSC II conviction. Kirkpatrick appeals as of right. We affirm. The incidents which gave rise to the charges against defendants occurred during the spring and summer of 1984. The victims of the criminal sexual conduct, a boy, age six, and a girl, age five, are the children of defendant Jon Foreman, with whom defendant Kirkpatrick was living during that period. Melinda Foreman, the children's mother, testified that her marriage to defendant began to break up in late 1983 or early 1984, when she learned that Foreman and Kirkpatrick, who is Mrs. Foreman's niece, were having an affair. Divorce proceedings were initiated, and Mrs. Foreman was granted temporary custody with Foreman having visitation every other weekend. In May, 1984, when the visitation order was entered, defendants were living together in an apartment. Foreman did not want the children the whole weekend but would pick them up on Saturday mornings and return them Saturday evenings. Foreman had one visitation in May, and two in June and July, 1984. In August, defendant Foreman's truck broke down and he did not come for the children again until the end of August or beginning of September, 1984. At that time, the girl refused to go with defendant, but the boy went on that visit. Mrs. Foreman did not allow any *18 visitation after that visit. According to the children, defendant Kirkpatrick was present during all the visitations. Mrs. Foreman testified that, after the visitations began, the children's behavior changed. They became argumentative, nervous and frightened. As visitation days would approach, they would begin to cry and say that they did not want to visit their father. They also began to cry in their sleep and have nightmares. Both children, although toilet trained, began wetting their pants and wetting their beds. Marilyn Anderson, Melinda Foreman's sister, who saw the children frequently during July, August and September of 1984, also testified as to the changes she noticed in the children's behavior. The testimony of the boy, age seven at the time of trial, showed numerous instances of sexual abuse. On a number of occasions, with Jon Foreman present, he was forced to perform oral sex on Wendy Kirkpatrick. He was made to suck her vagina, rectum, and breasts. He was also forced to perform oral sex on his father, as well as Tammy Kirkpatrick, Wendy's sister. On one occasion, Foreman stuck a wire up the boy's rectum. The boy, using anatomically correct dolls, testified that he was forced to perform sexual intercourse as well as sodomy with Wendy Kirkpatrick. He was also forced to have anal intercourse with his sister. Wendy would also put her fingers in his rectum. The boy testified that he was repeatedly threatened with harm by both defendants if he did not want to perform these sexual acts or if he told anyone what they were doing. He said that Foreman threatened to kill his mother and aunt as well as him if he told anyone. The girl, age six at the time of trial, also testified. She, using anatomically correct dolls, testified *19 as to the sexual abuse inflicted upon her. She testified that Jon Foreman attempted to penetrate her rectum with his penis. Foreman repeatedly threatened to murder her if she told anyone. She was also forced to perform several sexual acts with defendant Kirkpatrick and have anal intercourse with her brother. Kirkpatrick also put her fingers in the girl's vagina and rectum. She further testified that she observed her brother engage in sexual acts with Wendy and Jon Foreman. She testified that Jon Foreman put a wire in her vagina and rectum. Additional facts will be presented where relevant. The first issue raised by each defendant is identical. They argue that the trial court erred in admitting, as excited utterances, the hearsay statements of the children through the testimony of Marilyn Anderson and Melinda Foreman. One day in September, 1984, Marilyn Anderson, Melinda Foreman's sister, was baby-sitting the girl while her brother was at school. Over defendants' objection in each trial, the trial court allowed Anderson to testify as to the statements made by the children. When Anderson awakened the girl for breakfast at about 9:30 A.M. or 10:00 A.M., she was crying and when she came into the kitchen she was still crying. Later, according to Anderson, the girl, without prompting, told her about the sexual incidents that had happened at Jon Foreman's apartment. Anderson testified as to what was said by the girl. That evening, the boy, after having learned that his sister had been talking about the events in question, told his mother about the activities that had been going on at his father's apartment, and Melinda Foreman related these statements before *20 the jury in each trial over defense counsels' objections. Defendants assert that the testimony of Anderson and Foreman relating out-of-court statements of the children was erroneous, citing People v Kreiner, 415 Mich 372; 329 NW2d 716 (1982). In Kreiner, our Supreme Court held that the "tender years" exception to the hearsay rule, which allowed a young victim's out-of-court statements to be admitted to corroborate testimony at trial, did not survive the adoption of the Michigan Rules of Evidence. Id. at 377. Such statements, however, might be admissible under the excited utterance exception if the proper foundation is established. Id. at 379. The Supreme Court, in People v Gee, 406 Mich 279, 282; 278 NW2d 304 (1979), set forth three criteria which must be met before a statement can be admitted into evidence as an excited utterance under MCR 803(2): (1) the statement must arise out of a startling event; (2) it must be made before there has been time for contrivance or misrepresentation; and (3) it must relate to the circumstances of the startling event. Defendants contend that the trial court impermissibly relaxed Gee's foundational requirements because of the children's young ages, contrary to Kreiner, supra. Kreiner, however, does not require that the age of a declarant be ignored when determining whether a statement qualifies as an "excited utterance." Rather, it requires that the three Gee criteria be applied whenever that determination is being made. The criterion most commonly at issue in cases involving MRE 803(2), and the only criterion we find at issue here, is the second one, which requires that the statement be made before enough time has passed for contrivance or misrepresentation. In analyzing whether a declarant *21 had time to or may have contrived the "spontaneous" statement, the age and mental abilities of the declarant, as well as the startling event, are natural considerations. For some declarants, the passage of one minute between a startling event and a related statement may be enough to disqualify the statement as an "excited utterance." For other declarants, such as those of young age or with mental deficiencies, the passage of days or weeks may not negate the spontaneity of a statement. A distinction must be made between admission of hearsay merely because of the tender age of the declarant, which would be error, and admission based on circumstances showing a low probability that the hearsay statement was contrived or misrepresented. In both cases, the trial court found the children, because of their young ages and because of the nature of the events alleged in their statements, had little ability to fabricate. Specifically, in defendant Kirkpatrick's case, the trial court ruled: The whole purpose of this exception ... is to prevent persons from making up stories after an event has occurred. That's one of the reasons that time is essential in determining whether it's an excited utterance. But it's extremely hard for this Court to believe that children of five and six years old could make up stories involving sexually explicit events without those things['] happening. It's just very difficult for me to believe that. The trial judge ruled similarly in defendant Foreman's case, noting that the abuse was continuing, that the childrens' demeanor had changed, that the statements were spontaneous and that the children would have had great difficulty in fabricating these stories. Thus, the statements were trustworthy. *22 There is no set length of time within which statements must be made following a startling event. The length of time between the startling event and the statement is a significant factor, but its significance depends largely on the nature of the event. People v Zysk, 149 Mich App 452, 457; 386 NW2d 213 (1986). In People v Soles, 143 Mich App 433; 372 NW2d 588, lv den 424 Mich 863 (1985), five days passed before a social worker and a detective gained the trust of the six-year-old victim and obtained a description of the assault. In approving the trial court's admission of the child's hearsay statements, the Court wrote: Generally, a time lapse of five days between the event and the statement would provide more than a sufficient opportunity to contrive and misrepresent an incident, and thus a statement given under such circumstances would clearly be inadmissible. However, where such a heinous assault is committed upon a child so young, it is not beyond reason to suggest that she could remain so traumatized by the incident as to be incapable of contriving or misrepresenting the crimes committed to her person for a period of five days or longer. [Id. at 438.] In People v Draper, 150 Mich App 481; 389 NW2d 89 (1986), statements made by the three-year-old victim one week after the incident were admitted. This Court again found no error, noting that the statements were not responses to questions but were made spontaneously during a physical examination and that the event was sufficiently startling that the excitement it caused could have lasted a week. Id. at 486. The emotional state of the victim should also be taken into account when determining whether there was time for contrivance. Zysk, supra at 457. *23 We believe there was sufficient foundation for admission of the hearsay evidence in both cases under the "excited utterance" exception. Although the delay of approximately one month between the last visitation and the day when the statements were made is longer than the delays in any of the cases cited, this case, unlike the cited cases, involves sexual abuse that was ongoing for a period of three to four months. The testimony of Melinda Foreman and Marilyn Anderson that the children became agitated and nervous in behavior over this period and began wetting their pants strongly suggests that the children were in a continuous state of excitement, even trauma, and were in that state when the statements were made. The delay in telling anyone about their experiences with their father and Kirkpatrick was apparently due to the threats to harm them if they did not go along with the activities or told anyone about the activities. The sexual explicitness of the events described by the children was quite beyond the experiences of children of such young ages. Finally, the testimony at trial indicated that the statements were made spontaneously, not in response to Ms. Foreman's or Ms. Anderson's questions, and that the children were upset and excited when they made the statements. Under these conditions, it is extremely doubtful that the children's statements were fabricated. We find no error. Each defendant also raises an identical second issue. They assert that the testimony of Children's Protective Services caseworker Brenda Woolard, that the children's behavior was consistent with the behavior of young sexual abuse victims, was erroneously admitted. Woolard, after inquiry into her training and experience in the area of child abuse, testified that it was not unusual, but very *24 common, for children to endure weeks or months of abuse before reporting it. Citing People v Pullins, 145 Mich App 414; 378 NW2d 502 (1985), defendants argue that Woolard's testimony constituted improper and inadmissible testimony of rape trauma syndrome. In Pullins, the testimony was found inadmissible because it was offered to prove that a rape in fact occurred. Defendants' reliance on Pullins, however, is misplaced. Woolard's testimony was not offered to prove that the sexual abuse occurred. Instead, the testimony was presented to explain that, if any sexual abuse occurred, it would not be uncommon for the children to fail to promptly report it. This was an entirely proper purpose. See People v Stull, 127 Mich App 14, 19; 338 NW2d 403 (1983), lv den 422 Mich 939 (1985). Defendants have also argued that Woolard's testimony invaded the fact-finding process of the jury, contrary to People v McGillen #2, 392 Mich 278; 220 NW2d 689 (1974), and People v Izzo, 90 Mich App 727; 282 NW2d 10 (1979), lv den 407 Mich 935 (1979). Both cases are inapplicable because nowhere in Woolard's testimony did she render an opinion as to whether the children had been sexually assaulted or opine as to whether the children were being truthful in their accounts of sexual abuse. See People v Skinner, 153 Mich App 815, 820-821; 396 NW2d 548 (1986); Cf. People v Smith, 425 Mich 98; 387 NW2d 814 (1986). The trial court did not err in allowing the testimony of Brenda Woolard. Defendants' third common issue is that error requiring reversal occurred because of improper remarks made by the prosecutor during closing argument. Both defendants argue that the prosecutor improperly vouched for the credibility of the Department of Social Services and the police and *25 improperly argued that the jury should believe those agencies because they would not have pushed forward with the case if they did not believe the stories of the children. Defendant Kirkpatrick also argues that the prosecutor improperly vouched for the credibility of the children. Neither defendant, however, made any objection at trial to the prosecutor's closing argument. Thus, appellate review of the prosecutor's closing remarks is foreclosed unless the prejudicial effect was so great it could not have been cured by an appropriate instruction and our failure to consider the issue would result in a miscarriage of justice. People v Duncan, 402 Mich 1, 15-16; 360 NW2d 841 (1977); People v Federico, 146 Mich App 776, 794; 381 NW2d 819 (1985), lv den 425 Mich 867 (1986). Not only could an appropriate instruction have obviated any possible prejudice now raised by defendants on appeal, but our refusal to review the remarks will not result in a miscarriage of justice. Looking at the remarks as a whole, not in isolation, and evaluating them in light of the evidence presented at trial, we do not believe they are so improper as to warrant reversal even had an objection been made. A prosecutor is not prohibited from making fair comments on the evidence, including arguing the credibility of the witnesses when there is conflicting evidence and the question of a defendant's guilt or innocence turns on which witness is believed. People v Flanagan, 129 Mich App 786, 795-796; 342 NW2d 609 (1983). We find no manifest injustice and believe that defendants were not denied fair trials. Defendant Kirkpatrick also asserts as error the admission in her trial of testimony of her prior sexual conduct with defendant Foreman. At trial, Melinda Foreman testified that, one evening after *26 she and defendant Jon Foreman had gone to bed, she was awakened by defendant Kirkpatrick stroking her husband's penis at the foot of the bed. This is the incident which led Melinda Foreman to file for divorce. Subsequently, defendants began living together and were living together while the children were visiting with their father. Defendant Kirkpatrick argues that this testimony, as well as the testimony that Kirkpatrick had moved in with the Foremans because her parents had kicked her out of their house and that Melinda struggled mentally and financially to cope after her husband and Kirkpatrick started their relationship, was clearly irrelevant and collateral to the charges at issue. Kirkpatrick argues that the effect of this testimony was to portray her as a "bad person" and preclude an objective determination of her guilt or innocence of the crimes charged. We disagree. While we find the evidence to be marginally relevant, we do not find its admission constitutes grounds for reversal. The evidence tended to show the nature of Jon Foreman's relationship with his eighteen-year-old niece and how they came to live together. It also served to corroborate the boy's testimony that he witnessed (in fact, he was forced to watch) defendants engaged in sexual relations. Given that the testimony at trial included considerable explicit detail of the sexual abuse perpetrated, we do not see how this testimony could have unduly prejudiced defendant Kirkpatrick. It was briefly presented and no specific reference was made to it in the prosecutor's closing argument. Thus, even if admission of the testimony could be deemed error, any error was harmless beyond a reasonable doubt. People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972); People v Green, 131 Mich App 232, 237; 345 NW2d 676 (1983). *27 Defendant Kirkpatrick's remaining issue concerns her sentence. Kirkpatrick argues that the trial judge abused his sentencing discretion when he imposed the same sentences on her as on defendant Foreman. Specifically, Kirkpatrick argues that by imposing the same sentences the trial judge failed to individualize her sentence by tailoring it to meet the circumstances of the case and the defendant. People v Coles, 417 Mich 523, 537; 339 NW2d 440 (1983). We find that Kirkpatrick's sentence was sufficiently individualized. It was not improper for the trial judge to mention the sentence he gave Jon Foreman as their convictions arose out of the same events. The trial court noted that these were serious sexual crimes Kirkpatrick was convicted of and that the crimes involved two very young children. The trial court further noted that the children were now in therapy and that their lives will be forever changed by the activities of this defendant and others. We find no abuse of discretion in the trial judge's sentencing of Kirkpatrick. The convictions and sentences of defendants Jon Foreman and Wendy Kay Kirkpatrick are affirmed. Affirmed. NOTES [*] Circuit judge, sitting on the Court of Appeals by assignment.

FILED NOT FOR PUBLICATION OCT 27 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT FRANCIS W. DAVIS, No. 09-17231 Plaintiff - Appellant, D.C. No. 1:06-cv-01062-AWI- GSA v. PETERSON, Correctional Officer, MEMORANDUM * California Department of Corrections; et al., Defendants - Appellees. Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, Chief Judge, Presiding Submitted October 19, 2010 ** Before: O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges. California state prisoner Francis W. Davis appeals pro se from the district court’s summary judgment for defendants in his 42 U.S.C. § 1983 action alleging * 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). retaliation and violations of his equal protection and due process rights. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a grant of summary judgment, Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003), and a dismissal for failure to state a claim, Douglas v. Noelle, 567 F.3d 1103, 1106 (9th Cir. 2009). We may affirm on any basis supported by the record. Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1097 (9th Cir. 2003). We affirm. The district court properly granted summary judgment on Davis’s retaliation claims because he did not raise a genuine issue of material fact as to whether the defendants’ actions were based on a retaliatory motive and not a legitimate correctional goal. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (indicating that an essential element to a First Amendment retaliation claim is not satisfied when there is a legitimate correctional goal for the action taken). The district court properly granted summary judgment on Davis’s equal protection claims because he did not raise a genuine issue of material fact as to whether he was intentionally treated differently from similarly situated inmates. See Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th Cir. 2005). Dismissal of the due process claims was proper because Davis had no protected interest in avoiding either confinement to his cell for several hours or the 2 09-17231 destruction of two sculptures made of state-issued items. See Sandin v. Conner, 515 U.S. 472, 483-84 (1995); Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972). The district court did not abuse its discretion by denying Davis’s requests for appointment of counsel because Davis failed to demonstrate exceptional circumstances warranting appointment of counsel. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Davis’s remaining contentions are unpersuasive. Davis’s motion for injunctive relief is denied without prejudice. AFFIRMED. 3 09-17231 

61 S.W.3d 571 (2001) CITY OF SAN ANTONIO, Appellant, v. CITY OF BOERNE, Appellee. No. 04-00-00555-CV. Court of Appeals of Texas, San Antonio. August 22, 2001. Rehearing Overruled September 14, 2001. *572 Donald S. Bayne, Asst. City Atty., Michael P. Hodge, Litigation City Atty., Harvey L. Hardy, San Antonio, for Appellant. Randall B. Richards, The Law Offices of Randall B. Richards, Boerne, M. Stephen Cichowski, Watkins, Cichowski & Gonzalez, P.C., San Antonio, for Appellee. Sitting: TOM RICKHOFF, CATHERINE STONE and SARAH B. DUNCAN, Justices. *573 ON APPELLEE'S MOTION FOR REHEARING CATHERINE STONE, Justice. Appellee, City of Boerne, has filed a motion for rehearing. We grant the motion for rehearing, withdraw our opinion and judgment of May 30,2001, and substitute the following. Our opinion and judgment remain unchanged except for the final disposition, which no longer includes a remand. In this case involving competing claims of two cities, we are asked to construe the Texas Municipal Annexation Act. This is an appeal of a declaratory judgment and injunction rendered against the City of San Antonio in a suit brought by the City of Boerne to determine the respective boundaries of extraterritorial jurisdiction, that area of land which serves as a "buffer zone" against expansion from other cities. We affirm the trial court's decision and hold that extraterritorial jurisdiction acquired in annexation proceedings does not attach until the annexation is complete. We further hold that county commissioners, authorized by the Legislature to build and maintain county roads, have the power to request that county roads be included within the extraterritorial jurisdiction of a municipality. The Controversy On November 5, 1987, an ordinance was passed "on first reading"[1] by San Antonio to annex a strip of land in northern Bexar County. The city planned for tax purposes to have the annexation effective on December 31,1987. Under usual circumstances, the five-mile zone extending past the new boundary would have converted into the extraterritorial jurisdiction of San Antonio.[2] After San Antonio initiated the annexation process, however, the landowners near the neighboring City of Boerne reacted by requesting inclusion in Boerne's extraterritorial jurisdiction. The Boerne city council accepted the landowners' petitions and passed ordinances accepting the properties into Boerne's extraterritorial jurisdiction. As part of the requirement that the parcels of land be adjoining, certain county roads linking some of the properties were also accepted into Boerne's extraterritorial jurisdiction. The petitions to include those roads were submitted by the county commissioners of Comal and Kendall Counties. Boerne perfected its competing claim of extraterritorial jurisdiction, effective December 28, 1987, and portions of the areas claimed by the two cities overlapped. Overlap is prohibited by statute; nor may a municipality extend its extraterritorial jurisdiction into the extraterritorial jurisdiction of any other municipality unless the other municipality consents. Tex. Loc. Gov't Code Ann. § 42.022(c) (Vernon 1999). In 1998, more than ten years after the annexation, this suit for declaratory judgment and injunction was brought by the City of Boerne against the City of San Antonio to establish whether certain contested areas of land lie within the extraterritorial *574 jurisdiction of Boerne or San Antonio. On stipulated facts, the trial court granted summary judgment to Boerne, awarding declaratory and injunctive relief, as well as attorney's fees. The parties do not dispute that the annexation by San Antonio was valid and they concur that resolution of the legal issues will determine which of three potential boundaries should comprise the respective extraterritorial jurisdictions of the parties. We first address the issue of whether San Antonio gained exclusive rights over the proposed area of extraterritorial jurisdiction at the commencement of annexation proceedings. Annexation Jurisdiction Municipalities, once unrestricted in their annexation powers, had their authority circumscribed by passage of the Municipal Annexation Act of 1963.[3] The Act defined extraterritorial jurisdiction as adjoining, unincorporated land and dictated that future annexations be from within the existing limits of a municipality's extraterritorial jurisdiction, except if the city already owned the land. See Tex. Loc. Gov't Code Ann. § 43.051 (Vernon 1999). The amount of land that could be annexed was relegated by the size of the municipal population. Id. at § 42.021. In Texas, annexation of land by passage "on first reading" has been the common practice. See Ashcroft & Balfour, Municipal Annexation in Texas at 524. Under this method, a city which first passes an ordinance annexing certain land has the right to annex the land at some point in the future, and to exclude all other municipalities from interfering with that right. Prior to the creation of the Municipal Annexation Act, cities could carve out what was essentially extraterritorial jurisdiction. In effect, they were able to control development over unlimited areas with no obligation to develop the areas. Id. This practice, until abolished by the Municipal Annexation Act of 1963, created impenetrable barriers against expansion into the affected areas by other political subdivisions. Id. The passage of annexation ordinances on first reading effectively institutes the act of annexation. City of Houston v. Savely, 708 S.W.2d 879, 888-89 (Tex.App.-Houston [1st Dist.] 1986, writ ref'd n.r.e.). Despite the revisions within the Municipal Annexation Act of 1963, passage on first reading remains effective to secure jurisdictional priority for annexation purposes. See City of La Porte v. State ex rel. Rose, 376 S.W.2d 894, 907 (Tex.Civ.App.-Austin 1964), rev'd in part on other grounds, 386 S.W.2d 782 (Tex.1965)(noting that the first municipality to take steps toward annexation acquires annexation jurisdiction). As stated by the court in City of LaPorte, "annexation priority between cities depends upon the first exercise of annexation jurisdiction by first reading." City of La Porte, 376 S.W.2d at 907. Annexation priority is significant because it bars expansion by other municipalities into the proposed area to be annexed. City of Arlington v. City of Grand Prairie, 451 S.W.2d 284, 291 (Tex.Civ.App.-Fort Worth 1970, writ ref'd n.r.e), citing Beyer v. Templeton, 147 Tex. 94, 101, 212 S.W.2d 134, 138 (1948); Red Bird Village v. State ex rel. City of Duncanville, 385 S.W.2d 548, 550 (Tex.Civ.App.-Dallas 1964, writ ref'd)(noting that the first city *575 to take any action towards incorporation obtains priority). San Antonio seeks to expand the priority concept by contending that the extraterritorial jurisdiction which accompanies annexation should attach when the annexation process begins, rather than upon completion of annexation. A similar fact situation was presented in Universal City v. City of Selma, 514 S.W.2d 64 (Tex.Civ.App.-Waco 1974, writ ref'd n.r.e.). In that case, the City of Selma filed an application for incorporation, thereby invoking jurisdiction over the proposed land to be incorporated. Following the "first in time" rule, the court held that municipal jurisdiction over the land to be incorporated attached at the filing of the incorporation application. Universal City, 514 S.W.2d at 70. It also noted that under the well-established rule, "the [first municipality] to commence legal proceedings asserting authority over the territory thereby acquires jurisdiction over it which cannot be defeated by [another municipality's] attempted jurisdictional activity." Id. Similar to San Antonio's argument in the instant case, the City of Selma argued that the first in time rule should apply as well to extraterritorial jurisdiction and that it attached when incorporation proceedings were begun. Id. The court refused to accept this logic, and observed that the first in time rule was in existence well before the inception of extraterritorial jurisdiction. Id. The court noted that it was implied throughout the Municipal Annexation Act that extraterritorial jurisdiction vests in a proposed municipality only at the time of incorporation. Id. In the case at bar, San Antonio similarly asks this court to find that exclusive extraterritorial jurisdiction attached when legal proceedings were commenced, although the legal proceedings were annexation, rather than incorporation. We cannot find any source to indicate that the first in time rule has been broadened to encompass extraterritorial jurisdiction. The rule awards exclusive jurisdiction specifically "over the area sought to be incorporated or annexed." Village of Creedmoor v. Frost Nat'l Bank, 808 S.W.2d 617, 618 (Tex.App.-Austin 1991, writ denied). Furthermore, as the court in Creedmoor cautioned, the statutory framework for extraterritorial jurisdiction would factor into the determination of jurisdiction, "rather than priority in time alone." Id. Thus the court's decision confirmed the statutory constraints pertaining to extraterritorial jurisdiction. The facts in Universal City v. City of Selma are a compelling parallel to those in the present case, and there do not appear to be other cases dealing with this particular issue. Thus, rules of statutory construction are useful in deciding whether the same result should apply in this case. A fundamental rule of statutory construction is that the court should ascertain the intent of the Legislature "as expressed in the language of that statute." State v. Terrell, 588 S.W.2d 784, 786 (Tex.1979). If a "statute is clear and unambiguous extrinsic aids and rules of statutory construction are inappropriate; and the statute should be given its common everyday meaning." Cail v. Service Motors, Inc., 660 S.W.2d 814, 815 (Tex.1983). The expansion of extraterritorial jurisdiction is described in the following statute: When a municipality annexes an area, the extraterritorial jurisdiction of the municipality expands with the annexation to comprise, consistent with § 42.021, the area around the new municipal boundaries. Tex. Loc. Gov't Code Ann. § 42.022(a) (Vernon 1999). *576 We look first at the operative phrase within the statute: "extraterritorial jurisdiction ... expands with the annexation." Since extraterritorial jurisdiction under this part of the statute is dependant upon the act of annexation, it is logical that the inquiry start with annexation. The statute does not say that extraterritorial jurisdiction attaches when annexation proceedings are initiated, but rather, that it expands "with the annexation." (emphasis added). Until annexation is achieved, no new extraterritorial jurisdiction is generated. Plainly stated, there can be no new extraterritorial jurisdiction until there are new city limits. Municipalities have only ninety days in which to complete annexation, and passage upon first reading does not conclude the annexation process. Tex. Loc. Gov't Code Ann. § 43.053 (Vernon 1999). There must be some further action by the annexing entity to effectuate annexation. Passage on first reading will act as a bar to encroachment by others on the land to be annexed, but the statute does not indicate that extraterritorial expansion is fixed earlier than upon annexation. To hold that extraterritorial jurisdiction attaches prior to when the land is formally annexed, would be to read something more into the statute beyond what the language of the statute plainly states. In the present case, the City of San Antonio passed the annexation ordinance on November 5, 1987, but chose for tax purposes to make the annexation effective a few days after the second reading, on December 31, 1987. The annexation was accomplished within the ninety days statutory limit, and there was no lapse in the jurisdiction which it obtained on "first reading." However, in the interval between San Antonio's passage on first reading and actual annexation, Boerne utilized an alternate procedure to lay claim to its own areas of extraterritorial jurisdiction, which is the next issue before this court: whether Boerne succeeded in establishing its claim of extraterritorial jurisdiction before San Antonio completed its opposing claim. The Petition Process of Annexation In asserting its claim of extraterritorial jurisdiction, Boerne relies upon the following statute: The extraterritorial jurisdiction of a municipality may expand beyond the distance limitations imposed by § 42.021 to include an area contiguous to the otherwise existing extraterritorial jurisdiction of the municipality if the owners of the area request the expansion. Tex. Loc. Gov't Code Ann. § 42.022(b) (Vernon 1999). Under this statute, the Boerne city council accepted petitions from landowners to be included within Boerne's extraterritorial jurisdiction. Four hundred forty-one petitions were accepted by ordinance until December 28, 1987. Some of these petitions were for portions of county roads, the owners of which are alleged by Boerne to be Kendall and Comal Counties. The roads were accepted for inclusion in Boerne's extraterritorial jurisdiction upon petitions from the commissioners of the counties in which the roads lay. The inclusion of the roads acted to "link" some of the properties together in order that properties be adjacent as required by statute. Id. at § 42.022(b). However, it was stipulated by the parties that not all of the extraterritorial jurisdiction claimed by Boerne is dependant upon the inclusion of county roads. Both Boerne and San Antonio acknowledge that the State is the legal owner of the roads. See Robbins v. Limestone County, 114 Tex. 345, 355, 268 S.W. 915, 918 (1925). However, the commissioners courts have been given authority *577 by the Legislature to exercise general control over all roads in their counties.[4] In addition, the county commissioners courts are granted "all such other powers and jurisdiction and shall perform all such other duties, as are now or hereafter prescribed by law." Crane v. State of Tex., 534 F.Supp. 1237, 1240 (N.D.Tex.1982), rev'd in part on other grounds, 759 F.2d 412 (5th Cir.1985). Given the unique structure of county government in Texas, elected county officials hold "virtually absolute sway over the particular task or area of responsibility entrusted to [them] by state statute" and they are "accountable to no one other than the voters" for their conduct. Crane, 534 F.Supp. at 1246. Indeed, under the Texas Constitution, commissioners courts are the counties' principal governing body. Tex. Const. art. V, § 18; see Commissioners Court of Grayson County v. Albin, 992 S.W.2d 597, 603 (Tex.App.-Texarkana 1999, pet. denied). The county is a local "arm of the state," a political subdivision which acts as an agent of the state. Heigel v. Wichita County, 84 Tex. 392, 394, 19 S.W. 562, 563 (1892). The state frequently uses a county as its agent in the discharge of the state's functions and duties. Childress County v. State, 127 Tex. 343, 351, 92 S.W.2d 1011, 1015 (1936). See Crane v. State, 534 F.Supp. at 1243 (noting that a county's primary responsibility is to carry out state functions). Boerne asserts that the Legislature delegated this power to the county commissioners, giving them full power to do everything necessary to act as trustees of county roads for the public good. See Hill Farm Inc. v. Hill County, 425 S.W.2d 414, 418 (Tex.Civ.App.-Waco 1968), aff'd, 436 S.W.2d 320 (Tex.1969)(stating that in discharge of statutory duty to exercise general control over roads, commissioners courts are trustees of public county roads for the whole public). Boerne further argues that the grant of legislative power from the State gives county commissioners the right to exercise rights otherwise reserved to "owners" under the petition provision of the annexation statute. In considering this question, the expressed purpose of the annexation statute must be considered: The legislature declares it the policy of the state to designate certain areas as the extraterritorial jurisdiction of municipalities to promote and protect the general health, safety, and welfare of persons residing in and adjacent to the municipalities. Tex. Loc. Gov't Code Ann. § 42.001 (Vernon 1999). If the county commissioners are empowered with general control over roads to act as trustees for the public good and the annexation statute says the purpose of extraterritorial jurisdiction is to promote the general health, safety, and welfare of persons, then the two statutes are not incompatible. If, on the other hand, the county commissioners are without power to petition for annexation, then the petition process for annexation is subject to defeat by the fact that county roads happen to run by or through adjacent parcels of land. If it were necessary to obtain consent from the Legislature when the Legislature is not in session for months, then the statute is rendered "futile, meaningless or useless," as described in City of Deer Park v. State, ex rel. Shell Oil Co., 259 S.W.2d 284, *578 287 (Tex.Civ.App.-Waco 1953), aff'd, 154 Tex. 174, 275 S.W.2d 77 (1954). There, the court added: [I]t is elemental that a statute should be construed in such manner as to make it effective and operative, and where two constructions might be given a statute, one of which will effectuate the legislative intent and purpose and the other will defeat such intent and purpose, the former construction should be adopted in order to carry out the true intention of the Legislature in the enactment thereof. City of Deer Park, 259 S.W.2d at 287. The construction of section 42.022(b) depends upon whether it is held to mean that only the entity which holds legal title qualifies as an "owner" under the statute, or whether a political subdivision of the State may exercise that authority under a legislative grant. It has been generally held that the statutory and constitutional powers of counties are more narrowly interpreted than statutes pertaining to municipalities and "[u]nless a particular county action is explicitly authorized by the constitution or a statute, the county will not be allowed to exercise it." Crane, 534 F.Supp. at 1244; accord Tri-City Fresh Water Supply Dist. No. 2 of Harris County v. Mann, 135 Tex. 280, 286, 142 S.W.2d 945, 948 (1940). On the other hand, where a right or obligation is conferred on the commissioners court, the commissioners court has the implied authority to exercise broad discretion to achieve the intended purpose. Anderson v. Wood, 137 Tex. 201, 152 S.W.2d 1084, 1085 (Tex.1941); see also Cosby v. County Comm'rs of Randall County, 712 S.W.2d 246, 248 (Tex.App.-Amarillo 1986, writ ref'd n.r.e.); Schope v. State, 647 S.W.2d 675, 678 (Tex.App.-Houston [14th Dist.] 1982, no pet.); El Paso County v. Elam, 106 S.W.2d 393, 395 (Tex.Civ.App.-El Paso 1937, no writ). We must determine if either the limited power of the county commissioners to exercise general control over the roads or their authority to act as an agent for the State gives them authority to petition as "owners" of roads under section 42.002(b). The commissioners joined with the respective landowners to assemble the composite properties, and that participation by the commissioners to include the county roads furthered the aims of the landowners. In that respect, the commissioners were acting as trustees for the public good. The statute allows for the creation of extraterritorial jurisdiction to provide for the general welfare of the persons who reside in those areas. Tex. Loc. Gov't Code Ann. § 42.021 (Vernon 1999). The county commissioners court, with tasks that would be considered legislative, executive, administrative, and judicial, "include[s] the authority to make a substantial number of decisions that affect all citizens" and is the local unit of government with general responsibility and power for local affairs. See Avery v. Midland County, Tex., 390 U.S. 474, 484, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). There does not appear to be any entity within the counties other than the commissioners courts which could have acted in such a situation as is here presented. The question then is whether, if the State is the legal owner, the county commissioners may act within their legislative authority to promote the welfare of the citizens under the extraterritorial jurisdiction statute. If there is no other entity at the county level with jurisdiction and authority over these roads, then for all practical purposes, a vacuum is created in which the State, as legal owner, cannot exercise its power to petition for inclusion in the extraterritorial jurisdiction of a municipality. *579 This is particularly true when the Legislature is not is session. We think that it is not the desire of the Legislature to enact statutes which cannot be given effect, and we hold that the county commissioners, as agents for the State, were empowered to petition for inclusion in the extraterritorial jurisdiction of Boerne. Since the claim of extraterritorial jurisdiction by Boerne was secured by December 28, 1987, the claim by Boerne was prior to the effective date of annexation by the City of San Antonio on December 31, 1987. Although San Antonio could have made the annexation effective at an earlier date, it chose not to, and it does not argue on appeal that the effective date of annexation is earlier than December 31, 1987. We therefore affirm the judgment of the trial court. NOTES [1] The passage of an ordinance on "first reading" is one method of instituting annexation proceedings in Texas. See Robert R. Ashcroft and Barbara Kyle Balfour, Home Rule Cities and Municipal Annexation in Texas: Recent Trends and Future Prospects, 15 St. Mary's L.J. 519, 524 (1984) (hereinafter "Ashcroft & Balfour, Municipal Annexation in Texas"). See also Knapp v. City of El Paso, 586 S.W.2d 216, 218 (Tex.Civ.App.-El Paso 1979, writ ref'd n.r.e.)(detailing steps in passage on first reading). [2] Extraterritorial jurisdiction of a municipality is the unincorporated area which is contiguous to the corporate boundaries of the municipality. Tex. Loc. Gov't Code Ann. § 42.021 (Vernon 1999). The extent of the area depends upon the size of the municipality. Id. [3] Act of March 25, 1963, 58th Leg., R.S., ch. 160, 1963 Tex. Gen. Laws 447 (codified Act of 1987, 70th Leg., R.S., ch. 149 § 1, 1987 Tex. Gen. Laws 707, 741) (current version at Tex. Loc. Gov't Code § 42.022 (Vernon 1999)). The Act was not substantially changed in either the 1987 codification or 1999 recodification; therefore, cites in this opinion are to the current version. [4] Tex.Rev.Civ. Stat. Ann. art. 2351(6) (Vernon's 1971), codified in Tex. Loc. Gov't.Code Ann. § 81.028 (Vernon 1993), and recodified in Tex. Trans. Code Ann. § 251.051 (Vernon 1999).

105 F.3d 653 Housev.Moya** NO. 96-50604 United States Court of Appeals,Fifth Circuit. Dec 11, 1996 Appeal From: W.D.Tex., No. W-96-CV-104 1 DISMISSED. ** Conference Calendar

450 F.Supp.2d 620 (2006) NORFOLK DREDGING COMPANY, Plaintiff, v. John L. WILEY, Defendant. Civil Action No. 2:05CV92. United States District Court, E.D. Virginia, Norfolk Division. September 29, 2006. *621 James Long Chapman, IV, Crenshaw Ware & Martin PLC, Norfolk, VA, for Norfolk Dredging Company. Ralph Rabinowitz, Rabinowitz, Swartz, et al., Norfolk, VA, for John L. Wiley. OPINION and ORDER KELLEY, District Judge. Seamen who are injured while in service of a vessel are entitled to have the shipowner pay maintenance (financial support) and cure (medical expenses). Calmar S.S. Corp. v. Taylor, 303 U.S. 525, *622 527-28, 58 S.Ct. 651, 82 L.Ed. 993 (1938). The shipowner's obligation lasts until such time as the seaman reaches maximum medical improvement ("MMI"). Id. at 527-28, 58 S.Ct. 651; see also Fitzgerald v. U.S. Lines Co., 374 U.S. 16, 20 n. 7, 83 S.Ct. 1646, 10 L.Ed.2d 720 (1963); Salem v. United States, 370 U.S. 31, 38, 82 S.Ct. 1119, 8 L.Ed.2d 313 (1962); Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962); Carleno v. Marine Transport Lines, 317 F.2d 662, 665-66 (4th Cir.1963). MMI occurs "`when it appears probable that further treatment will result in no betterment of the seaman's condition.'" Pelotto v. L & N Towing Co., 604 F.2d 396, 400 (5th Cir.1979). Declaratory defendant John L. Wiley injured his eye while working aboard a vessel owned by declaratory plaintiff Norfolk Dredging Company ("NDC"). He now suffers from an incurable eye condition, glaucoma, that will not get any better, but likely will get worse absent continued medical treatment. Based on the evidence introduced by the parties at a bench trial, the Court FINDS that Wiley reached maximum medical improvement in September 2004 and HOLDS that once this standard is achieved, a shipowner is not required to pay for subsequent medical treatment necessary to maintain the MMI level of recovery. The Court therefore will enter a declaratory judgment absolving NDC of liability to Wiley for post-September 2004 payments of maintenance and cure. The Court also will enter judgment in favor of NDC on Wiley's counterclaims. I. Findings of Fact On November 27, 2003 Wiley was working as a deckhand aboard NDC's dredge CHARLESTON, located near Wilmington, North Carolina. A towing line parted and struck him in the face, thereby injuring his nose and left eye. Wiley spent the majority of the following month (December 2003) in a hotel near New Hanover Hospital in Wilmington while undergoing treatment for his injuries. He was hospitalized intermittently during this period of time. Wiley thereafter returned to his home near Savannah, Georgia where he continued to receive treatment for his injuries. Dr. Judith M. Piros, an ophthalmologist, treated Wiley's eye injury. Dr. O. Emerson Ham, a neurologist, treated Wiley's complaints of dizziness and pain above his left eye. A. Treatment by Dr. Piros (Ophthalmologist) Dr. Piros began treating Wiley on January 6, 2004. She diagnosed him as suffering from glaucoma of the left eye, which was caused by the November 27, 2003 injury. Glaucoma is an incurable disorder of the eye characterized by an increase of intraocular pressure. The eye pressure increases because the fluid (aqueous humor) within the eye no longer drains out at the same rate that it is produced.[1] Elevated intraocular pressure results in damage to the optic nerve and may ultimately lead to blindness if left untreated. Normal eye pressure ranges between 10 and 21 millimeters of mercury. Once a glaucoma patient's eye pressure is controlled and temporarily stable, nothing else can be done to improve his or her condition. The treatment modality for glaucoma patients becomes one of lifetime follow-up *623 visits to identify occurrences of intraocular pressure above 21 millimeters. Intraocular pressures of stabilized glaucoma patients may become elevated above normal range at any time for the rest of their lives. Dr. Piros initially treated Wiley's glaucoma with medication drops. For more than four months (March-July 2004), Wiley's intraocular eye pressures for his left eye remained stable between 13 and 21 millimeters of mercury. When Dr. Piros evaluated Wiley on July 12, 2004 she determined that his glaucoma had stabilized. Dr. Piros therefore shifted Wiley's care to a follow-up treatment modality and set his next appointment on November 8, 2004 (four months later). On September 22, 2004, Dr. Piros orally advised NDC that Wiley had permanent glaucoma; that he reached maximum medical improvement; and that he could return to full duty. She memorialized her medical opinion in a letter to NDC dated September 29, 2004. Her letter states "[m]y opinion is that he has reached maximum medical improvement, but I do need to emphasize that as a result of his injury, he does have permanent glaucoma and will continue to have this." (Transcript of Dr. Piros Dep., Ex. 3). NDC paid for all medical treatment provided by Dr. Piros up to this date. It thereafter refused to make further payments of maintenance and cure. When Wiley was seen by Dr. Piros at his follow-up visit on November 8, 2004, she noted that the pressure in his left eye had once again become elevated. She referred Wiley to Dr. Russell Dandy for a second opinion. Dr. Dandy recommended a trabeculectomy, which is a surgical excision of a small portion of the chamber of the eye. The opening is then covered with a flap of tissue from the white part of the eye in order to facilitate drainage of aqueous humor and thereby relieve the glaucoma. "As the fluid flows through the new drainage opening, the tissue over the opening rises to form a little blister or bubble, called a bleb." WebMD: A-Z Health Guide from WebMD: Trabeculectomy (filtration surgery) for glaucoma, http://www. webmd.com/hw/vision /hw15419.asp (last visited Dec. 15, 2005). On December 22, 2004, Dr. Piros performed a trabeculectomy on Wiley. Unfortunately, the trabeculectomy did not work. Wiley's intraocular pressure remained elevated at his follow-up visits: 24 millimeters on January 10, 2005 and 34 millimeters on January 18, 2005. Dr. Piros determined that Wiley's poor drainage was due to scarring. A common complication of a trabeculectomy procedure, especially in African American patients, is the development of scarring on the bleb. This scarring prevents the desired drainage. Dr. Dandy was again consulted and determined that a needling[2] of Wiley's bleb was necessary. He performed this procedure on February 11, 2005. Wiley's intraocular pressure has since remained within the normal range. On January 25, 2005, Dr. Piros issued a letter to Wiley's counsel that seemingly contradicted her earlier declaration that Wiley had reached MMI. The letter states: Dear Mr. Rabinowitz, In response to your most recent letter, no, Mr. Wiley has not yet reached maximum medical improvement in regards to the condition that he has. His intraocular pressure is still not well controlled, and in fact, on December 22, he underwent trabeculectomy surgery to try to lower the pressure. For the first few *624 weeks, this seemed to work well, however, his pressure is spiking back up to the 34mm Hg range, and as a result, I sent him to Doctor Russell Dandy, here in Savannah, who is a glaucoma specialist. . . . I am hoping that once Mr. Wiley's intraocular pressure gets under control, he will no longer have any significant pain, although it is very hard to predict with these glaucoma patients, what course their eye takes, especially because he is as young as he is, his scarring response may be significantly more aggressive than would otherwise be thought. As far as I can tell at this time, Mr. Wiley does not have any permanent residual from his injury, however, again, it is difficult to answer that because we don't know how his glaucoma will settle out. If his pressures remain in the elevated range that they are in now, then yes, he will go on to suffer permanent vision loss. At this moment in time, he does not have any permanent residual. (Def.Ex.18). Dr. Piros did not explain in her letter how Wiley's condition could improve beyond what had been achieved as of September 2004. At her deposition, Dr. Piros testified that her January 25, 2005 letter was not a retraction of her previous letter; she instead was communicating that Wiley had not achieved MMI from the relapse detected on November 8, 2004. That relapse led to the trabeculectomy and subsequent needling of the bleb. B. Treatment by Dr. Ham (Neurologist) Dr. Ham, a neurologist, treated Wiley from January 13, 2004 until July 6, 2004. Dr. Ham found Wiley to be neurologically intact upon his initial physical exam. However, because Wiley still complained of pain and dizziness, Dr. Ham had him undergo a battery of diagnostic studies, including a magnetic resonance imaging ("MRI"), a magnetic resonance arteriogram ("MRA"), an electronystagmography ("ENG"), audiometric studies, and brain stem evoked response studies. None of these diagnostic tests revealed any neurological abnormalities. Dr. Ham referred Wiley to Dr. Fred Daniel, an ear, nose, and throat specialist, for evaluation of his pain and dizziness complaints. After seeing defendant Wiley several times, Dr. Daniel suspected that Wiley's complaints of pain were neurological in nature and returned him to Dr. Ham's care in June 2004. Dr. Ham determined that, from a neurological perspective, Wiley had no loss of sensation and no loss of motor function. Dr. Ham concluded that Wiley's complaints of pain were due to a probable bruising of the supraorbital nerve, and, as a result, he wrote in an office note dated July 6, 2004 that Wiley was "capable of returning to work of any sort that he wishes . . . and that he [had] no neurological or intracranial abnormalities to be concerned about." Even though Wiley continued to complain of pain, Dr. Ham concluded that from a neurological perspective, Wiley had reached MMI as of July 6, 2004. Dr. Ham's and Dr. Piros' testimony and reports, when taken together, establish that Wiley reached MMI no later than September 23, 2004 and thereafter was physically able to return to duty. II. Conclusions of Law A. Maintenance & Cure Obligation While it is undisputed that Drs. Piros and Ham both concluded that Wiley had reached MMI no later than September 2004, Wiley in essence argues that their conclusions were simply an intermediate step in a longer process. The November follow-up visit suggested the need for further treatment that would not only solve the immediate problem (i.e., elevated intraocular *625 pressure), but may make future relapses less frequent and less severe. This case thus poses the legal question of whether a shipowner is obligated to pay for such continuing care as is necessary to keep the seaman's condition stable at the MMI level of recovery. To answer this question, the Court must examine the history of and purposes underlying the shipowner's duty to provide maintenance and cure. The duty of maintenance and cure originated in the ancient maritime codes as a master's obligation to provide for seamen who fall sick or are wounded in service of the ship. See the Laws of Oleron, Arts. VI & VII; the Laws of Wisbuy, Arts. XVIII, XIX, & XXXIII; the Laws of the Hanse Towns, Arts. XXXIX & XLV; the Marine Ordinances of Louis XIV, Arts. XI, XII, & XV. In the United States, the duty is "an implied provision in contracts of marine employment." Aguilar v. Standard Oil Co. of New Jersey, 318 U.S. 724, 730, 63 S.Ct. 930, 87 L.Ed. 1107 (1943); see also, Calmar S.S. Corp., 303 U.S. at 527, 58 S.Ct. 651. This contractual orientation comports with the ancient maritime codes as they also placed reciprocal obligations upon shipowners and seamen. See the Laws of Oleran, Art. VI; the Laws of Wisbuy, Art. XVIII. For example, under the Laws of Wisbuy, a seaman who is wounded ashore during a diversion from the ship's service "shall be obliged to refund what he has received, and besides to pay what the master shall be forced to pay over and above to another whom he shall hire in his place." The Laws of Wisbuy, Art. XVIII. Justice Story, then on circuit, best described the need for and purpose of the maintenance and cure duty, stating: Seaman are by the peculiarity of their lives liable to sudden sickness from change of climate, exposure to perils, and exhausting labour. They are generally poor and friendless, and acquire habits of gross indulgence, carelessness, and improvidence. If some provision be not made for them in sickness at the expense of the ship, they must often in foreign ports suffer the accumulated evils of disease, and poverty, and sometimes perish from the want of suitable nourishment. . . . Rif these expenses are a charge upon the ship, the interest of the owner will be immediately connected with that of the seaman. The master will watch over their health with vigilance and fidelity. . . . Beyond this, is the great public policy of preserving this important class of citizens for the commercial service and maritime defence of the nation. . . . Even the merchant himself derives an ultimate benefit from what may seem at first an onerous charge. It encourages seaman to engage in perilous voyages with more promptitude, and at lower wages. Harden v. Gordon, 11 F. Cas. 480, 483 (C.C.D.Me.1823) (No. 6,047). American common law initially limited the duration of maintenance and cure payments to completion of the "voyage," The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 47 L.Ed. 760 (1903), or to the duration of the seaman's contract, Nevitt v. Clarke, 18 F. Cas. 29, 32 (S.D.N.Y.1846). In 1936, the United States abrogated the common law by adopting the General Conference of the International Labor Organization, Shipowner's Liability (Sick and Injured Seaman) Convention, 54 Stat. 1693 (1936).[3] The Convention states, in pertinent part: *626 The shipowner shall be liable to defray the expense of medical care and maintenance until the sick or injured person has been cured, or until the sickness or incapacity has been declared of a permanent character. Shipowners' Liability (Sick and Injured Seamen) Convention, Art. 4, ¶ 1 (1936), 54 Stat. at 1696 (emphasis added). Read literally, the Convention works a harsh result in those cases where the permanent character of an injury is readily apparent. For example, accidental amputation of a limb is readily declared permanent, perhaps even before the bleeding stops. The next year, in 1937, the Supreme Court issued its landmark maintenance and cure ruling in Calmar S.S. Corp. The Supreme Court held that the duty continues beyond the voyage "to effect such improvement in the seaman's condition as reasonably may be expected to result from nursing, care, and medical treatment." 303 U.S. at 530, 58 S.Ct. 651. The Calmar opinion made no reference to the 1936 Convention, probably because Congress adopted it after the case was filed. In Farrell v. United States, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850 (1949), the Court ameliorated the potentially harsh result worked by the Convention by indirectly reconciling the Convention with the reasonableness standard adopted in Calmar. The Court interpreted the Convention language in light of American common law to extend the duty of maintenance and cure until such time as the seaman is "so far cured as possible." Farrell, 336 U.S. at 518-19, 69 S.Ct. 707. Rather than creating a new substantive rule, Farrell simply fixed the point in time at which the shipowner could cease maintenance and cure payments for permanent injuries. The Court decreed, somewhat arbitrarily, that an incapacity or illness is declared permanent at the time that maximum cure has been achieved. Id. at 518-19, 69 S.Ct. 707. Since Farrell this benchmark has been restated as the point in time at which further medical treatment probably will not improve the seaman's condition. This point in time is now commonly referred to as a determination of "maximum medical improvement." See Salem, 370 U.S. at 38, 82 S.Ct. 1119; Vaughan, 369 U.S. at 531, 82 S.Ct. 997; Pelotto, 604 F.2d at 400. Wiley relies on Calmar to encourage the Court to extend the duty of maintenance and cure to an indeterminate point in time beyond MMI. While defendant Wiley accurately cites Calmar as having left open the possibility of extending the duty if physical injury occurs in service of the vessel (as opposed to acquisition of a disease), Farrell foreclosed that possibility and no Court has ever accepted the Calmar Court's musing. See Farrell 336 U.S. at 515, 69 S.Ct. 707 ("We think no such distinction exists or was premised in the Calmar case.") Maintenance and cure was not intended as a pension or disability plan. Farrell, 336 U.S. at 519, 69 S.Ct. 707. Instead, the contractual origins of the implied duty demonstrate that its purpose was to strike a balance that both promotes marine commerce and protects seamen. The fulcrum of that balance was fixed by the 1936 Convention and the Supreme Court's interpretation of it in Farrell. Absent a Congressional mandate, further extension of the duty of maintenance and cure would be improper. B. Maintenance Rate Wiley has asserted a counterclaim for an increased daily maintenance rate. NDC paid him the $20 per day maintenance rate set by the Labor Management Agreement negotiated between NDC and Wiley's union. Wiley asserts that this is not adequate reimbursement for his daily room, board, and utilities. *627 "Courts generally have decided that it is more appropriate . . . to enforce privately negotiated contractual rates of maintenance, rather than engaging in overt legislation of particular dollar figures." Zawkari v. Am. S.S. Co., 871 F.2d 585, 588 (6th Cir.1989). In order to depart from the rate set by the collective bargaining agreement, defendant Wiley must show that the agreement "as a whole was unfair or that the union did not adequately represent him." Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1291 (11th Cir.2000). Since Wiley has made no such allegation or showing, the Court upholds the $20 per day maintenance rate set by the collective bargaining agreement. C. Mileage as Portion of Cure A shipowner's duty of cure includes reimbursement of reasonable travel expenses to and from medical care. See Barnes v. Andover, 900 F.2d 630, 644 (3rd Cir.1990); Travis v. Motor Vessel Rapids Cities, 315 F.2d 805, 813 (8th Cir.1963). Wiley has asserted a counterclaim seeking reimbursement for travel expenses incurred while receiving medical treatment during the period in which plaintiff NDC was obligated to pay maintenance and cure. Wiley did not maintain contemporaneous records of his mileage and instead introduced into evidence printouts from the website mapquest.com[4] which purport to show the distances between his home and various doctors' offices. Even if the Court were to hold that contemporaneous mileage records are unnecessary, Wiley's counterclaim still would fail. Wiley has not quantified how many visits he made to each medical office nor has he provided a calculation of the total miles traveled for which he seeks reimbursement. After reviewing the record, the Court is unable to quantify the number of miles traveled to and from Wiley's various medical appointments. Accordingly, the Court is unable to award travel expenses, even though Wiley otherwise would be entitled to such a recovery. III. CONCLUSION For the reasons set forth above, the Court rules as follows: 1. The Court GRANTS plaintiff NDC's request for declaratory judgment and DECLARES that Norfolk Dredging Corporation is not obligated to pay any further maintenance and cure to defendant John L. Wiley for injuries he suffered aboard its vessel on November 27, 2003. The Court DENIES defendant Wiley's counterclaim for payment of maintenance and cure after September 23, 2004. 2. The Court DENIES defendant Wiley's counterclaim for payment of maintenance at the rate of $30/day rather than the union-agreed rate of $20/day. 3. The Court DENIES defendant Wiley's counterclaim for payment of transportation costs for obtaining medical treatment. 4. The Court DENIES defendant Wiley's counterclaim for money damages for the emotional and physical injuries allegedly sustained due to the termination of maintenance and cure. 5. The Court DENIES defendant Wiley's counterclaim for reasonable attorney's fees. The Clerk is hereby DIRECTED to enter judgment in accordance with this Opinion *628 and Order and forward a copy of this Opinion and Order to all counsel of record. IT IS SO ORDERED. NOTES [1] In a healthy eye, the aqueous humor drains from a structure known as the trabecular meshwork, which is "a group of tiny canals through which most of the fluid in the eye drains." WebMD, A-Z Health Guide From WebMD, http://www.webmd.com/hw/health_guide_atoz/ stt11397. asp?navbar = hw158193 (last visited Dec. 15, 2005). Defendant Wiley's trabecular meshwork does not drain properly and, as a result, causes elevation of his intraocular pressure. [2] Needling of the bleb is a procedure in which an ophthalmologist uses a needle to break up the scar tissue and allow the aqueous humor to resume drainage through the bleb. [3] "The aim of the Convention `was not to change materially American standards but to equalize operating costs by raising the standards of member nations to the American level.'" Vella v. Ford Motor Co., 421 U.S. 1, 5, 95 S.Ct. 1381, 43 L.Ed.2d 682 (1975) (quoting Warren v. United States, 340 U.S. 523, 527, 71 S.Ct. 432, 95 L.Ed. 503 (1951)). [4] Mapquest.com is an internet service which provides driving directions from any starting to stopping points selected by a user. The driving directions also include a calculation of the total estimated time of travel and total miles of the trip.

813 F.2d 401 Futuresoft Synergies, Inc., Rardin (Kennth D.), Ganesa GroupInternational, Inc.v.Freal (John W.) NOS. 85-1498(L), 85-1803 United States Court of Appeals,Fourth Circuit. NOV 24, 1986 1 Appeal From: E.D.Va. 2 AFFIRMED IN PART, VACATED AND REMANDED IN PART.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0254n.06 Case No. 16-4152 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED May 03, 2017 GRAYSON COAL & STONE COMPANY, ) DEBORAH S. HUNT, Clerk INC.; LIBERTY MUTUAL INSURANCE ) COMPANY, ) ) ON PETITION FOR REVIEW OF Petitioners, ) AN ORDER OF THE BENEFITS ) REVIEW BOARD, UNITED v. ) STATES DEPARTMENT OF ) LABOR CHARLES ROBERT TEAGUE; DIRECTOR, ) OFFICE OF WORKERS’ COMPENSATION ) PROGRAMS; UNITED STATES ) DEPARTMENT OF LABOR, Respondents. ____________________________________/ Before: MERRITT, BATCHELDER, and CLAY, Circuit Judges. MERRITT, Circuit Judge. This case is an appeal of a decision by the Benefits Review Board (“Board”), United States Department of Labor, under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. The Administrative Law Judge based his decision to award benefits on the fact that three of the five doctors in the case found that coal mining contributed to the claimant’s disabling black lung disease, and was particularly persuaded by the opinion of one of the doctors, Dr. Antoine G. Habre. The Board upheld the Administrative Law Judge’s award of benefits to Respondent, Charles Robert Teague, who worked in the Kentucky coal industry for Case No. 16-4152 Grayson Coal & Stone Co., et al v. Charles Teague, et al Petitioner, Grayson Coal & Stone Company, Inc. (“Grayson Coal”). Grayson Coal and Petitioner Liberty Mutual Insurance Company now appeal the Board’s decision, claiming that the Administrative Law Judge’s findings did not follow the necessary procedures and were not supported by substantial evidence. Because the Board properly upheld the award of benefits, we affirm. I. Factual and Procedural History Charles Robert Teague (“Teague”) worked as a coal miner for 9.22 years from 1978– 1989. During that time he was employed in Kentucky by Grayson Coal. On April 22, 2010, Teague filed this claim for benefits under Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended by the Black Lung Benefits Act of 1977 (“Act”).1 The Act provides benefits to coal miners who become disabled due to pneumoconiosis, better known as “black lung.” 30 U.S.C. § 901. Pneumoconiosis is defined as a “chronic dust disease of the lung . . . including respiratory and pulmonary impairments, arising out of coal mine employment.” 30 U.S.C. § 902(b). To establish an entitlement for benefits under the Act, a miner must prove that (1) he has pneumoconiosis, (2) the pneumoconiosis arose out of coal mine employment, (3) he is totally disabled, and (4) the pneumoconiosis contributes to his total disability. 20 C.F.R. § 725.202(d)(2). On December 11, 2010, the District Director of the Office of Workers’ Compensation Programs, United States Department of Labor, concluded that Teague was entitled to benefits and that Grayson Coal was the operator liable for payment. Grayson Coal 1 Teague previously filed a claim for benefits on May 20, 2002. That claim was denied because an Administrative Law Judge found that Teague failed to establish an entitlement to benefits. The denial was affirmed by the Benefits Review Board. Teague v. Grayson Coal & Stone Co., Inc., BRB No. 05-0757 BLA (Jan. 31, 2006) (unpub.). Miners may file claims under the Act even after a final order denying benefits, since pneumoconiosis is known to be a latent and progressive disease. See Buck Creek Coal Co. v. Sexton, 706 F.3d 756, 758 (6th Cir. 2013) (citing 20 C.F.R. § 725.309). -2- Case No. 16-4152 Grayson Coal & Stone Co., et al v. Charles Teague, et al subsequently appealed, and the claim was referred to the Office of Administrative Law Judges, United States Department of Labor. On August 6, 2013, an Administrative Law Judge held a hearing on the claim. The Judge considered Teague’s statements and medical history concerning his serious respiratory impairments. Teague attributed his affliction to the coal mine dust he inhaled as a “driller” and “blaster” for Grayson Coal. The Judge also found that Teague “smoked cigarettes for a substantial amount of time[.]” However, the Judge declined to make an exact finding as to the length and frequency of Teague’s smoking due to inconsistencies in the record. On September 18, 2014, the Administrative Law Judge found that the medical evidence established that Teague was totally disabled due in substantial part to pneumoconiosis pursuant to 20 C.F.R. § 718.202(a)(4). Section 718.202(a)(4) is a federal regulation that sets out one of the ways in which a fact-finder may make a determination as to the existence of pneumoconiosis in awarding employee benefits: A determination of the existence of pneumoconiosis may also be made if a physician, exercising sound medical judgment, notwithstanding a negative X–ray, finds that the miner suffers or suffered from pneumoconiosis as defined in § 718.201. Any such finding must be based on objective medical evidence such as blood-gas studies, electrocardiograms, pulmonary function studies, physical performance tests, physical examination, and medical and work histories. Such a finding must be supported by a reasoned medical opinion. 20 C.F.R. § 718.202(a)(4). In weighing the medical evidence presented to him, the Judge assigned less probative weight to the physicians in the record whose findings were “contrary to the [] findings on the record as a whole[,]” and more weight to the findings of a physician who testified on behalf of Teague, Dr. Antoine G. Habre. In so doing, the Judge assigned relatively less importance to the conclusions of four other physicians: one on behalf of the Department of Labor, two on behalf of -3- Case No. 16-4152 Grayson Coal & Stone Co., et al v. Charles Teague, et al Grayson Coal, and another on behalf of Teague. These physicians had varying opinions on whether Teague was completely disabled and whether his affliction was due to pneumoconiosis. Drs. Forehand and Gallai diagnosed pneumoconiosis, while Drs. Broudy and Rosenberg diagnosed cigarette smoking-induced chronic obstructive airway disease. However, the Judge did not disregard the testimony of any of the physicians, but rather analyzed the evidence by assigning more probative weight to the conclusions that he assessed were well-reasoned. Consequently, the Judge gave relatively more weight to Dr. Habre, who also diagnosed pneumoconiosis, because Habre’s conclusions were “well-reasoned” and “based on objective medical testing, his personal examination of [Teague], and [Teague’s] medical and occupational histories.” Thus, the Judge concluded, “[w]eighing all of the medical opinion evidence together, and giving the most weight to Dr. Habre, I find that the Claimant has established by a preponderance of the evidence that pneumoconiosis is a substantially contributing cause of his disability[.]” Grayson Coal and Liberty Mutual Insurance Company subsequently appealed the Administrative Law Judge’s decision to the United States Department of Labor Benefits Review Board (“Board”). Grayson Coal argued that the Administrative Law Judge erred in finding that the medical evidence established the existence of legal pneumoconiosis pursuant to 20 C.F.R. § 718.202(a)(4). It claimed that the Administrative Law Judge should not have relied on the opinion of Dr. Habre, and that the Judge did not set forth a specific finding regarding the length of Teague’s smoking history. On July 21, 2015, the Board rejected these arguments and upheld the order of the Administrative Law Judge, finding that the Judge’s decision was supported by substantial evidence and in accordance with applicable law. -4- Case No. 16-4152 Grayson Coal & Stone Co., et al v. Charles Teague, et al On September 14, 2015, Grayson Coal filed a Petition for Review with the Fourth Circuit Court of Appeals. Since Teague’s coal mining employment ended in the state of Kentucky, the Fourth Circuit ordered the appeal to be transferred to the Sixth Circuit. There is no jurisdictional question raised by the parties presently. Now, on appeal to the Sixth Circuit, Grayson Coal claims that the Board was in error in upholding the Administrative Law Judge’s decision because (1) the Judge did not make a specific finding as to the length of Teague’s smoking history, and (2) there was not substantial evidence to uphold the finding that Dr. Habre’s report was well-reasoned. Both of these arguments fail, and we therefore affirm the decision of the Benefits Review Board. II. Analysis A. Standard of Review In black lung cases, we review the legal conclusions of the Benefits Review Board de novo. Big Branch Res., Inc. v. Ogle, 737 F.3d 1063, 1068 (6th Cir. 2013). We do not reweigh the evidence and substitute our judgement, but only correct errors of law and determine whether the Board’s decision to uphold the Administrative Law Judge’s conclusion was supported by substantial evidence. Cumberland River Coal Co. v. Banks, 690 F.3d 477, 482–83 (6th Cir. 2012). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Peabody Coal Co. v. Groves, 277 F.3d 829, 833 (6th Cir. 2002) (internal quotation marks omitted) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971). However, “[s]ubstantial evidence is more than a mere scintilla,” such that the evidence must create more than just “a suspicion of the existence of the fact to be established.” Hoxie v. Drug Enforcement Admin., 419 F.3d 477, 482 (6th Cir. 2005). -5- Case No. 16-4152 Grayson Coal & Stone Co., et al v. Charles Teague, et al Therefore, “[w]hen the question is whether the [administrative law judge] reached the correct result after weighing conflicting medical evidence, the scope of review of both the Board and this panel is exceedingly narrow.” Peabody Coal Co. v. Hill, 123 F.3d 412, 415 (6th Cir. 1997) (internal citations and quotation marks omitted) (citing Youghiogheny & Ohio Coal Co v. Webb, 49 F.3d 244, 246 (6th Cir. 1995)). We uphold a conclusion supported by substantial evidence, “even if this court would have taken a different view of the evidence were it the trier of fact.” Neace v. Dir., Office of Workers’ Comp. Programs, U.S. Dep’t. of Labor, 867 F.2d 264, 267 (6th Cir. 1989). Finally, the Black Lung Benefits Act is a remedial statute, and should “be liberally construed to include the largest number of miners as benefit recipients.” Hill, 123 F.3d at 415 (internal quotation marks omitted) (quoting Tussey v. Island Creek Coal Co., 982 F.2d 1036, 1042 (6th Cir. 1993)). B. Respondent’s Smoking History Grayson Coal contends that the Administrative Law Judge refused to make a material finding of fact as to Teague’s smoking history. Specifically, Grayson Coal takes issue with the Judge’s finding that Teague “smoked cigarettes for a substantial amount of time,” but did not make a specific finding as to the number of years and frequency of Teague’s smoking. By not making a more specific finding, Grayson Coal argues, the Judge violated the Administrative Procedure Act, 5 U.S.C. § 557, requiring agencies to independently evaluate the evidence and provide an explanation for “findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record[.]” 5 U.S.C. § 557(c)(3)(A). In arguing that the factual finding was insufficient, Grayson Coal concedes that there is no case law stating that an administrative law judge must make a specific finding as to the number of years a benefits claimant has smoked. Instead, Grayson Coal primarily relies on the -6- Case No. 16-4152 Grayson Coal & Stone Co., et al v. Charles Teague, et al above language in the Administrative Procedure Act for its argument that there must be a more specific finding of fact to support the conclusion that a potential beneficiary suffers from pneumoconiosis. Grayson Coal also points to a Fourth Circuit decision that relied on a specific finding of an “eighteen-pack year smoking history,” despite the record containing varying smoking histories. See Williams Mountain Coal Co. v. Lucas, 100 F.App’x 893, 895–96 (4th Cir. 2004). In the present case, the Administrative Law Judge’s decision contained the following analysis concerning Teague’s smoking history under the section titled “Smoking History”: Claimaint testified that he does not currently smoke. He started smoking when he “was a kid” and smoked “on and off until around 1989 or 1990.” He testified that when he smoked, he smoked approximately one-half or three-quarters of a pack per day. He does not think he ever smoked more than one pack per day. Claimant estimated he smoked for approximately twenty-five years. Dr. Forehand reported Calimant smoked one-half of a pack of cigarettes per day, on and off from 1944 to 1995. Dr. Boudy reported Claimant smoked less than or equal to one-half of a pack of cigarettes per day for approximately twenty-five years. Claimant told Dr. Rosenberg he smoked less than one pack of cigarettes per day for at most approximately twenty years. Dr. Gallai reported Claimant smoked one-half of a pack of cigarettes for twenty to twenty-five years, between age fifteen and age sixty two. Dr. Gaillai estimated Claimant had a ten to 12.5 pack-year smoking history. Dr. Habre reported a smoking history of one- half of a pack of cigarettes per day for twenty-five years, or 12.5 pack-years. Claimant’s reported smoking history is varied. Although it is clear that Claimant smoked cigarettes for a substantial amount of time, due to the contradictions found in the evidence, I cannot make an exact finding on Claimant’s smoking history. (internal citations omitted). In addition, the decision went into detail concerning the effect of Teague’s smoking in analyzing the medical opinions submitted by each of the five doctors involved. We agree with the Benefits Review Board that there is no merit to Grayson Coal’s argument that the Administrative Law Judge was required to make a more specific finding. In -7- Case No. 16-4152 Grayson Coal & Stone Co., et al v. Charles Teague, et al fact, it appears a more specific finding would have potentially misconstrued the evidence. Instead, the Judge’s decision contained a thoughtful analysis of the consistencies and inconsistencies in the record, and an acknowledgement that the evidence pointed to a “substantial” smoking history. The decision did not lay out an “inaccurate history.” See McCain v. Dir., O.W.C.P., 58 F.App’x 184, 199 (6th Cir. 2003) (citing Risher v. Office of Workers Comp. Program, 940 F.2d 327, 330–31 (8th Cir. 1991)). Nor did the decision fail to explain why the evidence in the record led to its conclusion. The decision made a reasoned and accurate assessment that Teague “smoked cigarettes for a substantial amount of time.” It considered medical evidence that highlighted the significance of this smoking history. The law requires the trier of fact to determine whether the medical evidence before him is sufficiently documented and reasoned, and to weigh the evidence accordingly. See Mosely v. Peabody Coal Co. 769 F.2d 357, 360 (6th Cir. 1985). The Administrative Law Judge in the present case clearly met this burden. C. Reliance on Dr. Harbre’s Medical Opinion An administrative law judge must satisfy the “substantial evidence standard” when considering the medical evidence in a claim for benefits. See Big Branch Res., Inc., 737 F.3d at 1068–69. Grayson Coal argues that the Judge in the present case failed to meet this standard because the decision improperly relied on a medical report, Dr. Habre’s, in determining the existence of legal pneumoconiosis pursuant to 20 C.F.R. § 718.202(a)(4). However, the decision clearly satisfied the “substantial evidence standard” by weighing Dr. Habre’s opinion in light of all the medical evidence presented and reaching a conclusion supported by “such relevant evidence as a reasonable mind might accept as adequate.” See Richardson, 402 U.S. at 401. -8- Case No. 16-4152 Grayson Coal & Stone Co., et al v. Charles Teague, et al A physician exercising sound medical judgment and supported by a reasoned medical opinion based on objective evidence may determine the existence of pneumoconiosis. See 20 C.F.R. § 718.202(a)(4). After weighing all of the doctors’ reports, the Administrative Law Judge decided to give the most weight to Dr. Habre’s medical opinion that Teague suffered from pneumoconiosis: As to whether Claimant has legal pneumoconiosis, I have given less weight to the opinions of Drs. Forehand, Broudy, Rosenberg, and Gallai. In contrast, I give full probative weight to Dr. Habre’s well-reasoned and well documented opinion. Accordingly, I find the medical opinion evidence supports a finding of legal pneumoconiosis under § 718.202(a)(4). The decision goes into detail concerning the deficiencies in each of the other medical opinions. These errors include a lack of evidence in Dr. Forehand’s report, Dr. Broudy’s failure to recognize the statute’s definition of legal pneumoconiosis, Dr. Rosenberg’s reliance on medical opinions rejected by the Department of Labor, and Dr. Gallai’s failure to consider smoking as a contributing factor to Teague’s impairment.2 The Judge did not find such deficiencies in Dr. Habre’s report. We agree with the Benefits Review Board that the Administrative Law Judge was permitted to give more weight to a report it deduced was well-reasoned, and accordingly gave more weight to Dr. Habre’s report. See Big Branch Res., Inc. 737 F.3d at 1072. In meeting the substantial evidence requirement we consider “whether the [Administrative Law Judge] adequately explained the reasons for crediting certain testimony and evidence over other evidence in the record in deciding whether to award or deny benefits.” Hill, 123 F.3d at 415. The Judge below gave a detailed explanation of why he valued Dr. Habre’s analysis of Teague’s physical examination, occupational history, and smoking history. See Groves, 277 F.3d at 836 2 It is notable that Dr. Gallai and Dr. Forehand also diagnosed legal pneumoconiosis, but their findings were still given less probative weight for the aforementioned reasons. -9- Case No. 16-4152 Grayson Coal & Stone Co., et al v. Charles Teague, et al (explaining that fact-finders decide whether a physician’s report is sufficiently documented and reasoned, and that this court generally defers to such credibility determinations). The decision also explained the shortcomings in the other medical reports and that they were assigned less probative weight accordingly. Recognizing that it is possible for a different fact-finder to have drawn an alternative conclusion, this court defers to the Administrative Law Judge’s finding of legal pneumoconiosis supported by substantial evidence. III. Conclusion For the foregoing reasons, we AFFIRM the decision of the Benefits Review Board. - 10 - 

154 B.R. 227 (1993) In re Richard and Shirley SCHAEFER, Debtors. In re SCHAEFER WELL SERVICE, INC., Debtor. Bankruptcy Nos. 87-00182-V-7, 87-00183-V-7. United States Bankruptcy Court, S.D. Texas, Victoria Division. May 25, 1993. *228 Richard Schaefer, pro se. MEMORANDUM OPINION ON MOTION TO RECUSE & DISQUALIFY JUDGE SCHMIDT RICHARD S. SCHMIDT, Bankruptcy Judge. On this day came on for consideration the Motion to Recuse & Disqualify Judge Schmidt, filed by the Debtor, Richard Schaefer ("Schaefer"). The Court, having reviewed the pleadings on file herein, and the relevant law, finds that no hearing is necessary and the Motion should be denied. In support of its ruling, the Court finds as follows: BACKGROUND Schaefer is a pro se Chapter 7 Debtor. His case originated on October 28, 1987, as a Chapter 11 but, due to Schaefer's own actions, a Chapter 11 Trustee was appointed by Order entered March 17, 1988 (docket entry no. 83). The Case was ultimately converted to Chapter 7 by Order entered December 19, 1990 (docket entry no. 678). For the past five years, Schaefer has filed every frivolous pleading imaginable to thwart the orderly liquidation of his estate. His actions include filing Adversary Proceedings in Bankruptcy Court and Complaints in U.S. District Court naming this Court as a defendant. Such proceedings and suits are merely attempts to re-litigate issues already decided by this Court, whose outcome Schaefer did not like, but which were not appealed. Schaefer has also used the existence of pending Adversary Proceedings and District Court suits as *229 grounds for his numerous Motion to Recuse. Schaefer has requested Judge Schmidt's recusal on five prior occasions by the following pleadings, only one of which was accompanied by an affidavit: 1. "Motion to Disqualify Judge Schmidt and Supplement # 2 to the Motion to Withdraw Reference", filed September 6, 1990, docket entry no. 627 (denied by Order of Judge R.F. Wheless entered October 30, 1990, docket entry no. 652). 2. "Motion to Set Aside Sale of Lincoln County Property & Remove Trustee Jeffrey Shadwick & Disqualify Judge Schmidt", filed September 24, 1991, docket entry no. 978 (denied by Memorandum Opinion and Order entered February 12, 1992, docket entry no. 1063). 3. "Demand for Disqualification of Judge Schmidt", filed February 5, 1992, docket entry no. 1051 (denied by Memorandum Opinion and Order entered February 12, 1992, docket entry no. 1063). 4. "Motion to Show Cause", filed March 27, 1992, docket entry no. 1094 (denied by Memorandum Opinion and Order entered April 14, 1992, docket entry no. 1098). 5. "Motion Demanding Judge Schmidt Recuse Himself", filed July 2, 1992, docket entry no. 1115, and accompanied by an affidavit, docket entry no. 1116 (denied by Order entered August 3, 1992, docket entry no. 1121). The Court's April 15, 1992, Order instructed Schaefer not to file further Motions to Recuse re-alleging the same grounds in an attempt to re-litigate issues already ruled upon. Despite the clear language of that Order, Schaefer filed two more Motions to Recuse and numerous other pleadings rehashing his same complaints. Schaefer also violated U.S. District Judge Lynn N. Hughes' order entered May 8, 1992, in Civil Action No. V-91-57. In the Final Judgment entered May 8, 1992, in the same case, Judge Hughes found as follows: 10. Injunction: Because Richard E. Schaefer has persisted in joining people as defendants when he has neither standing to bring the claim nor a factual basis to support the claim at law, he requires restraint for the protection of the people involved in the processes and the processes of the court proceedings. Although his egregious impositions stem from error rather than malice, the costs are intolerable. In his Order entered May 8, 1992, Judge Hughes ordered as follows: 12. Schaefer must obtain leave of this Court before he may sue a public official, state, federal, or municipal, or anyone connected with the defendants in this action or the bankruptcy proceedings. Schaefer filed another lawsuit in U.S. District Court on April 5, 1993, naming Michael N. Milby, Clerk of the Court, Jeffrey A. Shadwick, Chapter 7 Trustee, Robert G. Dunn, and this Court as defendants, without permission, in violation of Judge Hughes' Order. While Schaefer's prior actions may have stemmed from error rather than malice, this violation of Judge Hughes' Order is clearly not an error but is malicious and vexatious. Schaefer now seeks to use the fact that he has filed another suit naming this Court as defendant as grounds for his sixth Motion to Recuse in his main bankruptcy case. THE MOTION TO RECUSE NOW BEFORE THE COURT (THE "SIXTH MOTION") The Sixth Motion is procedurally defective in that it does not contain Bankruptcy Local Rule 9013 notice language. The Sixth Motion alleges that "[a]n affidavit of bias and prejudice has been filed against Judge Schmidt by Richard Schaefer", but a review of the file shows that no affidavit was included. Accordingly, no claim for recusal under 28 U.S.C. § 144 regarding actual bias has been made here. In the Matter of Billedeaux, 972 F.2d 104, 105 (5th Cir.1992). Schaefer seems to refer to an affidavit previously filed. The Court can only assume that Schaefer is referring to his affidavit filed July 2, 1992. The Court previously denied the "Motion Demanding *230 Judge Schmidt Recuse Himself" filed July 2, 1992, which was accompanied by an affidavit. In its Order Denying Motion Demanding Judge Schmidt Recuse Himself, entered August 3, 1993, the Court found that the affidavit stated no grounds, legal or factual, for recusal. Schaefer did not appeal that Order and it is now final and the law of this case. Schaefer cannot rely on his previous affidavit to support the present Motion. Moreover, 28 U.S.C. § 144 permits the filing of only one affidavit of prejudice in any case and this Court could properly refuse to recuse itself based on a second affidavit, if one had been filed. U.S. v. Anderson, 433 F.2d 856, 859 (8th Cir.1970). The Sixth Motion alleges that the "rules allow [this Court] to proceed no further in a case after such affidavit is filed." Even if applicable here, which the Court finds it is not, cases interpreting 28 U.S.C. § 144 are clear that merely filing an affidavit of disqualification does not automatically disqualify a judge. A judge has the authority to decide whether a claim of bias is legally sufficient. Undersea Engineering & Const. Co., Inc. v. Int'l Telephone & Telegraph Corp., 429 F.2d 543, 545 (9th Cir.1970), and cases cited therein; U.S. v. Townsend, 478 F.2d 1072, 1073 (3rd Cir. 1973); Raitport v. Bradley, 446 F.Supp. 129, 130 (E.D.Pa.1978). Here, not only was no affidavit filed, a second affidavit is not allowed. Accordingly, nothing in the statutes, rules, or cases interpreting them require this Court to "proceed no further." The Sixth Motion cites "sec. 455 of the FRCP" as grounds for relief. The Sixth Motion could be interpreted as one seeking relief under the general provisions of 28 U.S.C. § 455(a), which requires a judge to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The Fifth Circuit notes that the "proper test ... is whether `a reasonable person, knowing all the circumstances,' would believe it improper for the judge to sit in the case in question." In the Matter of Billedeaux, 972 F.2d 104, 106 (5th Cir.1992) (citation omitted). The only grounds alleged by Schaefer is that Judge Schmidt is a defendant in several lawsuits filed by Schaefer. This Court has previously ruled that the fact that Schaefer has sued the Court in other Adversary Proceedings or in District Court is not grounds for recusal. (see, "Memorandum Opinion and Order Denying Motion to Set Aside Sale of Lincoln County Property & Remove Trustee Jeffrey Shadwick & Remove Judge Schmidt", "Memorandum Opinion on Motion to Show Cause", "Order Denying Motion Demanding Judge Schmidt Recuse Himself"). The Court so rules again. Moreover, the unusual circumstances and history of this case would not cause a reasonable person to believe it improper for this Court to continue in Schaefer's main bankruptcy case. This Court has dealt with the case for six years and has a thorough knowledge of all proceedings which have occurred. An incredible waste of judicial effort would occur if Schaefer was allowed to subvert the system by recusing this Court. Schaefer's only new allegation in the Sixth Motion is the fact that he has again sued Judge Schmidt, this time in U.S. District Court. Section 455(b) of Title 28 sets forth specific instances when recusal is appropriate. 28 U.S.C. § 455(b)(5)(i) requires a judge to recuse himself if he is a party to "the proceeding". Here, the Court is not a party to Schaefer's main bankruptcy case. As previously explained by this Court in its prior orders on recusal, a Debtor's main bankruptcy case and Adversary Proceedings or suits filed in District Court are not the same proceeding. Moreover, "it is clear that a judge is not disqualified under 28 U.S.C. § 455 (or 28 U.S.C. § 144 for that matter) merely because a litigant sues or threatens to sue him." In re Martin-Trigona, 573 F.Supp. 1237, 1243 (D.C.Conn.1983). Case law is also clear that a litigant cannot use motions to disqualify as a vehicle for judge shopping. United States v. Eisenberg, 734 F.Supp. 1137 (D.N.J.1990); United States v. Studley, 783 F.2d 934, 939-940 (9th Cir. 1986); United States v. Olander, 584 F.2d 876, 888 (9th Cir.1978); United States v. Grismore, 564 F.2d 929, 933 (10th Cir. *231 1977), cert. denied 435 U.S. 954, 98 S.Ct. 1586, 55 L.Ed.2d 806; United States v. Wolfson, 558 F.2d 59, 64 (2nd Cir.1977). BANKRUPTCY RULE 9011, SANCTIONS, AND THE PRO SE LITIGANT Pro se litigants are bound by the Bankruptcy Code, the Rules of Bankruptcy Procedure, and the Local Rules of Bankruptcy Procedure, just as any other party represented by counsel. Pro se litigants tend, however, to receive greater latitude in enforcement than parties represented by attorneys. A review of the record in this case, including transcripts, pleadings, orders, and the docket, demonstrates that Schaefer has undoubtedly received more latitude than he is entitled to. He consistently ignores the Bankruptcy Code, the Rules of Bankruptcy Procedure, the Bankruptcy Local Rules, the Orders of this Court, and even an Order of the U.S. District Court. Rule 9011, Rules of Bankruptcy Procedure ("Rule 9011"), which addresses the significance of signing pleadings, provides as follows: (a) ... A party who is not represented by an attorney shall sign all papers ... The signature of ... a party constitutes a certificate that the ... party has read the document; that to the best of the ... party's knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation or administration of the case. * * * If a document is signed in violation of this rule, the Court on motion or on its own initiative, shall impose on the person who signed it ... an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including a reasonable attorneys fee. —Rule 9011(a), Rules of Bankruptcy Procedure ("Rule 9011(a)"). Rule 9011(a) clearly applies to pro se litigants and debtors and subjects them to the same standards as an attorney. Business Guides v. Chromatic Communications Ent., 498 U.S. 533, 111 S.Ct. 922, 112 L.Ed.2d 1140 (1991); (interpreting Rule 11, Federal Rules of Civil Procedure, which is substantially similar to Rule 9011); In re Cauthen, 152 B.R. 149, 154 (Bankr.S.D.Tex.1993). The Court finds that Schaefer violated Rule 9011(a) when he signed the Sixth Motion. The Court finds that the Sixth Motion is not warranted by existing law. Schaefer's five previous motions seeking recusal have all been denied and the law has been plainly set forth in the Memorandum Opinions and Orders. Not only were those rulings based solidly on existing law, they are final orders in this case and are now the law of this case. Moreover, the Sixth Motion is based on Schaefer's most recent complaint filed in U.S. District Court in violation of Judge Hughes' Order. The Court further finds that the Sixth Motion was interposed for improper purpose. Schaefer's pleadings demonstrate a pattern of efforts to harass and intimidate this Court merely because Schaefer is unhappy with certain rulings. Schaefer has never appealed those rulings. Although his efforts were ineffective and unsuccessful, they are nevertheless sanctionable. Schaefer has also made every attempt to unnecessarily delay the administration of his case by his repeated attempts to disqualify this Court without grounds. The Sanctions provided in Rule 9011(a) are mandatory. Once a court finds a violation of the rule, it shall impose an appropriate sanction. Thomas v. Capital Security Services, Inc., 836 F.2d 866, 876 (5th Cir.1988). In Thomas, the Fifth Circuit held: There are no longer any "free passes" for attorneys and litigants who violate Rule 11. Once a violation of Rule 11 is *232 established, the rule mandates the application of sanction. —Thomas, supra. at p. 876. Having found several violations of Rule 9011, this Court must determine an appropriate sanction. Sanctions are meant to deter violations of Rule 9011 and "should also be educations and rehabilitative in character and, as such, tailored to the particular wrong." Thomas, supra. at p. 877. The policy of the Fifth Circuit is that "the least severe sanction adequate to the purpose of Rule 11" should be imposed. Thomas, supra, at p. 878. In this case, the Court finds that the egregious behavior of Schaefer warrants monetary sanctions of $2,000.00, payable to the United States Treasury, in compensation for the time and expenses wasted in addressing his frivolous Sixth Motion. CONCLUSION As discussed by this Court numerous times, Schaefer's Motion to Recuse and his lawsuits naming this Court are merely attempts to re-litigate matters which he chose not to appeal. No grounds, either legal or factual exist for the recusal of this Court. Accordingly, the Court finds that Schaefer's Motion to Recuse and Disqualify Judge Schmidt should be denied. The Court further finds that Schaefer violated Rule 9011 by signing the Sixth Motion. The Court further finds that an appropriate sanction in this case for Schaefer's violation of Rule 9011 is the sum of $2,000.00, payable to the United States Treasury. A separate Order will be entered herewith.

MISSOURI COURT OF APPEALS WESTERN DISTRICT STATE OF MISSOURI, ) ) WD78851 Respondent, ) v. ) OPINION FILED: ) MAURICE PARNELL WEBBER, ) December 6, 2016 ) Appellant. ) Appeal from the Circuit Court of Jackson County, Missouri Honorable Wesley Brent Powell, Judge Before Division One: Thomas H. Newton, P.J., Cynthia L. Martin, and Edward R. Ardini, Jr., JJ. Mr. Maurice P. Webber appeals his conviction in Jackson County Circuit Court, following a jury trial, for three counts of the class A felony of forcible rape, § 566.030, 1 three counts of the class A felony of forcible sodomy, § 566.060, and one count of the class A felony of attempted forcible sodomy, § 566.060, for which he was sentenced to a total thirty-four years imprisonment in the Department of Corrections. He challenges the forcible rape and forcible sodomy convictions under the necessarily incident provision of Missouri’s accomplice-liability statute, § 562.041.2(2), argues ineffective assistance of counsel, as cognizable on direct appeal, for failure to raise a statute -of- 1 Statutory references are to RSMo (1986), as supplemented through September 2, 1991, unless otherwise indicated. 1 limitations defense and the necessarily incident exception to accomplice liability, and asserts manifestly unjust court error in instructing the jury on sentencing. We affirm in part, reverse in part, and remand solely for retrial of his sentences. The seventeen-year-old victim attended a rock concert in September 1991 at the former Sandstone Amphitheater in Kansas and consumed a beer on an empty stomach. 2 Afterward, a friend drove her to her car, which was parked at a 24 -hour market where she worked. The victim quickly realized on her way home that she should not be driving and parked in an apartment lot so she could sleep for awhil e. She testified at trial that she became aware after falling asleep that people had surrounded her car. When she was fully awakened, the victim realized that she was in another car, in the back seat, with her head in one person’s lap and her feet in another’s. Her head was covered with a cloth that was held firmly on her face, but she was aware from the sound of voices that two other individuals were in the front seat. The men pulled the rings off her fingers and took a small amount of cash out of her pockets. The car stopped near a picnic bench in what the victim later learned was Swope Park, in Jackson County, Missouri. It was still dark, and one or two of the men’s faces were partially covered with cloths. The victim pleaded with the men not to kill her, and she was told that if she cooperated she would not be killed. The men ordered her out of the car, told her to remove her pants, and then three of them took turns penetrating her vaginally and orally with their penises, at times simultaneously. One man tried to penetrate her anally with his penis, but was unsuccessful, and, after one 2 We present the facts in the light most favorable to the verdict. State v. O'Brien, 857 S.W.2d 212, 215-16 (Mo. banc 1993). 2 of the men warned the victim not to tell anyone or he would kill her, they got back in the car and drove away. Terrified that the men would return, the victim ran or wandered around for some time, searching for a phone or help, and hiding when she saw approaching cars. A good samaritan finally called the police for her. The police took the victim to a hospital where evidence was collected, including swabs of her mouth, vagina, cervix, and anus, and her panties. The forensic testing available in the early 1990s could discern little more from the collected swabs than the presence of sperm from three individuals, so no suspects could be found until the case was reopened in 2009, when precise DNA testing allowed the identification of two of the perpetrators. The police learned that Mr. Webber was an alleged participant, and a buccal swab from him was definitively matched to DNA found on the victim’s panties. 3 Though not definitive, Mr. Webber’s DNA also matched the victim’s cervical swab. 4 Mr. Webber was tried by a jury in May 2015, and, after the trial court overruled his boilerplate motions for judgment of acquittal at the close of the State’s evidence and at the close of all evidence, he was convicted on all seven charges. 5 In a separate proceeding before the same jury, the court gave the following sentencing instruction as to each count: [T]he punishment prescribed by law for [the offense] is one of the following: 3 The lab analyst found a genetic match of one in sixty-three quadrillion between the victim’s panty stains and Mr. Webber’s buccal swab. The Kansas City crime lab considers this to be a DNA identification because its threshold for a match is one in seven tril lion. 4 The lab analyst found a one in 60.5 billion relationship between the cervical swab and Mr. Webber’s buccal swab. 5 Additional details about Mr. Webber’s objection to the court instructing the jury on a lesser -included offense on statute-of-limitations grounds appear below in the discussion of point five. 3  1. life imprisonment, 2. imprisonment for a term of years fixed by you, but not less than ten years. Mr. Webber made only a “general objection” to these instructions. The jury sentenced Mr. Webber to twenty-four years on each count. The trial court then denied Mr. Webber’s motion for new trial, which included none of the issues raised before this Court, and sentenced him to twenty-four years of imprisonment on each of six counts, to run concurrently, and to a consecutive term of ten years’ impri sonment on one count of the class A felony of forcible sodomy. Mr. Webber filed this appeal. Legal Analysis Accomplice Liability Necessarily Incident Exception The first four points involve the necessarily incident exception to accomplice liability under section 562.041. Mr. Webber argues that (1) the evidence was insufficient to convict him of three counts of forcible rape and three counts of forcible sodomy under an accomplice-liability theory, because the State failed to prove that his acts were not necessarily incident to the crimes “where the victim is subjected to sexual intercourse [and deviate sexual intercourse] with more than one person,” and (2) the trial court erred in failing to instruct the jury that the necessarily incident exception applies “where a defendant is charged under accomplice liability with the crime[s] of forcible rape [and forcible sodomy] in which he subjects [the] victim to sexual intercourse with more than one person.” The offenses here arose from a gang rape and sodom y involving three perpetrators. Section 566.030 classifies forcible rape as a class A felony where the actor “subjects the victim to sexual intercourse or deviate sexual intercourse with more 4 than one person.” § 566.030.2. Similarly, as to forcible sodomy, section 566.060 states that where the actor “subjects the victim to deviate sexual intercourse or sexual intercourse with more than one person, . . . forcible sodomy or an attempt to commit forcible sodomy is a class A felony.” § 566.060.2. Missouri’s accomplice-liability statute makes a person criminally responsible for another person’s conduct under the following circumstances and subject to the following exceptions: 1. A person is criminally responsible for the conduct of another when (1) The statute defining the offense makes him so responsible; or (2) Either before or during the commission of an offense with the purpose of promoting the commission of an offense, he aids or agrees to aid or attempts to aid such other person in planning, committing or attem pting to commit the offense. 2. However, a person is not so responsible if: (1) He is the victim of the offense committed or attempted; (2) The offense is so defined that his conduct was necessarily incident to the commission or attempt to commit the offense. If his conduct constitutes a related but separate offense, he is criminally responsible for that offense but not for the conduct or offense committed or attempted by the other person; (3) Before the commission of the offense he abandons his purpose and gives timely warning to law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense. 3. The defense provided by subdivision (3) of subsection 2 is an affirmative defense. § 562.041. We have observed that this statute “is designed to make individuals who could not be guilty of a crime solely on the basis of their own conduct, guilty nonetheless as an accessory.” State v. Barker, 442 S.W.3d 165, 168 (Mo. App. W.D. 2014). 5  Mr. Webber argues that the necessarily incident exception set forth in the accomplice-liability statute applies to his case where the crimes charged required participation by more than one person. In other words, because Mr. Webber’s participation in relation to his accomplices was as the other person needed to reclassify/enhance their offenses as class A felonies, his participation was necessarily incident and he could not be held responsible as an accomplice for their crimes. He claims that this issue is not an affirmative defense that would be waived if not timely raised because only the third exception is specified as an affirmative defense in the statute. Concluding on a statutory-construction basis that the necessarily incident exception is an element that must be negated by the State and that the State failed to produce sufficient evidence to do so, Mr. Webber argues that his failure to assert the necessarily incident exception before or during trial or in his motion for new trial did not waive the issue for purposes of appeal. 6 He claims that the appropriate remedy is to remand the case for entry of a judgment of acquittal on the three counts of class A felony rape and three counts of class A felony sodomy. We find it unnecessary to determine how to classify this exception, agreeing with the State that it does not apply. 7 In Bass v. State, 950 S.W.2d 940, 944 (Mo. App. 6 See State v. Claycomb, 470 S.W.3d 358, 361 (Mo. banc 2015) (stating that, in a bench-tried case, sufficiency claims are “preserved on appeal even if not raised or not timely rai sed in the trial court.”). Under Rule 29.11(d), a sufficiency of the evidence claim also need not be included in a motion for new trial in a jury-tried case to preserve the alleged error for appellate review. 7 The outcome would be the same whether the matter were reviewed under a sufficiency standard or for plain error. Under a sufficiency standard, we review “all of the evidence . . . in the light most favorable to the prosecution.” State v. O'Brien, 857 S.W.2d 212, 215-16 (Mo. banc 1993). We conduct a two-step review for plain error: first we “examine[] the record to determine whether the trial court committed error, affecting substantial rights, that was ‘evident, obvious, and clear,’ and then we “determine whether a manifest injustice or a misca rriage of justice” will result from the error. State v. Freeman, 189 S.W.3d 605, 608-09 (Mo. App. W.D. 2006). Because the exception does not apply, we are not concerned with whether sufficient evidence supported it or the court committed plain error. 6 W.D. 1997), this Court discussed the exception in upholding the conviction of a woman charged with rape for forcing her eleven-year-old daughter to have sexual intercourse with another person. As to the accomplice-liability statute, we quoted a comment to the proposed law and explained how it applies as follows: The Comment first notes that Section 562.041.2(1) protects the victim of a crime from being found guilty as an accessory, as in the case of an underage girl who consents to sex with a man later convicted of statutory rape. The Comment then explains the exception for “necessarily incident” conduct, stating: Subsection 2(2) extends the same protection to persons who do not fall neatly into the category of victims. For example, if a statute simply makes the giving of a bribe a crime should the recipient be guilty of a violation of that statute on the basis of aiding and abetting. If he should be, this should be covered in the statute on bribery. This subsection does not prevent his being criminally liable, it merely requires the statu[t]e defining the offense to so specify. The subsection does make it clear that it does not bar conviction for a related offense based on his own conduct, as, for example, if there were another statute making it a crime to receive a bribe. Comment to 1973 Proposed Code § 562.041. As one commentator has noted, using the same rationale, if a statute makes prostitution a criminal offense, a person soliciting that prostitute could not be found guilty under Section 562.041.2(2) based on aiding the prostitute because his conduct is “necessarily incident” to the crime of prostitution. The patron could, however, be found guilty under a separate statute which makes soliciting a prostitute a crime. These examples make clear that the “necessarily incident” exception refers to situations where the crime could not have been committed without the other person’s participation. Here, Mr. Clark could have committed the rape without Ms. Bass’[s] participation. Therefore, her conduct was not “necessarily incident” to the crime, and she does not fall within the exception to accessory liability. Id. (citation omitted). 7  Here, the evidence showed that Mr. Webber himself had sexual intercourse and deviate sexual intercourse with the victim and subjected the victim to sexual intercourse and deviate sexual intercourse with more than one person —himself and at least one of the other perpetrators. So the evidence was sufficient to convict him, based on his own conduct, of one count of the class A felony of forcible rape and one count of the class A felony of forcible sodomy. Because three men perpetrated these acts, each of Mr. Webber’s two accomplices could have committed felony A rape and felony A sodomy without Mr. Webber’s participation, because each of them subjected the victim to sexual intercourse and deviate sexual intercourse with more than one person, i.e., themselves and another person who need not have been Mr. Webber. His conduct was not necessarily incident to their crimes. Because the victim testified that she was penetrated vaginally and orally three times by three men, the evidence was sufficient to hold Mr. Webber criminally responsible for his own acts and for those of each of the other two perpetrators who were all acting in concert, and no exception to accomplice liability applied. Nor did the trial court err in failing to sua sponte instruct the jury as to the necessarily incident exception. Points one through four are denied. Statute of Limitations Attempted Forcible Sodomy In the fifth point, Mr. Webber argues that the trial court plainly erred in failing to find the charge of attempted forcible sodomy barred when Mr. Webber raised the statute of limitations in objecting to a jury instruction on a lesser-included offense. Mr. Webber did not object on statute-of-limitations grounds to instruction no. 13—the verdict director for count VII, felony A attempted forcible sodomy—which inadvertently lacked the aggravating element of subjecting the victim to deviate sexual 8 intercourse or intercourse with more than one person. 8 Nor did Mr. Webber raise anything other than a general objection to the accompanying sentencing form, which set forth the possible range of punishment for count VII as “life imprisonment” or imprisonment for a term of years but not less than ten years, which, albeit flawed, recited the punishment for a felony A offense. 9 Counsel did, however, state during the 8 Instruction no. 13 stated, As to Count 7, if you find and believe from the evidence beyond a reasonable doubt: First, that on or about September 2, 1991, in the County of Jackson, State of Missouri, the defendant or another person tried to place his peni s in [the victim’s] anus, and Second, that such conduct was a substantial step toward the commission of the offense of forcible sodomy, and Third, that defendant or another person engaged in such conduct for the purpose of committing such forcible sodomy, then you are instructed that the offense of forcible sodomy has occurred, and if you further find and believe from the evidence beyond a reasonable doubt: Fourth, that with the purpose of promoting or furthering the commission of that forcible sodomy the defendant acted together with or aided the other persons in committing the offense, then you will find the defendant guilty under County 7 of forcible sodomy. However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense. A person commits the crime of forcible sodomy when he has deviate sexual intercourse with another person without that person’s consent by the use of forcible compulsion. As used in this instruction, “substantial step” means conduct which is strongly corroborative of the firmness of the defendant’s purpose to complete the commission of the offense of forcible sodomy. Instruction nos. 7, 8, 9, 10, 11, and 12 all included as a n element that “the defendant or other persons subjected [the victim] to sexual intercourse [or deviate sexual intercourse] with more than one person.” 9 Further discussion about Mr. Webber’s sentences appears below. 9 instruction conference that Mr. Webber did not want to waive a statute -of-limitations defense by agreeing to a jury instruction on a lesser-included offense. The statement was made during a discussion that involved an instruction on “sexual assault” that the State had submitted as a lesser-included offense. No lesser-included offense instruction was given to the jury other than the mistaken verdict director noted above. 10 The verdict and sentence on count VII, which had been charged as a class A felony, were recorded as class A felony and twenty-four years, respectively. 11 As Mr. Webber concedes, “[t]he failure of a defendant to raise a statute of limitations defense results in the waiver of that defense, and a defendant ‘is precluded from raising the issue on appeal.’” (citing State v. Cotton, 295 S.W.3d 487, 492 (Mo. App. E.D. 2009)). The Eastern District noted in Cotton that this requirement is supported by “sound reasoning.” Id. at 491. In this regard, the court stated that the Legislature has defined circumstances that toll the limitations period and set forth “a number of statutory exceptions whereby the State may nevertheless commence prosecution, even though the period of limitations has expired.” Id. at 491-92. In the court’s view, if the issue is raised for the first time on appeal, the State is not afforded the opportunity “to respond to the defense, showing that the statute has not run, that it 10 The trial court read instruction no. 13 as written to the jury, and Mr. Webber made no objection to it when read. Nor did Mr. Webber object when the State closed and discussed the elements making rape, sodomy, and attempted sodomy class A felonies, i.e., subjecting the victim to deviate s exual intercourse and intercourse with more than one person. The State specifically argued as to count VII that the three perpetrators, including Mr. Webber, acted in concert. 11 If the attempted forcible sodomy count had been charged as an unclassified f elony and if Mr. Webber had been convicted of attempted forcible sodomy as an unclassified felony, he would have been subject to a term of imprisonment of “life imprisonment or a term of years not less than five years.” § 566.060.2. Nowhere has he argued that the sentencing instruction for count VII was incorrect, which would be a corollary to his claim that attempted forcible sodomy was a lesser -included offense, to which he purportedly objected on statute-of-limitations grounds, due to the way the trial court defined the offense for the jury in the verdict director for count VII. 10 has been tolled, or that an exception applies.” Id. at 492. Mr. Webber contends, however, that he did not waive the defense because he relied on it during the instruction conference to orally object to a lesser-included offense jury instruction and the State did not respond to his objection. He suggests that it was simply not preserved for review, so we may review the point for plain error. 12 To raise a statute-of-limitations defense, a defendant generally seeks to dismiss the time-limited charge by motion. See, e.g., State v. Graham, 149 S.W.3d 465, 466 (Mo. App. E.D. 2004) (considering whether trial court erred in sustaining defendant’s motion to dismiss based on running of limitations period, court reverses ruling). The matter can be raised, however, at any time before “final disposition” of the case. Dorris v. State, 360 S.W.3d 260, 268 (Mo. banc 2012) (citing Longhibler v. State, 832 S.W.2d 908, 910-11 (Mo. banc 1992) (in which our supreme court ruled that a statute-of- limitations defense, which is non-jurisdictional, raised in a post-conviction motion to set aside a sentence imposed as part of a plea bargain had been waived by the defendant’s guilty plea; as an affirmative defense, it must be ra ised at the earliest opportunity or, at the latest, before conviction or plea)). And, of some relevance, our courts have held that waiver can occur where a defendant submits a lesser-included offense instruction. See State v. Leisure, 796 S.W.2d 875, 879 (Mo. banc 1990) (noting jarring inconsistency in allowing defendant to gamble on “jury’s sense of mitigation or mercy by submitting” a lesser-included offense instruction “and in so doing sub silentio waive the bar of limitation” and then receiving mercif ul consideration, reverse course, “assert the bar and ask the Court on appeal to free him from all accountablility”). 12 Mr. Webber observes that this point was not addressed in his motion for new trial, so it has not been preserved for purposes of appeal. 11 Conversely, it would appear, for the sake of argument, that an oral objection to a lesser- included offense instruction on statute-of-limitations grounds could be sufficient to demonstrate non-waiver for purposes of appeal. Still, we are not convinced that Mr. Webber did not waive his limitations objection to count VII. Under the mistaken impression that the verdict director contained all of the elements required for the jury to find Mr. Webber guilty of count VII as charged—a class A felony—no objection was made to its submission on limitations grounds. Further, the State, the court, the jury, and Mr. Webber treated the verdict as if the verdict director had led to a felony A conviction. Because no argument has been made that the verdict director, verdict, and sentence, based on a felony A charge, constituted a lesser-included offense or, in fact, was the lesser-included offense to which Mr. Webber did object, we find that he waived this affirmative defense as to count VII and is precluded from raising the issue on appeal. This point is denied. 13 Ineffective Assistance of Counsel In points VI and VII, Mr. Webber asks this Court to allow him to raise an ineffective assistance of counsel claim in this direct appeal. He argues that counsel was ineffective for failing to raise the necessarily incident exception to accomplice liability and for failing to raise the statute of limitations on all counts. Because we have found that the necessarily incident exception does not apply, it is unnecessary for 13 Mr. Webber filed a motion to correct the judgment the day before the case was argued, asking this Court to modify the judgment “to reflect Count VII as an unclassified felony,” or to grant him leave to file a motion for an order nunc pro tunc, so the trial court can correct the record. Because the matter will be remanded to the trial court for resentencing, we leave it to that court to address whether the judgment must be modified. 12 us to address an ineffectivenss claim on this basis, whether or not cognizable. Point VII is accordingly denied. As for whether an ineffectiveness claim is cognizable on direct appeal, Mr. Webber acknowledges that Missouri courts have held that ineffectiveness claims cannot be raised on direct appeal since Rule 29.15 was adopted. Rule 29.15(a) states, A person convicted of a felony after trial claiming that the conviction or sentence imposed violates the constitution and laws of this state or the constitution of the United States, including claims of ineffective assistance of trial and appellate counsel, that the court imposing the sentence was without jurisdiction to do so, or that the sentence imposed was in excess of the maximum sentence authorized by law may seek relief in the sentencing court pursuant to the provisions of this Rule 29 .15. This Rule 29.15 provides the exclusive procedure by which such person may seek relief in the sentencing court for the claims enumerated. The procedure to be followed for motions filed pursuant to this Rule 29.15 is governed by the rules of civil procedure insofar as applicable. Rule 29.15(b) also includes a timing provision that states, “[f]ailure to file a motion within the time provided by this Rule 29.15 shall constitute a complete waiver of any right to proceed under this Rule 29.15 and a complete waiver of any claim that could be raised in a motion filed pursuant to this Rule 29.15.” Missouri courts have held that “a claim of ineffective assistance of counsel, even if compelling, is not cognizable on direct appeal.” State v. Nettles, 481 S.W.3d 62, 69 (Mo. App. E.D. 2015). “‘[A] claim of ineffective assistance of counsel is not cognizable on direct appeal but must be presented pursuant to the procedure set forth in Rules 29.15 or 24.035 which provide for the development of a full a nd complete record.’” State v. Brown, 438 S.W.3d 500, 506 n.5 (Mo. App. S.D. 2014) (quoting State v. Riley, 787 S.W.2d 314, 316 (Mo. App. E.D. 1990)). “‘These rules provide the 13 exclusive procedure through which post-conviction relief because of ineffective assistance of counsel may be sought.’” Id. The foundational case for this holding is State v. Wheat, 775 S.W.2d 155 (Mo. banc 1989), overruled on other grounds by Joy v. Morrison, 254 S.W.3d 885, 888 n.7 (Mo. banc 2008). Mr. Webber asserts that Wheat and its progeny should no longer be followed because it was decided under a prior version of Rule 29.15 in which waiver applied due to time constraints and because its plain language reading of Rule 29.15 has been effectively overruled by subsequent decisions. Under the version of Rule 29.15 in effect when Wheat was decided, a person seeking relief was required to file a motion to vacate using Criminal Procedure Form 40. Wheat, 775 S.W.2d at 157. If an appeal of the judgment sought to be vacated was taken, the motion was required to be filed within thirty days after the filing of the transcript in the appeal. Id. The current deadline for filing a post-conviction motion under Rule 29.15 is no later than ninety days after the date the appellate court’s mandate issues. Mr. Webber argues that, when Wheat was decided, a defendant was required to file a Form 40 while his or her direct appeal was pending, whereas now a defendant is required to file a Form 40 after the mandate issues from the direct appeal. Accordingly, in his view, under current Rule 29.15, a defendant cannot be considered to have waived claims in a direct appeal that were not raised in a Form 40, because the defend ant cannot even pursue a Rule 29.15 action until the direct appeal is complete. In Wheat, the defendant conceded that he failed to file a motion to vacate in the trial court under Rule 29.15, and he recognized “the nominal effect of this failure.” Wheat, 775 S.W.2d at 157. Mr. Wheat then argued that, under former Rule 27.26, 14 appellate courts had consented in cases of direct appeal to review post -conviction claims of ineffective assistance of trial counsel where a record in the trial court was sufficient to permit appellate review. Id. The court declined Mr. Wheat’s argument and held that the new rule explicitly provides the “exclusive procedure” by which a person may seek relief in the sentencing court for ineffective assistance of counsel, and “failure to file such motion constitutes a complete waiver of the right.” Id. at 157-58. A change to the Rule 29.15 timing requirement does not change its plain language , which continues to provide the exclusive means by which an ineffective assistance of counsel claim may be raised. And this has been confirmed in cases decided since Wheat. See, e.g., Brown, 438 S.W.3d at 506 n.5 (holding that ineffective assistance of counsel claim was not cognizable on direct appeal because it was not presented under the post-conviction procedures set forth in Rules 29.15 or 24.035, which allow for the development of a full and complete record); State v. Celis-Garcia, 420 S.W.3d 723, 731 (Mo. App. W.D. 2014) (holding that Defendant’s claim for ineffective assistance of counsel due to a conflict of interest was not cognizable on direct appeal); State v. Finster, 985 S.W.2d 881, 884 (Mo. App. S.D. 1999) (holding that, to the extent Defendant's claim is one of ineffective assistance of counsel, it is not cognizable on direct appeal and Rule 29.15 is the exclusive procedure by which a claim of ineffective assistance of counsel can be advanced). Mr. Webber asserts that the Missouri Supreme Court effectively overruled Wheat in State ex rel. Laughlin v. Bowersox, 318 S.W.3d 695, 702 (Mo. banc 2010). In Laughlin, the defendant had previously asserted a subject-matter jurisdiction challenge in a Rule 29.15 motion, while his appeal was pending. Id. at 697. The State argued 15 that the claim was barred and could not be asserted in a subsequent petition for a writ of habeas corpus under Rule 91.06. Id. Our supreme court observed that, while Rule 29.15 had provided the “exclusive procedure” for initially asserting the subject -matter jurisdiction claim before the “sentencing court,” and that the Missouri Supreme Court was not the sentencing court, Rule 91.06 provided a separate means to assert the jurisdictional challenge before the Missouri Supreme Court. Id. at 701-02. The court also observed that, when Mr. Laughlin chose to challenge the circuit court’s jurisdiction, a Rule 29.15 motion was his exclusive means of relief before the sentencing court. Id. at 702. Mr. Webber contends that, because the Missouri Supreme Court said that it was not a sentencing court, then it would follow that the court of appeals is not a sentencing court; thus the “exclusive procedure” language in Rule 29.15 means that the enumerated claims can be raised in other types of motions, but if raised bef ore the sentencing court, they must be raised by post-conviction motion. Laughlin does not change the meaning of Rule 29.15 in this way. The court there stated that, insofar as Rule 29.15 had provided a means for asserting the subject -matter jurisdiction claim, a Rule 29.15 motion was Mr. Laughlin’s exclusive means of relief in the sentencing court when filed within its applicable time limits. Laughlin, 318 S.W.3d at 702. The court concluded that, now that the time for filing a Rule 29.15 motion had pas sed, Mr. Laughlin could seek a writ of habeas corpus under Rule 91.06 to challenge his illegal confinement under the judgment of a court that purportedly lacked subject -matter jurisdiction. Id. This does not, however, alter the meaning of Rule 29.15 as t o 16 ineffective assistance of counsel. 14 Our supreme court acknowledged that post- conviction motions for relief are “designed to provide a ‘single unitary, post -conviction remedy, to be used in place of other remedies,’ including the writ of habeas corpus.” Id. at 701 (quoting State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 214 (Mo. banc 2001)). The court noted, however, that subsequent habeas relief is not barred under certain conditions, including an alleged jurisdictional defect. Id. The ability to assert an ineffectiveness claim on direct appeal does not follow from the allowance of a petition for writ of habeas corpus under Rule 91.06. No analogous rule gives a defendant a means other than Rule 29.15 to assert an ineffective assistance of counsel claim . Although the Missouri Supreme Court said that it was not a sentencing court, it did not undo Missouri’s long-standing procedure for asserting ineffectiveness claims under Rule 29.15. Mr. Webber also argues that a number of jurisdictions allow for these claims to be raised on direct appeal. He proposes that this court adopt the procedures and standards from North Carolina, where ineffectiveness claims brought on direct review can be decided on the merits when the cold record reveals that no further inve stigation is required. State v. Fair, 557 S.E.2d 500, 524 (N.C. 2001), cert. denied, 535 U.S. 1114 (2002). In North Carolina, however, “should the reviewing court determine that IAC claims have been prematurely asserted on direct appeal, it shall dismiss those claims 14 During oral argument, Mr. Webber asserted that Missouri courts have allowed two of the three enumerated claims under Rule 29.15 to be raised on direct appeal, i.e., those involving court error, and thus we should similarly consider ineffectiveness claims on direct appeal. He failed to cite any compelling case law explaining which particular ineffectiveness claims could be addressed on direct appeal, acknowledging that those requiring the development of a factual record post-conviction could not be resolved before an appellate court in the first instance. 17 without prejudice to the defendant's right to reassert them during a subsequent MAR [motion for appropriate relief] proceeding.” Id. at 525. Missouri case law prior to the adoption of Rule 29.15 was similar to that of North Carolina. Missouri would allow ineffective assistance of counsel claims to be presented on appeal from the judgment of conviction if the claims could be disposed of on the record. See State v. Harvey, 692 S.W.2d 290 (Mo. banc 1985); see also State v. Koetting, 691 S.W.2d 328, 332 (Mo. App. E.D. 1985); State v. Settle, 670 S.W.2d 7, 13 (Mo. App. W.D. 1984), superseded by statute as stated in State v. Wheat, 775 S.W.2d 155 (Mo. banc 1989). Mr. Wheat had argued that, under Rule 27.26, appellate courts had consented in cases of direct appeal to review claims of ineffective assistance of trial counsel where the trial court record was sufficient to permit appellate review. In this regard, he cited Settle. Wheat, 775 S.W.2d at 157. The court in Wheat discussed former Rule 27.26, which was in effect when Settle was decided, noting that Rule 27.26 was markedly different from Rule 29.15, particularly in the lack of time constraints for filing the motion to vacate. Id. The court further noted that the appellate court faced a different question when determining whether the claim should be considered on direct appeal because, under Rule 27.26, the court would determine if the record was adequate or whether to require the defendant to return to the trial cou rt with a motion and the opportunity to present further evidence. Id. In contrast, those options are replaced under Rule 29.15 by significantly different procedures and new standards for post - conviction proceedings. Id. Under the explicit language of the new rule, the “exclusive procedure” by which a person may seek relief in the sentencing court for ineffective assistance of counsel is 18 through Rule 29.15. Id. It necessarily follows that claims for relief cognizable under the rule may not be considered when presented on direct appeal. Id. at 157-58. Though the previous rule allowed claims of ineffective assistance of counsel to be raised on direct appeal under limited circumstances, the explicit language of Rule 29.15 replaced Rule 27.26. By proposing that this court adopt North Carolina’s procedures and standards, Mr. Webber is effectively asking this court to disregard the plain language of Rule 29.15 and adopt a procedure very similar to Rule 27.26, which Rule 29.15 replaced. We are not inclined to do so. In addition, as noted above, a statute-of-limitations defense is waived if not raised before a plea or finding of guilt and cannot be considered on appeal. Mr. Webber has asserted instead that counsel was ineffective in failing to raise this de fense, in effect circumventing the waiver rule and attempting to put the merits of this defense before us on appeal. We will not allow him to do this. Regardless whether the open -ended general statute of limitations for a class A felony applies here or i s supplanted by the ten-year statute of limitations for unlawful sexual offenses involving minors, we cannot allow Mr. Webber to circumvent our waiver rules in this direct appeal. Mr. Webber contends that “no possible trial strategy . . . would support no t raising the statute of limitations defense,” and thus implies that we can rule on this issue on the existing record. While we may be able to discern from the present record that counsel’s failure to assert a statute-of-limitations defense fell below an objective standard of reasonableness, we have no way of determining if the defense even applies and thus whether Mr. Webber can show prejudice. Addressing Mr. Webber’s substantive argument that changes to the statute of limitations for a sexual offense in volving a 19 minor were not made before they expired in his case, the State contends that periods of tolling, i.e., when and if he was absent from the jurisdiction, extended the limitations period. These matters, as well as the victim’s birthdate, a fact we are asked to assume, must be established by proof during an evidentiary hearing. Particularly instructive for our purposes is that “[a]ppellate courts uniformly note that where a claim of ineffective assistance of trial counsel could be more fully developed by evidence outside the trial record, the preferable procedure is to present it initially in a setting that permits an evidentiary hearing.” W AYNE R. L A FAVE , ET AL ., CRIMINAL P ROCEDURE , § 11.7(e), (4 th ed. 2015). This can be done in one of three ways: in a motion for new trial, “a remand or other procedure that will stay a pending appeal and return the case to the trial court,” or a post-appeal collateral challenge. Id. Not only do we reject the contention that an ineffectiveness claim may be asserted on direct appeal in Missouri, we also lack a sufficient record to make a determination on the merits of the statute-of-limitations issue in this case. We will not therefore address it on direct appeal. Point VI is denied. Sentencing Range Misdirection Mr. Webber argues in points VIII, IX, and X that the trial court plainly erred when it erroneously instructed the jury as to sentencing for the class A felony charges of forcible rape, forcible sodomy, and attempted forcible sodomy. As noted above, the range of punishment submitted to the jury, without anything other than a general objection from Mr. Webber, was life imprisonment or a term of years not less than ten years. When Mr. Webber committed these offenses, the range of punishment for a class A felony was “a term of years not less than ten and not to exceed thirty years, or life 20 imprisonment.” § 558.011.1(1). The State concedes that the range submitted to the jury was erroneous, but suggests that, as a matter of plain error, no manifest injustice came of the error because the sentences the court imposed on each count —twenty-four years on six counts and ten years on one count—did not exceed the thirty-year upper limit for a term of imprisonment that was not life imprisonment. We disagree. Under Rule 30.20, we may, in our discretion, review “plain errors affecting substantial rights,” if we find “that manifest injustice or miscarriage of justice has resulted therefrom.” We first determine whether “the claimed error ‘facially establishes substantial grounds for believing that “manifest injustice or miscarriage of justice has resulted[.]”’” State v. Williams, 465 S.W.3d 516, 519 (Mo. App. W.D. 2015) (quoting State v. Brown, 902 S.W.2d 278, 284 (Mo. banc 1995)). “[P]lain errors are those which are evident, obvious and clear.” Id. Once we determine that plain error has occurred, “we must continue to the second step to consider whether or not a miscarriage of justice or manifest injustice will occur if the error is left uncorre cted.” Id. In Williams, we determined that the defendant’s claim, i.e., that the sentencing court had a mistaken belief about the range of punishment, facially established substantial grounds for believing that a manifest injustice or miscarriage of just ice had resulted. Id. Accordingly, we reversed and remanded for resentencing. Id. at 520-21. While Williams involved the sentencing court’s mistaken belief as to the minimum end of the range, we have no reason to believe that a mistake on the maximum e nd should be treated any differently. “A sentence passed on the basis of a materially false foundation lacks due process of law and entitles the defendant to a reconsideration of the question of punishment in the light of the true facts, regardless of the eventual 21 outcome . . . even if it is likely the court will return the same sentence.” Id. at 520 (internal citations omitted). Mr. Webber cites State v. Shaw, 844 S.W.2d 20 (Mo. App. W.D. 1992), to support his argument that misinforming the jury as to the maximum sentence requires a remand for resentencing. The State attempts to distinguish Shaw, arguing that the jury in that case, unlike here, imposed a sentence far in excess of the maximum allowed by law. Id. at 20. We do not believe that this is a meaningful distinction, particularly in light of other case law requiring resentencing on plain-error review even where it is likely that the same sentence may be imposed on remand. The law is clear that an erroneous jury instruction on sentencing and a sentence passed on the basis of a materially false foundation constitute evident, obvious, and clear error and that such error results in manifest injustice if left uncorrected. Had the jury known that the upper limit of punishment for a term of years for a class A felony was thirty years, it may or may not have sentenced Mr. Webber to twenty -four years on each count. Without any way of knowing what effect this knowledge would have had on the jury, we are constrained to grant points VIII, IX, and X and re mand solely for resentencing for each count. See State v. Chapman, 167 S.W.3d 759, 763 (Mo. App. E.D. 2005) (ruling that sentencing error arising from bifurcated proceeding may be redressed on remand by means of a new trial as to the sentencing phase onl y). Conclusion Because the necessarily incident exception to accomplice liability does not apply, Mr. Webber waived a statute-of-limitations defense to the class A felony of attempted forcible sodomy, and Mr. Webber cannot raise an ineffectiveness claim on 22 direct appeal, we affirm his convictions. Because the trial court did not correctly instruct the jury on the range of punishment for his class A felony convictions, we vacate the sentences and remand for re-sentencing. On remand, the trial court may consider Mr. Webber’s request to correct the judgment as to Count VII. /s/ THOMAS H. NEWTON Thomas H. Newton, Presiding Judge Martin and Ardini, JJ. concur. 23 

422 U.S. 853 (1975) HERRING v. NEW YORK. No. 73-6587. Supreme Court of United States. Argued February 26, 1975. Decided June 30, 1975. APPEAL FROM THE APPELLATE DIVISION, SUPREME COURT OF NEW YORK, SECOND JUDICIAL DEPARTMENT. Diana A. Steele argued the cause for appellant. With her on the briefs was William E. Hellerstein. Gabriel I. Levy, Assistant Attorney General of New York, and Norman C. Morse argued the cause for appellee. Mr. Morse was on the brief. Louis J. Lefkowitz, Attorney General of New York, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Joel Lewittes and Mr. Levy, Assistant Attorneys General, filed a brief for the Attorney General of New York. MR. JUSTICE STEWART delivered the opinion of the Court. A New York law confers upon every judge in a nonjury criminal trial the power to deny counsel any opportunity to make a summation of the evidence before the rendition of judgment. N. Y. Crim. Proc. Law § 320.20 *854 (3) (c) (1971).[1] In the case before us we are called upon to assess the constitutional validity of that law. I The appellant was brought to trial in the Supreme Court of Richmond County, N. Y., upon charges of attempted robbery in the first and third degrees and possession of a dangerous instrument.[2] He waived a jury. The trial began on a Thursday, and, after certain preliminaries, the balance of that day and most of Friday were spent on the case for the prosecution. The complaining witness, Allen Braxton, testified that the appellant had approached him outside his home in a Staten Island housing project at about six o'clock on the evening of September 15, 1971, and asked for money. He said that when he refused this demand, the appellant had swung a knife at him. On cross-examination, the appellant's lawyer attempted to impeach the credibility of this evidence by demonstrating inconsistencies between Braxton's testimony and other sworn statements that Braxton had previously made.[3] The only other *855 witness for the prosecution was the police officer who had arrested the appellant upon the complaint of Braxton. The officer testified that Braxton had reported the alleged incident to him, and that the appellant, when confronted by the officer later in the evening, had denied Braxton's story and said that he had been working for a Mr. Taylor at the time of the alleged offense. The officer testified that he had then arrested the appellant and found a small knife in his pocket.[4] At the close of the case for the prosecution, the court granted a defense motion to dismiss the charge of possession of a dangerous instrument on the ground that the knife in evidence was too small to qualify as a dangerous instrument under state law. The trial was then adjourned for the two-day weekend. Proceedings did not actually resume until the following Monday afternoon. The first witness for the defense *856 was Donald Taylor, who was the appellant's employer. He testified that he recalled seeing the appellant on the job premises at about 5:30 p. m. on the day of the alleged offense. The appellant then took the stand and denied Braxton's story. He said that he had been working on a refrigerator at his place of employment during the time of the alleged offense, and further testified that Braxton, a former neighbor, had threatened on several occasions to "fix" him for refusing to give Braxton money for wine and drugs. At the conclusion of the case for the defense, counsel made a motion to dismiss the robbery charges. This motion was denied. The appellant's lawyer then requested to "be heard somewhat on the facts." The trial judge replied: "Under the new statute, summation is discretionary, and I choose not to hear summations." The judge thereupon found the appellant guilty of attempted robbery in the third degree, and subsequently sentenced him to serve an indeterminate term of imprisonment with a maximum of four years. The conviction was affirmed without opinion by an intermediate appellate court.[5] Leave to appeal to the New York Court of Appeals was denied. An appeal was then brought here, and we noted probable jurisdiction. 419 U. S. 893. II The Sixth Amendment guarantees to the accused in all criminal prosecutions the rights to a "speedy and *857 public trial," to an "impartial jury," to notice of the "nature and cause of the accusation," to be "confronted" with opposing witnesses, to "compulsory process" for defense witnesses, and to the "Assistance of Counsel."[6] These fundamental rights are extended to a defendant in a state criminal prosecution through the Fourteenth Amendment.[7] The decisions of this Court have not given to these constitutional provisions a narrowly literalistic construction. More specifically, the right to the assistance of counsel has been understood to mean that there can be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary factfinding process that has been constitutionalized in the Sixth and Fourteenth Amendments. For example, in Ferguson v. Georgia, 365 U. S. 570, the Court held constitutionally invalid a state statute that, while permitting the defendant to make an unsworn statement to the court and jury, prevented defense counsel from eliciting the defendant's testimony through direct examination. Similarly, in Brooks v. Tennessee, 406 U. S. 605, the Court found unconstitutional a state law *858 that restricted the right of counsel to decide "whether, and when in the course of presenting his defense, the accused should take the stand." Id., at 613. The right to the assistance of counsel has thus been given a meaning that ensures to the defense in a criminal trial the opportunity to participate fully and fairly in the adversary factfinding process. There can be no doubt that closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial. Accordingly, it has universally been held that counsel for the defense has a right to make a closing summation to the jury, no matter how strong the case for the prosecution may appear to the presiding judge.[8] The issue has been considered less often *859 in the context of a so-called bench trial. But the overwhelming weight of authority, in both federal and state courts, holds that a total denial of the opportunity for final argument in a nonjury criminal trial is a denial of the basic right of the accused to make his defense.[9] One of many cases so holding was Yopps v. State, 228 Md. 204, 178 A. 2d 879 (1962). The defendant in that case, indicted for burglary, was tried by the court without a jury. The defendant in his testimony admitted being in the vicinity of the offense, but denied any involvement in the crime. At the conclusion of the testimony, the trial judge announced a judgment of guilty. Defense counsel objected, stating that he wished to present argument on the facts. But the trial judge refused to hear any argument on the ground that only a question of credibility *860 was involved, and that therefore counsel's argument would not change his mind. The Maryland Court of Appeals held that the trial court's refusal to permit defense counsel to make a final summation violated the defendant's right to the assistance of counsel under the State and Federal Constitutions: "The Constitutional right of a defendant to be heard through counsel necessarily includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor, however simple, clear, unimpeached, and conclusive the evidence may seem, unless he has waived his right to such argument, or unless the argument is not within the issues in the case, and the trial court has no discretion to deny the accused such right." Id., at 207, 178 A. 2d, at 881. The widespread recognition of the right of the defense to make a closing summary of the evidence to the trier of the facts, whether judge or jury, finds solid support in history. In the 16th and 17th centuries, when notions of compulsory process, confrontation, and counsel were in their infancy, the essence of the English criminal trial was argument between the defendant and counsel for the Crown. Whatever other procedural protections may have been lacking, there was no absence of debate on the factual and legal issues raised in a criminal case.[10] As the rights to compulsory process, to confrontation, and to counsel developed,[11] the adversary system's commitment *861 to argument was neither discarded nor diluted. Rather, the reform in procedure had the effect of shifting the primary function of argument to summation of the evidence at the close of trial, in contrast to the "fragmented" factual argument that had been typical of the earlier common law.[12] *862 It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole. Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries' positions. And for the defense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant's guilt. See In re Winship, 397 U. S. 358. The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free. In a criminal trial, which is in the end basically a factfinding process, no aspect of such advocacy could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment. This is not to say that closing arguments in a criminal case must be uncontrolled or even unrestrained. The presiding judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations. He may limit counsel to a reasonable time and may terminate argument when continuation would be repetitive or redundant. He may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial. In all these respects he must have broad discretion. See generally 5 R. Anderson. Wharton's Criminal Law and Procedure § 2077 (1957). Cf. American Bar Association Project on Standards for Criminal Justice. The Prosecution Function § 5.8, pp. 126-129, and the Defense Function § 7.8, pp. 277-282 (App. Draft 1971). *863 But there can be no justification for a statute that empowers a trial judge to deny absolutely the opportunity for any closing summation at all. The only conceivable interest served by such a statute is expediency. Yet the difference in any case between total denial of final argument and a concise but persuasive summation could spell the difference, for the defendant, between liberty and unjust imprisonment.[13] Some cases may appear to the trial judge to be simple—open and shut—at the close of the evidence. And surely in many such cases a closing argument will, in the words of Mr. Justice Jackson, be "likely to leave [a] judge just where it found him."[14] But just as surely, there will be cases where closing argument may correct a premature misjudgment and avoid an otherwise erroneous verdict. And there is no certain way for a trial judge to identify accurately which cases these will be, until the judge has heard the closing summation of counsel.[15] *864 The present case is illustrative. This three-day trial was interrupted by an interval of more than two days— a period during which the judge's memory may well have dimmed, however conscientious a note-taker he may have been. At the conclusion of the evidence on the trial's final day, the appellant's lawyer might usefully have pointed to the direct conflict in the trial testimony of the only two prosecution witnesses concerning how and when the appellant was found on the evening of the alleged offense.[16] He might also have stressed the many inconsistencies, elicited on cross-examination, between the trial testimony of the complaining witness and his earlier sworn statements.[17] He might reasonably have argued that the testimony of the appellant's employer was entitled to greater credibility than that of the complaining witness, who, according to the appellant, had threatened to "fix" him because of personal differences in the past. There is no way to know whether these or any other appropriate arguments in summation might have affected the ultimate judgment in this case. The credibility assessment was solely for the trier of fact. But before that determination was made, the appellant, through counsel, had a right to be heard in summation of the evidence from the point of view most favorable to him.[18] *865 In denying the appellant this right under the authority of its statute, New York denied him the assistance of counsel that the Constitution guarantees. Accordingly, the judgment before us is vacated and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, dissenting. I The Court has made of this a very curious case. What began as a constitutional challenge to a statute which gives trial courts discretion as to whether "parties" may deliver summations, has been transformed into an exploration of the right to counsel—although no one doubts that appellant was competently represented throughout the proceedings which resulted in his conviction. Today's opinion, in deriving from the right to counsel further rights relating to the conduct of a trial, expands the earlier holdings in Ferguson v. Georgia, 365 U. S. 570 (1961), and Brooks v. Tennessee, 406 U. S. 605 (1972). In each of these three instances one must presume, in view of the Court's analytical approach, that regardless of the intrinsic importance of the rights involved, they are enforced only because the accused has a prior right to the assistance of a third party in the preparation and presentation of his defense. I think that in each instance a statement from Mr. Justice Frankfurter's separate opinion in Ferguson is apropos: "This is not a right-to-counsel case." 365 U. S., at 599. In the present case, the crucial fact is not that counsel wishes to present a summation of the evidence, but that the defendant—whether through counsel or otherwise—wishes to make such a summation. Of course *866 I do not suggest that the rights enforced in these cases are without basis, at least in particular cases, in the Due Process Clause of the Fourteenth Amendment. Cf. id., at 598-601 (opinion of Frankfurter, J.); Brooks v. Tennessee, supra, at 618 (REHNQUIST, J., dissenting). But I do suggest that the Court's analytical framework, and its resulting prophylactic rule, are wrongly employed to decide this case. I would have thought that in Faretta v. California, ante, p. 806, the Court had recanted its approach in Ferguson and Brooks. In Faretta the Court concluded that it is the Sixth Amendment, and not the Right-to-Counsel Clause of that Amendment, which "constitutionalizes the right in an adversary criminal trial to make a defense as we know it." Ante, at 818. Yet in the present case we are informed that it is the Right-to-Counsel Clause which constitutionalizes the right to present a defense "in accord with the traditions of the adversary factfinding process." Ante, at 857. Not being content merely to contradict Faretta by holding that entitlement to the traditions of our judicial system depends upon the right to retain counsel, the Court also states that, "of course, the same right to make a closing argument" is available to those who choose not to exercise their right to counsel. Ante, at 864 n. 18. To complete the confusion, the Court does not explain the latter ipse dixit, but does cite one case—Faretta. II The Due Process Clause of the Fourteenth Amendment has long been recognized as assuring "fundamental fairness" in state criminal proceedings. See, e. g., Lisenba v. California, 314 U. S. 219, 236 (1941); Moore v. Dempsey, 261 U. S. 86, 90-91 (1923). Throughout the history of the Clause we have generally considered the question of *867 fairness on a case-by-case basis, reflecting the fact that the elements of fairness vary with the circumstances of particular proceedings. As the Court observed in Snyder v. Massachusetts, 291 U. S. 97, 116-117 (1934): "Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. . . . What is fair in one set of circumstances may be an act of tyranny in others." See, e. g., Sheppard v. Maxwell, 384 U. S. 333 (1966); Spencer v. Texas, 385 U. S. 554 (1967); Chambers v. Mississippi, 410 U. S. 284 (1973); Cupp v. Naughten, 414 U. S. 141 (1973). However in some instances the Court has engaged in a process of "specific incorporation," whereby certain provisions of the Bill of Rights have been applied against the States. See the cases cited ante, at 857 n. 7. In making the decision whether or not a particular provision relating to the conduct of a trial should be incorporated, we have been guided by whether the right in question may be deemed essential to fundamental fairness—an analytical approach which is compelled if we are to remain true to the basic orientation of the Due Process Clause. See, e. g., In re Oliver, 333 U. S. 257, 270-271 (1948) (public trial); Duncan v. Louisiana, 391 U. S. 145, 155-158 (1968) (jury trial); Pointer v. Texas, 380 U. S. 400, 403-404 (1965) (confrontation); Washington v. Texas, 388 U. S. 14, 17-19 (1967) (compulsory process); Gideon v. Wainwright, 372 U. S. 335, 342 (1963) (appointed counsel). But once we have determined that a particular right should be incorporated against the States, we have abandoned case-by-case considerations of fairness. Incorporation, in effect, results in the establishment of a strict prophylactic rule, one which is to be generally observed in every case regardless of its particular circumstances. It is a judgment on the part of *868 this Court that the probability of unfairness in the absence of a particular right is so great that denigration of the right will not be countenanced under any circumstances. These judgments by this Court reflect similar judgments made by the Constitution's Framers with regard to the Federal Government. Beyond certain of the specified rights in the Bill of Rights, however, I do not understand the basis for abandoning the case-by-case approach to fundamental fairness. There are a myriad of rules and practices governing the conduct of criminal proceedings which may or may not in particular circumstances be necessary to assure fundamental fairness. Obvious examples are the rules governing the introduction and testing of evidence, as well as, I think, the New York rule governing summations in nonjury trials. Such matters are not specifically dealt with in the text of the Constitution, nor are they subject to the judgment that uniform application of a particular rule is necessary because the likelihood of unfairness is too great when that rule is not observed. As to such matters it is appropriate, and frequently necessary, that trial judges be accorded considerable discretion, subject of course to both appellate review on an abuse-of-discretion standard and, ultimately, to the fundamental fairness inquiry under the Fourteenth Amendment. The present case is a prime example of why a prophylactic rule with regard to summations in nonjury trials is thoroughly inappropriate. The case was tried before a judge who, unlike a jury, may take notes on testimony, and who is experienced in both judging the credibility of witnesses and testing the relevance of their testimony to the elements which must be proved to obtain a conviction. The case was conceptually and factually a simple one, involving no more than whether one was *869 to believe the victim, despite the inconsistencies in his testimony, or the defendant.[1] The judge had previously permitted appellant's counsel to summarize the evidence, on the occasion of the motion to dismiss at the close of the State's case. That appellant's counsel had considerable faith in the judge's familiarity with, and ability to organize, the evidence is shown by the transcript of that earlier summation: "[MR. ADAMS:] Do you want to hear me extensively on that, Judge? Or I have a witness here, I can go on, or would you rather hear me on some lengthy argument subsequently, Judge? "THE COURT: I will hear anything you have to say. "MR. ADAMS: All right. Judge, I believe here that as a matter of law we have a doubt here. Firstly, on this first witness of the prosecution here, Judge. There were numerous inconsistencies, and I will not bore the Court reading that. Of course the Court has copious notes on it, and I am sure it is very fresh in the Court's mind. But on top of that, Judge, we have a questionable complainant, with a questionable way of how it happened, no witness other than this complainant. "An officer who checked out this particular matter testified here and said that the man was working at that time. A definite denial by the defendant. And I believe that as a matter of law, Judge, there is a reasonable doubt here." App. 66 (emphasis added). Similarly, when the opportunity to summarize was *870 denied, appellant's counsel did not so much as suggest that he thought it necessary to refresh the judge's memory as to certain matters.[2] It should also be noted that in his earlier argument counsel had referred to most of the matters which the Court today suggests might have usefully been brought to the judge's attention in a final summation. See ante, at 864. Finally, the fact that the judge conducted this trial in a fairminded fashion, and would not arbitrarily prevent a summation which could be expected to clarify his understanding of the case, is evidenced by his dismissal of one count over the vigorous protests of the prosecution. Whatever theoretical effect the denial of argument may have had on the judgment of conviction, its practical effect on the outcome must have been close to nothing. The trial judge was not conducting a moot court; he was sitting as the finder of fact in a trial in which he had been present during the testimony of every single witness. No experienced advocate would insist on presenting argument to such a judge after he had indicated his belief that argument would not be of assistance. Trial counsel here did not insist, and the claim which *871 is today sustained by this Court is urged by other counsel. The truth of the matter is that appellant received a fair trial, and I do not read the Court's opinion to claim otherwise. The opinion instead establishes a right to summation in criminal trials regardless of circumstances, by tagging that right onto one of the specifically incorporated rights. It thereby conveniently avoids the difficulties of being unable to characterize appellant's trial as fundamentally unfair, but only at the expense of ignoring the logical difficulty of adorning the specifically incorporated rights with characteristics which are not themselves necessary for fundamental fairness.[3] The nature of the right which the Court today creates is as curious as its genesis. Apparently it requires nothing more than pro forma observance, since the trial judge "must be and is given great latitude" in controlling the duration and limiting the scope of closing summations. He may determine what is a "reasonable" time for argument, and at what point the argument becomes repetitive or redundant, or strays "unduly" from the mark. "In all these respects he must have broad discretion." Ante, at 862. That is, after 30 seconds, or some other minimal period of argument, the judge is free to exercise his discretion. It is not clear why this should be so. If it is *872 true that "there is no certain way for a trial judge to identify accurately [those cases in which closing argument may be beneficial], until the judge has heard the closing summation of counsel," ante, at 863, it is equally true that he cannot determine whether continued argument will be repetitive, redundant, or otherwise useless until he has heard the continued argument. But in any event, the constitutional issue does rather quickly become framed once again according to the standards which should have governed all along—whether or not the judge's actions in the particular case deprived the defendant of a trial which was fundamentally fair.[4] By propagating a right to summation—despite such a right's lack of textual basis, and despite the inability reasonably to conclude that the right is so basic that we cannot chance trial court discretion in the matter—the Court has furthered the practice of reviewing state criminal trials in a piecemeal fashion. The incident upon which this reversal is based was but one stage in a carefully conducted trial, and cannot be claimed to have permeated the entire proceeding as would trial without a jury, or without counsel. The Court is thus disregarding the basic question of whether the proceeding by which a defendant is deprived of his liberty is fundamentally fair. The Court's decision derives no support either from logic or from the Amendment it professes to apply. Since it reverses a criminal conviction which was fairly obtained, I dissent. NOTES [1] Section 320.20 (3) (c) provides: "The court may in its discretion permit the parties to deliver summations. If the court grants permission to one party, it must grant it to the other also. If both parties deliver summations, the defendant's summation must be delivered first." By contrast, New York law explicitly grants a right to make a "closing statement" in every civil case. N. Y. Civ. Prac. Rule 4016 (1963). [2] N. Y. Penal Law §§ 110.00/160.15, 110.00/160.05, 265.05 (1975). [3] On cross-examination of Braxton, the appellant's lawyer demonstrated the following inconsistencies: First, Braxton testified at trial that, after running into his house to evade the appellant, he did not look back outside to see where the appellant had gone; but before the grand jury, Braxton had said that, after entering his house, he had looked outside and the appellant was gone. Second, Braxton testified at trial that the knifeblade was shiny; but in his grand jury testimony he had said that he could not remember if it was shiny or not. Third, Braxton testified at trial that the appellant had asked him for money in a "soft" voice; but before the grand jury he had stated that the request for money was "kind of loud." Fourth, Braxton testified at trial that the appellant had swung a blade at him once; but in the felony complaint filed the day after the alleged crime, he had stated that the appellant had swung a knife at him "a couple of times." [4] There was a major inconsistency between the police officer's testimony and that of Braxton. Braxton testified that he was walking down the street with the officer at about 6:45 p. m. when they came across the appellant. But the officer testified that he had searched for the appellant with Braxton until only about 6:30 p. m., when they had separated, and that about an hour later he had seen the appellant and Braxton on opposite sides of Broadway. Thus Braxton testified that he and the officer were together when they found the appellant about 6:45 p. m., while the officer's testimony was that he had separated from Braxton about 6:30 p. m., and that he next saw Braxton and the appellant on opposite sides of a street at about 7:30 p. m. [5] The court subsequently certified that in affirming the judgment, it had rejected the appellant's constitutional claims: "Upon the appeal herein, there was presented and passed upon the following constitutional question, namely, whether relator's rights under the Fourth, Sixth and Fourteenth Amendments were denied by the trial court's application of paragraph (c) of subdivision 3 of CPL 320.20 to refuse appellant permission to deliver a summation. This court considered appellant's said conviction and determined that none of his constitutional rights were violated." [6] The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . [,] to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him: to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." [7] See Klopfer v. North Carolina, 386 U. S. 213 (speedy trial); In re Oliver, 333 U. S. 257 (public trial); Duncan v. Louisiana, 391 U. S. 145 (jury trial); Cole v. Arkansas, 333 U. S. 196 (notice of nature and cause of accusation); Pointer v. Texas, 380 U. S. 400 (confrontation); Washington v. Texas, 388 U. S. 14 (compulsory process); Gideon v. Wainwright, 372 U. S. 335, and Argersinger v. Hamlin, 407 U. S. 25 (assistance of counsel). [8] See, e. g., Jackson v. State, 239 Ala. 38, 193 So. 417 (1940); Yeldell v. State, 100 Ala. 26, 14 So. 570 (1894); People v. Green, 99 Cal. 564, 34 P. 231 (1893); State v. Hoyt, 47 Conn. 518 (1880); Hall v. State, 119 Fla. 38, 160 So. 511 (1935); Williams v. State, 60 Ga. 367 (1878); Porter v. State, 6 Ga. App. 770, 65 S. E. 814 (1909); State v. Gilbert, 65 Idaho 210, 142 P. 2d 584 (1943); People v. McMullen, 300 Ill. 383, 133 N. E. 328 (1921); Lynch v. State, 9 Ind. 541 (1857); State v. Verry, 36 Kan. 416, 13 P. 838 (1887); Sizemore v. Commonwealth, 240 Ky. 279, 42 S. W. 2d 328 (1931); State v. Cancienne, 50 La. Ann. 1324, 24 So. 321 (1898); Wingo v. State, 62 Miss. 311 (1884); State v. Page, 21 Mo. 257 (1855); State v. Tighe, 27 Mont. 327, 71 P. 3 (1903); State v. Shedoudy, 45 N. M. 516, 118 P. 2d 280 (1941); People v. Marcelin, 23 App. Div. 2d 368, 260 N. Y. S. 2d 560 (1965); State v. Hardy, 189 N. C. 799, 128 S. E. 152 (1925); Weaver v. State, 24 Ohio St. 584 (1874); State v. Rogoway, 45 Ore. 601, 78 P. 987 (1904), rehearing, 45 Ore. 611, 81 P. 234 (1905); Stewart v. Commonwealth, 117 Pa. 378, 11 A. 370 (1887); State v. Ballenger, 202 S. C. 155, 24 S. E. 2d 175 (1943); Word v. Commonwealth, 30 Va. 743 (1831); State v. Mayo, 42 Wash. 540, 85 P. 251 (1906); Seattle v. Erickson, 55 Wash. 675, 104 P. 1128 (1909). One treatise states the general rule as follows: "The presentation of his defense by argument to the jury, by himself or his counsel, is a constitutional right of the defendant which may not be denied him, however clear the evidence may seem to the trial court." 5 R. Anderson, Wharton's Criminal Law and Procedure § 2077 (1957). [9] See United States v. Walls, 443 F. 2d 1220 (CA6 1971); Thomas v. District of Columbia, 67 App. D. C. 179, 90 F. 2d 424 (1937); United States ex rel. Spears v. Johnson, 327 F. Supp. 1021 (ED Pa. 1971), rev'd on other grounds, 463 F. 2d 1024 (CA3 1972); United States ex rel. Wilcox v. Pennsylvania, 273 F. Supp. 923 (ED Pa. 1967); Floyd v. State, 90 So. 2d 105 (Fla. 1956); Olds v. Commonwealth, 10 Ky. 465 (1821); Yopps v. State, 228 Md. 204, 178 A. 2d 879 (1962); People v. Thomas, 390 Mich. 93, 210 N. W. 2d 776 (1973); Decker v. State, 113 Ohio St. 512, 150 N. E. 74 (1925); Commonwealth v. McNair, 208 Pa. Super. 369, 222 A. 2d 599 (1966); Commonwealth v. Gambrell, 450 Pa. 290, 301 A. 2d 596 (1973); Anselin v. State, 72 Tex. Cr. R. 17, 160 S. W. 713 (1913); Walker v. State, 133 Tex. Cr. R. 300, 110 S. W. 2d 578 (1937); Ferguson v. State, 133 Tex. Cr. R. 250, 110 S. W. 2d 61 (1937). Cf. Collingsworth v. Mayo, 173 F. 2d 695, 697 (CA5 1949); State v. Hollingsworth, 160 La. 26, 106 So. 662 (1925). But see People v. Manske, 399 Ill. 176, 77 N. E. 2d 164 (1948). Cf. People v. Berger, 288 Ill. 47, 119 N. E. 975 (1918); Casterlow v. State, 256 Ind. 214, 267 N. E. 2d 552 (1971); Reed v. State, 232 Ind. 68, 111 N. E. 2d 661 (1953); Lewis v. State, 11 Ga. App. 14, 74 S. E. 442 (1912). [10] Stephen has described the trial procedure in this period as a "long argument between the prisoner and the counsel for the Crown." 1 J. Stephen, History of the Criminal Law of England 326 (1883). For a fuller description of the trial process in that period, see id., at 325-326, 350. [11] See 7 Will. 3, c. 3, § 1 (1695); 1 Anne, Stat. 2. c. 9, § 3 (1701); 6 & 7 Will. 4, c. 114, § 1 (1836). [12] Cf. Stephen, supra, n. 10, at 349. In the Colonies, where a similar reform in criminal defendants' rights occurred, common practice, if not right, apparently gave to the accused the opportunity to sum up his case in closing argument. For example, Zephaniah Swift, in an early colonial treatise on the law in Connecticut, wrote: "When the exhibition of evidence is closed, the attorney for the state opens the argument, the counsel for the prisoner follow[s], the attorney for the state then closes the argument, and the chief justice then sums up the evidence in his charge delivered to the jury, in which he states in the most candid and impartial manner, the evidence and the law, and the arguments of the counsel for the state, as well as the prisoner. . . ." 2 Z. Swift, A System of the Laws of the State of Connecticut 401 (1796). With a lesser degree of certainty, a modern scholar concludes that in the trial of capital offenses in colonial Virginia, it was likely, but not certain, that the accused would be given an opportunity to make a closing argument in summation at the end of the trial. See H. Rankin, Criminal Trial Proceedings in the General Court of Colonial Virginia 101 (1965). In England, in 1865, the right of the defendant in a criminal trial to make a closing argument, either by himself or by counsel if he was represented, was given express statutory recognition: "[U]pon every Trial . . . whether the Prisoners . . . or any of them, shall be defended by Counsel or not . . . such Prisoner . . . shall be entitled . . . when all the Evidence is concluded to sum up the Evidence respectively." Criminal Procedure Act of 1865, 28 Vict., c. 18, § 2. This remains the rule in England. 10 Halsbury's Laws of England § 777, pp. 422-423 (3d ed. 1955). See also T. Butler & M. Garsia, Archibold's Pleading, Evidence and Practice in Criminal Cases, § 558 (37th ed. 1969). Cf. R. v. Wainwright, 13 Cox Cr. Cas. 171 (1875); R. v. Wickham, 55 Cr. App. R. 199 (1971) (noted at 1971 Crim. L. Rev. 233). [13] We deal in this case only with final argument or summation at the conclusion of the evidence in a criminal trial. Nothing said in this opinion is to be understood as implying the existence of a constitutional right to oral argument at any other stage of the trial or appellate process. [14] R. Jackson, The Struggle for Judicial Supremacy 301 (1941). [15] The contention has been made that, while a right to make closing argument should be recognized in a jury trial, there is insufficient justification for such a right in the context of a bench trial. This view rests on the premise that a judge, with legal training and experience, will be likely to see the case clearly, rendering argument superfluous, or to recognize that further illumination of the issues would be helpful, in which case he would permit closing argument. We find this contention unpersuasive. Judicial training and expertise, however it may enhance judgment, does not render memory or reasoning infallible. Moreover, in one important respect, closing argument may be even more important in a bench trial than in a trial by jury. As MR. JUSTICE POWELL has observed, the "collective judgment" of the jury "tends to compensate for individual shortcomings and furnishes some assurance of a reliable decision." Powell, Jury Trial of Crimes, 23 Wash. & Lee L. Rev. 1, 4 (1966). In contrast, the judge who tries a case presumably will reach his verdict with deliberation and contemplation, but must reach it without the stimulation of opposing viewpoints inherent in the collegial decision-making process of a jury. [16] See n. 4, supra. [17] See n. 3, supra. [18] A defendant who has exercised the right to conduct his own defense has, of course, the same right to make a closing argument. See Faretta v. California, ante, p. 806. [1] The employer's credibility was not at issue. Not only was he vague as to the times at which he had seen appellant at his garage, but that garage was located only 3 1/2 blocks from the scene of the crime. App. 76. 86. [2] The colloquy at the end of the trial was as follows: "MR. ADAMS: Judge, at this time I respectfully move to— make two motions, Judge. Firstly, that the Court dismiss the two counts, first count and the second count of the indictment on the grounds the People have failed to make out a prima facie case; and on the further grounds the People have failed to prove the defendant guilty of each and every part and parcel of the crimes charged in count one and count two beyond a reasonable doubt as a matter of law, and as a matter of fact. "THE COURT: Motion denied. I will take a short recess to deliberate, and I will give you a verdict. "MR. ADAMS: Well, can I be heard somewhat on the facts? "THE COURT: Under the new statute, summation is discretionary, and I choose not to hear summations. "THE CLERK: Remand." App. 92. [3] While the Court, ante, at 862, presents a variety of arguments supporting the wisdom and desirability of generally permitting closing arguments in nonjury trials, none of them impress me as rising to the level of fundamental fairness. They would be of substantial merit if presented to the New York Legislature, but are hardly relevant to the constitutional inquiry which it is our duty to perform. As for the Court's final flourish ("no aspect of such advocacy could be more important"), it is obvious hyperbole which can only be uttered in complete disregard of such matters as cross-examination, the selection of trial strategy and witnesses, and attempts to exclude unconstitutionally obtained evidence. [4] I would also think it not unlikely under the Court's holding that post-trial briefing would be an adequate substitute for oral summation, since it meets the concerns which the Court expresses as the basis for its newly found constitutional right. See ante, at 862.

33 B.R. 745 (1983) In re AEGEAN FARE, INC., Debtor. AEGEAN FARE, INC., Plaintiff, v. COMMONWEALTH OF MASSACHUSETTS, DEPARTMENT OF REVENUE, Defendant. Bankruptcy No. 83-01377-L. United States Bankruptcy Court, D. Massachusetts. October 14, 1983. *746 Bernard P. Rome, Wasserman, Salter & Rome, Boston, Mass., for debtor. Jeffrey S. Ogilvie, Mass. Dept. of Revenue, Boston, Mass., for plaintiff. MEMORANDUM AND ORDER THOMAS W. LAWLESS, Bankruptcy Judge. This matter came before the Court on the emergency motion[1] of the Aegean Fare, Inc. (the "Debtor") to compel the turnover of property seized by the Commonwealth of Massachusetts by its Department of Revenue (the "Commonwealth"). At the hearing on October 5, 1983, I found as follows: *747 The Debtor owns and operates three restaurants in the Boston area. Beginning in 1975 to the present time, the Debtor has been in various stages of delinquency with respect to its obligation to collect and remit sales taxes owed to the Commonwealth. On Friday, September 30, 1983, the Commonwealth obtained an ex parte order in Massachusetts Superior Court authorizing representatives of the Commonwealth to enter the Debtor's premises and levy on and seize the Debtor's property in satisfaction of a claimed delinquency of $312,217.57 in sales taxes pursuant to M.G.L. c. 62C § 53. On October 3, 1983, the Commonwealth took physical possession of the Debtor's premises and the property located thereon under levy. On Tuesday, October 4, 1983, the Debtor filed a voluntary petition for reorganization under Chapter 11 along with an emergency request for turnover of its assets. See Note 1, supra. The Debtor served its motion on the Commonwealth on the same day and notified the Commonwealth that the Court had scheduled an emergency hearing on the matter the following day, October 5, 1983. At the emergency hearing on October 5, 1983, several matters became readily apparent. First, the property seized by the Commonwealth was essential to the Debtor's reorganization efforts and, despite its seizure, said property became part of the Debtor's Chapter 11 estate. 11 U.S.C. §§ 541(a)(1), 542(a); United States v. Whiting Pools, ___ U.S. ___, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983). Second, the Commonwealth's status as a tax collector falls within the scope of those "entities" that are subject to the turnover provisions of 11 U.S.C. § 542(a). Whiting Pools, supra. Third, the Commonwealth's seizure did not vest the Commonwealth with ownership of the Debtor's assets as they were assets subject to a levy only. Id. Finally, the perishable nature of Debtor's food inventory necessitated immediate action on the Debtor's request for turnover. Since these facts were undisputed and the legal issues conclusively decided by the Supreme Court in Whiting Pools in the context of an Internal Revenue Service seizure, the Court found the request for turnover to be fully within its powers. See also In re Barsky, 6 B.R. 624 (Bkrtcy.E.D.Pa.1980); Matter of Troy Indus. Catering Services, 2 B.R. 521 (Bkrtcy.E.D.Mich.1980) (turnover orders properly entered against state taxing authorities). Having determined that turnover was authorized under the circumstances, the Court proceeded to address the question of "adequate protection" of the Commonwealth's interest in the levied property. Section 542(a) allows for turnover of "property that the trustee may use, sell or lease under section 363 of this title." Under section 363, the trustee or debtor-in-possession may use, sell, or lease "property of the estate," other than cash collateral, without notice and hearing if done in the ordinary course of business. Section 363 further establishes that, except in the case of cash collateral, the burden is on the entity having an interest in the property being used, sold or leased to request the Court to prohibit or otherwise condition the exercise of the Section 363 authority by the trustee or debtor-in-possession so as to ensure adequate protection of its interest as set forth in Section 361. Once this request is made, the burden then shifts, by the terms of Section 363(d), to the trustee or debtor-in-possession to prove that the entity is adequately protected. "Adequate protection" is not defined in the Bankruptcy Code, nor is it specified what is entitled to adequate protection other than an "interest in property." The Commonwealth's interest in Debtor's property extends only to property and obligations of the Debtor at the time of levy. M.G.L. c. 62C § 53. The Legislative history of the Code notes that the concept of adequate protection is "derived from the fifth amendment protection of property interests" citing Wright v. Union Central Life Insurance Co., 311 U.S. 273, 61 S.Ct. 196, 85 L.Ed. 184 (1940) and Louisville Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593 (1935). H.R.Rep. No. 95-595, 95th Cong. 1st Sess. 338 (1977) U.S.Code Cong. & Admin.News 1978, p. 5787. In Wright the *748 Supreme Court, addressing the constitutionality of the Frazier-Lempkee Act (which adjusted the rights of mortgagees in the wake of the Great Depression), held the Act constitutional because: "Safeguards were provided to protect the rights of secured creditors, throughout the proceedings, to the extent of the value of the property [the property held by the secured creditor as security]. . . . There is no constitutional claim of the creditor to more than that." Wright v. Union Central Life Insurance Co., supra, 311 U.S. at 278, 61 S.Ct. at 199. Thus the "interest in property" entitled to protection is not measured by the amount of the asserted debt but by the value of the lien. In other words, the creditor's right to adequate protection is limited to the lesser of the value of the collateral or the amount of the secured claim. See, e.g., In re Alyucan Interstate Corp., 12 B.R. 803, 808 (Bkrtcy.D.Utah 1981); LaJolla Mortgage Fund v. Rancho El Cajon Assoc., 18 B.R. 283, 8 B.C.D. 1035, 1036 (Bkrtcy.S.D.Ca. 1982). See also Gordanier, The Indubitable Equivalent of Reclamation: Adequate Protection For Secured Creditors Under the Bankruptcy Code, 54 Am.Bankr.L.J. 299, 306 (fall 1980). It is also settled that the value of the property on the day the petition is filed determines the amount of the claim entitled to adequate protection. See Matter of Mulcahy, 5 B.R. 558, 563 (Bkrtcy. D.Conn.1980); La Jolla Mortgage Fund, supra, 18 B.R. 283, 8 B.C.D. at 1037. Thus, to the extent that the Commonwealth's lien claim exceeded the value of the Debtor's collateral on the day of the filing, the claim was an unsecured claim, albeit a priority claim, but one which was not entitled to adequate protection. Conversely to the extent that the value of the Debtor's property secured by the lien exceeded the value of the claimed lien, an "equity cushion" or "value cushion" existed which under some circumstances can itself constitute adequate protection. In short, evidence on value is fundamental to the determination of adequate protection. Furthermore, adequate protection under these circumstances is the protection of the creditor's claim from any impairment in value of the claim, including that attributable to the Debtor's use of the property under § 363. The right to adequate protection does not automatically entitle the creditor to cash payment equivalent to its interests. See In re International Horizons, Inc., 15 B.R. 798, 5 C.B.C.2nd 849 (Bkrtcy.M.D. Ga.1981). Nor are the various pre-petition payment agreements entered into by the Debtor and the Commonwealth necessarily the appropriate level of adequate protection of the Commonwealth's interest. Again, evidence of the depreciation and harm resulting to the Commonwealth's property interest from the Debtor's use of the property is part of any calculation of adequate protection. In the instant case, the Court treated the Commonwealth's objection to turnover of the Debtor's assets as also a request for adequate protection of its interest[2] and the Court asked both parties to address the terms of an appropriate adequate protection order. The Commonwealth, pointing to the terms of various repayment agreements entered into by the Debtor during the years preceding the filing of the petition as indicative of an appropriate level of adequate protection, requested an order requiring *749 the Debtor to pay $100.00 per day against its current tax liability, $300.00 per day against its outstanding tax delinquency and a $50,000.00 immediate cash payment. Implicit in the Commonwealth's proposal was the assumption that the full amount of its asserted claim in the amount of $312,217.57 was entitled to adequate protection. As I have explained, this position was untenable. This Court had only to protect the value of the collateral behind the lien and see to it that this value was not diminished. The Debtor proposed an adequate protection order that required the Debtor to pay ongoing taxes on a current basis and $300.00 per week on account of the Commonwealth's asserted claim until certain matters were clarified. The Debtor vigorously disputed the amount of delinquent taxes asserted by the Commonwealth. The Debtor claimed that the Commonwealth's determination of the percentage of Debtor's gross sales subject to sale tax was meaningless in context because the Debtor intended to appeal a September 26, 1983 order of the Department of Revenue's Appeal and Review Bureau affirming the Commonwealth's tax assessment. Furthermore, it became apparent that a significant portion of the Commonwealth's claim was comprised of penalties, the status and treatment of which are uncertain in bankruptcy. Compare 11 U.S.C. § 507(a)(6)(G) (penalties only allowed for actual pecuniary loss) with 11 U.S.C. § 726(a)(4) (penalties which are not compensation for actual pecuniary loss are subordinate to unsecured claims). See also In re Idak, 19 B.R. 765 (Bkrtcy.D.Mass. 1982). At the emergency hearing on October 5, 1983 on the question of adequate protection, neither party presented any evidence on the issue of the value of the Commonwealth's collateral, nor did either party assert that the Commonwealth's claim was undersecured. While the debtor has the burden of proof on the issue of adequate protection, the creditor has the burden on the issue of the existence of equity, or lack thereof, in the debtor's property. 11 U.S.C. § 362(g)(1). The scant submissions of the Commonwealth regarding the property it had liened and levied upon indicated an inventory of unvalued property compiled by an officer of the Commonwealth's Department of Revenue who had participated in its seizure. The property listed was typical of that which one would find in a low to mid-priced restaurant and take-out operation, ranging from "1 Glenco Door Freezer" to "6½ cases of Ramblin Root Beer." However, the property was not typical of collateral that secures a claim in excess of $300,000.00 or an "interest in property" that would be entitled to the level of adequate protection requested by the Commonwealth. It must be remembered that the Court was concerned with the value of the liened and levied property which was being turned over to the Debtor and not the total amount of the asserted claim. On October 5, 1983, a full evidentiary hearing on the issues of adequate protection was not capable of being addressed, not only from the standpoint of the Court's calendar but also due to the lack of available evidence. It was essential, however, to eliminate any danger of diminution in the value of this estate from spoilage or otherwise and to commence the rehabilitation process as expeditiously as possible for the benefit of all the Debtor's creditors. Although the Commonwealth questioned the Debtor's Chapter 11 filing, this matter was not akin to a good faith inquiry. This was not a question of anticipatory bankruptcy based solely upon predictions of future financial ruin, whether it be by labor contract or toxic claim, but a dispossessed business' only hope of recovery. Compare Cifelli, Management Bankruptcy, Vol. 108, Fortune, No. 9., (Oct. 31, 1983). This demonstrated need and Debtor's showing that there was a reasonable likelihood for successful reorganization warranted that it be given the opportunity to do so. Accordingly, based upon the foregoing and solely as an interim measure put in place in view of the exigencies of the situation and without prejudice to the right of either party to seek a full hearing on the matter, the Court ordered the Commonwealth to terminate its possession of the *750 Debtor's premises and turnover possession of same to the Debtor, provided, however, that the Debtor make weekly payments to the Commonwealth on account of current meal taxes and $500.00 weekly on account of the disputed tax delinquency. Additionally, § 507(b) of the Code grants a super-priority to post-petition creditors in the event that the adequate protection requirements of § 361 prove to be inadequate. Such claim is given priority over every other allowable administrative claim. Accordingly, the Court will schedule an evidentiary hearing on value as soon as its calendar permits. Because the value of the property standing as security for the Commonwealth's position is crucial, the following pre-trial order will take effect in lieu of the Court's customary order: (1) Both parties shall file within three (3) days a list of the property defined in the foregoing paragraph, with asserted values thereto, along with affidavits supporting the parties respective value positions. Finally, the Debtor shall file its Schedules and Statement of Affairs within (5) days of the entry of this Memorandum and Order. NOTES [1] The Debtor filed a verified pleading entitled "Petition for Emergency Hearing" in which it moved for an order of turnover of the assets then being held by the Commonwealth. The Commonwealth correctly objected to this pleading because it did not comply with Bankruptcy Rule 7003 as being in the form of a complaint to properly institute a proceeding to compel turnover. However, for a number of reasons the Court decided to excuse the Debtor's non-compliance with the Rules and address the matter on the merits. The exigencies of the circumstances as detailed in the Debtor's Petition, at the hearing on this matter and by the very nature of Debtor's business, necessitated immediate action on the request of turnover in order to avoid any diminution in the value of the estate. If this matter had come before the Court in the form of a complaint, under these circumstances the Court would have shortened the answer period to one day. See Bankruptcy Rule 9006(c)(1). Moreover, there was sufficient information set forth in the Debtor's verified pleading to inform the Commonwealth of the issues it had to address. Indeed, the Commonwealth came before this Court on October 5, 1983, armed with a memorandum with detailed exhibits attached thereto demonstrating its awareness of the facts at hand, the legal matters in issue and the relief requested. Under these circumstances and in order to effectuate the prompt rehabilitation of this Debtor, the Court deemed it necessary and appropriate to consider the Debtor's pleading and to proceed with consideration of the substantive issues on the merits. 11 U.S.C. § 105; see In the Matter of United Merchants and Manufacturers, Inc., 4 BCD 447, 448 (Bankr.S. D.N.Y.1978); In the Matter of Highlander Sportswear, Inc., 4 BCD 760, 761 (Bankr.S.D.N. Y. 1978). [2] Regarding the adequate protection rights of a creditor who is ordered to turnover property to the debtor pursuant to section 542(a), the Supreme Court stated "Section 542(a) simply requires the Service [Internal Revenue Service] to seek protection of its interest according to the congressionally established bankruptcy procedures, rather than by withholding the seized property from the debtor's efforts to reorganize." Whiting Pools, supra, 103 S.Ct. at 2317. As noted above, absent a request for adequate protection, a debtor may use, sell or lease property of the estate, without notice and hearing, if done in the ordinary course of business. It is incumbent upon the creditor to seek adequate protection of its interest. Absent such a request, adequate protection is not a condition precedent to the entry of an order of turnover. See In re Alpa Corp., 11 B.R. 281, 290 (Bkrtcy.D.Utah 1981) citing 4 Collier on Bankruptcy § 42.02, at 542-6 (15th ed. 1980). Given the posture and speed in which this matter came before the Court, in all fairness to the Commonwealth the Court raised the question of adequate protection sua sponte.

NONPRECEDENTIAL DISPOSITION  To be cited only in accordance with Fed. R. App. P. 32.1       United States Court of Appeals For the Seventh Circuit  Chicago, Illinois 60604    Submitted May 1, 2019*  Decided May 2, 2019    Before    FRANK H. EASTERBROOK, Circuit Judge    ILANA DIAMOND ROVNER, Circuit Judge    AMY J. ST. EVE, Circuit Judge    No. 18‐2056    PHILIP M. SEBOLT,    Appeal from the United States District    Plaintiff‐Appellant,  Court for the Northern District of Illinois,    Eastern Division.        v.  No. 17 C 3866      UNITED STATES OF AMERICA,  Samuel Der‐Yeghiayan,    Defendant‐Appellee.  Judge.    O R D E R  Philip Sebolt, an inmate at the Federal Correctional Institution in Terre Haute,  Indiana, claims that prison officials unlawfully held him in segregation when he was  temporarily transferred to another facility. The district court dismissed Sebolt’s suit,  and we affirm the judgment because his statutory claims are barred.                                                      * We have agreed to decide this case without oral argument because the briefs  and record adequately present the facts and legal arguments, and oral argument would  not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).    No. 18‐2056    Page  2      Sebolt, who was convicted in the Northern District of Illinois, filed a motion  under 28 U.S.C. § 2255 claiming the right to be released from prison. The court  scheduled a hearing, and Sebolt was temporarily transferred to the Metropolitan  Correctional Center, a federal prison in Chicago, to await the proceedings. Sebolt had  been assigned to the communications‐management unit in Terra Haute so that his  phone and computer use could be monitored. The Chicago prison does not have a  designated communications‐management unit. So, to continue monitoring Sebolt’s  communications with outside persons, prison officials placed him in administrative  detention in the special‐housing unit. This meant that Sebolt was segregated from the  rest of the prison population and able to leave his cell for only five hours a week. He  remained in special housing for approximately three months and, after his hearing, was  transferred back to Terre Haute.       Sebolt sued the United States in the Southern District of Indiana, alleging that the  prison officials were liable under the Administrative Procedure Act, 5 U.S.C. § 701, and  the Federal Tort Claims Act, 28 U.S.C. § 1346, for placing him in segregation.  Specifically, he claimed that officials unlawfully created or modified federal rules when  they determined that he had to be kept under similar conditions of confinement when  being held at the Chicago prison. Further, he alleged that prison officials falsely  imprisoned him by holding him in segregation without legal authority. The United  States successfully moved to transfer the case to the Northern District of Illinois and  then moved to dismiss the complaint on several grounds, some of them jurisdictional.  The district court granted the motion, and Sebolt appeals.      We review de novo the dismissal of Sebolt’s claims for failure to state a claim and  lack of subject‐matter jurisdiction. Kowalski v. Boliker, 893 F.3d 987, 994 (7th Cir. 2018).      Sebolt first argues that the district court wrongly concluded that his claim under  the Administrative Procedure Act is not judicially reviewable. The Act permits judicial  review of agency decisions unless another federal statute specifically precludes review  or they are committed to agency discretion. 5 U.S.C. § 701(a). Here, both exceptions  apply. First, prison officials transferred Sebolt from general population into special  housing under 28 C.F.R. § 541.23(c), a regulation authorized by 18 U.S.C. §§ 3621, 3622,  and 3624. A federal statute, 18 U.S.C. § 3625, explicitly precludes review of “the making  of any determination, decision, or order under this subchapter,” which includes §§ 3621,  3622, and 3624. Sebolt contends that the authority to put an inmate in special housing  derives from a different statute—18 U.S.C. § 4042(a). He is wrong, though, because  § 4042(a) describes the duties of the Bureau of Prisons to protect inmates, see Palay  No. 18‐2056    Page  3    v. United States, 349 F.3d 418, 428 (7th Cir. 2003), but is silent on when prison officials  may put an inmate in special housing. Second, the decision to transfer an inmate from  general population is committed to the discretion of the Bureau of Prisons. See Richmond  v. Scibana, 387 F.3d 602, 604–05 (7th Cir. 2004) (describing discretion of Bureau of  Prisons under 18 U.S.C. § 3621); Montez v. United States, 359 F.3d 392, 397 (6th Cir. 2004)  (explaining that implementation of 28 C.F.R. § 541.23 is left to discretion of Bureau of  Prisons). The district court correctly dismissed Sebolt’s claim for not being judicially  reviewable under the Administrative Procedure Act. See Vahora v. Holder, 626 F.3d 907,  917 (7th Cir. 2010).       Sebolt also argues that the district court erroneously concluded that his “false  imprisonment” claim under the Federal Tort Claims Act has no state‐law analog and is  barred by the discretionary‐function exception under 28 U.S.C. § 2680. But even if we  assumed that Illinois would provide a common‐law tort remedy for the unjustified  restriction of a prisoner’s living conditions, the discretionary‐function exception bars  Sebolt’s claim. The exception applies to acts that involve an element of judgment or  choice that are based upon public‐policy considerations. United States v. Gaubert,  499 U.S. 315, 322–23 (1991). Here, prison officials used their authority under 28 C.F.R.  § 541.23(c) and 18 U.S.C. § 3621 to place Sebolt in special housing. Because they  exercised their discretion by doing so, it “must be presumed” that this discretionary act  was grounded in policy. Gaubert, 499 U.S. at 324. Sebolt protests that he did not fall into  any regulatory criteria for segregation, but the government rightly points out that this is  an argument that the prison officials abused their discretion, not that they lacked it.  See, e.g., Richmond, 387 F.3d at 604–05.      We have considered Sebolt’s remaining arguments, and none has merit.    AFFIRMED  

COURT OF APPEALS OF VIRGINIA Present: Judges Benton, Coleman and Willis SHIRLEY A. TUCKER v. Record No. 1933-95-1 AMERICAN FIRST PROPERTIES AND TRANSPORTATION INSURANCE COMPANY MEMORANDUM OPINION * AND PER CURIAM MARCH 19, 1996 AMERICAN FIRST PROPERTIES AND TRANSPORTATION INSURANCE COMPANY v. Record No. 1960-95-1 SHIRLEY A. TUCKER FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (Shirley A. Tucker, pro se, on briefs). (William C. Walker; Donna White Kearney; Taylor & Walker, on briefs), for American First Properties and Transportation Insurance Company. Shirley A. Tucker ("claimant") contends that the Workers' Compensation Commission erred in suspending her compensation benefits as of May 25, 1994 on the ground that she unjustifiably refused selective employment procured for her by First American Properties ("employer"). (Record No. 1933-95-1). Employer and its insurer filed a cross-appeal contending that the commission erred in finding that Tucker sustained an injury by accident * Pursuant to Code § 17-116.010 this opinion is not designated for publication. arising out of and in the course of her employment. (Record No. 1960-95-1). Upon reviewing the record and the briefs of the parties, we find that these appeals are without merit. Accordingly, we affirm the commission's decision. Background On appeal, we construe the evidence in the light most favorable to the prevailing party below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). So viewed, the evidence proved that Tucker worked for employer as a housekeeper. On February 21, 1994, Tucker moved a refrigerator to clean behind it and felt pain while moving the refrigerator. She felt more severe pain when she tried to stand up after cleaning behind the refrigerator. Employer's first report of accident prepared by Tucker's supervisor corroborated Tucker's hearing testimony. Tucker sought medical treatment for her back on February 24, 1994. Dr. James Kintigh reported that Tucker related a history of a back injury while moving a refrigerator on February 21, 1994. Dr. Kintigh diagnosed acute strain and noted that Tucker injured her back while moving a refrigerator. On May 12, 1994, Dr. I. Rinaldi noted a normal MRI and a normal neurological examination. He also questioned claimant's "prolonged symptomatology" and referred Tucker for work hardening. Dr. Mark Ross concluded in his June 2, 1994 work hardening report that Tucker "is capable of much more than she 2 feels she is capable of." Dr. Ross noted that, during informal testing, Tucker could lift and carry forty-five pounds. He advised that Tucker "should be able to return to work after a brief work hardening." On September 2, 1994, Dr. W.F. Peach, Jr., a neurosurgeon, examined Tucker and reported that she had dropped out of her rehabilitation program. Dr. Peach noted a normal exam and opined that "with normal scans, there is absolutely nothing that we would consider doing." He released Tucker to return to work. Dr. Thomas Stiles, an orthopedist, then referred Tucker to the Medical College of Virginia Pain Management Clinic. Dr. James B. Wade, a psychiatrist, diagnosed Tucker as suffering from "Somatoform Pain Disorder Associated with Psychological Factors, and Histrionic Personality Disorder, with Passive-Aggressive Features." Finding a lack of physical pathology to explain Tucker's pain symptoms and "a dramatic psychological overlay," Dr. Wade recommended conservative treatment and psychotherapy to help "modify extremely negative pain-related beliefs." In May 1994, employer offered Tucker a light-duty job that would involve answering telephones and greeting people. She refused to accept this position. On May 25, 1994, employer terminated Tucker's employment. I. Unjustified Refusal of Selective Employment (Record No. 1933-95-1) Factual findings made by the commission will be upheld on 3 appeal if supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). The commission found that employer's offer of part-time sedentary employment fell within Tucker's work capacity. Dr. Rinaldi's reports, claimant's normal physical examinations, and Dr. Ross's June 2, 1994 work hardening report support the commission's finding. Accordingly, we hold that the commission did not err in finding that Tucker refused selective employment without justification and in suspending claimant's compensation as of May 25, 1994. II. Injury by Accident (Record No. 1960-95-1) "In order to carry [the] burden of proving an 'injury by accident,' a claimant must prove that the cause of [the] injury was an identifiable incident or sudden precipitating event and that it resulted in an obvious sudden mechanical or structural change in the body." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989). The commission found that Tucker sustained an injury by accident arising out of and in the course of her employment on February 21, 1994. Tucker's testimony described an identifiable incident that resulted in an obvious onset of pain. In rendering its decision, the commission also considered the various medical histories, and resolved any conflicts in this evidence in favor of claimant. "In determining whether credible evidence exists, the appellate court does not 4 retry the facts, reweigh the preponderance of the evidence, or make its own determination of the credibility of the witnesses." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). "The fact that there is contrary evidence in the record is of no consequence if there is credible evidence to support the commission's finding." Id. Tucker's undisputed testimony, corroborated by the accident report and medical records, provides ample credible evidence to support the commission's finding. Thus, that finding is conclusive on this appeal. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). For these reasons, we affirm the commission's decision. Record No. 1933-95-1 Affirmed. Record No. 1960-95-1 Affirmed. 5 

223 F.3d 286 (5th Cir. 2000) ROBERT A BUSSIAN; JAMES J KEATING Plaintiffs - Appellantsv.RJR NABISCO INCORPORATED Defendant - Appellee No. 98-20867 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 14, 2000 [Copyrighted Material Omitted] Appeal from the United States District Court for the Southern District of Texas Before KING, Chief Judge, and REYNALDO G. GARZA and EMILIO M. GARZA, Circuit Judges. KING, Chief Judge: 1 Plaintiffs-Appellants Robert A. Bussian and James J. Keating appeal from the district court's grant of summary judgment to Defendant-Appellee RJR Nabisco, Inc. and its denial of class certification. We reverse in part, vacate in part, and remand for further consideration by the district court. I. FACTUAL AND PROCEDURAL BACKGROUND 2 This case is yet another litigating who must bear the cost of the collapse of Executive Life Insurance Company of California ("Executive Life") in the late 1980s and early 1990s. The issue before us is whether Defendant-Appellee RJR Nabisco, Inc. ("RJR") acted consistently with its fiduciary obligations under 1104 of the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001 et seq. (1994) ("ERISA"), when it chose to purchase a single-premium annuity from Executive Life in August, 1987. 3 Because this case comes to us from a grant of RJR's motion for summary judgment, our presentation of the facts reflects in part the requirement that we view the evidence in the light most favorable to Plaintiffs-Appellants Robert A. Bussian and James J. Keating ("Appellants"). Many of the underlying facts are uncontested. RJR's involvement in this case comes about through its purchase, in 1976, of Aminoil USA, Inc. ("Aminoil"), a Houston-based oil company. Aminoil administered a pension plan for its employees thatwas governed by ERISA. RJR sold Aminoil in 1984, and the purchaser assumed the pension obligations for all then-current employees. At the time of the sale, other employees had ceased employment with the oil company and were either already receiving pension benefits or were vested in the Aminoil pension plan but were not yet eligible to receive benefits. RJR retained the obligation of administering pension benefits for these former employees, including Appellants, under an ERISA-defined benefit pension plan ("the Plan").1 4 On October 16, 1986, RJR's Board of Directors approved resolutions authorizing the termination of the Plan and several other plans of former RJR subsidiaries. The Board also approved the purchase of an annuity to cover all pension obligations to the participants and beneficiaries of all the plans. The Plan's documents provided that upon termination any excess funds would revert to RJR.2 At the time the decision to terminate was made, the Plan was over-funded, and the Board was informed that a reversion could be expected. By December 1986, RJR was assuming that an annuity would cost about $62.5 million, and allowing for a $10 million cushion, was anticipating a reversion of about $55 million. 5 Members of RJR's Pension Asset Management Department were given the responsibility of selecting an annuity provider. Paul Tyner was involved from the beginning; Robert Shultz, hired in March, 1987 as RJR's Vice President of Pension Asset Management, had responsibility for making the final decision. In October, 1986, RJR hired Buck Consultants, Inc. ("Buck") to assist in the endeavor. William Overgard, an investment consultant with Buck Pension Funds Services, was asked to participate in the process in January, 1987. 6 Overgard was told that his role in the transaction was to identify insurance companies and to provide those companies with appropriate information in order to solicit the best bid from each one that was interested in the business so that RJR could select the carrier that was appropriate to its needs. Overgard compiled an initial list of insurance companies that could provide the annuity. That list included providers with which Buck was familiar, that had a reputation for providing good service to their clients, and that would have the capacity for a placement covering approximately 10,000 individuals. In January, 1987, a letter was sent to thirteen companies inviting comments on several issues related to the purchase of the annuity. In the letter, RJR was not identified as the buyer of that annuity. 7 Executive Life was not among those receiving the January letter.3 This was because it was involved in a nontraditional investment strategy: its portfolio had a higher percentage of low-quality bonds and a lower percentage of other investments than other insurance companies. Low-quality bonds, which are also referred to as "high-yield" or "junk" bonds, are rated below investment grade, i.e., ratings agencies have determined that the issuing entity is a greater than average credit risk. In order to compensate for the increased risk of default, such bonds must offer a higher interest rate. See, e.g., Levan v. Capital Cities/ABC, Inc., 190 F.3d 1230, 1235 (11th Cir. 1999). After Overgard discussed Executive Life's strategy with one of his colleagues, the two decided that thecompany should not be included on the initial list. 8 Overgard understood that by 1987, over 50% of Executive Life's portfolio was in low-quality bonds. In this Executive Life was indeed unusual compared to its competitors in the insurance industry. Information in the record suggests that the average percentage of low-quality bond holdings was on the order of 6% to 7%. Executive Life allegedly held the largest original issue low-quality bond portfolio ever assembled, with most of its acquisitions coming through Drexel Burnham Lambert ("Drexel"). Overgard understood Executive Life's low-quality bond holdings to be broadly diversified. 9 Based on his experience with Executive Life in the course of bidding he conducted for guaranteed investment contracts, and his desire to increase the competitiveness of the final bidding for the annuity contract, on or about April 3, 1987, Tyner requested that Executive Life be added to the list of carriers. In Tyner's opinion, Executive Life's inclusion would facilitate bringing other bidders down in price because it would come in with a lower quote. According to William J. Wolliver, a former Manager of Annuity Pricing for Prudential Insurance Company, Executive Life's low-quality bond portfolio enabled the company to underbid his firm. At the time he requested that Executive Life be added, Tyner did not think that the provider would be seriously considered in the final bidding process. Instead, he believed that RJR would go with a more well-known company. 10 To check up on Executive Life's solvency and financial health, Overgard reviewed the reports and ratings of four rating agencies (Standard & Poor's Corp. ("S&P"), Moody's Investor's Services ("Moody's"), A.M. Best ("Best"), Conning & Company ("Conning")). He reviewed the pros and cons of including Executive Life on the list of carriers to be contacted with Henry Anderson, an actuarial expert with Buck who, as the account executive, had brought Overgard in on the RJR purchase. They discussed the high-quality ratings that Executive Life had received, the company's interest in doing business, its reputation for providing good service and for being knowledgeable in the business, and its nontraditional investment portfolio. Overgard believed that a broadly diversified portfolio of low-quality bonds was a viable investment strategy. Based on his investigation, Overgard determined that Executive Life should be included on the bid list because the ratings the company received from S&P, Best, and Conning were high; its low-quality bond portfolio was broadly diversified and its investment strategy sound; and its administrative capabilities and reputation in the annuity business were strong. 11 On April 8, 1987, Buck solicited bids from fourteen potential annuity providers, including Executive Life. Buck had previously explained to RJR that companies would make initial bids and that Buck would select possibly three companies from which final bids would be solicited. In May, five potential providers submitted preliminary bids: AIG Life Insurance Company ("AIG"), Aetna Life Insurance ("Aetna"), Executive Life, Mutual Life Insurance Company of New York, and Prudential Asset Management Company ("Prudential").4 The other companies declined to participate, primarily because of the complexity associated with the numerous plans. 12 Between May and August, Overgard provided additional information to the companies interested in bidding. The bulk of his time was spent working with the companies to make sure they had correct data and enough data to enable them to submit a qualified bid, testing whether alternative strategies might be available for placing the bid on the final bid day, and assessing how hard he could push the companies in final negotiations. 13 Sometime prior to August, 1987, Overgard learned that Moody's had given Executive Life a rating of A3, which was two grades below that of S&P's AAA rating for the company.5 He also read media reports speculating that problems in the market for low-quality bonds might affect Executive Life. Overgard determined from a discussion with an individual at Moody's that the rating agency had not talked with Executive Life management prior to issuing its rating, and he pursued "industry intelligence" regarding the company. Overgard concluded that the lower Moody's rating was an attempt on the part of the agency to gain publicity, but did not recall a specific discussion with the individual at Moody's regarding why the agency rated Executive Life as it did, or how the agency viewed the provider's nontraditional portfolio. He found that the opinions of other insurance companies were mixed: "some were not concerned about Executive Life and some were willing to put the fear of God into us," the latter describing low-quality bonds as a bad investment strategy. Concerned about what would happen to the market for low-quality bonds should Drexel collapse, Overgard talked to investment bankers. In Overgard's opinion, those bankers were quite eager to move into the market for low-quality bonds. Overgard also viewed Executive Life as working the case harder and asking more questions during the bid solicitation process than the other companies. Overgard concluded that Executive Life should remain on the bid list. 14 Final bid day was set for August 12, 1987. On that day, Overgard met with representatives of RJR (Tyner, and representatives from RJR's Employee Benefits and Legal Departments) to review the preliminary bids. The sole documentation RJR had comparing providers was a listing of the final companies' ratings and their initial bids. Buck did not recommend any particular company; instead, it saw each of the four remaining companies as qualified and competent to provide the annuity. As a result, Overgard saw his role on final bid day as obtaining from each company its best (lowest) bid. Overgard negotiated with the four companies in one room; RJR representatives were in another room. Overgard determined midday that Aetna and AIG had given their best bid, and so concentrated for the remaining period on obtaining lower bids from Prudential and Executive Life. The following provides the final bids along with other information Buck supplied RJR: 15 INSURER S&P BEST MOODY'S CONNING BID Aetna AAA A+ AAA 102/104 $61.9 M AIG AAA A AAA N/A $60.2 M Executive Life AAA A+ A3 100/106 $54 M Prudential AAA A+ AAA 98/91 $56.7 M 16 Aetna's bid was the highest at $61.9 million, and Executive Life's was the lowest at $54 million. According to Overgard, the numeric Conning ratings reflected historical information on liquidity over two years. Thus, Aetna's rating of 102/104 reflected an improvement, while Prudential's ratings reflected a decline. 17 RJR had established three requirements that "at a minimum" the company providing the annuity would have to meet: (1) receipt of an AAA rating from S&P; (2) capacity to administer the plans; and (3) approval from Buck. On the final bid day, Shultz had a number of other things to do. Because he had full confidence in the RJR representatives present, and "because the dollar value of the assets involved in the transaction was insubstantial in comparison to RJR's total pension portfolio," he attended the meeting for about an hour and fifteen minutes at its outset. After the final bids came in, RJR representatives present identified Executive Life as the insurer from which to purchase the annuity, as it was the lowest bidder, had at least one AAA rating, and was capable of administering the annuity. Tyner telephoned Shultz to inform him of the recommendation. After a fifteen- or twenty-minuteconversation, Shultz gave the go-ahead to select Executive Life. 18 Unlike Tyner, Shultz was aware of a number of facts regarding Executive Life, its chairman, Fred Carr, and the market for low-quality bonds. For example, Shultz was aware (1) of the percentage of Executive Life's portfolio that was devoted to low-quality bonds, (2) of allegations regarding a connection between Executive Life and Drexel's Michael Milken, (3) that Executive Life was one of Milken's largest customers, (4) that Drexel and Milken were the targets of SEC and Attorney General investigations of the 1986 insider trading scandal, (5) that Executive Life and Carr came within the scope of those investigations, and (6) that Executive Life of New York, a subsidiary of Executive Life, had been fined by New York insurance regulators due to the insurer's reinsurance practices, had $150 million of reinsurance disallowed, and had received from Executive Life $150 million to make up the difference.6 Shultz had not seen as much negative press regarding Aetna's or Prudential's holdings of low-quality bonds as he had seen with regard to the holdings of Executive Life, and he had not seen the diversity of reviews of the other companies that he had seen with respect to Executive Life. Shultz stated that he relied primarily on Tyner's input, and that his decision to concur in the purchase of Executive Life's annuity was made taking into account the fact that "Executive Life had the same S&P rating as did Prudential, had a reputation equal to or better than Prudential's for being able to service complex annuity contracts and was recommended by Buck." 19 On August 17, 1987, RJR caused $54 million to be wired to Executive Life. A letter agreement was signed November 23 of the same year. RJR formally terminated the Plan on June 30, 1988.7 The total pre-tax reversion associated with the termination of all plans covered under the annuity was $82,080,000; this resulted in RJR receiving on May 27, 1989 a net reversion of $43,051,510. 20 Tyner was aware that by 1989, Executive Life was suffering financially. To his knowledge, however, no one at RJR considered extracting himself from the deal to buy Executive Life's annuity. RJR accepted the provider's annuity contract on December 13, 1989. 21 By late 1989, the low-quality bond market was suffering significant losses. Because well over half of Executive Life's portfolio consisted of low-quality bonds, it felt the brunt of those losses. In January, 1990, First Executive Corporation, the parent of Executive Life, announced that its low-quality bond portfolio had lost $1 billion in market value and that it would take a $515 million writedown. In April,1991, California insurance regulators placed Executive Life in conservatorship, and for a period of time, certain Executive Life policyholders received reduced benefits. Eventually, the market for low-quality bonds rebounded, and Executive Life was taken over by a consortium of French companies, which formed Aurora National Life Assurance Company. Unfortunately, Appellants and some other Plan participants have not received their full benefits. 22 Appellants filed suit, on their own behalf and on behalf of a class, against RJR in Texas state court in 1991, alleging violations of RJR's fiduciary duties. RJR removed the case to federal court and moved for summary judgment in 1992. In 1998, the district court granted summary judgment and, consequently, denied Appellants' motion to certify a class. See Bussian v. RJR Nabisco, Inc., 21 F. Supp.2d 680 (S.D. Tex. 1998). Appellants timely appeal. II. SUMMARY JUDGMENT A. Standard of Review 23 We review the granting of summary judgment de novo, applying the same criteria used by the district court in the first instance. See Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994); Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir. 1994). Summary judgment is proper "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); see Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (citations omitted). We must view all evidence in the light most favorable to the party opposing the motion and draw all reasonable inferences in that party's favor. See id. at 255. B. The Standard 24 Section 1104(a) sets forth the general duties imposed upon ERISA fiduciaries:8 25 (1) Subject to sections 1103(c) and (d), 1342, and 1344 of this title, a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and -- 26 (A) for the exclusive purpose of: 27 (i) providing benefits to participants and their beneficiaries; and 28 (ii) defraying reasonable expenses of administering the plan; 29 (B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; 30 (C) by diversifying the investments of the plan so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so; and 31 (D) in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter and subchapter III of this chapter. 32 29 U.S.C. 1104(a)(1). We have recognized that this provision imposes several overlapping duties. See, e.g., Metzler v. Graham, 112 F.3d 207, 209 (5th Cir. 1997) (involving the duty to diversify and the duty of loyalty); Donovan v. Cunningham, 716 F.2d 1455, 1464 (5th Cir. 1983) ("Section [1104] imposes upon fiduciaries a duty of loyalty and a duty of care."). Appellants assert that the district court erred in holding that, as a matter of law, RJR satisfied its obligations under ERISA. They argue that RJR was required to attempt to select the safest available annuity to satisfy its duty of loyalty. They also contend that RJR failed to conduct an investigation that satisfied its duty of care, and that it acted inconsistently with its duty to diversify in selecting an insurance carrier that held 50% to 60% of its portfolio in low-quality bonds. 1. The Duty to Diversify 33 We first narrow the focus of our inquiry by disposing of one of Appellants' arguments. They assert that 1104(a)(1)(C) imposes on a fiduciary selecting an annuity the duty to select an insurance provider whose portfolio is sufficiently diversified. We disagree. Section 1104(a)(1)(C) deals specifically with "investments of the plan." As RJR points out, the purchase of an annuity to facilitate plan termination is not an investment of the plan. It is, as 29 U.S.C. 1341(b)(3) provides, a "final distribution of assets." Section 1104(a)(1)(C) therefore does not impose upon a plan fiduciary the obligation to investigate or ensure the adequate diversification of an annuity provider's portfolio. This is not to say that a plan fiduciary has no obligation to consider the diversification of an annuity provider's portfolio; such an obligation may exist under 1104(a)(1)(B), a possibility we address infra. Cf. 29 U.S.C. 1104(a)(2) (stating that the "diversification requirement of paragraph (1)(C) and the prudence requirement (only to the extent that it requires diversification) of paragraph (1)(B)" do not apply to certain transactions). We are therefore left to determine the proper standard to guide our inquiry into whether summary judgment is appropriate to dispose of Appellants' claims that RJR breached its duties of loyalty and care in purchasing Executive Life's annuity. 2. The Duty of Loyalty 34 ERISA's duty of loyalty is "the highest known to the law." Donovan v. Bierwirth, 680 F.2d 263, 272 n.8 (2d Cir.), cert. denied, 459 U.S. 1069 (1982); cf. Meinhard v. Salmon, 164 N.E. 545, 546 (1928) (Cardozo, J.) ("Many forms of conduct permissible in a workaday world for those acting at arm's length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior."). The Supreme Court recently had occasion to describe ERISA's duty of loyalty, in so doing again recognizing the duty's source in the common law of trusts. See Pegram v. Herdrich, ___ U.S. ___, 120 S.Ct. 2151-52, 147 L.Ed.2d 164 (2000) ("'The most fundamental duty owed by the trustee to the beneficiaries of the trust is the duty of loyalty. . . . It is the duty of a trustee to administer the trust solely in the interest of the beneficiaries.'" (quoting 2A A. Scott & W. Fratcher, Trusts 170, at 311 (4th ed. 1987))). 35 Although ERISA's duties gain definition from the law of trusts, the usefulness of trust law to decide cases brought under ERISA is constrained by the statute's provisions. See Varity Corp. v. Howe, 516 U.S. 489, 497 (1996) ("We also recognize . . . that trust law does not tell the entire story."); Cunningham, 716 F.2d at 1464. Under ERISA, for example, a fiduciary may have financial interests adverse to beneficiaries, but under trust law a "trustee 'is not permitted to place himself in a position where it would be for his own benefit to violatehis duty to the beneficiaries.'" See Pegram, ___ U.S. ___, 120 S.Ct. 2143, 2152-53, 147 L.Ed.2d 164 (quoting 2A Scott & Fratcher, 170, at 311)). Despite the ability of an ERISA fiduciary to wear two hats, "ERISA does require . . . that the fiduciary with two hats wear only one at a time, and wear the fiduciary hat when making fiduciary decisions." Id. (citing Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 443-44 (1999)); see also Varity, 516 U.S. at 497. 36 That ERISA contemplates that a plan fiduciary may have multiple roles is reflected in the language of 1104(a). That section begins with the phrase "[s]ubject to sections 1103(c) and (d), 1342, and 1344 of this title," which explicitly refers to ERISA provisions that allow plan assets to be returned to the employer under some circumstances. See Borst v. Chevron Corp., 36 F.3d 1308, 1320 (5th Cir. 1994), cert. denied, 514 U.S. 1066 (1995); District 65, U.A.W. v. Harper & Row, Publishers, Inc., 576 F. Supp. 1468, 1477-78 (S.D.N.Y. 1983); Daniel Fischel & J.H. Langbein, ERISA's Fundamental Contradiction: The Exclusive Benefit Rule, 55 U. Chi. L. Rev. 1105, 1154 (1988). As a result, although the balance of 1104(a)(1) would appear to make a return of assets to an employer a violation of the duty to act "solely in the interest of participants and beneficiaries and for the exclusive purpose of providing benefits to participants," 1104(a)(1)(A)(i), the provision's initial phrase precludes such an interpretation. 37 Under ERISA, neither the decision to terminate an overfunded plan, nor a reversion of plan assets that is consistent with 1344(d), is a per se violation of 1104(a)(1). See 1108(a)(9) (exempting from prohibited transactions "[t]he making by a fiduciary of a distribution of the assets of the plan in accordance with the terms of the plan if such assets are distributed in the same manner as provided under [1344] . . . ."); Lockheed Corp. v. Spink, 517 U.S. 882, 890-91 (1996) (extending to pension benefit plans the notion that when employers terminate employee welfare plans, they do not act as fiduciaries and instead are analogous to settlors of a trust); Izzarelli v. Rexene Prods. Co., 24 F.3d 1506, 1524 (5th Cir. 1994). Prior to termination, a defined benefit plan, such as the one involved in the case before us, "consists of a general pool of assets," Hughes Aircraft, 525 U.S. at 439, and "no plan member has a claim to any particular asset that composes a part of the plan's general asset pool." Id. at 440. Instead, plan members have a right only to their accrued benefit -- a plan's surplus9 need not be made available for distribution to plan members. See id. at 440-41; Borst, 36 F.3d at 1315. Because an employer may, consistent with ERISA's provisions, receive a plan's surplus upon termination, the fact that the employer terminates a plan specifically to gain access to that surplus is not a violation. See District 65, 576 F. Supp. at 1478 (dismissing plaintiffs' breach of fiduciary-duty claim challenging a sponsor's termination of a plan in order to use the surplus to prevent a third party from taking control of the company). 38 However, simply because ERISA allows an employer to recoup surplus assets does not mean that a fiduciary's acts undertaken to implement a plan's termination may deviate from ERISA's command that a "fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries." 1104(a)(1). The question whether an employer has access to a reversion because of a plan's termination is separatefrom the issue of the size of that reversion. See District 65, 576 F. Supp. at 1478. Undertaking steps to maximize the size of the reversion with the direct result of reducing benefits would be a violation of ERISA's commands. See Cooke v. Lynn Sand & Stone Co., 673 F. Supp. 14, 27 (D. Mass. 1986) (denying summary judgment where a material fact question existed regarding whether sponsor had used higher interest rate to maximize its reversion); cf. Reich v. Compton, 57 F.3d 270, 291 (3d Cir. 1995) ("[T]rustees violate their duty of loyalty when they act in the interests of the plan sponsor rather than 'with an eye single to the interests of the participants and beneficiaries of the plan'" (quoting Donovan v. Bierwirth, 680 F.2d 263, 271 (2d Cir.), cert. denied, 459 U.S. 1069 (1982))). 39 The Secretary of the Department of Labor (the "Secretary"), as amicus curiae, urges us to hold that the duty of loyalty requires that a fiduciary disposing of plan assets as part of a termination purchase "the safest annuity available." Interpretive Bulletin Relating to the Fiduciary Standard Under ERISA When Selecting an Annuity Provider, 29 C.F.R. 2509.95-1(c) (1999) (hereafter "IB 95-1" or the "Bulletin"). Although the Bulletin was first published in March 1995 in response to the failure of Executive Life, the Federal Register notes an effective date for IB-95 of January 1, 1975. See Interpretive Bulletins Relating to the Employee Retirement Income Security Act of 1974 (hereafter "IB-ERISA"), 60 Fed. Reg. 12328, 12328 (1995). According to the Secretary, we owe deference to the interpretation of ERISA's fiduciary duties expressed in IB-95, see Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and should apply it to RJR's selection of Executive Life's annuity. 40 In Christensen v. Harris County, 120 S. Ct. 1655 (2000), the Supreme Court rejected an argument that it should give "Chevron deference" to a Department of Labor opinion letter. Noting that such interpretations are not "arrived at after, for example, a formal adjudication or notice-and-comment rulemaking" and "lack the force of law," id. at 1662, it concluded that interpretations in opinion letters and similar documents are instead "'entitled to respect' under [its] decision in Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), but only to the extent that those interpretations have the 'power to persuade'." Id. at 1663; see also Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 157 (1991) (noting that interpretive rules and enforcement guidelines are "not entitled to the same deference as norms that derive from the exercise of the Secretary's delegated lawmaking powers"). 41 IB-95 is a Department of Labor interpretative bulletin that is not the product of notice-and-comment procedures established by the Administrative Procedure Act.10 See 5 U.S.C. 553 (1994). Although the Department gave advance notice of proposed rulemaking, see Annuitization of Participants and Beneficiaries Covered Under Employee Pension Plans (hereafter "Annuitization"), 56 Fed. Reg. 28638 (1991), the focus of that notice was not the proper application of 1104 to a fiduciary's selection of an annuity provider as part of plan terminations. Instead, the notice described the possibility of amending existing regulations defining the circumstances under which an individual is a participant covered under a plan.11 See id. at 28639.After receiving some responses, see IB-ERISA, 60 Fed. Reg. at 12329, the Department determined that "no regulatory action should be taken at this time to amend the minimum standards under the regulation at 29 CFR 2510.3-3(d)(2)(ii)." Id. 42 Rather than undertaking regulatory action, the Department, seeing a need for "further guidance regarding the selection of . . . annuity providers by plan fiduciaries," published the Bulletin. IB-ERISA, 60 Fed. Reg. at 12328. The Department noted that the "bulletin concerns solely the fiduciary standard and is published in addition to and independent of the regulatory minimum standard at 29 C.F.R. 2510.3-3(d)(2)(ii)." Id. at 12329. The Secretary's position is that the Bulletin "announce[s] to the public the Department's legal view of ERISA." Secretary's Brief at 17-18. Because the Bulletin is not the product of notice-and-comment rulemaking, and does not have the force of law, we apply the standard referred to in Christensen, and determine the extent to which the Bulletin is "entitled to respect." Skidmore, 323 U.S. at 140. 43 We begin our inquiry with a discussion of the Bulletin's provisions. Subsection (c) provides that in discharging its duty of loyalty in purchasing an annuity, a fiduciary "must take steps calculated to obtain the safest annuity available, unless under the circumstances it would be in the interests of participants and beneficiaries to do otherwise."12 29 C.F.R. 2509.95-1(c) (1999). Although this would appear to impose on fiduciaries an obligation to attempt to obtain the safest annuity, the Bulletin also states that "there are situations where it may be in the interest of the participants and beneficiaries to purchase other than the safest available annuity." Id. 2509.95-1(d). In cases involving overfunded plans, the Bulletin provides that a fiduciary "must make diligent efforts to assure that the safest available annuity is purchased." Id. This language strongly suggests that the Secretary interprets ERISA's duty of loyalty as requiring that a fiduciary selecting an annuity for purposes of plan termination actually purchase the safest annuity, unless circumstances of the type indicated exist.13 These circumstances include where the safest annuity is only marginally safer yet disproportionately more expensive and where the insurer offering the safest annuity is unable to administer the plan. See id. 44 The Secretary's brief also argues that a fiduciary under the circumstances of thiscase is obligated to purchase the safest annuity available. The Secretary contends that the relevant issue before us is not whether Executive Life was a viable or sound candidate, as RJR argues, but instead "whether Executive Life's annuity was the safest available annuity." According to the Secretary, Shultz and Tyner acted consistently with their fiduciary duties only if they could answer this question in the affirmative. 45 We agree with the Bulletin and the Secretary that once the decision to terminate a plan has been made, the primary interest of plan beneficiaries and participants is in the full and timely payment of their promised benefits.14 We agree that beneficiaries and participants whose plan is being terminated gain nothing from an annuity offered at a comparative discount by a provider that brings to the table a heightened risk of default. We would even add that the purchase of such an annuity can be considered an example of the imposition on annuitants of uncompensated risk -- the risk of default is borne by the annuitants and, in those states that have guaranty associations, by those associations, while the benefit is granted to the sponsor in the form of a lower price and larger reversion. 46 However, we are not persuaded that 1104(a) imposes on fiduciaries the obligation to purchase the "safest available annuity" in order to fulfill their fiduciary duties. We hold that the proper standard to be applied to this case is the standard applicable in other situations that involve the potential for conflicting interests: fiduciaries act consistently with ERISA's obligations if "their decisions [are] made with an eye single to the interests of the participants and beneficiaries." Bierwirth, 680 F.2d at 271; see, e.g., Metzler, 112 F.3d at 213; Pilkington PLC v. Perelman, 72 F.3d 1396 (9th Cir. 1995); Compton, 57 F.3d at 291; Deak v. Masters, Mates & Pilots Pension Plan, 821 F.2d 572, 580 (11th Cir. 1987), cert. denied, 484 U.S. 1005 (1988); Leigh v. Engle, 727 F.2d 113, 125 (7th Cir. 1984) ("Leigh I"). That standard does not require that a fiduciary under the circumstances of this case purchase the "safest available annuity." Cf. Riley v. Murdock, No. 95-2414, 1996 WL 209613, at *1 (4th Cir. Apr. 30, 1996) (unpublished) (rejecting the standard advocated by the Department of Labor). 47 The Bulletin's standard focuses on the quality of the selected annuity. The standard we apply focuses instead on the fiduciary's conduct. It requires that fiduciaries keep the interests of beneficiaries foremost in their minds, taking all steps necessary to prevent conflicting interests from entering into the decision-making process. See Metzler, 112 F.3d at 213 (noting that steps necessary to reduce the effects of potential conflicts are dependent upon the circumstances); Bierwirth, 680 F.2d at 276 (stating that the conflicted trustees "were bound to take every feasible precaution to see that they had carefully considered the other side . . . ."). Although a fiduciary's ultimate choice may be evidence that the duty of loyalty has been breached, the proper inquiry has as its central concern the extent to which the fiduciary's conduct reflects a subordination of beneficiaries' and participants' interests to those of a third party. Cf. Leigh v. Engle, 858 F.2d 361 (7th Cir. 1988) ("Leigh II") ("[W]hether the investments were speculative is irrelevant. The administrators' breach did not consist of investment in speculative assets. Rather, the administrators breached their duties when they made investment decisions out of personal motivations, without making adequate provision that the trust's best interests would be served."). 3. The Duty of Care 48 We recently addressed an ERISA fiduciary's duty of care in Laborers NationalPension Fund v. Northern Trust Quantitative Advisors, Inc., 173 F.3d 313 (5th Cir.), cert. denied sub nom, Laborers Nat'l Pension Fund v. American Nat'l Bank & Trust Co., 120 S. Ct. 406 (1999). The issue in Laborers was whether a pension fund's investment manager violated its duty of care when it purchased interest-only mortgage-backed securities. Although the case before us arises in a different context, we find the discussion in Laborers instructive: 49 In determining compliance with ERISA's prudent man standard, courts objectively assess whether the fiduciary, at the time of the transaction, utilized proper methods to investigate, evaluate and structure the investment; acted in a manner as would others familiar with such matters; and exercised independent judgment when making investment decisions. [ERISA's] test of prudence . . . is one of conduct, and not a test of the result of performance of the investment. The focus of the inquiry is how the fiduciary acted in his selection of the investment, and not whether his investments succeeded or failed. Thus, the appropriate inquiry is whether the individual trustees, at the time they engaged in the challenged transactions, employed the appropriate methods to investigate the merits of the investment and to structure the investment. 50 Id. at 317 (alterations in original) (internal citations and quotation marks omitted); see also In re Unisys Sav. Plan Litig., 173 F.3d 145, 153 (3d Cir.) ("Unisys II") (noting that the prudence requirement focuses on whether "a fiduciary employed the appropriate methods to investigate and determine the merits of a particular investment"), cert. denied sub nom, Meinhardt v. Unisys Corp., 120 S. Ct. 372 (1999); DeBruyne v. Equitable Life Assurance Soc'y, 920 F.2d 457, 465 (7th Cir. 1990) (agreeing with the lower court that ERISA's duty of care requires "prudence, not prescience"). What the appropriate methods are in a given situation depends on the "character" and "aim" of the particular plan and decision at issue and the "circumstances prevailing" at the time a particular course of action must be investigated and undertaken. 29 U.S.C. 1104(a)(1)(B); see also Cunningham, 716 F.2d at 1467. 51 A fiduciary's duty of care overlaps the duty of loyalty. See Bierwirth, 680 F.2d at 271. The presence of conflicting interests imposes on fiduciaries the obligation to take precautions to ensure that their duty of loyalty is not compromised. As we have noted, "[t]he level of precaution necessary to relieve a fiduciary of the taint of a potential conflict should depend on the circumstances of the case and the magnitude of the potential conflict." Metzler, 112 F.3d at 213. To ensure that actions are in the best interests of plan participants and beneficiaries, fiduciaries under certain circumstances may have to "at a minimum" undertake an "intensive and scrupulous independent investigation of [the fiduciary's] options." Leigh I, 727 F.2d at 125-26 (citing Bierwirth, 680 F.2d at 272). In some instances, the only open course of action may be to appoint an independent fiduciary.15 See Leigh I, 727 F.2d at 125; Bierwirth, 680 F.2d at 271-72. 52 With regard to the duty of care in the circumstances of this case, IB 95-1 states that ERISA "requires, at a minimum, that plan fiduciaries conduct an objective, thorough and analytical search for the purpose of identifying and selecting providers from which to purchase annuities." Id. 2509.95-1(c). The Bulletin notes several factors that should be considered in the search, including the "quality and diversification" of an insurer's portfolio, the size of the insurer, the insurer's exposure to liability, and the safety provided by the structure of the annuity contract. See id. 2509.95-1(c)(1)-(5). "Reliance solely on ratings provided by insurance rating services would not be sufficient . . . ." Id. 2509.95-1(c). The Bulletin suggests that fiduciaries with a conflict of interest take special precautions in a reversion situation. It exhorts such fiduciaries "to obtain and follow independent expert advice calculated to identify those insurers with the highest claims-paying ability willing to write the business." Id. 2509.95-1(e). 53 We view the Bulletin's description of the nature of the investigation to be undertaken in the circumstances of this case as fully consistent with ERISA's provisions and with courts' holdings, including our own. See, e.g., Laborers, 173 F.3d at 317. When selecting an annuity provider to facilitate the termination of a vastly over-funded defined benefit pension plan, the plan's fiduciary must structure and conduct a "careful and impartial investigation" aimed at identifying providers whose annuity the fiduciary may "reasonably conclude best to promote the interests of participants and beneficiaries" of the plan. Bierwirth, 680 F.2d at 271. Of course, many factors must be weighed in determining which provider or providers are best-suited to promote those interests. 54 In this regard, we find the factors enumerated in IB 95-1 instructive. The relevant inquiry in any case is whether the fiduciary, in structuring and conducting a thorough and impartial investigation of annuity providers, carefully considered such factors and any others relevant under the particular circumstances it faced at the time of decision. If so, a fiduciary satisfies ERISA's obligations if, based upon what it learns in its investigation, it selects an annuity provider it "reasonably concludes best to promote the interests of [the plan's] participants and beneficiaries." Bierwirth, 680 F.2d at 271. If not, ERISA's obligations are nonetheless satisfied if the provider selected would have been chosen had the fiduciary conducted a proper investigation. See Unisys II, 173 F.3d at 153-54 (affirming district court's holding, after a bench trial, that a hypothetical prudent person would have invested in Executive Life guaranteed investment contracts for an ongoing plan); Roth v. Sawyer-Cleator Lumber Co., 16 F.3d 915, 919 (8th Cir. 1994) ("Even if a trustee failed to conduct an investigation before making a decision, he is insulated from liability if a hypothetical prudent fiduciary would have made the same decision anyway.").16 55 A fiduciary must consider any potential conflict of interest, such as a potential reversion of plan assets, and structure its investigation accordingly. Engaging the services of an independent, outside advisor may serve the dual purposes of increasing the thoroughness and impartiality of the relevant investigation, and of relieving the fiduciary of any taint of a potential conflict. In the circumstances of this case, such purposes are served when the outside advisor's task is directed to identifying the provider or providers that best promote the beneficiaries' interests. 56 Fiduciaries investigating annuity providers to facilitate the termination of an over-funded defined benefit plan, like fiduciaries in other circumstances, are entitled to rely on the advice they obtain from independent experts. See Cunningham, 716 F.2d at 1474 ("ERISA fiduciaries need not become experts in the valuation ofclosely-held stock--they are entitled to rely on the expertise of others."). Those fiduciaries may not, however, rely blindly on that advice. See id. ("An independent appraisal is not a magic wand that fiduciaries may simply waive over a transaction to ensure that their responsibilities are fulfilled. It is a tool and, like other tools, is useful only if used properly."); Howard v. Shay, 100 F.3d 1484, 1490 (9th Cir. 1996) ("Conflicted fiduciaries do not fulfill ERISA's investigative requirements by merely hiring an expert."), cert. denied, 520 U.S. 1237 (1997); Donovan v. Mazzola, 716 F.2d 1226, 1234 (9th Cir. 1983) ("[R]eliance on counsel's advice, without more, cannot be a complete defense to an imprudence charge."), cert. denied, 464 U.S. 1040 (1984); Bierwirth, 680 F.2d at 272. In order to rely on an expert's advice, a "fiduciary must (1) investigate the expert's qualifications, (2) provide the expert with complete and accurate information, and (3) make certain that reliance on the expert's adviceis reasonably justified under the circumstances." Howard, 100 F.3d at 1489 (citing Cunningham, 716 F.2d at 1467, 1474) (other citation omitted); see also Hightshue v. AIG Life Insurance Co., 135 F.3d 1144, 1148 (7th Cir. 1998); In re Unisys Sav. Plan Litig., 74 F.3d 420, 435-36 (3d Cir. 1996) ("Unisys I") ("[W]e believe that ERISA's duty to investigate requires fiduciaries to review the data a consultant gathers, to assess its significance and to supplement it where necessary."). 57 A determination whether a fiduciary's reliance on an expert advisor is justified is informed by many factors, including the expert's reputation and experience, the extensiveness and thoroughness of the expert's investigation, whether the expert's opinion is supported by relevant material, and whether the expert's methods and assumptions are appropriate to the decision at hand. See, e.g., Hightshue, 135 F.3d at 1148; cf. Howard, 100 F.3d at 1490 ("To justifiably rely on an independent appraisal, a conflicted fiduciary need not become an expert in the valuation of closely held corporations. But the fiduciary is required to make an honest, objective effort to read the valuation, understand it, and question the methods and assumptions that do not make sense."). The goal is not to duplicate the expert's analysis, but to review that analysis to determine the extent to which any emerging recommendation can be relied upon. Cf. Cunningham, 716 F.2d at 1474 (holding that fiduciaries, who had information available to them indicating that assumptions underlying an expert's appraisal were no longer valid, breached their duties under ERISA by not analyzing the effect of changes on those assumptions). 58 Just as with experts' advice, blind reliance on credit or other ratings is inconsistent with fiduciary standards. See Pilkington, 72 F.3d at 1400 ("Legal authority does not support [the fiduciaries'] contention that a mere ratings scan satisfied their fiduciary duty of loyalty to the plan."); Unisys I, 74 F.3d at 436-37 (citing Cunningham in support of its determination that whether a "rating was a reliable measure of Executive Life's financial status under the circumstances and whether Unisys was capable of using the rating effectively" were matters to be decided at trial). Reviewing the ratings assigned by different rating agencies may be a good place to begin the inquiry, but it certainly is not a proper place to end it. 59 As with an expert's advice, fiduciaries must determine the extent to which reliance on ratings is reasonably justified under the circumstances. Some ratings agencies are more highly regarded than others. Ratings in general reflect an agency's evaluation of a company, not its evaluation of a company's particular product line. Different agencies' ratings reflect the application of different methodologies. At any given time, agencies' ratings will vary as to their recency. As evidence in the record before us suggests, an agency's rating of a particular company may beperceived by investors and industry insiders as incorrect. Reports accompanying ratings provide fiduciaries with a means of assessing the basis for the particular rating and of identifying what additional information may need to be considered. As with the use of experts, a fiduciary need not duplicate the analysis conducted by the ratings agencies. However, the duty of care imposes on the fiduciary an obligation to ascertain the extent to which the ratings can be relied upon in making the decision at hand. 60 Assuming a proper investigation has been conducted, a fiduciary does not violate its duties under ERISA simply because an action it determines best promotes participants' and beneficiaries' interests "incidentally benefits the corporation." Bierwirth, 680 F.2d at 271. Appellants charge that RJR selected Executive Life because it submitted the lowest bid and in so doing, violated its duty of loyalty. RJR does not deny that cost was a basis for its decision, and instead contends that it could choose the lowest-cost provider under the circumstances. Under the standard we apply, an annuity's price cannot be the motivating factor until the fiduciary reasonably determines, through prudent investigation, that the providers under consideration are comparable in their ability to promote the interests of participants and beneficiaries. Without such a prior determination, consideration of an annuity's price, because it directly benefits the employer, can be taken as evidence that a fiduciary has placed an interest in a reversion above the interests of plan beneficiaries. 61 Of course, the comparison of annuity providers must be made considering factors relevant to plan beneficiaries' and participants' interests.17 As a general matter, we expect that a proper investigation of potential annuity providers will reveal that each has its own "warts." We do not view the presence of such blemishes, by itself, to be sufficient to cause a fiduciary to eliminate those providers from further consideration. The issue is whether a provider's warts, viewed qualitatively and quantitatively, are such that a prudent person in like circumstances would determine that the purchase of that provider's annuity was not in the best interests of plan beneficiaries and participants. Having concluded that all remaining providers are comparable in their ability to serve the best interests of plan beneficiaries and participants, a fiduciary does not violate ERISA's commands by subsequently considering which provider offers its annuity at a lower price. 62 C. RJR's Compliance with its Fiduciary Obligation 63 Keeping in mind the standards set forth above, we must determine whether reasonable and fair-minded persons could conclude from the summary judgment evidence that RJR breached its fiduciary duties in selecting Executive Life's annuity. Based upon a careful review of the record in this case, we conclude that it was inappropriate for the district court to grant summary judgment in favor of RJR. Viewing the evidence in the light most favorable to Appellants, a reasonable factfinder could conclude that RJR failed to structure, let alone conduct, a thorough, impartial investigation of which provider or providers best served the interests of the participants and beneficiaries. Even if the factfinder were to conclude that RJR's investigation was appropriate, it could conclude, based on the evidence, that RJR could not reasonably determine that ExecutiveLife best promoted the interests of plan participants and beneficiaries. Finally, moving on to the hypothetical prudent person standard, a reasonable factfinder could also conclude that Executive Life was not an objectively reasonable choice based upon the information RJR should have gathered. 1. The Investigation 64 A reasonable factfinder could conclude that RJR did not structure or conduct an independent and impartial investigation directed to identifying a carrier that it could "reasonably conclude [was] best to promote the interests of participants and beneficiaries" of the plan.18 Bierwirth, 680 F.2d at 271. Given the decision to terminate a defined benefit plan, the primary interest of participants and beneficiaries was in the full and timely payment of their promised benefits. The record shows that RJR employed Buck to assist it in selecting an annuity provider, and looked to Buck to assess the solvency and safety of the bidding companies.19 Overgard, a Buck consultant, stated in his deposition that his analysis of the insurers' financial health was limited to a review of the rating agencies' ratings and reports. He also stated that he had spent less time on evaluating companies than, as Overgard put it, "on stuff that [Buck] had been hired to do, and that is to work with the insurance companies to get the best bids." 65 Overgard, who was responsible for compiling an initial list of insurance companies that could provide the annuity, determined, after a discussion with a colleague, that Executive Life ought not be included on that list because it used a nontraditional investment strategy that featured a high percentage of low-quality bonds. When the list compiled by its expert did not include Executive Life, Tyner specifically requested that the company be added because its expected lower bid could be used to drive down the bids of other providers. Tyner, at the time he requested Executive Life be included, did not think that "Executive Life should be seriously considered in the final bidding process." He anticipated that another, "more well-known" company would ultimately be selected. 66 The record contains evidence that Overgard undertook some investigation of Executive Life beyond his examination of the ratings (e.g., determining that Moody's had not talked with Executive Life management prior to assigning its rating, talking with investment bankers, pursuing industry intelligence).20 He found opinions regarding Executive Life to be mixed, with some industry insiders viewing the company's investment strategy as bad. Again, Overgard did not review any of Executive Life's financial statements, reports, or disclosures, or conduct a special financial analysis of Executive Life or any other provider. The record indicates that Overgard was not aware that California regulatorswere looking into Executive Life's reinsurance practices, and did not recall whether he knew, prior to the final bid day, that states' regulators had capped, or were considering capping, insurance companies' investment in low-quality bonds. In Overgard's opinion, positive attributes, such as Executive Life working the case harder, being more professional, and asking more questions, kept the company on the list. A reasonable factfinder could conclude that Buck included Executive Life on the final list of bidders in spite of its nontraditional investment strategy specifically because of the request of RJR, its client. Executive Life's low bid could not be used to drive down the bids of other providers unless it was included on the final list. 67 The record also includes indications that RJR did not ascertain, prior to selecting Executive Life, what Overgard had done to assess the safety of the companies interested in RJR's business other than look at the ratings, which Overgard had provided to RJR.21 It could be concluded based on evidence in the record that despite RJR's request that Executive Life be placed on the list to drive down other providers' bids, RJR did not ascertain the basis for Buck's statement that the company was "qualified." A reasonable factfinder could also conclude that RJR failed to assess the basis for Buck's statement that all four providers were "qualified" to provide the annuity, cf. Unisys I, 74 F.3d at 435-36 (concluding, when confronted with similar evidence, that summary judgment in favor of the defendant was inappropriate), and failed to ascertain whether Buck's statement meant that RJR could view each of the companies as comparable. 68 Focusing on whether RJR undertook activities to investigate the safety of the carriers interested in bidding, a reasonable factfinder could conclude that the company relied entirely on ratings that Buck provided it.22 The record indicates that RJR looked to those ratings to examine the safety of Executive Life.23 Both Shultz and Tyner stated that they had not read the accompanying reports. Tyner assumed that negative information that existed would be reflected in agency ratings. In his deposition, Tyner stated that to his knowledge, no one checked why Moody's had given Executive Life a lower rating. Tyner also stated that he did not look at Executive Life's annual reports or SEC filings. As with Buck's recommendation, a factfinder could conclude that RJR failed to assess the extent to which it was justified in relying upon the ratings assembled by Buck, and that the bulk of RJR's investigation was a review of those ratings.24 69 A factfinder could conclude that the absence of an independent investigation by RJR is made more egregious by the fact that Shultz (who bore the responsibility for making the final decision on behalf of RJR) apparently possessed a good deal of information about Executive Life and the emerging problems in the market for low-quality bonds. See Part I supra. Yet he did nothing to ascertain whether Tyner was in possession of that information, let alone whether he had conducted further investigation (either personally or through Buck) to determine that Executive Life was a provider qualified to be on the final list. 70 A factfinder could conclude that as far as RJR knew on August 12, 1987, its investigation of the providers involved (1) hiring Buck, which scanned the ratings, and (2) scanning the ratings itself. RJR asserts that this represents the normal investigation undertaken at the time by fiduciaries purchasing annuities from insurance companies that are heavily regulated by the states, and points to a statement of one of its experts, who had not acted as a fiduciary, for support for this contention. However, the record also contains statements from Appellants' experts, three of whom had acted as a fiduciary, that RJR's practices breached its fiduciary duties. Given this case is before us on summary judgment, we leave to the factfinder the task of making credibility assessments. See Anderson, 477 U.S. at 255 ("Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict."). We note that a reasonable factfinder could conclude from the evidence that application of the "normal" investigation was not sufficient under the circumstances. Executive Life's investment strategy deviated significantly from the norm, was comparatively untested, and was the subject of debate among industry insiders. Moreover, evidence in the record suggests that some investors viewed Executive Life's S&P rating as incorrect. 71 In short, a reasonable factfinder could conclude from evidence in the record that RJR made an insufficient attempt to identify which provider or providers was best positioned to promote the interests of the participants and beneficiaries. Based upon its lack of understanding of the basis for Buck's statement that all four bidders on the final list were "qualified," its failure to assess the extent to which ratings could be reasonably relied upon, and its failure to consider factors beyond ratings provided by Buck, a reasonable factfinder could conclude that RJR failed to structure and conduct a prudent investigation. Even if it had long been the practice of those purchasing annuities to rely solely on a ratings scan, a factfinder could conclude that such an investigation was inappropriate in light of lack of experience that the industry, and its regulators, had with Executive Life's investment strategy. Were a factfinder to conclude that RJR's investigation was inadequate under the circumstances, RJR would no longer be entitled to rely on the reasonableness of its final selection based upon the information its investigation produced. 72 Even if RJR's investigation were to be found proper, a reasonable factfinder could conclude that RJR, based on the information it had, was unreasonable in considering the four providers comparable in their ability to serve the interests of plan beneficiaries and participants. The record indicates that the four companies were identical in only one dimension -- the ratings given by S&P. Beyond this, there was variation in the ratings given to the four companies, with Executive Life receiving a Moody's rating two grades lower than AAA. A factfinder could conclude that Shultz was aware of a number of facts regarding Executive Life, including that over 50% of its portfolio was in low-quality bonds, that in this way Executive Life was unusual among insurance companies, and that there was mixed opinion regarding both Executive Life's strategy (involving, as it did, investing over 50% of its portfolio in low-quality bonds) and the soundness of investing in low-quality bonds generally. Shultz understoodthe connection between Drexel and Executive Life, and that Executive Life came within the scope of then-ongoing government investigations. Shultz had not seen the same variation in views of the other companies as he had seen with Executive Life. There is evidence in the record that of the final four companies, RJR first used price to reduce the field to two, and then simply went with the lowest bidder. For example, Aetna was dropped from consideration midday because of price; Prudential and Executive Life were considered further because they were the low bidders. Executive Life was chosen over Prudential because of price. From this, and other evidence in the record,25 a reasonable factfinder could conclude that RJR placed its interests in the reversion ahead of the beneficiaries' interests in full and timely payment of their benefits. 73 2. The Hypothetical Prudent Person Standard 74 Similarly, a reasonable factfinder could conclude that Executive Life was not an appropriate choice based upon the investigation that RJR should have conducted. There is evidence that many voices in the industry had concerns about Executive Life's investment strategy -- a strategy that was substantially different from that used by the industry and that had not stood the test of time. As such, there was more uncertainty (and more associated risk) with Executive Life than with the other candidates. A factfinder could conclude on this basis alone that a prudent person would not select Executive Life's annuity over the annuities offered by those candidates. 75 The record supplies the factfinder with considerable additional evidence that leads to the same conclusion. A factfinder could conclude from evidence in the record that the vast majority of insurance companies at the time rejected the type of investment strategy that Executive Life had adopted, despite Executive Life's ability to underbid other firms and their resulting economic incentive to adopt a similar strategy. Evidence in the record also suggests that some were critical of S&P giving a high rating to Executive Life, that Duff & Phelps gave the company its ninth rating, and that Moody's had assigned its lower rating to Executive Life in part because of the quality of its bonds. Moreover, Executive Life was, during the relevant period,under investigation by both New York and California regulators. New York regulators had levied a hefty fine against Executive Life's New York subsidiary, and had placed a cap (of 20%) on the low-quality bond holdings of insurance companies that state regulated. Documentation filed by First Executive indicated that the company saw adoption of caps by New York regulators as threat to its future growth, competitiveness, and profitability. Other states' regulators, including those in California, were considering capping investment in such bonds. Although evidence was presented that investment banking firms (in addition to Drexel) were eager to make a market in low-quality bonds, there is also evidence that the low-quality bond market as a whole would suffer as a result of investigations of Drexel that were ongoing at the time RJR chose Executive Life. There is evidence that one reputable consultant had removed Executive Life from its Approved List in 1985. A reasonable factfinder could conclude that an appropriate investigation would have revealed this information and that such information, when weighed against the information that should have been gathered on other providers, would cause a fiduciary to eliminate Executive Life as a final candidate well before price could be legitimately considered. Cf. Pilkington, 72 F.3d at 1401-02 (holding that summary judgment in favor of defendant was inappropriate where evidence in the record indicated the investigation of Executive Life relied on a "mere ratings scan," that "voices in the insurance industry had expressed misgivings about the soundness of those ratings," and that "reversion maximization figured prominently in [the sponsor's] spin-off/plan termination decision"); Unisys I, 74 F.3d at 435-37 (holding that summary judgment in favor of the defendant was inappropriate given, inter alia, evidence that allowed a factfinder to infer that Unisys "failed to analyze the bases underlying [its expert's] opinion of Executive Life's financial condition and to determine for itself whether credible data supported [the expert's] recommendation," a subsequent investigation "consisted of nothing more than confirming that Executive Life's credit ratings had not changed," and evidence in the record that raised issues as to whether reliance on ratings was justified). 76 Given the factual differences between the two cases and the fact-specific nature of our inquiry, we do not view Unisys II, 173 F.3d 145 (3d Cir. 1999), as dictating a different conclusion. In that case, the court affirmed the lower court's determination, after a bench trial and additional findings of fact, that the fiduciaries' purchase of Executive Life guaranteed investment contracts did not violate ERISA. We note that although those fiduciaries were buying products sold by Executive Life, they were not buying an annuity to facilitate the termination of a defined benefit pension plan. The investments at issue constituted only 15-20% of a fund that was just part of the retirement plan at issue in that case. See id. at 152 n.10. As a result, we do not find Unisys II's ultimate conclusion dispositive.26 77 For similar reasons, we also do not regard Riley v. Murdock, 890 F. Supp. 444 (E.D.N.C. 1995), aff'd, No. 95-2414, 1996 WL 209613 (4th Cir. Apr. 30, 1996) (unpublished), as dispositive. In that case, as in this, an Executive Life group annuity was purchased to facilitate the termination of an over-funded defined benefit pension plan. The Riley court explained that to assess prudence it first inquired "whether the fiduciary employed the appropriate methods to diligently investigate the transaction." 890 F. Supp. at 458. Next, it determined whether "the decision ultimately made was reasonable based upon the information resulting from the investigation."Id. The court detailed the extensive actions taken by the fiduciaries in that case, explained that the plaintiffs had presented no evidence that the fiduciaries should have known about problems with Executive Life in 1986, and concluded, "[a]ll of these efforts establish that [the fiduciaries] thoroughly investigated the purchase of the annuity from Executive Life and that the decision to purchase was reasonable based on the results of that investigation." Id. (emphasis added). 78 The Riley court's conclusion can not be translated into a pronouncement that the purchase of an Executive Life group annuity to facilitate plan termination was objectively reasonable in 1987 regardless of the investigation conducted. Not only did RJR have an additional year of information available to it, but the Riley court never addressed the objective prudence of a decision to invest in an Executive Life group annuity. Finding that the fiduciaries in that case conducted a prudent investigation and that their decision was reasonable based upon that investigation, the Riley court did not have cause to apply the hypothetical prudent person standard. III. CLASS CERTIFICATION 79 The district court denied the motion to certify a class for the reason that "neither of the named plaintiffs will recover anything by this suit." Bussian, 21 F. Supp.2d at 684. We have concluded that summary judgment was inappropriate. Under the circumstances, it seems appropriate to vacate the district court's order denying class certification and allow it to consider the issue more fully on remand. IV. CONCLUSION 80 For the foregoing reasons, the grant of summary judgment in favor of RJR is REVERSED, and the order denying class certification is VACATED. The case is REMANDED to the district court. Costs shall be borne by RJR. NOTES: 1 Prior to April 22, 1987, RJR's Retirement Board was responsible for the Plan's administration; subsequent to that date, that responsibility fell to RJR's Employee Benefits Committee. 2 RJR's decision to terminate was consistent with the provisions of the Plan and with ERISA. The Plan allowed RJR to terminate it by purchasing an annuity from an insurance company to provide benefits under the Plan. Upon doing so, the Plan provided that RJR could recover any residual assets. 3 Overgard also did not send initial letters to three companies Tyner suggested be added to the list because those companies indicated they did not want to participate. 4 At some point after May, Mutual Life of New York dropped out of the bidding. 5 The top ten Moody's ratings are: Aaa, Aa1, Aa2, Aa3, A1, A2, A3, Baa1, Baa2, and Baa3. The top ten S&P's ratings are AAA, AA+, AA, AA-, A+, A, A-, BBB+, BBB, and BBB-. 6 Neither Shultz nor Tyner was aware that regulators in California were looking into $188 million of Executive Life's reinsurance. 7 The Pension Benefit Guarantee Corporation ("PBGC") later audited the termination of the Plan, and on February 7, 1989, found it to be "in accordance with the plan provisions and in compliance with the appropriate laws and regulations administered by the Pension Benefit Guarantee Corporation." The PBGC was established to administer and enforce Title IV of ERISA. See Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633, 637 (1990). "Title IV includes a mandatory Government insurance program that protects the pension benefits of over 30 million private-sector American workers who participate in plans covered by the Title. In enacting Title IV, Congress sought to ensure that employees and their beneficiaries would not be completely 'deprived of anticipated retirement benefits by the termination of pension plans before sufficient funds have been accumulated in the plans.'" Id. (footnote omitted) (quoting Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 720 (1984)). A statement that a termination is in accordance with the laws and regulations administered by the PBGC is not a statement that the PBGC considers the termination to be in accordance with fiduciary standards set forth in Title I of ERISA. Cf. Waller v. Blue Cross, 32 F.3d 1337, 1343-44 (9th Cir. 1994) (holding that plan terminations must be consistent with both Title IV and Title I of ERISA and noting that the two Titles protect pension benefits in different ways). 8 RJR does not argue that activities conducted in implementing a plan termination, such as the selection of an annuity provider, fall outside the standard set forth in 1104(a). Cf. Waller, 32 F.3d at 1343-44 ("We find ERISA's failure to exempt purchasing annuities from [1104]'s fiduciary obligations to be a powerful indicator of Congress' intent not to exempt the process for choosing annuity providers -- possibly the most important decision in the life of the plan -- from fiduciary scrutiny."). 9 "Surplus assets, or 'residual assets' as termed in ERISA, are 'assets in excess of those necessary to satisfy defined benefit obligations . . . .'" Borst v. Chevron Corp., 36 F.3d 1308, 1311 (5th Cir. 1994) (quoting Wilson v. Bluefield Supply Co., 819 F.2d 457, 464 (4th Cir. 1987)). 10 The Secretary has the power to promulgate regulations. See 29 U.S.C. 1135. Under 29 U.S.C. 1137, the rulemaking provisions of the Administrative Procedure Act are applicable to Title I of ERISA. 11 The Department indicated that its advance notice was being published in order to obtain information and comments from the public for consideration by the Department in deciding whether to propose a regulation relating to the purchase of annuity contracts for plan participants and beneficiaries, and, if so, whether and to what extent any such regulation should provide minimum standards for determining whether the purchase of an annuity contract would relieve the plan of future liability with respect to the participant or beneficiary for whom the annuity is purchased. Annuitization, 56 Fed. Reg. at 28639. It acknowledged that "one method for providing such minimum standards would be to amend 29 C.F.R. 2510.3-3(d)(2)(ii)(A). A consequence of such an approach would be that a participant would cease to be a participant covered under the plan only to the extent that prescribed minimum standards are satisfied." Id. The regulation at 29 C.F.R. 2510.3-3(d)(2)(ii) describes when an individual becomes a participant covered under an employee benefit plan. 12 We note that nowhere in the Bulletin is the "safest available annuity" defined, and nowhere are its identifying characteristics described. 13 The Bulletin claims that a fiduciary could conclude "that more than one annuity provider is able to offer the safest annuity available." 29 C.F.R. 2509.95-1(c). However, under the Bulletin's language, where distinctions are possible a fiduciary would be obligated to choose the "safest available annuity" unless limited exceptions apply. The Bulletin provides no guidance as to how that annuity is to be identified. Given this, and given variations among insurance companies, we see it as likely that distinctions between providers and the annuities they offer could always be made. As a result, we question whether a fiduciary could conclude that "more than one annuity provider is able to offer the safest annuity available" and not leave itself open to challenge by the Secretary. 14 Because some beneficiaries in the Plan had not yet retired at the time of termination, completion of an obligation to pay in full all promised benefits could occur at a time twenty or more years in the future, when the last beneficiary died. 15 The district court noted that "[a]lthough the statute lists loyalty separately from prudence, they certainly overlap; satisfying the prudence requirement may fulfill the duty of loyalty." Bussian v. RJR Nabisco, Inc., 21 F. Supp.2d 680, 685 (S.D. Tex. 1998) (citing Riley v. Murdock, 890 F. Supp. 444, 459 (E.D.N.C. 1995), aff'd, No. 95-2414, 1996 WL 209613 (4th Cir. Apr. 30, 1996) (unpublished)). We agree that conducting an investigation that is structured to remove the taint associated with conflicting interests goes a long way toward satisfying the duty of loyalty. 16 But see Brock v. Robbins, 830 F.2d 640, 646-47 (7th Cir. 1987) (declining to apply the hypothetical prudent person standard in a case where injunctive relief was sought because "[w]hile monetarily penalizing an honest but imprudent trustee whose actions do not result in a loss to the fund will not further the primary purpose of ERISA, other remedies such as injunctive relief can further the statutory interests"). Therefore, the relief sought may impact whether the hypothetical prudent person standard is appropriate. 17 Price alone is not a good indicator, one way or the other, of an annuity provider's ability to promote the interests of participants and beneficiaries. While a lower price may be related to the provider's belief that it will earn a higher rate of return on its portfolio, which may indicate that its portfolio contains riskier investments, its bid may also be indicative of its ability to administer the annuity more efficiently, of its willingness to write the business based on its business strategy, or of its view of how the proposed obligations will compliment its investment portfolio. 18 It may be inferred from our conclusion that we reject the standard apparently applied below: "The plaintiffs could show imprudence only if [RJR] knew of the problems [of Executive Life] and what eventually would happen and then, without additional investigation or consideration, blindly charged ahead." Bussian, 21 F.Supp.2d at 686. 19 It is unclear from the record whether RJR explicitly told Buck of its selection criteria. Tyner indicated that RJR required that Buck identify AAA companies. Overgard, on the other hand, stated that he assumed that RJR would want companies that received an AAA rating from at least one agency. 20 Although Overgard stated in his affidavit that he also made inquiries into the reinsurance problems of Executive Life of New York because he had learned prior to August 12, 1987 that the company had been fined by New York regulators, he indicated in his deposition that he did not recall whether he was aware of the fine levied against the New York insurer, or of New York regulators disallowing $150 million of reinsurance prior to final bid day. He also stated in his deposition that he may have talked to someone at Executive Life about the reinsurance issue, but had no recollection of the conversation. Overgard's deposition was dated March 18, 1992; his affidavit was dated April 21, 1992. 21 Although Executive Life's administrative capability is not challenged in this litigation, the record also contains indications that RJR did not ascertain what Overgard had done to assess that capability. Shultz's view that all four companies were able to perform the contract was based on the fact that Buck included each company on its final list. 22 There is arguably a fact question as to which of the ratings RJR relied upon. For example, Tyner stated in his deposition (1) that all four ratings were used, (2) that the Moody's rating was ignored, and (3) that the S&P rating was the main criterion. Shultz suggested that three ratings were used: S&P's, Conning's and Best's. 23 In evaluating Executive Life for purposes of the earlier bidding on guaranteed investment contracts, Tyner looked only to the provider's ratings. 24 The court below suggested that the investigation undertaken by RJR was similar to that undertaken by the defendant in Riley v. Murdock, 890 F. Supp. 444 (E.D.N.C. 1995). See Bussian, 21 F.Supp.2d at 685. We disagree with this assessment. The defendant in Riley undertook an extensive independent investigation: The committee also retained a law firm and conducted its own investigation of each insurance company that bid on the annuity contract. This investigation included: (1) a financial analysis; (2) personal contact with the companies' senior management; (3) a review of financial statements, quarterly reports and other relevant financial documents; (4) consultation with Conning & Company, a firm specializing in the evaluation of insurance companies; (5) consulting with independent sources about Executive Life; and, (6) consulting with other companies that had bought annuity contracts from Executive Life. The committee also relied on the fact that Executive Life had received a high rating in 1986 from A.M. Best, the preeminent authority rating insurance companies. The committee also knew that Executive Life received a AAA rating from Standard & Poor's, the highest rating that company gives, and the stock of its parent company was also highly rated. The committee also made certain that Executive Lifehad the administrative capabilities to oversee disbursement of Plan funds. Riley, 890 F. Supp. at 458 (citations omitted). In reproducing this list of activities, we do not intend to suggest that a fiduciary must, in all circumstances, undertake each activity. We wish merely to highlight the substantial difference in the nature of the independent investigation undertaken in Riley and that undertaken by RJR. 25 For example, when Tyner was asked if, taking price out of consideration and assuming that Aetna, Prudential and Executive Life had an AAA rating, he had also known of eight publicly available facts about Executive Life and the market for low-quality bonds (e.g., the percentage of Executive Life's portfolio in low-quality bonds, the relationship between First Executive and Drexel, the fine on Executive Life of New York, California regulators' examination of $188 million of Executive Life's reinsurance, that California regulators were considering capping insurance companies' investment in low-quality bonds), it would be prudent to choose Executive Life, Tyner responded, "Well, if all other things are equal, then it would obviously be better to go with another one but all other things weren't equal . . . There was a difference in price." 26 For the same reasons, the district court's ultimate finding in Bruner v. Boatmen's Trust Company, 918 F. Supp. 1347, 1354 (E.D. Mo. 1996), that plan fiduciaries had breached their duties under ERISA by investing a significant portion of plan assets in Executive Life guaranteed investment contracts is not dispositive.

19 F.3d 35 U.S.v.De La Fe** NO. 92-4165 United States Court of Appeals,Eleventh Circuit. Mar 18, 1994 1 Appeal From: S.D.Fla. 2 AFFIRMED. ** Local Rule 36 case

889 N.E.2d 818 (2005) 356 Ill. App.3d 1150 PEOPLE v. SALYERS. No. 5-04-0556. Appellate Court of Illinois, Fifth District. April 4, 2005. Affirmed.

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER . Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email [email protected]. THE SUPREME COURT OF THE STATE OF ALASKA NATIVE VILLAGE OF TUNUNAK, ) ) Supreme Court No. S-14670 Appellant, ) ) Superior Court No. 3AN-11-02236 PR v. ) ) OPINION STATE OF ALASKA, ) DEPARTMENT OF HEALTH & ) No. 6954 – September 12, 2014 SOCIAL SERVICES, OFFICE OF ) CHILDREN’S SERVICES, and ) H.S. and K.S., ) ) Appellees. ) ) Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Frank A. Pfiffner, Judge. Appearances: James J. Davis, Jr. and Sydney Tarzwell, Alaska Legal Services Corporation, Anchorage, for Appellant. Jacqueline G. Schafer, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellee State of Alaska. Kenneth C. Kirk, Anchorage, for Appellees H.S. and K.S. Notice of nonparticipation filed by Kristen C. Stohler, Stohler Law, P.C., Palmer, on behalf of Kathleen Wilson, Anchorage, Guardian Ad Litem. Heather Kendall-Miller, Erin C. Dougherty, and Matthew N. Newman, Native American Rights Fund, Anchorage, for Amicus Curiae Native Village of Kotzebue. Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices. STOWERS, Justice. WINFREE, Justice, dissenting. I. INTRODUCTION This is the second appeal in a case that began in July 2008 when the Alaska Office of Children’s Services (OCS) assumed custody of four-month-old Dawn1 from her parents.2 Dawn was found to be a child in need of aid (CINA).3 Dawn’s parents were Alaska Natives and thus the protections and requirements of the Indian Child Welfare Act (ICWA)4 applied to the CINA case.5 One of ICWA’s provisions establishes preferences for foster care and adoptive placement of an Indian child with a member of the child’s extended family, with other members of the child’s tribe, or with other Indian families.6 Native Village of Tununak (the Tribe) intervened in Dawn’s CINA case and submitted a list of potential placement options for Dawn, including Dawn’s maternal grandmother, Elise, who lives in the village.7 Throughout much of the case, the parents and Tribe agreed there was good cause not to place Dawn with an ICWA preferred placement, and Dawn was eventually placed with the Smiths, non-Native foster parents who live in Anchorage.8 1 We use pseudonyms to protect the privacy of the parties involved. 2 Native Vill. of Tununak v. State, Dep’t of Health & Social Servs., Office of Children’s Servs., 303 P.3d 431, 433 (Alaska 2013) (Tununak I). 3 Id. 4 25 U.S.C. §§ 1901-1963 (2012). 5 Tununak I, 303 P.3d at 433. 6 25 U.S.C. § 1915(a). 7 Tununak I, 303 P.3d at 433. 8 Id. at 434-35. -2- 6954  The superior court terminated Dawn’s parents’ parental rights at a September 2011 trial, making Dawn eligible for adoption.9 The Tribe asserted that, given the termination of parental rights, there was no longer good cause to deviate from ICWA’s placement preferences and objected to Dawn’s continued placement in Anchorage.10 In November the Smiths filed a petition to adopt Dawn.11 At no point in the case did Elise file an adoption petition in the superior court. The superior court conducted a placement hearing following the Tribe’s objection to placement with the Smiths.12 Following testimony by a number of witnesses, including Elise,13 the court found that there was continued good cause to deviate from ICWA’s adoptive placement preferences and again approved Dawn’s placement with the Smiths.14 The court then granted the Smiths’ adoption petition in March 2012.15 Dawn was almost four years old, and had lived with the Smiths for almost two and a half years.16 In separate appeals, the Tribe appealed both the superior court’s order finding that there was good cause to deviate from ICWA’s placement preferences and 9 Id. at 435. 10 Id. 11 Id. 12 Id. at 435-39. 13 Id. at 437-38. 14 Id. at 439-40. 15 Id. at 440. 16 Id. at 434, 440. -3- 6954 the adoption order.17 We issued an order staying the adoption appeal while we considered the adoptive placement appeal.18 On June 21, 2013, we issued our decision in the first appeal that examined Dawn’s adoptive placement with the Smiths.19 We reversed the superior court’s finding of good cause to deviate from ICWA’s placement preferences.20 Though we had held in previous cases that the preponderance of the evidence standard was the correct standard of proof, we were convinced by the Tribe’s argument that the preponderance standard was inconsistent with Congress’s intent in enacting ICWA, and that a higher standard of proof — proof by clear and convincing evidence — was required.21 We overruled our prior cases and remanded the adoptive placement case to the superior court for it to take additional evidence and make its determination whether there was clear and convincing evidence of good cause to deviate from ICWA’s adoptive placement preferences.22 We continued our stay order of the adoption appeal.23 17 Id. at 440 n.10. 18 Id.; see also Native Vill. of Tununak v. State, OCS, et al., No. S-14670 (Alaska Supreme Court Order, Nov. 29, 2012) (staying sua sponte the adoption appeal pending the resolution of the adoption placement appeal). 19 Tununak I, 303 P.3d at 431. 20 Id. at 453. 21 Id. at 446-49. 22 Id. at 453. 23 Native Vill. of Tununak v. State, OCS, et al., No. S-14670 (Alaska Supreme Court Order, Nov. 29, 2012); Native Vill. of Tununak v. State, OCS, et al., No. S-14670 (Alaska Supreme Court Order, June 21, 2013) (ordering briefing on whether the stay of the adoption appeal should continue following the court’s issuance of its opinion in the adoption placement appeal). -4- 6954  Four days after we issued our opinion in the adoptive placement appeal (Tununak I), the United States Supreme Court issued its opinion in Adoptive Couple v. Baby Girl (Baby Girl).24 There, the Supreme Court held that ICWA “§ 1915(a)’s [placement] preferences are inapplicable in cases where no alternative party has formally sought to adopt the child. This is because there simply is no ‘preference’ to apply if no alternative party that is eligible to be preferred under § 1915(a) has come forward.”25 We asked the parties to provide supplemental briefing and oral argument on the effect of the Supreme Court’s Baby Girl decision on the adoption appeal currently before us.26 We now hold that because the United States Supreme Court’s decisions on issues of federal law bind state courts’ consideration of federal law issues — including the Indian Child Welfare Act — the decision in Baby Girl applies directly to the adoptive placement case on remand and to this adoption appeal. We discern no material factual differences between the Baby Girl case and this case, so we are unable to distinguish the holding in Baby Girl. Because the Supreme Court’s holding in Baby Girl is clear and not qualified in any material way, and because it is undisputed that Elise did not “formally [seek] to adopt” Dawn in the superior court, we conclude that, as in Baby Girl, “there simply is no ‘preference’ to apply[,] [as] no alternative party that is eligible to be 24 133 S. Ct. 2552 (2013). 25 Id. at 2564. The dissent argues that this portion of the opinion was dicta. We disagree. While “statements of a legal rule set forth in a judicial opinion do not always divide neatly into ‘holdings’ and ‘dicta,’ ” Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 831 (2007) (Breyer, J., dissenting), in this case, the Court’s Baby Girl opinion is divided into distinct sections considering three discrete subdivisions of ICWA: §§ 1912(f), 1912(d), and 1915(a). See Baby Girl, 133 S. Ct. at 2557. The Court’s discussion of § 1915(a) is succinct and its holding unequivocal, id. at 2564-65, and we apply it to the facts of the present appeal. 26 Native Vill. of Tununak v. State, OCS, et al., No. S-14670 (Alaska Supreme Court Order, Oct. 7, 2013) (ordering briefing and oral argument on the effect of Baby Girl on the adoption case). -5- 6954 preferred under § 1915(a) has come forward[,]” and therefore ICWA “§ 1915(a)’s [placement] preferences are inapplicable.”27 We affirm the superior court’s order granting the Smiths’ petition to adopt Dawn and vacate our remand order in Tununak I requiring the superior court to conduct further adoptive placement proceedings. We do not otherwise disturb our decision in Tununak I. II. FACTS AND PROCEEDINGS A. Facts Dawn F. was born in Anchorage in March 2008.28 When she was four months old OCS assumed emergency custody and placed her in foster care in Anchorage.29 The Tribe formally intervened in Dawn’s CINA case in August 2008 and submitted a list of potential foster placement options under Alaska Child in Need of Aid Rule 8(c)(7)30 for Dawn, including placement with her maternal grandmother, Elise F., 27 Baby Girl, 133 S. Ct. at 2564. 28 Tununak I, 303 P.3d at 433. 29 Id. 30 That rule states: Except to the extent otherwise directed by order or rule, [a tribe that has intervened in the proceedings] shall, without awaiting a discovery request, provide to other parties the following information, excluding any privileged material: .... . . . names and contact information for extended family of the child, a list of potential placements under . . . § 1915, and a summary of any tribal services or tribal court actions involving the family. Unless otherwise directed by the court, these disclosures shall be made within 45 days of the date of service of the petition for adjudication, or for tribes, the date of the order granting (continued...) -6- 6954 who lived in Tununak.31 Elise discussed foster placement at meetings with OCS in July and September 2008, but OCS ruled her out as a potential placement because an adult son living with her at the time had a barrier-crime for placement purposes.32 OCS placed Dawn in a non-Native foster home to facilitate visitation with her mother, Jenn F., who lived in Anchorage.33 In November 2008 the parties stipulated that there was good cause to deviate from ICWA’s placement preferences, and in March 2009 the superior court found there was good cause to continue the deviation, as Jenn was progressing with her OCS case plan and it appeared she might be reunited with Dawn.34 In August 2009 Elise contacted OCS to report that her son had moved out; she confirmed that she still sought foster placement.35 In October 2009 OCS placed Dawn with non-Native foster parents Kim and Harry Smith in Anchorage, and in December 2009 Elise visited Dawn.36 Following this 30 (...continued) intervention. A party shall make its initial disclosures based on the information then reasonably available to it and is not excused from making its disclosures because it has not fully completed its investigation of the case or because it challenges the sufficiency of another party’s disclosures or because another party has not made its disclosures. 31 Tununak I, 303 P.3d at 433. 32 Id. at 433-34. 33 Id. at 434. 34 Id. 35 Id. 36 Id. -7- 6954 meeting, Elise did not call, write, or communicate with Dawn.37 Also in December 2009 a representative from the Association of Village Council Presidents visited Elise’s home in Tununak on OCS’s behalf and noted potential hazards in the home that needed to be addressed before placement could occur.38 These included unsecured guns, cleaning supplies, medicine, and general clutter in the area that Elise planned to use as Dawn’s bedroom.39 In February 2010 Elise assured OCS she would remedy these issues, and OCS asked Elise to arrange for a second home visit once she made the proposed changes.40 In May 2010 Elise attended a visit with Jenn and Dawn and told an OCS social worker that she thought Jenn would complete substance abuse treatment; Elise did not seek foster placement at that time and had not remedied the issues in her home.41 OCS filed two petitions to terminate Jenn’s parental rights: the first was denied in November 2010, and a second was filed in April 2011.42 At a status conference in February 2011 Elise was present telephonically, and she questioned the court about whether Dawn would be returned to Jenn.43 The court advised her in no uncertain terms that it was not safe for Dawn to return to Jenn’s household given Jenn’s continuing 37 Id. 38 Id. 39 Id. 40 Id. 41 Id. 42 Id. at 434-35. 43 Id. at 435. -8- 6954 mental health issues and illegal drug use.44 The superior court ultimately terminated Jenn’s parental rights in September 2011.45 Following termination the Tribe argued there was no longer good cause to deviate from ICWA’s placement preferences, and a placement hearing was scheduled.46 The Smiths filed an adoption petition on November 3, 2011, and the petition was stayed pending the resolution of the ICWA placement hearing on November 14, 2011.47 B. Proceedings 1. The placement hearing and appeal The superior court noted at the outset of the placement hearing that it would not consolidate the CINA placement case with the adoption case, but cautioned the Tribe that it would not get “two bites at the apple”; in other words, “if the Tribe los[t], it [would]n’t get to contest placement in the adoption proceeding.”48 We explained in Tununak I that “[w]hen the court declined to consolidate the two cases, it stated that the future adoption proceeding would be dependent on the placement ruling in the CINA case”49 and that “denying the Tribe’s objections to adoptive placement [effectively] . . . clear[ed] the way for the Smiths to adopt Dawn.”50 44 Id. 45 Id. 46 Id. 47 Id. 48 Id. at 443. 49 Id. 50 Id. at 444. -9- 6954  Elise testified at the hearing.51 She had previously been an ICWA social worker and was aware of her ICWA rights.52 When asked if she wanted to take care of Dawn just because the Tribe wanted her to she answered with an equivocal “[y]es and no.”53 She clarified: “[I]t is my right to adopt or take my granddaughter and . . . raise her as an Alaska Native . . . because she is part of my flesh and blood and so that she [can] learn her values in Native culture and traditions and where she came from.”54 Elise also said that she had not been able to see Dawn very often due to the expense of travel; she did not call or write letters to Dawn because the child was too young to read or communicate; she knew Dawn did not know her at that point; and she understood Dawn would have to be gradually introduced to life in the village to prevent culture shock.55 Elise testified that she wanted Dawn to be placed with her “from the beginning” and she recognized that “if [Dawn] had moved [in] with me when [Dawn] was [a] young infant, then it could have been easier because [Dawn] would have known [her] grandmother[,]” but at this point Dawn had been “raised by [Kim and Harry Smith].” Elise also indicated at this hearing that she had filed a petition to adopt Dawn, but the record contains no evidence that such a petition was ever filed, and no party has argued to the contrary.56 In its decision on placement the superior court noted that Elise was 67 years old and would be 82 when Dawn turned 18.57 The court found Elise’s testimony on the 51 Id. at 437-38. 52 Id. 53 Id. at 438. 54 Id. (internal quotation marks omitted). 55 Id. 56 In its briefing to us the Tribe conceded that no court petition was filed. 57 Id. at 439. -10- 6954 question of whether she wanted to adopt Dawn “less than convincing” and pointed out that she had maintained almost no contact with Dawn and knew nothing of Dawn’s life in Anchorage.58 The court also found that Elise testified that she wanted to adopt Dawn because the Tribe wanted her to.59 The court found that the Smiths had been “exceptional foster parents” to Dawn.60 Ultimately, the court determined there was good cause to deviate from ICWA’s placement preferences by a preponderance of the evidence in accordance with Alaska Adoption Rule 11(f).61 The Tribe moved to stay the Smiths’ adoption proceeding pending the Tribe’s appeal of the placement ruling to our court, but this motion was denied.62 2. The adoption hearing and appeal On March 6, 2012, the superior court held an adoption hearing and granted the Smiths’ adoption petition.63 At that hearing the court noted that, since the placement hearing, “[n]o individual has come forward” and “[n]o names have been put forward of somebody who would be ICWA compliant under 1915(a) and the [Smiths] have been there for Dawn for . . . these several years and the child’s almost four.” The court concluded it was in Dawn’s best interest to be adopted that day by the Smiths, but cautioned that “the adoption [could] be reversed . . . anything could happen including removal of the child” from the Smiths’ care. Elise did not appear at the adoption hearing. 58 Id. 59 Id. 60 Id. 61 Id. at 439-40. 62 Id. at 440. 63 Id. -11- 6954  The Tribe appealed the adoption to our court. On November 29, 2012, we issued an order sua sponte staying the adoption appeal pending our decision in the related adoption placement appeal.64 3. Our decision in the placement appeal in Tununak I and the United States Supreme Court’s decision in Baby Girl We issued our decision in the placement appeal on June 21, 2013.65 In that opinion we reversed and remanded the superior court’s adoptive placement decision.66 We concluded that ICWA requires a heightened clear and convincing evidence standard of proof be applied to the § 1915(a) good cause determination.67 Because the superior court’s placement decision was decided under a preponderance of the evidence standard, we remanded for the superior court to undertake a new good cause determination, consistent with a clear and convincing evidence standard, to decide whether deviation from the preferred placement preferences provided in ICWA § 1915(a) was appropriate.68 We issued an order along with our decision in Tununak I that requested the parties to brief their positions on whether our stay of Dawn’s adoption appeal should continue pending the superior court’s proceedings on remand following Tununak I.69 The United States Supreme Court issued its decision in Adoptive Couple v. Baby Girl four days later; the Court held that ICWA “§ 1915(a)’s preferences are 64 Native Vill. of Tununak v. State, OCS, et al., No. S-14670 (Alaska Supreme Court Order, Nov. 29, 2012). 65 Tununak I, 303 P.3d at 431. 66 Id. at 453. 67 Id. 68 Id. at 452-53. 69 Native Vill. of Tununak v. State, OCS, et al., No. S-14670 (Alaska Supreme Court Order, June 21, 2013). -12- 6954 inapplicable in cases where no alternative party has formally sought to adopt the child. This is because there simply is no ‘preference’ to apply if no alternative party that is eligible to be preferred under § 1915(a) has come forward.”70 In Baby Girl, the child’s biological father (Biological Father) and biological mother (Birth Mother) broke off their engagement after Birth Mother became pregnant but would not accommodate Biological Father’s request to move up the wedding.71 Biological Father had no meaningful contact with Birth Mother following the couple’s separation and sent her a text message indicating that he wished to relinquish his parental rights.72 Birth Mother decided to give the child up for adoption and selected a non- Native adoptive couple (Adoptive Couple) through a private adoption agency.73 Approximately four months after Baby Girl’s birth, Adoptive Couple served Biological Father with notice of their pending adoption petition.74 Biological Father signed the paperwork, stating he was not contesting the adoption.75 He later testified that he assumed he was relinquishing parental rights to Birth Mother.76 Biological Father contacted a lawyer a day after signing the papers and subsequently requested a stay of the adoption proceedings.77 In those proceedings he sought custody of Baby Girl, took a paternity test, and participated in a four-day trial after which the 70 Baby Girl, 133 S. Ct. 2552, 2564 (2013). 71 Id. at 2558. 72 Id. 73 Id. 74 Id. 75 Id. 76 Id. 77 Id. at 2558-59. -13- 6954 South Carolina Family Court ultimately awarded him custody and denied Adoptive Couple’s adoption petition.78 That decision was appealed to the South Carolina Supreme Court, and Biological Father participated in that appeal.79 The South Carolina Supreme Court characterized his appeal as a “legal campaign to obtain custody” and affirmed the family court order.80 The decision was appealed to the United States Supreme Court, and Biological Father again participated in that appeal.81 At no point did Biological Father file a petition to adopt Baby Girl.82 The United States Supreme Court ultimately reversed the South Carolina Supreme Court, holding in part that ICWA “§ 1915(a)’s preferences are inapplicable in cases where no alternative party has formally sought to adopt the child.”83 The Court reasoned: “This is because there simply is no ‘preference’ to apply if no alternative party that is eligible to be preferred under § 1915(a) has come forward.”84 Because the Supreme Court’s interpretation of ICWA § 1915(a) in Baby Girl called into doubt the application of § 1915(a)’s placement preferences on remand in Tununak I — as no one but the Smiths sought to formally adopt Dawn — we issued 78 Id. at 2559; Adoptive Couple v. Baby Girl, 731 S.E.2d 550, 555-56 (S.C. 2012) (Adoptive Couple) (indicating that the trial took place from September 12-15, 2011, when Baby Girl was roughly two years old), reh’g denied, (Aug. 22, 2012), cert. granted, 133 S. Ct. 831 (2013), and rev’d, 133 S. Ct. 2552 (2013). 79 Adoptive Couple, 731 S.E.2d at 552. 80 Id. at 552, 561. 81 Baby Girl, 133 S. Ct. at 2556. 82 Id. at 2564. 83 Id. 84 Id. -14- 6954 an order directing the parties to brief the effect of Baby Girl on the present adoption appeal and granted oral argument in the matter.85 III. STANDARD OF REVIEW “[T]he [United States] Supreme Court’s decisions on issues of federal law, including issues arising under the Federal Constitution, bind the state courts’ consideration of those issues,”86 and we review those issues de novo.87 Pure questions of law, including issues of statutory interpretation, invoke our “duty to ‘adopt the rule of law that is most persuasive in light of precedent, reason, and policy’ ”88 using our independent judgment.89 IV. DISCUSSION All parties agree that we must decide the Tribe’s challenge on appeal to the Smiths’ adoption of Dawn in light of the Supreme Court’s decision in Baby Girl. The State contends that “[b]ecause no one other than the Smiths formally sought to adopt Dawn, her adoption should be upheld under the controlling [Baby Girl] decision.” The Smiths agree. The Tribe urges us to vacate the superior court’s adoption decree and remand this matter for an adoptive placement determination based on our decision in Tununak I that required the superior court to find, under a clear and convincing evidence standard, whether there is good cause to deviate from ICWA § 1915(a)’s placement 85 Native Vill. of Tununak v. State, OCS, et al., No. S-14670 (Alaska Supreme Court Order, Oct. 7, 2013). 86 Doe v. State, Dep’t of Pub. Safety, 92 P.3d 398, 404 (Alaska 2004). 87 State, Dep’t of Health & Soc. Servs., Office of Children’s Servs. v. Doherty, 167 P.3d 64, 68-70 (Alaska 2007) (applying de novo review to § 1983 claims as a matter of federal law). 88 West v. Buchanan, 981 P.2d 1065, 1066 (Alaska 1999) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)). 89 Doe, 92 P.3d at 402. -15- 6954 preferences. The Tribe takes the position that: (1) Baby Girl is factually distinguishable and inapplicable to state-driven child protection cases; (2) to the extent Baby Girl does apply, it merely requires that a specific family be formally identified as desiring placement of the Native child and Elise satisfied that requirement in this case; and (3) the requirement is satisfied in Alaska as soon as a tribe intervenes in the case and makes formal CINA Rule 8(c)(7) disclosures. Finally, the Tribe contends that, if we interpret Baby Girl to mean that ICWA’s placement preferences are inapplicable until an alternative adoptive family files a competing adoption petition, this decision will have disastrous results for rural Alaska, placing the largest burden on Native families with the fewest legal and financial resources, and create a dangerous disincentive for OCS, as the agency will place Native children in the first available home, thereby neutering the protections that ICWA originally sought to provide to promote the preservation of the Indian family. The Tribe’s interpretation of Baby Girl, as echoed by the dissent, strains the plain wording of a clear, unequivocal, and unqualified decision on a matter of federal law as interpreted by the United States Supreme Court. For the reasons that follow, we conclude that we are required to apply the Supreme Court’s bright-line interpretation of ICWA § 1915(a)’s placement preferences to bar from consideration as an adoptive placement an individual who has taken no formal step to adopt the child. A. ICWA § 1915(a) and Baby Girl Do Not Distinguish A State-Initiated Child Custody Proceeding From A Voluntary Private Adoption. ICWA § 1915(a)’s placement preferences apply to “any adoptive placement of an Indian child under State law,”90 and ICWA defines adoptive placements broadly as “the permanent placement of an Indian child for adoption, including any action 90 25 U.S.C. § 1915(a) (emphasis added). -16- 6954 resulting in a final decree of adoption.”91 The federal statute does not distinguish between state-initiated child protection cases and voluntary adoptions. The Supreme Court in Baby Girl also did not carve out such a distinction. In Baby Girl, the Supreme Court held without qualification that § 1915(a), “which provides placement preferences for the adoption of Indian children, does not bar a non-Indian family like Adoptive Couple from adopting an Indian child when no other eligible candidates have sought to adopt the child.”92 The Court emphasized that the “scope” of § 1915(a) has a “critical limitation,” namely, that “§ 1915(a)’s preferences are inapplicable in cases where no alternative party has formally sought to adopt the child.”93 The Court reiterated, “This is because there simply is no ‘preference’ to apply if no alternative party that is eligible to be preferred under § 1915(a) has come forward.”94 To make its rationale perfectly clear, the Court again explained that, because Adoptive Couple was the only family that “sought to adopt Baby Girl,” § 1915(a)’s “rebuttable adoption preferences [did not] apply [because] no alternative party . . . formally sought to adopt the child.”95 As a policy matter, the Court broadly concluded that while ICWA “was enacted to help preserve the cultural identity and heritage of Indian tribes,” to require a placement preference determination for a party who did not seek to adopt “would put certain vulnerable children at a great disadvantage solely because an ancestor — even a remote one — was an Indian.”96 The Court cautioned that such a result may cause “prospective 91 25 U.S.C. § 1903(l)(iv) (emphasis added). 92 Baby Girl, 133 S. Ct. 2552, 2557 (2013). 93 Id. at 2564. 94 Id. 95 Id. at 2565. 96 Id. -17- 6954 adoptive parents [to] . . . pause before adopting any child who might possibly qualify as an Indian under the ICWA.”97 The dissent characterizes these statements by the United States Supreme Court interpreting § 1915(a) as dicta addressing the South Carolina Supreme Court’s suggestion that if it had terminated Biological Father’s rights, § 1915(a)’s preferences would have applied. But Baby Girl explained, clarified, and decided that § 1915(a) did not apply where no alternative party sought to adopt the Indian child, as was the case of Biological Father. When discussing the distinction between a holding and dictum, the Supreme Court has directed that “[w]hen an opinion issues for the Court, it is not only the result[,] but also those portions of the opinion necessary to that result by which we are bound.”98 We are likewise bound by the Supreme Court’s holding concerning § 1915(a); it was necessary to the Supreme Court’s reversal of the judgment of the South Carolina Supreme Court and its remand of the case for further proceedings.99 In those 97 Id. 98 Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996). 99 See Baby Girl, 133 S. Ct. at 2564-65. The dissent points out that Baby Girl did not consistently use the word “hold” in its summary of the three central holdings in the case; instead, the Court stated: [W]e hold that 25 U.S.C. § 1912(f) . . . does not apply when, as here, the relevant parent never had custody of the child. We further hold that § 1912(d) . . . is inapplicable when, as here, the parent abandoned the Indian child before birth and never had custody of the child. Finally, we clarify that §1915(a) . . . does not bar a non-Indian family like Adoptive Couple from adopting an Indian child when no other eligible candidates have sought to adopt the child. We accordingly reverse the South Carolina Supreme Court’s judgment and remand for further proceedings. Id. at 2557 (emphasis added). Contrary to the dissent’s argument, we do not agree that (continued...) -18- 6954  99 (...continued) the Court’s use of the word “clarify” as opposed to “hold” when addressing §1915(a) “leaves room for states to determine under their own adoption procedures when an eligible candidate has come forward such that the preferences should be applied.” Our cases often use the word “clarify” to signal a holding. For example, in Bruce L. v. W.E., 247 P.3d 966, 976 (Alaska 2011), we stated: At first blush A.B.M. seems to mandate a reversal of the trial court’s determination that Timothy is not an Indian child because the Eberts’ concessions to the contrary throughout the proceedings should constitute judicial admissions. But given our subsequent case law defining the limitation of judicial admissions to purely factual matters and our discussion here regarding the nature of membership or eligibility for membership in a tribe, we clarify that the holding of A.B.M. is limited to precluding the adoptive parents from arguing a new position on appeal contrary to a position they had taken in the superior court on an issue not raised to or decided by that court. (emphasis added) (footnote omitted). See also Griswold v. City of Homer, 252 P.3d 1020, 1027 (Alaska 2011) (“We therefore clarify that where the superior court acts as an intermediate appellate court . . . its opinion or decision on appeal is the ‘judgment’ to which [the applicable appellate rule] refers.” (emphasis added)); Husseini v. Husseini, 230 P.3d 682, 688 (Alaska 2010) (“We take this opportunity to elaborate on our holding in [a prior case] . . . . [W]e clarify that the trial court’s decision to order the sale of a marital asset prior to the final property decision must be accompanied by factual findings that demonstrate the exceptional circumstances justifying such a sale and that specifically articulate the grounds upon which the order for sale is based.” (emphasis added)); Keane v. Local Boundary Comm’n, 893 P.2d 1239, 1249-50 (Alaska 1995) (“[W]e clarify that the test presented in [our prior case], is still applicable . . . [and] ‘a different rule applies where the party seeking the injunction stands to suffer irreparable harm and where, at the same time, the opposing party can be protected from injury.’ ” (emphasis added) (citation omitted)). We conclude that the dissent’s “reliance on words, phrases, and quotations” over substantive legal conclusions in this case confuses dicta from the Court’s actual holding. Judith M. Stinson, Why Dicta Becomes Holding and Why It Matters, 76 BROOK . L. REV . 219, 222 (2010). The Supreme Court, as the ultimate arbiter of federal (continued...) -19- 6954 further proceedings, it was clear to the South Carolina Supreme Court that § 1915(a)’s rebuttable adoption preferences did not apply to Biological Father, and the South Carolina court did not apply them. As the South Carolina Supreme Court stated on remand: The [United States] Supreme Court has articulated the federal standard, and its application to this case is clear: . . . ICWA does not authorize [Biological] Father’s retention of custody. Therefore, we reject [Biological] Father’s argument that 1915(a)’s placement preferences could be an alternative basis for denying the Adoptive Couple’s adoption petition. The Supreme Court majority opinion unequivocally states[] [that] “§ 1915(a)’s preferences are inapplicable in cases where no alternative party has formally sought to adopt the child.” . . . . As the opinion suggests, at the time Adoptive Couple sought to institute adoption proceedings, they were the only party interested in adopting [Baby Girl]. Because no other party has sought adoptive placement in this action, § 1915 has no application in concluding this matter . . . .[100] The Supreme Court’s federal standard is now clear, and consequently § 1915(a)’s preferences will not apply in this case. The dissent asserts that Baby Girl is factually distinguishable because “[r]ather than a termination of parental rights through a private adoption arranged by a non-Indian parent after an Indian parent abandoned the child, this was a state-sponsored parental rights termination and a state-sponsored adoptive placement clearly subject to 99 (...continued) law, has counseled that “unless we wish anarchy to prevail within the . . . judicial system, a precedent of this Court must be followed by the lower . . . courts [on issues of federal law] no matter how misguided the judges of those courts may think it to be.” Hutto v. Davis, 454 U.S. 370, 375 (1982). Baby Girl compels today’s result. 100 Adoptive Couple v. Baby Girl, 746 S.E.2d 51, 52-53 (S.C. 2013) (footnote and citation omitted) (emphasis added), petitions for reh’g denied, 746 S.E.2d 346 (S.C. 2013), stay denied, 134 S. Ct. 32 (2013). -20- 6954 ICWA.” The Supreme Court previously has explicitly discussed distinctions between voluntary and non-voluntary relinquishments of parental rights in the context of ICWA; it did not do so in Baby Girl. In Mississippi Band of Choctaw Indians v. Holyfield (Holyfield), the Court noted that while the focus of Congressional testimony on ICWA was “on the harm to Indian parents and their children who were involuntarily separated by decisions of local welfare authorities, there was also considerable emphasis on the impact on the tribes themselves [from] the massive removal of their children”101 outside of this context.102 The Holyfield decision involved the voluntary adoption of twin babies.103 The Court concluded that ICWA still applied to such a situation because “[t]ribal jurisdiction under § 1911(a) was not meant to be defeated by the actions of individual members of the tribe,”104 and congressional intent clearly indicated that an 101 490 U.S. 30, 34 (1989). 102 Id. at 49-51 (discussing how Congress subjects non-Indian family placements of young Indian children to ICWA’s “jurisdictional and other provisions, even in cases where the parents consented to an adoption, because of concerns going beyond the wishes of individual parents” (emphasis added)). 103 Id. at 37. In Holyfield a petition for adoption was filed for twin babies whose parents were enrolled members of the Mississippi Band of Choctaw Indians and residents and domiciliaries of the tribal reservation in Mississippi. Id. The twins were born 200 miles from the reservation, and the parents executed consent-to-adoption forms leading to the adoption of the children by non-Indian adoptive parents. Id. at 37-38. The tribe moved to vacate and set aside the decree of adoption. Id. at 38. The Supreme Court held the children were “domiciled” on the reservation within the meaning of ICWA’s exclusive tribal jurisdiction provision even though they were never physically present on the reservation themselves, and the trial court was without jurisdiction to enter the adoption decree even though the children were “voluntarily surrendered” for adoption. Id. at 48-51. 104 Id. at 49. -21- 6954 individual Indian could not defeat ICWA’s jurisdictional scheme by voluntary action.105 In Holyfield, the Court adopted and applied its broad-sweeping interpretation of ICWA to all types of parental rights relinquishment cases, including those arising out of a parent’s voluntary action. If in Baby Girl the Court had intended to limit its holding to voluntary adoptions, it certainly could have articulated such a restriction. But no such limiting language appears in the Court’s opinion in Baby Girl. Because the Court did not limit its holding in Baby Girl to voluntary adoptions, we reject the Tribe’s and the dissent’s attempt to factually distinguish Baby Girl from the case before us where the adoption resulted from state-initiated child protective proceedings. B. Elise Did Not Formally Seek To Adopt Dawn. We are “not bound by decisions of federal courts other than the United States Supreme Court on questions of federal law.”106 But in cases where the Supreme Court has decided a question of federal law that is directly applicable to and binding on the case we are to decide, we “owe obedience to the decisions of the Supreme Court of the United States . . . and a judgment of the Supreme Court provides the rule to be followed . . . until the Supreme Court sees fit to reexamine it.”107 After Dawn was placed in emergency foster care, the Tribe early on provided Elise’s name to OCS as a potential placement option in its CINA Rule 8(c)(7) disclosures.108 Elise discussed her initial interest in being a placement with OCS, but she 105 Id. at 51. 106 Totemoff v. State, 905 P.2d 954, 963 (Alaska 1995) (citing In re F.P., 843 P.2d 1214, 1215 n.1 (Alaska 1992)). 107 McCaffery v. Green, 931 P.2d 407, 415 (Alaska 1997) (Rabinowitz, J., dissenting) (quoting 1B JAMES W. M OORE ET AL., M OORE ’S FEDERAL PRACTICE § 0.402[1], at 1-10 (2d ed.1996)) (internal quotation marks omitted). 108 Tununak I, 303 P.3d 431, 433 (Alaska 2013). -22- 6954 was ruled out at that time because an adult son living with her had a barrier-crime.109 Dawn was placed with non-Native foster parents in Anchorage so that she could be closer to her mother while Jenn completed treatment, and the parties stipulated that there was good cause to deviate from ICWA’s placement preferences during this period while Jenn worked toward reunification with Dawn.110 In August 2009 Elise contacted OCS to report that her son had moved out; she confirmed that she still sought placement, but in December 2009 a representative from the Association of Village Council Presidents visited Elise’s home in Tununak on OCS’s behalf and noted potential hazards in the home that needed to be addressed before placement could occur.111 Elise assured OCS she would remedy these issues.112 During this period Jenn was working toward reunification with Dawn,113 and Elise understandably wished to support her daughter in that endeavor. The critical piece, however, is Elise’s failure to formally assert her intent to adopt Dawn as OCS moved toward terminating Jenn’s parental rights. The superior court denied OCS’s first petition to terminate parental rights in November 2010, and a second petition was filed in April 2011 that ultimately resulted in termination in September 2011. At a status conference in February 2011 the superior court advised Elise that placement with Jenn was not a viable option due to Jenn’s continued mental health and drug issues. And when the Smiths filed a formal petition to adopt Dawn on November 3, 2011, Elise did not file a competing adoption petition or any other formal 109 Id. at 433-34. 110 Id. at 434. 111 Id. 112 Id. 113 Id. -23- 6954 request that might serve as a proxy for such a petition.114 In other words, knowing that the Smiths had the only legally viable request for adoption before the court at that time, Elise did not file a competing request to be considered an adoptive parent for Dawn prior to the placement hearing. Elise did appear at the November 14, 2011 placement hearing and testified that she wanted to adopt Dawn.115 She also testified that she had filed a formal adoption petition herself in Bethel. From the record developed by the parties both in the superior court and in this court, there is no indication that Elise filed an adoption petition or otherwise filed any formal court document demonstrating her intent to adopt Dawn. In its briefing to us the Tribe conceded that no court petition was filed. The superior court found Elise’s testimony on her desire to adopt “less than convincing,” observing that Elise also said that she wanted to adopt Dawn because the Tribe wanted her to and pointing out that she had maintained almost no contact with Dawn and knew nothing of Dawn’s life in Anchorage. The superior court made this credibility determination and our role as the reviewing court is not to reweigh the evidence on this point, but instead to “review a trial court’s decision in light of the evidence presented to that court.”116 In Baby Girl, Biological Father displayed a much higher level of involvement, but the Supreme Court nonetheless found his efforts insufficient. Biological Father requested a stay of the adoption proceedings after learning of Adoptive Couple’s pending request and sought custody of Baby Girl.117 He participated in a trial 114 See id. at 435. 115 Id. at 435, 437-38. 116 Chloe O. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 309 P.3d 850, 856 (Alaska 2013). 117 Baby Girl, 133 S. Ct. 2552, 2558-59 (2013). -24- 6954 in the South Carolina Family Court and was awarded custody,118 had that custody order affirmed by the South Carolina Supreme Court,119 and participated in the appeal before the United States Supreme Court. Notwithstanding this active participation by Biological Father at every level of the state and federal litigation, the Supreme Court still found that “he did not seek to adopt Baby Girl; instead, he argued that his parental rights should not be terminated in the first place.”120 In other words, because Biological Father did not “formally [seek] to adopt” Baby Girl, the Supreme Court held that he could not be an ICWA preferred placement — he was not an “alternative party” that triggered § 1915(a)’s adoptive preferences.121 Applying the Supreme Court’s controlling precedent to the facts before us, it is clear that this is also a case where “there simply is no ‘preference’ to apply [as] no alternative party that is eligible to be preferred under § 1915(a) has come forward”122 to adopt Dawn. Because the Smiths were the only family that, in the words of the Supreme Court, “formally sought to adopt” Dawn, § 1915(a)’s “rebuttable adoption preferences [do not] apply [because] no alternative party has formally sought to adopt [this] child.”123 In short, we are bound by Baby Girl’s interpretation of this subsection of ICWA, and cannot ignore the Supreme Court’s clear, unqualified ruling on a matter of federal Indian law. 118 Id. at 2559. 119 Id. 120 Id. at 2564 (emphasis in original). 121 Id. at 2565 (“Nor do § 1915(a)’s rebuttable adoption preferences apply when no alternative party has formally sought to adopt the child.”). 122 Id. at 2564. 123 Id. at 2565. -25- 6954  C. Alaska CINA Rule 8(c)(7) Disclosures Are Not Analogous To Requiring An Individual To Formally Seek To Adopt A Child. We are likewise not persuaded by the Tribe’s argument that Elise’s contact information on the Tribe’s CINA Rule 8(c)(7) disclosure in the underlying CINA case amounts to a formal adoption request. Rule 8(c)(7) directs that a tribe shall “without awaiting a discovery request, provide to other parties . . . names and contact information for extended family of the child, a list of potential placements under . . . § 1915, and a summary of any tribal services or tribal court actions involving the family.” These initial disclosures must be made within 45 days of the order granting intervention.124 A tribe’s production of contact information for possible placements is neither equivalent nor analogous to a formal adoption petition. Rule 8(c)(7) is a discovery procedure; it requires disclosure of potential placement options for OCS to consider. A Rule 8(c)(7) disclosure was filed by the Tribe; it does not in any way represent a clear expression by Elise (or anyone else) of a formal intent to adopt the child. An adoption petition, on the other hand, is the legally “formal” way for a person to express a readiness and willingness to adopt a child. In Baby Girl, the Supreme Court envisioned a bright-line test: in order to qualify for ICWA § 1915(a)’s adoptive placement preference, one must first “formally seek” to adopt the child by filing a petition for adoption.125 If Biological Father did not meet this bright-line standard, notwithstanding his significant involvement at every level of the Baby Girl case, the Tribe’s tender of Elise’s contact information shortly after the Tribe’s intervention in this case cannot meet the standard of “formally seeking” to adopt. 124 CINA Rule 8(c)(7). 125 Baby Girl, 133 S. Ct. at 2564. -26­ 6954  D. The Tribe’s Policy Considerations Finally, the Tribe argues that if we interpret Baby Girl to hold that ICWA’s placement preferences are inapplicable until an alternative Native adoptive family member files a competing adoption petition, this decision will place a difficult burden on Native families, which have the fewest legal and financial resources, and create a dangerous incentive for OCS to place Native children in the first available home “except in the rare case when a Native family files its own adoption petition.” The dissent echoes the Tribe’s concerns, noting that “at least one state practice guide” does not read Baby Girl to mean an adoption petition must be filed; rather, all the practice guide cautions is that the adoptive candidate “formally” assert his or her intent to adopt the child and take “proper steps” to convey these intentions to the court.126 But the dissent misses the point of the practice guide. The practice guide concludes that “[f]or practitioners representing a parent of an Indian child who wants assurances that his or her child will be placed with another family or tribal member if adoption is needed, the lesson is clear: identify early on any family members, relatives, or tribal members who are willing and desirous of custody and take proper steps to formally convey their intentions to the court in this regard.”127 As we have explained, we read Baby Girl to mean that filing a petition for adoption is “formally” asserting an intent to adopt using the “proper steps.” And while we do not disregard the Tribe’s policy concerns, neither may we disregard the holding of the Supreme Court on this matter of federal law. Having said this, we urge tribes and OCS to enable and assist tribal members to seek placement early in CINA and voluntary adoption cases, accompanied 126 See CHRISTINE P. COSTANTAKOS , JUVENILE COURT LAW & PRACTICE § 13:12 (2013). 127 Id. (emphasis added). -27- 6954 by a formal adoption petition once it appears that OCS’s goal for the child is adoption. The Alaska Court System, attorneys representing tribes in Alaska, the CINA bar, the probate bar, and others will work to develop appropriate adoption forms and online information and instructions to assist tribes and potential adoptive parents in navigating this requirement. We also stress that OCS remains bound to comply with § 1915(a)’s adoptive placement preferences for “(1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.” And our decision in Tununak I directs that “OCS must prove by clear and convincing evidence that there is good cause to deviate from ICWA § 1915(a)’s adoptive placement preferences.”128 Implicit in this holding is the understanding that before the court entertains argument that there is good cause to deviate from § 1915(a)’s preferred placements, it must searchingly inquire about the existence of, and OCS’s efforts to comply with achieving, suitable § 1915(a) preferred placements. Contrary to the dissent’s suggestion, today’s decision has no bearing on OCS’s duty to comply with the express purpose of ICWA “to promote the stability and security of Indian tribes and families.”129 We anticipate that our decisions in Tununak I and today will highlight the importance of OCS identifying early in a CINA case all potential preferred adoptive placements, and the importance of a person claiming preferred placement filing a petition for adoption, in order to effectuate Congress’s intent “to protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society.”130 128 Tununak I, 303 P.3d 431, 450 (Alaska 2013). 129 D.J. v. P.C., 36 P.3d 663, 677 (Alaska 2001) (internal quotation marks omitted) (citing 25 U.S.C. § 1902). 130 Tununak I, 303 P.3d at 441-42 (citing Miss. Band of Choctaw Indians v. (continued...) -28- 6954 V. CONCLUSION Because we are bound to follow the United State Supreme Court’s decision in Baby Girl, and because no one but the Smiths formally sought to adopt Dawn, we AFFIRM the superior court’s grant of the adoption and VACATE Tununak I’s prior order for a renewed good cause hearing in the underlying placement matter. The remainder of our opinion in Tununak I is unaffected by our decision today. 130 (...continued) Holyfield, 490 U.S. 30, 37 (1989)). Additionally, as the dissent acknowledges, § 1915(e) requires OCS to document its “efforts to comply with the order of preference specified in [§ 1915(a)]” when such a placement is made following a properly filed petition. We expect that the superior court will carefully and actively scrutinize OCS’s efforts in identifying potential adoptive placements and complying with its obligations under § 1915(a) and our case law. -29- 6954 WINFREE, Justice, dissenting. I respectfully disagree with today’s decision. In my view the court overstates the United States Supreme Court’s holding in Adoptive Couple v. Baby Girl (Baby Girl)1 and understates the nature of the underlying adoptive placement proceeding in this case, discussed at some length in Native Village of Tununak v. State, Department of Health & Social Services, Office of Children’s Services (Tununak I).2 Baby Girl arose from a state court private adoption proceeding where: (1) the Indian father abandoned the child before birth; (2) the non-Indian mother found an appropriate couple willing to adopt the child; and (3) the state’s statutes provided that under these circumstances the father’s parental rights could be terminated and the adoption completed.3 But the father contested the termination of his parental rights and the adoption, arguing that because the child was an Indian child under the Indian Child Welfare Act (ICWA),4 he was entitled to ICWA’s protections against the termination of his parental rights.5 Because the case involved only the termination of the father’s parental rights, the focus of the Supreme Court’s decision was on ICWA §§ 1912(d) and (f), neither of which is at issue in this case. The Court first addressed § 1912(f), noting that it provides that “[n]o termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, . . . that 1 133 S. Ct. 2552 (2013). 2 303 P.3d 431 (Alaska 2013). 3 133 S. Ct. at 2558-59; Adoptive Couple v. Baby Girl (Adoptive Couple), 731 S.E.2d 550, 553-56, 561 (S.C. 2012), rev’d, 133 S. Ct. 2552. 4 25 U.S.C. §§ 1901-1963 (2012). 5 Baby Girl, 133 S. Ct. at 2559; Adoptive Couple, 731 S.E.2d at 555-56. -30- 6954  the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.”[6] The Court held that § 1912(f) was inapplicable because the father never had legal or physical custody of the child,7 and noted that ICWA’s protections were not applicable: “In sum, when, as here, the adoption of an Indian child is voluntarily and lawfully initiated by a non-Indian parent with sole custodial rights, the ICWA’s primary goal of preventing the unwarranted removal of Indian children and the dissolution of Indian families is not implicated.”8 The Court next addressed § 1912(d), noting it “provides that ‘[a]ny party’ seeking to terminate parental rights to an Indian child under state law ‘shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.’ ”9 The Court held that §1912(d) was inapplicable because the father had abandoned the child and there was no family unit to protect: [W]e hold that § 1912(d) applies only in cases where an Indian family’s breakup would be precipitated by the termination of the parent’s rights. The term breakup refers in this context to the discontinuance of a relationship, or an ending as an effective entity. But when an Indian parent abandons an Indian child prior to birth and that child has never been in the Indian parent’s legal or physical custody, there is no relationship that would be discontinued — and no effective entity that would be ended — by the termination of the Indian parent’s rights. In such a situation, the breakup of 6 Baby Girl, 133 S. Ct. at 2560 (alteration and emphasis in original). 7 Id. at 2562. 8 Id. at 2561. 9 Id. at 2562 (alteration and emphasis in original). -31- 6954  the Indian family has long since occurred, and § 1912(d) is inapplicable.[10] The Court then addressed the state court’s dicta — that even if the father’s parental rights were properly terminated, § 1915(a)’s adoptive placement preferences still would apply — with its own dicta:11 In the decision below, the [state court] suggested that if it had terminated Biological Father’s rights, then § 1915(a)’s preferences for the adoptive placement of an Indian child would have been applicable. . . . Section 1915(a) provides that “[i]n any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.” [But] § 1915(a)’s preferences are inapplicable in cases where no alternative party has formally sought to adopt the child. This is because there simply is no “preference” to apply if no alternative party that is eligible to be preferred under § 1915(a) has come forward.[12] The Court noted that the father had been contesting the termination of his parental rights rather than seeking to adopt the child, that the paternal grandparents had not sought custody of the child, and that the tribe had not presented any tribal member seeking to adopt the child.13 Thus, no one with a § 1915(a) preference had “come forward” to adopt the child.14 10 Id. (alterations, citations, and internal quotation marks omitted). 11 See id. at 2557 (stating §§ 1912(f) and (d) rulings were holdings, but stating § 1915(a) discussion was clarification to state court). 12 Id. at 2564 (citation omitted). 13 Id. 14 Id. -32- 6954  From this, today the court interprets the Supreme Court as requiring that “with respect to adoptive placements for an Indian child under state law,”15 a formal state court adoption petition, or a formal “proxy,” must be filed before a person will be considered for adoptive placement preference under § 1915(a).16 But in my view: (1) the Supreme Court imposed no such requirement, which would impliedly preempt state adoption procedures;17 (2) as this case amply demonstrates, such a requirement elevates form over substance; and (3) such a requirement in the context of this case flies in the face of ICWA’s express purpose. 15 Id. at 2558 (emphasis added). 16 It is undisputed that in this case the grandmother did not file a state court adoption petition. The court notes the grandmother’s testimony that she had petitioned for placement and adoption, and then notes there is no such petition in the state court. But the grandmother was not asked whether she was referring to paperwork filed in state court or tribal court, or even whether it was paperwork given to the Office of Children’s Services. When the grandmother testified during the adoption placement hearing, the adoption petition question was a side-issue directed to whether she truly wanted to adopt. Because the record for this appeal was created well before a formal adoption petition requirement became an issue, the record before us does not reveal to what the grandmother was referring in her testimony; it may be the “proxy” for a state court adoption petition that the court says is missing in this case. 17 Cf. In re Brandon M., 63 Cal. Rptr. 2d 671, 677-78 (Cal. App. 1997) (“Congress clearly intended that [ICWA] exist side-by-side with the child custody laws of the 50 states and necessarily understood that the courts of those states would and should attempt to harmonize, not presume conflicts between, the two.”); In re Adoption of A.B., 245 P.3d 711, 719 (Utah 2010) (“So long as [ICWA’s] core protections are honored and the intent of ICWA is preserved, states may fashion the underlying procedural framework.”). -33- 6954  The Supreme Court made no holding about § 1915(a),18 but observed that § 1915(a) does not apply when no eligible person “has formally sought to adopt the child . . . because there simply is no ‘preference’ to apply if no alternative party that is eligible to be preferred under § 1915(a) has come forward.”19 The Court’s initial overview of its decision stated it was clarifying that § 1915(a) preferences are inapplicable if no eligible candidates “have sought to adopt the child,” without using the word “formally.”20 The Court did not hold that whether an eligible candidate has come forward is a matter of federal law. And it certainly did not hold as a matter of federal law that § 1915(a) can apply only when an eligible person has filed an adoption petition in state court.21 18 The court today asserts that I am mistaken on this point, concluding that the Supreme Court’s decision about § 1915(a) constitutes a “holding.” I prefer to rely on the Supreme Court’s own statements about its decision: [W]e hold that 25 U.S.C. § 1912(f) . . . does not apply when, as here, the relevant parent never had custody of the child. We further hold that § 1912(d) . . . is inapplicable when, as here, the parent abandoned the Indian child before birth and never had custody of the child. Finally, we clarify that § 1915(a) . . . does not bar a non-Indian family . . . from adopting an Indian child when no other eligible candidates have sought to adopt the child. Baby Girl, 133 S. Ct. at 2557 (emphasis added). I might agree with the court’s conclusion had Baby Girl actually involved the application of § 1915(a)’s adoption placement preferences, even in part. But it did not — the questions actually presented and decided were whether §§ 1915(d) and (f) applied to the statutory parental rights termination in the state court. I do not reject the notion that clarification of a holding can itself be a holding; that is not the case here. 19 Id. at 2564. 20 Id. at 2557. 21 Cf. id. -34- 6954  Yet today the court asserts that state courts are constrained by the Supreme Court’s decision and now can apply § 1915(a) preferences only when competing state court adoption petitions exist. It is not at all self-evident that this is what the Supreme Court meant,22 and it is even less self-evident that the Supreme Court impliedly created a monolithic federal rule trumping state court adoption procedures. The Court’s clarification certainly leaves room for states to determine under their own adoption procedures when an eligible candidate has come forward such that the preferences should be applied.23 Baby Girl does not compel today’s result; today’s result comes directly 22 At least one state practice guide does not read Baby Girl to mean an adoption petition must be filed. In Nebraska, the Juvenile Court Law and Practice guide cautions practitioners that Baby Girl “eliminates the need for a party to demonstrate good cause to depart from the ICWA adoptive-placement preferences, where no one described in those statutorily-designated preferences has stepped forward to formally assert an intent to acquire custody of, or to adopt the child.” CHRISTINE P. COSTANTAKOS , JUVENILE COURT LAW & PRACTICE § 13:12 (2013) (emphasis added). The practice guide merely directs that, “[f]or practitioners representing a parent of an Indian child who wants assurance that his or her child will be placed with another family or tribal member if adoption is needed, the lesson is clear: identify early on any family members, relatives, or tribal members who are willing and desirous of custody and take proper steps to formally convey their intentions to the court in this regard.” Id. (emphasis added). This approach makes abundant sense to me. 23 Cf. Baby Girl, 133 S. Ct. at 2558 (noting that the § 1915(a) preferences apply “with respect to adoptive placements for an Indian child under state law” (emphasis added)); In re Adoption of A.B., 245 P.3d 711, 719 (Utah 2010) (noting “states may fashion the underlying procedural framework” for applying ICWA’s substantive standards); State ex rel. C.D., 200 P.3d 194, 209 (Utah App. 2008) (noting “there are no express statutory provisions declaring [the procedure for] compl[ying] with the ICWA’s placement preferences”). In fact, on remand of Baby Girl, the state court applied its own adoption law in determining whether newly filed competing adoption petitions in the case were eligible for § 1915(a) preferences; the court held the petitions were ineligible because the “litigation must have finality, and it is the role of this court to ensure ‘the sanctity of the adoption process’ under state law is ‘jealously guarded.’ ” Adoptive Couple v. Baby Girl (continued...) -35- 6954 from this court and imposes a new state-law barrier to § 1915(a)’s adoption placement preferences.24 It is self-evident that if no one eligible and suitable for a § 1915(a) adoptive placement preference comes forward to adopt an Indian child, there can be no preferred adoptive placement.25 This is not a particularly novel understanding; it was precisely the 23 (...continued) (Adoptive Couple II), 746 S.E.2d 51, 53 (S.C. 2013) (emphasis added) (quoting Gardner v. Baby Edward, 342 S.E.2d 601, 603 (S.C. 1986)). 24 Cf. Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36-37 (1989) (stating placement preferences are “[t]he most important substantive requirement imposed on state courts”); Josh L. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 276 P.3d 457, 465 (Alaska 2012) (“We recognize that the placement preferences under section 1915 are critical to ICWA’s goal of promoting the stability and security of Indian tribes and families.”); In re Adoption of Sara J., 123 P.3d 1017, 1024 (Alaska 2005) (stating § 1915(a) established federal policy that “ ‘where possible, an Indian child should remain in the Indian community’ ” (quoting H.R. Rep. No. 95-1386, at 23, reprinted in 1978 U.S.C.C.A.N. 7530, 7546)). 25 As we explained in In re Adoption of Sara J.: [A]lthough it is correct that the word “preference” generally connotes a choice between two options, we read ICWA’s structure and purpose to preclude choosing between preferred and non-preferred placements if the preferred placement is “suitable,” as measured by the prevailing social and cultural standards of the Indian community. The existence of a suitable preferred placement precludes any consideration of a non-preferred placement unless good cause exists, for example, because another preference has been expressed by the child or the child’s biological parents, or because the child has special needs that cannot be met by an otherwise- suitable preferred placement. 123 P.3d at 1028 (emphasis in original) (citation omitted); see also Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,594 (Nov. 26, 1979) (stating one good cause factor for deviation from § 1915(a) is “[t]he unavailability of (continued...) -36- 6954 factual situation in Baby Girl, and the Supreme Court’s language should not be read to suggest anything more. We described the eligibility-suitability determination process in Tununak I: [B]efore determining whether good cause exists to deviate from the placement preferences, a court must first inquire as to whether any suitable preferred placements exist. The “preferred placement” inquiry requires a court to apply the statutory framework and follow the tiered order of preference mandated by ICWA, i.e., give preference first to a member of the child’s extended family, then to other members of the Indian child’s tribe, and then to other Indian families. This does not end the inquiry, however, as the court must also assess the suitability of each prospective placement if a party alleges that a preferred placement is unsuitable. In other words, the court must determine not only that a placement is preferred, but also that the placement would be a suitable caretaker for the child.[26] But after today’s decision, it does not appear that a trial court has to make any inquiry about preferential adoptive placement unless an eligible person actually files an adoption petition.27 And now, when multiple relatives in a village might consider 25 (...continued) suitable families for placement after a diligent search has been completed for families meeting the preference criteria”). 26 303 P.3d 431, 450 (Alaska 2013) (citations omitted). 27 Cf. CINA Rule 10.1(b) (requiring continuing court inquiry regarding compliance with § 1915(b)’s placement preferences prior to termination of parental rights). The CINA rules do not explicitly require such an inquiry for an adoptive placement. One can only wonder about the impact of today’s decision on the State’s duties regarding § 1915(a)’s placement preferences. We have not had occasion to consider the exact contours of the State’s duty to search for eligible preferred adoptive placements and assist such parties in coming forward. The Bureau of Indian Affairs Guidelines assume that a “diligent search” will be made for a preferred adoptive (continued...) -37- 6954 adopting a child after a termination of parental rights, they cannot simply participate in adoptive placement proceedings in the child in need of aid case to determine who is eligible and suitable, but rather must file separate and competing formal adoption petitions. The tribe makes a persuasive argument that requiring a state court adoption petition to trigger § 1915(a)’s adoptive placement preferences will have disastrous results for Alaska’s rural Natives. In many villages the court system has no presence and legal representation is nonexistent. Village relatives who might seek to adopt have little way of knowing when a child has been freed for adoption in an urban child in need of aid court proceeding, or whether a non-Indian foster family has filed an adoption petition. In my view § 1915(a) placement preferences should, at the very least, apply when a person seeks adoptive placement in a child in need of aid proceeding. I see no good reason for requiring a state court adoption petition to trigger ICWA’s preferences, and if seeking adoptive placement in a child in need of aid proceeding is not a “proxy” to such a petition, what is? 27 (...continued) placement and that an unsuccessful search will be good cause to deviate from § 1915(a)’s mandated preference list. Guidelines for State Courts, Indian Child Custody Proceedings, 44 Fed. Reg. at 67,594. And § 1915(e) requires the State to document its “efforts to comply with the order of preference specified in [§ 1915].” I have previously expressed the view that the State has an affirmative duty to effectuate placement preferences when possible. Josh L., 276 P.3d at 472 (Winfree, J., dissenting). Today’s decision presents interesting questions about the State’s duties. Does the State have a duty to seek out and advise those eligible for a § 1915(a) preference that a state court adoption petition must be filed before they will be considered? And what if, as is the case here, the State simply does not want an eligible person under § 1915(a) to have an adoptive placement preference? Can the State stand behind its view that the grandmother was not “suitable” and it therefore had no duty to assist her with an adoption petition? Or did the State breach its duty to the grandmother and the Tribe? The Tribe’s concern that requiring an adoption petition for consideration under § 1915(a) will lead to a lesser effort by the State to effectuate § 1915(a) is not unfounded. -38- 6954  In Tununak I we expressly stated that the adoptive placement proceeding in this case was to determine whether Dawn would be adopted by her grandmother in the village or by her foster parents in Anchorage: “even though the placement determination took place in the context of a CINA proceeding, it is clear that the parties were essentially contesting — and the superior court was essentially determining — adoptive placement for Dawn.”28 Our decision’s very substance was how to apply Alaska Adoption Rule 11, which we said applied to the proceeding.29 And just six months later we expressed that “it was clear in [Tununak I] that the issue being contested at the placement review hearing was the child’s placement for adoption.”30 But now the court says the grandmother’s effort to obtain preferential adoptive placement — in what we said was an adoption proceeding — was not an effort to “formally” adopt Dawn because she did not file formal adoption paperwork.31 This adherence to form over substance, especially in an ICWA context, is untenable. 28 303 P.3d at 443. 29 Id. at 433, 443-44. 30 Irma E. v. State, Dep’t of Health & Soc. Servs., 312 P.3d 850, 855 (Alaska 2013) (citing Tununak I, 303 P.3d at 439-40) (noting that in C.L. v. P.C.S., 17 P.3d 769, 772 (Alaska 2001), foster care placement changed into adoptive placement when superior court terminated parents’ parental rights and children’s foster parents filed petitions to adopt the children). 31 The court suggests the grandmother’s participation in the adoptive placement proceeding did not rise to the level of “formally [seeking] to adopt” because, comparing her efforts to those of the biological father in Baby Girl, the father’s “much higher level of involvement” in the adoption proceedings was still insufficient to constitute a formal adoption effort. This comparison is inapt: the Supreme Court concluded the biological father “did not seek to adopt Baby Girl” because he instead sought to prevent termination of his parental rights, not because his efforts were not sufficiently formal. Baby Girl, 133 S. Ct. 2552, 2559 (2013). -39- 6954  Unlike in Baby Girl, where the Supreme Court took great pains showing otherwise when analyzing the two ICWA termination provisions at issue, ICWA’s purpose is squarely implicated in this case. As the court notes, Dawn’s biological parents are Alaska Natives. Rather than a termination of parental rights through a private adoption arranged by a non-Indian parent after an Indian parent abandoned the child, this was a state-sponsored parental rights termination and a state-sponsored adoptive placement clearly subject to ICWA.32 And here the tribe and maternal grandmother actively sought adoptive placement with the grandmother so the child could live in the village with tribal members.33 This case compels the application of § 1915(a)’s adoptive placement preferences, and if it does not, it is clear that ICWA is not working the way it should in Alaska.34 This case should be remanded to the superior court for a renewed adoption placement hearing, as we contemplated in Tununak I.35 If Dawn’s grandmother is a suitable adoptive placement, then, in light of § 1915(a) and absent good cause to deviate 32 Like Baby Girl, this case “concerns a ‘child custody proceeding,’ which ICWA defines to include proceedings that involve ‘termination of parental rights’ and ‘adoptive placement.’ ” Id. at 2557 n.1 (citing 25 U.S.C. § 1903(1)). 33 Cf. id at 2565 (stating that ICWA “was enacted to help preserve the cultural identity and heritage of Indian tribes”); see also In re Adoption of Sara J., 123 P.3d 1017, 1024 (Alaska 2005) (stating § 1915(a) established federal policy that “ ‘where possible, an Indian child should remain in the Indian community’ ” (quoting H.R. Rep. No. 95-1386, at 23, reprinted in 1978 U.S.C.C.A.N. 7530, 7546)). 34 Time and time again we see CINA cases involving village children placed in urban foster homes while their parents work to meet the conditions for regaining custody; if the parents ultimately fail, the children rarely return to the village but rather are adopted, often by the foster parents, and remain in urban centers. This case is yet another example. 35 303 P.3d 431, 453 (Alaska 2013). -40- 6954 from its preferences,36 the current adoption should be vacated and Dawn should be placed with her grandmother for eventual tribal or state court adoption. I dissent. 36 Cf. id. at 451-53 (discussing factors relevant to good cause to deviate from § 1915(a)’s placement preferences). -41- 6954 

215 S.E.2d 216 (1975) Robert KUCERA, etc., et al. v. The CITY OF WHEELING, etc. No. 13352. Supreme Court of Appeals of West Virginia. March 18, 1975. Rehearing Denied June 13, 1975. *217 Hostler, Logsdon & Shinaberry, Stanley M. Hostler, Charleston, for appellants. John Marshall, III, and George B. Vieweg, III, Wheeling, for appellee. CAPLAN, Justice: Robert Kucera, individually and on behalf of all other persons similarly situate as paid fire fighters employed by the City of Wheeling, plaintiffs, instituted an action in the Circuit Court of Ohio County against the City of Wheeling, a municipal corporation, defendant, seeking a judgment declaring their rights to certain sums of money alleged to be due and owing them as salary. That action was instituted on December 28, 1967 and, having been extended by an appeal and a mandamus action in this Court, final judgment was entered on May 15, 1972. It is from that judgment that this appeal is prosecuted. The minimum wage law, prescribing minimum wage and maximum hours standards for employees, was enacted by Chapter 39, Acts of the Legislature, Regular Session, 1966, now designated W.Va.Code, 1931, 21-5C, as amended. This act, effective January 1, 1967, requires the payment of a designated minimum hourly wage by employers and the payment of overtime compensation for hours worked in excess of forty-eight during a work week. Upon the enactment of the aforesaid legislation the City of Wheeling refused to pay such firemen pursuant to the overtime provisions of the statute. The ground for its refusal to pay such compensation was that the plaintiffs were paid fire fighters of an agency of the state and were, therefore, exempt from the provisions of the statute by reason of W.Va.Code, 1931, 21-5C-1(f)(12), as amended. As a result of such refusal the plaintiffs instituted the aforesaid action seeking a declaration of their rights to the benefits of the recently enacted minimum wage law. The Circuit Court of Ohio County entered judgment for the defendant city and the plaintiffs appealed to this Court. In Kucera et al. v. City of Wheeling, 153 W.Va. 531, 170 S.E.2d 217 (1969), the Court reversed the judgment of the Circuit Court of Ohio County, holding that the City of Wheeling was not an agency of the state and was, therefore, subject to the requirements of the said minimum wage law in relation to wages of firemen. Upon remand the Circuit Court of Ohio County entered an order, dated April 27, 1970, declaring the method for computing overtime pay due the plaintiffs. In the interim the City of Wheeling had passed an ordinance granting all of its employees a wage increase but withholding such raise from the firemen, pending the outcome of the case then before the Supreme Court of Appeals. That case was decided by this Court on July 15, 1969 and on December 2, 1969 the defendant city, by William S. McFadden, Chief of the Wheeling Fire Department, distributed to all personnel of the fire department a SPECIAL NOTICE, the subject of which was "Back *218 Wages, Retroactive to July 1, 1969". Therein the chief advised the firemen as follows: "The back pay is available to each as an individual in accordance with the attached release. If you, as an individual, desire to obtain your back wages in accordance with the attached release, you can make your desire known to Mrs. Mary Warden, Secretary to the Chief . . . You must appear at the office to sign the release and have it notarized." (Emphasis supplied) The release referred to in said notice is in the following form: RELEASE That for and in consideration of the sum of ______ Dollars ($ ), the receipt of which is hereby acknowledged, I, _________, an employee of the Fire Department of The City of Wheeling, do hereby release and discharge The City of Wheeling from any and all claims relating to overtime compensation under West Virginia Code 21-5C-3 for that period of time from July 1, 1969 to November 1, 1969. (Acknowledgment) On an accompanying Statement of Earnings and Deductions, included in the record as plaintiffs' Exhibit # 2, is the following notation: "Back pay raise: for the period 7-1-69 to 10-31-69 inclusive." Most of the fire fighters employed by the City of Wheeling, desiring to receive the wage increase granted by the city, effective July 1, 1969, executed the aforesaid release. Included in this group was Robert Kucera. These firefighters did receive their back wages in the amount set forth in the release agreement. The release agreement sought to "release and discharge The City of Wheeling from any and all claims relating to overtime compensation under West Virginia Code 21-5C-3 for that period of time from July 1, 1969 to November 1, 1969." It is the contention of Kucera and the other appellants that this release from overtime pay was null and void as being contrary to the public policy of the State of West Virginia as specifically provided in W.Va.Code, 1931, 21-5C-8, as amended. By a memorandum dated October 31, 1969, the City Manager of the City of Wheeling notified the members of the fire department that they would be paid on the basis of a sixty hour week; that for the first forty-eight hours they would receive regular hourly pay; and for the remaining twelve hours the rate would be one and one-half times the regular hourly rate. Attached to the memorandum was a pay schedule for the department which revealed an hourly rate in excess of that required by the statute. Also revealed was the overtime rate which was one and one-half times the regular hourly rate. It is the contention of the appellants that the method used by the city in computing overtime pay for the firemen was contrary to the requirements of W.Va.Code, 1931, 21-5C, as amended. Implicit in this contention is the assertion that the city erroneously established the regular hourly rate. Two questions are presented. First, whether the release of overtime pay for the period of July 1, 1969 to November 1, 1969 is null and void; and, second, whether the pay schedule for the firemen, formulated by the City, is contrary to the provisions of W.Va.Code, 1931, 21-5C, as amended. The circuit court held that the release was not null and void as a violation of W.Va.Code, 1931, 21-5C-8, as amended. That court further held that the city manager had the authority under the city charter to determine and set the rate of pay for city employees; that he did so act; and, that since the hourly rate designated was in excess of that required by statute and the wage schedule did provide for the payment of time and one-half for overtime hours worked, the court had no authority to interfere. The appellants excepted to these findings and prosecuted this appeal. Considering first the validity of the release executed by the firemen relative to overtime pay for the period of July 1, 1969 *219 to November 1, 1969, it is pertinent to examine W.Va.Code, 1931, 21-5C-8, as amended. That statute reads: Any employer who pays an employee less than the applicable wage rate to which such employee is entitled under or by virtue of this article shall be liable to such employee for the unpaid wages; an agreement by an employee to work for less than the applicable wage rate is hereby declared by the legislature of West Virginia to be against public policy and unenforceable. (Emphasis supplied) In addition to the public policy consideration, the appellants contend that they executed the release under duress. Upon examination of the Special Notice alluded to above and quoted in part, it is clear that the firemen were mandated to execute a release, giving up all claim to any overtime compensation, if they desired to receive the back pay raise for the period between July 1, 1969 and November 1, 1969. If they signed the release they received the pay raise; if they did not sign, thereby refusing to relinquish their claim to overtime pay for the applicable period, they simply would not receive the pay in the amount to which they were entitled. The increase in pay for city employees was provided for by the city. It was not required to increase such wages, but when it did, the firemen were entitled to payment of wages in accordance with the requirements of the wage and hour law, in the same manner as all other city employees. Therefore, it cannot be questioned that requiring the firemen to sign the release, in the circumstances herein described, constitutes duress. Reasoning that W.Va.Code, 1931, 21-5C-8, as amended, was not intended to cover this situation, the circuit court held that the release, whereby the firemen gave up their claim to overtime pay, was valid. We disagree. We also reject as clearly untenable the contention that because the hours for which the raise was to be paid had already been worked, the amount to be received was in the nature of a gratuity. While the City of Wheeling was under no compulsion to grant its employees a raise in pay, State ex rel. Kucera v. The City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969), it chose to do so. When it was decided by this Court, Kucera et al. v. City of Wheeling, supra, that the firemen were covered by the state wage and hour law, they became entitled to the pay raise on the same basis as were other city employees. Admittedly, overtime hours were worked by the firemen during the period involved, so they were entitled to overtime pay as a part of the applicable wage rate. See W.Va. Code, 1931, 21-5C-3, as amended. The Supreme Court in Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 65 S.Ct. 895, 89 L.Ed. 1296 (1945), commenting on the validity of a release for overtime pay under 29 U.S.C. § 207, the federal maximum hours law, which is similar to our law as set out in Section 3, referred to above, said that the "attempted release and waiver of rights under the Act was absolutely void." See Schulte v. Gangi, 328 U.S. 108, 66 S.Ct. 925, 90 L.Ed. 1114 (1946), wherein the court noted that to allow employer and employee to compromise such matters "thwarts the public policy of minimum wages." We adhere to the principles expressed in the above cases and hold that the releases executed by the firemen, whereby they relinquished their rights to overtime pay as a part of the applicable wage rate referred to in W.Va.Code, 1931, 21-5C-8, as amended, were against public policy and are null and void. The second question presented on this appeal is whether the pay schedule formulated by the City of Wheeling for its firemen is contrary to the provisions of W.Va. Code, 1931, 21-5C-2 and 3, as amended. That article, of course, relates to the permissible minimum wages and maximum hours for employees. The City of Wheeling took the position in the circuit court and persists in that position here that its city manager, acting under *220 the authority granted by its charter, lawfully determined the pay schedule for its firemen. Section 29 of the Special Legislative Charter of the City of Wheeling (Chapter 141, Acts of Legislature, 1935), where pertinent, provides: Unless otherwise provided by this charter or by ordinance, the city manager shall fix the compensation for all persons in the executive and administrative services of the city, within the limits and terms of the budget. Pursuant to that authority, Charles C. Steele, the City Manager of Wheeling, forwarded to all members of the Wheeling Fire Department a memorandum, the subject of which was "Wage Increases and Determination of Wage Rates." Therein the firemen were notified that, beginning November 1, 1969, they would be paid on the basis of a sixty hour week; that for the first forty-eight hours they would receive the regular hourly pay; and that for the remaining twelve hours the rate would be one and one-half times the regular hourly pay. Attached to the memorandum was a schedule designating an hourly rate of pay and the overtime rate. The regular rate of pay designated for the firemen by the city manager is in excess of the minimum wage provisions of our law. The pay schedule also provided for overtime pay at the rate of one and one-half times the regular hourly rate. This is in compliance with the requirements of W.Va.Code, 1931, 21-5C-2 and 3, as amended. Inasmuch as the city manager acted in accordance with the authority granted him under the city charter in "fixing the compensation" of the employed firemen and, since he did fix such compensation in accordance with the requirements of the aforementioned wage and hour statutes, due regard having been given to both the minimum wage and maximum hours provisions thereof, we are constrained to hold that the pay schedule formulated by the City of Wheeling was not contrary to the provisions of W.Va.Code, 1931, 21-5C-2 and 3, as amended. Counsel for the appellant cites many cases in support of their contention that the wage and hour law was violated. An examination of those cases reveals that such cases pertain to the establishment of a regular rate of pay where no rate has been set. The city manager in this case did designate a regular hourly rate of pay, so although the cited cases may be acceptable authority for the proper method of arriving at a regular hourly rate of pay, they have no application here. For the foregoing reasons, the judgment of the Circuit Court of Ohio County, entered on May 15, 1972, is reversed wherein it held the release executed by the firemen to be proper and enforceable and is affirmed insofar as it approved the pay schedule as formulated by the city manager. Reversed in part; affirmed in part. SPROUSE, Justice (dissenting): I respectfully dissent from that part of the majority opinion affirming the circuit court's approval of the pay schedule formulated by the Wheeling city manager. It is uncontroverted that the Wheeling firemen regularly work sixty-hour weeks. It is unanimously agreed that Code, 1931, 21-5C, as amended, requires payment at a rate of one and one-half times the regular hourly rate for hours in excess of forty-eight worked each week. This dispute concerns the formula for determining the regular hourly rate. The City of Wheeling arrived at a regular hourly rate in a manner approved by the majority as follows: The city council on June 10, 1969, by ordinance, fixed an annual salary; the city manager divided this by fifty-two, arriving at a weekly wage; he then arbitrarily determined a sixty-six hour work week, divided the weekly wage by sixty-six, arriving at a regular hourly wage. Applying this rate to the actual sixty-hour work week, firemen were paid the regular rate for the first forty-eight hours and one and one-half times that rate for the next *221 twelve hours. The use of the artificial sixty-six hour week (dividing the weekly rate by sixty-six rather than by sixty) obviously resulted in a lower regular hourly rate. The use of this lower "regular rate" insured with mathematical certainty that the sum of straight and overtime pay equaled the annual salary set by the city council. The majority holds that, since the Wheeling City Charter empowers the city manager ("unless otherwise provided * * * by ordinance") to fix compensation, he acted legally in fixing a basic hourly rate even though he utilized a fictitious sixty-six hour week to arrive at a final figure. This is fallacious for two reasons. The city council, by ordinance, fixed the firemen's annual compensation. The city manager only chopped it into artificial hourly increments to circumvent the overtime requirements of Code, 21-5C. The City Charter, interpreted to permit such actions by the city manager, is not only in conflict with Code, 21-5C, but it also conflicts with Code, 1931, 8-15-10, as amended, which prescribed a maximum bi-weekly work period of one hundred twenty hours. Any conflict between a city charter provision and a state legislative statute must be resolved in favor of the legislative enactment. "Attached to every statute, every charter, every ordinance or resolution affecting, or adopted by, a municipality, is the implied condition that the same must yield to the predominant power of the State, when that power has been exercised." Brackman's, Incorporated v. City of Huntington, 126 W.Va. 21, 27 S.E.2d 71, 78; City of Huntington v. State Water Commission, 137 W.Va. 786, 73 S.E.2d 833. The city manager's actions, violating these State statutes, could not be validated by an inconsistent city charter provision. Code, 1931, 21-5C-3, as amended, provides that, for work over forty-eight hours each week, an employee shall be paid "one and one-half times the regular rate." (Emphasis supplied.) No West Virginia case has defined "regular rate." It is obvious, however, that W.Va.Code, 21-5C, is patterned after the Federal Fair Labor Standards Act of 1938, as amended by 29 U.S.C., Section 201 et seq. The Federal courts interpreting this Federal counterpart have unanimously disapproved artificial approaches such as that used by the Wheeling city manager. They have held uniformly that to calculate a regular hourly rate from annual or weekly compensation, the actual hours worked must be used. 149 Madison Avenue Corp. v. Asselta, 331 U.S. 199, 67 S.Ct. 1178, 91 L.Ed. 1432; Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 65 S.Ct. 1242, 89 L.Ed. 1705; Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 65 S.Ct. 11, 89 L.Ed. 29; Seneca Coal and Coke Co. v. Lofton, 136 F.2d 359 (10th Cir.), cert. den., 320 U.S. 722, 64 S.Ct. 77, 88 L.Ed. 462; Patsy Oil and Gas Co. v. Roberts, 132 F.2d 826 (10th Cir.). The Wheeling city firemen regularly work a sixty-hour week. The city council fixed their compensation on an annual basis. This divided by fifty-two mathematically determines a weekly rate. That divided by sixty should properly determine the regular hourly rate contemplated by Code, 21-5C. The firemen should be paid that rate for the first forty-eight hours worked in each week and one and one-half times that rate for all hours in excess of forty-eight weekly. I would reverse the judgment of the Circuit Court which approved the pay schedule formulated by the city manager. I am authorized to state that Chief Justice HADEN joins in this dissenting opinion. HADEN, Chief Justice (dissenting): I respectfully dissent to the decision of the Court. While I am in wholehearted agreement with the proposition of law stated in syllabus point 1., I do not believe it to be applicable to the facts of the case. *222 State ex rel. Kucera v. City of Wheeling, 153 W.Va. 539, 170 S.E.2d 367 (1969), the second case in this litigation trilogy, recognized and held that firemen employed by the City of Wheeling were not entitled to a pay raise for fiscal year 1969-70 upon the mere approval of budgeted funds adequate to provide a pay raise in that fiscal period; for entitlement to pay raises to arise which would be enforceable in mandamus, the city manager would have had to grant, by affirmative act, a pay raise effective July 1, 1969 to the firemen. The opinion then noted that the city manager had not granted the pay raise and that the city council on June 10, 1969 further had adopted an "ordinance" which provided "that if the original Kucera case [the first case in this trilogy]... were decided against the city [It was.] the pay raises for those affected thereby [the firemen, appellants herein] would not be implemented inasmuch as the budget for the fiscal year 1969-1970 would have placed upon it `a tremendous financial burden.'" Accordingly, this Court held mandamus would not lie to compel the payment of raises effective July 1, 1969. See, syllabus point 3., and pp. 543-544 of Volume 153 of the West Virginia Report. On October 31, 1969, the city manager approved a pay raise for the appellant effective November 1, 1969 and also volunteered the equivalent of a pay raise for the period of July 1 through October 31, 1969 to those firemen who chose to execute a release discharging the city from all claims for overtime compensation under W.Va. Code, 1931, 21-5C-3, as amended, for the period of July 1, 1969 through November 1, 1969. W.Va.Code, 1931, 21-5C-8, as amended, renders void and unenforceable an agreement executed by an employee covered by the State Minimum Wage Act to accept "less than the applicable wage rate to which such employee is entitled ...." (Emphasis supplied). By the second Kucera decision, still presumably recognized by the majority, the firemen were not entitled to a pay raise until it was granted by the city manager effective November 1, 1969. The releases should have been recognized as valid in that such did not purport to cover wage entitlements protected by the statute. Secondly, there was little or no evidence adduced which supported a general charge that the releases in question were executed under duress. Duress must be proved by clear and convincing testimony. Carroll v. Fetty, 121 W.Va. 215, 220, 2 S.E.2d 521, 524, cert. den., 308 U.S. 571, 60 S.Ct. 85, 84 L.Ed. 479 (1939); see, McPeck v. Graham, 56 W.Va. 200, 201, 49 S.E. 125, 126 (1904). The trial court's factual determination regarding the charge of duress should not be disturbed unless clearly wrong. Rule 52(a), W.Va.R.C.P.; Lewis v. Dils Motor Co., 148 W.Va. 515, 135 S.E.2d 597 (1964). I am authorized to state that Justice NEELY joins in the foregoing portion of this dissent. For reasons stated in a dissenting opinion prepared by Justice Sprouse, I wish to note that I join him in his opinion that the city manager's formula for computation of overtime compensation violates the public policy expressed in W.Va.Code, 1931, 21-5C-1 et seq. and 8-15-10, as respectively amended. Likewise, I would reverse that part of the judgment of the Circuit Court of Ohio County which approved the pay schedule formulated by the city manager.

180 F.2d 145 UNITED STATES,v.BONNELL et al.BONNELL et alv.UNITED STATES. No. 12306. United States Court of Appeals Ninth Circuit. Feb. 1, 1950. J. Charles Dennis, U.S. Atty., Guy A. B. Dovell, Asst. U.S. Atty., Tacoma, Wash., and John Belcher, Asst. U.S. Atty., Seattle, Wash., for the United States. L. L. Thompson, Henderson, Carnahan & Thompson, Tacoma, Wash., for Bonnell, and others. Before ORR, and POPE, Circuit Judges, and McCORMICK, District Judge. ORR, Circuit Judge. 1 This is an action under the Renegotiation Act of April 28, 1942, 56 Stat. 245, 50 U.S.C.A.Appendix, § 1191, seeking recovery of alleged excessive profits on a war contract as determined by the Reconstruction Finance Corporation Price Adjustment Board, less applicable tax credits and withheld tax refunds, with six percent interest. The contract was made on April 24, 1942. Section 403(c) of the Act as originally enacted, which contained the authority to recover excessive profits provided: 'This subsection shall be applicable to all contracts and subcontracts hereafter made and to all contracts and subcontracts heretofore made, whether or not such contracts or subcontracts contain a renegotiation or recapture clause, provided that final payment pursuant to such contract or subcontract has not been made prior to the date of enactment of this Act.' The Renegotiation Act will be hereinafter referred to as the Act. The United States will be referred to as the Government, and the defendants below as the contractors. 2 The contractors moved to dismiss the complaint on the ground that the Act was unconstitutional insofar as it applied retroactively to prime war contracts made before the date of enactment. They also moved to strike that part of the complaint which prayed for interest. Both motions were denied. The contractors then answered alleging that six percent was an excessive rate of interest in view of alleged prevailing interest rates and the Government's alleged failure to prosecute its claim with due diligence. A further tax refund of $307.73, not included in the complaint, was also set up in the answer. The trial court granted the Government's motion for judgment on the pleadings, awarding it judgment for the amount prayed, except that interest was recomputed at three percent and the $307.73 tax refund was deducted from the principal. 3 On this appeal the contractors attack the constitutionality of the Act as applied to their contract, and also challenge the interest award. The Government appeals from the interest award and the application by the trial court of the sum of $307.73 tax refund to principal instead of to interest. 4 In Lichter v. United States, 334 U.S. 742, 68 S.Ct. 1294, 92 L.Ed. 1694, the Supreme Court thoroughly and extensively considered the constitutionality of the Renegotiation Act, including the application of the Act to contracts entered into before April 28, 1942. The Supreme Court held the Act constitutional as to all contentions there presented. However, as the court pointed out, all contracts involved in the case before it were subcontracts, and the court left undecided the validity of the retroactive application of the Act to contracts made directly with the Government, such as we are concerned with in the instant case. 5 In support of their contention that retroactive application of the Act to prime contracts is unconstitutional, the contractors rely on Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434, and Perry v. United States, 294 U.S. 330, 55 S.Ct. 432, 434, 79 L.Ed. 912, 95 A.L..R. 1335. In the Lynch case the court held unconstitutional the repeal, in the Economy Act, 38 U.S.C.A. § 701 et seq., of all laws pertaining to yearly renewable term war risk insurance. It was held that rights under a contract with the Government are property which the Fifth Amendment protects against taking without just compensation and that Congress was without power to reduce expenditures by repudiating its contractual obligations. In the Perry case the Supreme Court held that Congress had no power to substitute for an obligation to pay in gold on Government securities a promise to pay in currency of a lesser value. The court construed the power of the Government to borrow money 'on the credit of the United States,' and clearly distinguished between the power of Congress to alter contracts made between private individuals in the exercise of its various powers and the power, or lack of it, to alter the Government's own engagements. 6 The type of contract and the nature and purposes of the retroactive modification involved in the instant case, distinguish it from the Lynch and Perry cases. As stated in the Lichter case, 334 U.S. 742, 68 S.Ct. 1294, 92 L.Ed. 1694, the war emergency gave Congress sufficient reason, should it see fit to exercise its power, to requisition property for use in the war program, and leave for later determination the compensation to be paid. Congress chose instead to secure war supplies by contract, and because of lack of time for negotiation and the urgency of the times it became impracticable to estimate costs in advance with an exactness which would permit no more than fair profits. Hence, Congress decided to supplement its war contract program by a system for the recovery, through renegotiation, of excessive war profits. The Renegotiation Act assures the contractor of a reasonable compensation for his goods and services. All that is taken from him is that part of the contract price which represents excessive profit. The pressing necessity of the war situation and the fact that Congress refrained from exercising its power summarily to requisition these contractors' property and conscript their services differentiates this war contract from an ordinary peace time contract with the Government. Cf. Spaulding v. Douglas Aircraft Co., 9 Cir., 154 F.2d 419, 423. That Congress chose to purchase rather than requisition property did not deprive it of power to take subsequent action to limit the price paid to a reasonable amount and to prevent the realization of unreasonable profits because of war-time conditions. 'The recovery by the Government of excessive profits received or receivable upon war contracts is in the nature of the regulation of maximum prices under war contracts or the collection of excess profits taxes, rather than the requisitioning or condemnation of private property for public use.' Lichter v. United States, 334 U.S. 742, 787, 68 S.Ct.at page 1317. Viewed as a regulation of prices or a tax, the Act is clearly constitutional in its application to contracts made prior to enactment on which payment had not yet been made. Ring Construction Corp. v. Secretary of War, D.C. Cir., 178 F.2d 714; Blanchard Machine Co. v. Reconstruction Finance Corp., D.C. Cir., 177 F.2d 727, 729-730 and cases there cited. 7 The contractors contend that no interest should have been allowed the Government. In cases where the Government recovers excessive profits on a contract entered into after the enactment of the Renegotiation Act, it is entitled to interest from a date reasonably soon after the date of renegotiation. Sampson Motors, Inc. v. United States, 9 Cir., 1948, 168 F.2d 878. However, it is contended in such a case the interest arises from the fact that the obligation to refund excessive profits to the Government is contractual in nature the original contract having incorporated the renegotiations provisions of the statute. But, as in the instant case, the statute being non-existent at the time the original contract was executed, the obligation to refund excessive profits must rest solely upon the power of Congress to conduct war and to conserve the Government's financial resources for war purposes. 8 The absence of statutory provision for interest does not preclude the Government from recovering interest even though the principal obligation be not based on contract. Interest may be allowed to the Government on taxes for example, without statutory authorization. Billings v. United States, 1914, 232 U.S. 261, 34 S.Ct. 421, 58 L.Ed. 596. Interest was not allowed the Government in a case where the obligation underlying the recovery was a fine or penalty, Rodgers v. United States, 1947, 332 U.S. 371, 68 S.Ct. 5, 92 L.Ed. 3, and on an order to take enemy alien funds into custody. McGrath v. Manufacturers Trust Co., 338 U.S. 241, 70 S.Ct. 4. The reason for the non-allowance in these cases was that interest is a measure of damages for delay in payment. The Government does not suffer monetary damage from delay where the purpose of the imposed obligation is to curb prohibited acts or to keep property out of the hands of the enemy. The rule is different where there is delay in payment of an obligation of a revenue-raising nature from which the Government is depending upon the collecting of a carefully estimated sum by a certain date in order to meet anticipated expenditures. In such an event the Government suffers damage which is compensable by interest. 9 The primary purpose of the Renegotiation Act, along with that of controlling inflation, was to preserve for the use of the Government funds which would otherwise be withheld by war contractors. The Renegotiation Act supplemented the excess profits tax in raising the maximum revenue to carry on the war program. The importance attached to prompt payment by Congress is shown by the various means provided in Sec. 403(c) of the Act to speed collection. Sampson Motors, Inc., v. United States, 9 Cir., 1948, 168 F.2d 878. 10 The contractors have moved to dismiss the appeal of the Government from the allowance of 3% interest on the ground that it is not an appealable order. The Government's appeal is based on more than a contention that the trial court did not exercise its discretion properly. It is asserted that the court had no discretion to exercise but was bound to allow 6%. We find no merit in the motion and it is denied. 11 On the merits, however, we agree with the contractors that interest is not automatically allowable, but is to be denied where its recovery would be inequitable. Board of County Comm'rs of Jackson County v. United States, 1939, 308 U.S. 343, 60 S.Ct. 285, 84 L.Ed. 313. Not only the allowance or disallowance of interest but also the rate is discretionary with the court, for 'in the absence of any controlling statutory regulation the trial court is as competent to determine the amount of interest for delay as any other item of damage.' Royal Indemnity Co. v. United States, 1941, 313 U.S. 289, 296, 61 S.Ct. 995, 997, 85 L.Ed. 1361. The Government contends that administrative regulations under the Renegotiation Act providing for 6% interest, plus repeated Congressional amendments and re-enactments of the Act in the face of such regulations, makes the allowance of 6% interest mandatory. This contention is without merit because the regulations are not an administrative interpretation or construction of provisions in the Act. The Act is silent as to the allowance of interest on the recovery of excessive profits. The most that can be said for congressional re-enactment in the face of these regulations is that it indicated congressional approval of the 6% rate as an administrative guide to the courts in the allowance of interest in the absence of more controlling factors. The trial court, in the allowance of.interest, based its award of 3% interest on two factors, the delay in bringing suit which the court found to have been at least as much the fault of the Government as of the contractors, and the prevailing rates of interest at which the Government and the contractors could have borrowed money at the time. We think the court had discretion in the amount of interest to be allowed and that the exercise thereof was not abused. 12 Another reason appears which supports the district court's determination of the rate of interest to be allowed. Subsequent to the oral argument the following conversation took place between the court and Mr. Dovell, attorney for the Government: 13 'The Court: Mr. Dovell, I am satisfied that interest should be allowed here on the amount of the claim less the amount you conceded that should be deducted, but what I would like to have you talk on is what the rate should be. 14 '(Whereupon, further argument was made by counsel for plaintiff.) 15 'The Court: It is your contention that it should be six per cent and no less than that? 16 'Mr. Dovell: It ought to be six per cent but my contention is that it is within the discretion of the Court.' 17 Having conceded in the proceedings below that the rate of interest was discretionary with the district court, the Government should not be heard on appeal to assert the contrary. 18 The Government complains of the application of $307.73 tax refund to principal instead of to interest in the computation of the amount of the judgment. By such application the amount of the judgment, $14,240.29, was less than it would have been otherwise by the amount of interest the tax refund would have earned at 3% for one year and 56 days, which amounts to a little over ten dollars. The amount is so small we feel we should not be concerned with it. 19 The judgment of the trial court is affirmed as to the appeal of the Government and also as to the appeal of the contractors.

274 Cal.App.2d 749 (1969) In re DANIEL R., a Person Coming Under the Juvenile Court Law. MARGARET GRIER, as Probation Officer, etc., Plaintiff and Respondent, v. DANIEL R., Defendant and Appellant. Civ. No. 9586. California Court of Appeals. Fourth Dist., Div. One. July 11, 1969. Frank L. Williams, Jr., Public Defender, and Francis J. Moran, Deputy Public Defender, for Defendant and Appellant. Cecil Hicks, District Attorney, Oretta D. Sears and Michael R. Capizzi, Deputy District Attorneys, for Plaintiff and Respondent. WHELAN, J. Daniel R. (the minor) 16 years old, appeals from orders of the Orange County juvenile court made November 5 and 20, 1968. The jurisdictional finding is embodied in the order made on November 5, 1968, which found true beyond a reasonable doubt the allegations of the petition. The dispositional order made November 20 committed the minor to the Orange Juvenile Home for 60 days. The commitment was stayed pending appeal. By stipulation made at the time of oral argument, we have been furnished with a copy of the petition whose allegations *751 were found to be true. It alleges the minor: "... is in danger of leading a dissolute life, in that he admitted selling 7 'lids' of marijuana on the campus of the Costa Mesa High School on September 20th, 1968, further, he admitted that he has sold marijuana on numerous other occasions." The Testimony At about 1:30 p.m. on September 20, 1968, an informer ran into the office of William Vaughn, the vice principal at Costa Mesa High School. The informer-student stated that the minor had sold marijuana on the campus during the noon recess. The informer seemed excited and concerned. He told Vaughn he had worked the previous year with Detective Carter in narcotics. Vaughn, being a new administrator at the school, had never seen the informer before, although he later determined that the previous vice principal knew the informer personally and had "worked with him" the previous year. The minor was then brought into the office of the assistant principal, Donald Achziger. In the presence of Vaughn and Achziger, the minor was questioned in regard to the charge by the informer. He was told to put the contents of his pockets on the table, which he did, laying out $42 cash. The minor stated that he had been collecting debts. Immediately thereafter the minor's mother was called to the school. She arrived in about 20 minutes from the time the boy emptied his pockets. Two police officers arrived about 20 minutes after the minor was brought to the assistant principal's office. Vaughn told the officers the name of his informant and that he had worked with Detective Carter on prior cases the preceding school year. The mother was surprised at the amount of money in her son's possession and stated he shouldn't have that much and she didn't know where he got it from. She expressed herself as wishing to do anything possible to clear up the matter. Both she and the minor agreed that he should take a polygraph test. The minor and his mother were taken to the Costa Mesa police station. At the station Wilkinson, a detective in the Costa Mesa Police Department's juvenile division, made arrangements for a lie detector test in charge of a lieutenant who was not available at the moment. Wilkinson knew of the informer by name but had no personal knowledge of the boy's connection with the police. He knew that Carter worked on a narcotics team. *752 The minor was taken to an interrogation room by Officer Wilkinson who advised him of the rights articulated in Miranda v. Arizona by reading from a printed form. The minor stated he understood his rights and when asked if he were willing to talk to Wilkinson about the charges against him he replied in the affirmative. Wilkinson questioned him about the source of the money and the minor stated that he was collecting debts. He was unable to tell Wilkinson from whom he had received any of the money, or how much he had collected from any one person at the school. After a few more minutes of questioning, Wilkinson, who knew the minor had not been asked to remove his shoes while at school, asked him if he would take off his shoes. The minor said he would, did so, and poured onto the table from one of his boots an additional $26. At about that time he said he had sold seven lids of marijuana on campus that day. He said he received $10 for six lids and $8 for one lid and had sold marijuana on campus on prior occasions that school year and the one before. A lid was defined by Wilkinson as a plastic baggie containing marijuana. The minor testified as to the circumstances under which he had made the statement concerning sales of marijuana. He testified categorically that the reason he had made the statement was not because he had produced the money from his boot; and he was not sure he made his statement before or after he had poured the money out of his boot. It was his claim that he had made the statement because the police had said it would not go so hard on him if he told the truth. Wilkinson denied having made any such promise. The minor raises three issues on appeal. [1] Is the language of section 601, Welfare and Institutions Code, unconstitutionally vague and indefinite? We think not. The question as to the sufficiency of such language has most often come up in criminal prosecutions of those charged with contributing to the delinquency of minors. In People v. Deibert, 117 Cal.App.2d 410 [256 P.2d 355], the court dealt with former section 702, Welfare and Institutions Code. By the provisions of that section, any act or omission which "tends to cause or encourage" a minor to become a delinquent was made a crime. A case was established when the evidence proved acts or omissions tending to cause or encourage the minors to lead "an idle, dissolute, lewd, or immoral life." The court held that the words "dissolute and immoral" *753 met constitutional standards of certainty and definiteness. (People v. Calkins, 48 Cal.App.2d 33, 35 [119 P.2d 142]; People v. Cohen, 62 Cal.App. 521, 526 [217 P. 78]; People v. Kinser, 99 Cal.App. 778, 782 [279 P. 488]; see also People v. Mitchell, 148 Cal.App.2d 733 [307 P.2d 411]; People v. Reznick, 75 Cal.App.2d 832 [171 P.2d 952]; People v. McDougal, 74 Cal.App. 666 [241 P. 598].) Language sufficiently definite to support conviction of a crime that has been punishable by confinement for a period of two years is sufficient to define a condition that will subject a minor to the jurisdiction of the juvenile court. It is reasonable that there be some method by which a juvenile may be made a ward of the court other than in a dependency situation (Welf. & Inst. Code, 600) or when the commission of a crime can be proved (Welf. & Inst. Code, 602). The language found in section 601 is no less satisfactory than "growing up in crime," which is used in the statutes of several states.people v. Deiberg, supra, 117 Cal.App.2d 410, 418, states: " 'Reasonable certainty, in view of the conditions, is all that is required, and liberal effect is always to be given to the legislative intent when possible.' (People v. Kennedy, 21 Cal.App.2d 185, 193 [69 P.2d 224].) The use of words of general meaning is the essence of our code system. Thus, in a sphere so vital to the community as the welfare of its youth, the words used in a statute designed to enable the Legislature to come to grips effectively with the problems of juvenile delinquency should be upheld where their frequent use in penal statutes gives assurance that they are understood by men of ordinary intelligence." Admissibility of Minor's Statements [2] We find no difficulty in supporting the ruling of the juvenile court on the admissibility of the minor's statements. We do so without touching upon the questions whether there was probable cause for arrest before the boy removed his shoes, and whether the removal by him of his shoes constituted a search. The minor here was subject to the discipline of his parents. His mother was present at the school where the police questioning of her son commenced, although without a Miranda warning. She expressed herself as willing to have everything necessary done to clear up the question of her son's involvement; she accompanied him to the police station for the purpose *754 of further interrogation in a polygraph examination. [fn. 1] The minor himself expressed his willingness, after receiving the Miranda advices, to be questioned. It cannot be said in those circumstances that the questioning and the information obtained thereby were the result of an illegal detention. The minor testified that the reason for giving his statement was not the production of the money from his shoe, which, after all, was only an addition to a sum of money he was unable to account for reasonably. It would be farfetched to rule as a matter of law that his admissions were hinged upon an impermissible request to remove his shoes. The Fifth Amendment Question [3] Two different questions are involved in the fact that the petition to have the minor declared a ward of the juvenile court was brought under section 601, Welfare and Institutions Code. That petition in effect alleges that the minor made sales of marijuana. In express terms it stated: "[H]e is in danger of leading a dissolute life, in that he admitted" such sales. Surely that is intended to imply he made such sales, as he himself has admitted. The making of such admission, if false, would make him guilty of a lie, but that single lie alone would not support the claim he was in danger of leading a dissolute life. We fully agree that a boy of 16 years who has sold marijuana on even one occasion is thereby in danger of leading a dissolute life. If such a practice or the making of a single sale were the basis of a petition under section 601 rather than 602, that fact alone should give no cause for complaint by the minor, but is favorable to him rather than otherwise. [fn. 2] Where, however, the proof of the allegation rests solely upon the admissions of the minor, a different element enters. In that case, the minor may rightly contend that proof of such allegations of the commission of a felony must be under the same standards as if the petition were under section 602, Welfare and Institutions Code. As in In re Rambeau, 266 Cal.App.2d 1 [72 Cal.Rptr. 171], the order in the case at bench, taken together with the *755 petition, finds the minor to have done acts that are defined as felonies. Apart from the hearsay testimony of the unnamed boy who gave the information to Vaughn, the sole evidence there was any sale of marijuana comes from the extrajudicial admissions of the minor. We disregard the hearsay, because it seems to have been introduced only for the purpose of showing probable cause for arrest. Thus the only evidence that any sale of marijuana had been made by the minor was his own extrajudicial admission. For that reason, the orders appealed from must be reversed, notwithstanding the fact that the minor undoubtedly is in need of the supervision of the juvenile court. [fn. 3] The orders appealed from are reversed. Coughlin, Acting P. J., and Ault, J. pro tem., [fn. *] concurred. NOTES [fn. 1] 1. This is not to say the mother could waive any of her son's constitutional rights. [fn. 2] 2. A minor adjudged a ward of the court under section 601 may not be sent to the California Youth Authority as is possible under section 602. ( 730-731, Welf. & Inst. Code.) [fn. 3] 3. The evidence would support findings that the minor had in his possession a substantial sum of money the acquisition of which by honest means he was unable to account for; and that he associated with persons engaged in the narcotics traffic, which latter fact, not being an act defined as a felony, might be shown by his admissions. [fn. *] *. Assigned by the Chairman of the Judicial Council.

  Motion for Rehearing Overruled.  Memorandum Opinion of September 3, 2009 Withdrawn.  Dismissed and Memorandum Opinion on Rehearing filed October 22, 2009.   In The   Fourteenth Court of Appeals ___________________   NO. 14-09-00686-CR ___________________   CHARLES RAY WALTON, Appellant   V.   THE STATE OF TEXAS, Appellee     On Appeal from the 337th District Court Harris County, Texas Trial Court Cause No. 1031750       MEMORANDUM OPINION ON REHEARING This is an attempted appeal of the denial of an out-of-time motion for new trial.  Generally, an appellate court only has jurisdiction to consider an appeal by a criminal defendant when there has been a final judgment of conviction.  McKown v. State, 915 S.W.2d 160, 161 (Tex. App.—Fort Worth 1996, no pet.). Appellant’s conviction was affirmed by this court on March 8, 2007.  Walton v. State, No. 14-06-00227-CR, 2007 WL 706582 (Tex. App.CHouston [14th Dist.] 2007, pet. ref=d), cert. denied, 128 S.Ct. 1710 (2008).  Our plenary jurisdiction over that case expired in May 2007, 60 days after the judgment issued.  See Tex. R. App. P. 19.1(a).  In attempting to appeal the denial of an out-of-time motion for new trial, appellant attempts to file a post-conviction collateral attack over which this court has no jurisdiction.  See Kim v. State, 181 S.W.3d 448, 449 (Tex. App.—Waco 2005, no pet.).  Accordingly, the appeal is ordered dismissed.                                                                                       PER CURIAM       Panel consists of Justices Yates, Frost, and Brown. Do Not Publish — Tex. R. App. P. 47.2(b).

This opinion is subject to revision before final publication in the Pacific Reporter 2018 UT 18 IN THE SUPREME COURT OF THE STATE OF UTAH LEGRAND JOHNSON CONSTRUCTION COMPANY, Appellee, v. CELTIC BANK CORPORATION and CELTIC INVESTMENT, INC., Appellants. No. 20160913 Filed May 21, 2018 On Direct Appeal First District, Logan The Honorable Brian G. Cannell No. 090101252 Attorneys: John A. Snow, James A. Boevers, Salt Lake City, Mark B. Hancey, Logan, for appellee Troy L. Booher, Beth E. Kennedy, Leslie K. Rinaldi, Ronald G. Russell, Jeffery A. Balls, Salt Lake City, for appellants ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE, and JUDGE POHLMAN joined. Having recused herself, JUSTICE PETERSEN does not participate herein; COURT OF APPEALS JUDGE JILL M. POHLMAN sat. ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court: ¶1 LeGrand Johnson Construction Company (LeGrand) filed an action seeking to enforce a mechanic’s lien on property owned by B2AC, LLC, for the unpaid value of construction services provided by LeGrand. Celtic Bank, B2AC’s lender, sought to foreclose on the same property after B2AC failed to pay on its loan. B2AC did not defend against LeGrand’s action to enforce its mechanic’s lien. The action resulted in a lien for $237,294.21 and an  LEGRAND v. CELTIC BANK Opinion of the Court award of $6,395.50 in attorney fees and costs, which were to be collected from the proceeds of the sale of B2AC’s property. ¶2 LeGrand and Celtic Bank disputed which of their liens had priority. The district court determined that LeGrand’s lien had priority. It also awarded LeGrand $132,916.48 in attorney fees and costs incurred in the lien priority action. And it held that LeGrand was entitled to recover 18 percent in prejudgment and postjudgment interest from Celtic Bank based on LeGrand’s contract with B2AC. The prejudgment interest was awarded not only on the value of the mechanic’s lien but also on the attorney fees and costs incurred by LeGrand in seeking to enforce the lien against B2AC and in seeking to establish priority against Celtic Bank. ¶3 Celtic Bank appeals. It challenges the district court’s decision awarding prejudgment interest on the value of the mechanic’s lien and on the amount of LeGrand’s attorney fees. In the event we reverse the award of prejudgment interest, Celtic Bank also asks us to vacate the district court’s attorney fee award and to remand to allow the district court to award attorney fees and costs to Celtic Bank as the prevailing party on the prejudgment interest issues. To the extent Celtic Bank remains liable for attorney fees and costs, Celtic Bank also asks us to reverse the award of postjudgment interest rate of 18 percent and to limit the postjudgment interest rate pursuant to Utah Code section 15-1-4. ¶4 We reverse the decision to award prejudgment interest on the basis of our decision in Jordan Construction, Inc. v. Federal National Mortgage Ass’n, 2017 UT 28, ¶ 64, 408 P.3d 296. We also conclude that Celtic Bank is the prevailing party on the prejudgment interest issues. And we accordingly vacate and remand to the district court to allow it to award attorney fees in a manner consistent with this opinion. I ¶5 Celtic Bank’s first claim of error is vindicated by our recent decision in Jordan Construction, Inc. v. Federal National Mortgage Ass’n, 2017 UT 28, 408 P.3d 296. There we explained that “[t]he extent of overall recovery available on a mechanic’s lien claim, just like the amount that can be validly listed on the lien itself, can be no broader than what is provided for by statute.” Id. ¶ 61. And we noted that the version of the mechanic’s lien statute applicable in 2  Cite as: 2018 UT 18 Opinion of the Court that case (and here)1 “specifically provided for attorney fees” but “did not provide that prejudgment interest is recoverable in the action.” Id. ¶ 62. We thus concluded that “what is left unsaid in the mechanic’s lien statute is not available for recovery in a mechanic’s lien action” and held that prejudgment interest is accordingly “unavailable on a mechanic’s lien claim under the 2008 Utah Code.” Id. ¶¶ 62, 64. ¶6 This holding applies with equal force here. LeGrand has identified no plausible basis for distinguishing our holding in Jordan Construction. Nor has it offered a persuasive ground for overruling it. We accordingly reinforce that decision here and reverse the district court’s award of prejudgment interest on the basis of Jordan Construction. II ¶7 That conclusion also sustains Celtic Bank’s second claim of error. Our decision that LeGrand is not entitled to prejudgment interest also requires us to vacate the district court’s attorney fee award. ¶8 The district court determined that LeGrand “qualified as the ‘successful party’ pursuant to Utah Code Ann. § 38-1-18” and thus awarded LeGrand its attorney fees. But that determination was made at a time when LeGrand had prevailed on all issues before the court—both in establishing its lien priority and in establishing its right to prejudgment interest. That no longer holds, as we have now concluded that LeGrand was not entitled to prejudgment interest. ¶9 We accordingly vacate the fee award and remand for further proceedings that accord with this opinion. On remand the district court should decide whether and to what extent LeGrand (or Celtic Bank) may be entitled to an attorney fee award under Utah Code section 38-1-18. That will require the court to identify the “successful party” in this “action brought to enforce” a mechanic’s lien. UTAH CODE § 38-1-18 (2008). _____________________________________________________________ 1 See UTAH CODE § 38-1-18(1) (2008). In Jordan Construction, Inc. v. Federal National Mortgage Ass’n we also noted that the legislature has subsequently amended the statute to now provide for prejudgment interest. 2017 UT 28, ¶ 57 n.40 (citing UTAH CODE § 38-1a-309 (2012)). But we also concluded, as we reinforce here, that the amended provision has no effect on its predecessor, and does not apply retroactively. See id. 3  LEGRAND v. CELTIC BANK Opinion of the Court ¶10 In remanding we highlight an issue that has not been briefed to us and that we are therefore not deciding. The issue is whether the “successful party” analysis under section 38-1-18 is to be decided (a) on a claim-by-claim basis, under which LeGrand may be entitled to its fees as the successful party on the priority claim, but Celtic Bank may be entitled to fees as the successful party on the prejudgment interest claim; or (b) on an overarching basis that examines the “action” as a whole, under which the district court would determine which party was overall more “successful,” and award fees only to that party. This question is for the district court on remand. It is not presented to us and we do not decide it. ¶11 We do decide one final issue that was presented to us, however, and which may become an issue on remand. We hold that if LeGrand is awarded attorney fees on remand, it is not entitled to prejudgment interest on any fee award and is entitled only to the postjudgment interest rate of 2.65 percent. See UTAH CODE § 15-1-4 (2014); UTAH COURTS, Post Judgment Interest Rates, http://www.utcourts.gov/resources/intrates/interestrates.htm (last visited May 14, 2018) (listing the post judgment interest rate for each calendar year). Prejudgment interest is not available under the mechanic’s lien statute for reasons set forth above. And we also hold that LeGrand is not entitled to the 18 percent interest rate under the operative contract between LeGrand and B2AC. ¶12 The district court found “that the collection of interest at the contractual rate against an entity that was not a party to the contract is provided for implicitly in the mechanic’s lien statute.” But our cases hold that “[t]he extent of overall recovery available” is limited to costs specifically provided for by statute. Jordan Constr., Inc. v. Fed. Nat’l Mortg. Ass’n, 2017 UT 28, ¶¶ 61–62, 408 P.3d 296. And the mechanic’s lien statute does not specifically provide for the collection of interest at a contractual rate against an entity that is not a party to the contract. For that reason LeGrand is not entitled to the contractual interest rate under the mechanic’s lien statute. ¶13 In so concluding we reject LeGrand’s attempt to establish a right to interest under the terms of the contract between LeGrand and B2AC. The contract provides for an 18 percent interest rate on “past due balances.” But Celtic Bank was not a party to the contract. And it lacks privity with B2AC. For that reason Celtic Bank cannot contractually be obligated to pay an interest rate on any attorney fees that may be awarded on remand. And Celtic Bank has only a statutory obligation to pay postjudgment interest. 4  Cite as: 2018 UT 18 Opinion of the Court III ¶14 We reinforce our holding in Jordan Construction, Inc. v. Federal National Mortgage Ass’n, 2017 UT 28, ¶ 64, 408 P.3d 296, that prejudgment interest is not available under the 2008 version of the Utah Mechanic’s Lien Act. We also vacate the attorney fee award because it was premised, at least in part, on the notion that LeGrand had succeeded in establishing its right to prejudgment interest. And we remand to allow the district court to enter a new fee award, with the clarification that LeGrand has no right to prejudgment interest on any fees it may be awarded (either under the statute or the contract between LeGrand and B2AC). 5 

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-41158 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus SERGIO ANTONIO LASTRA-RIVERA, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. B-98-CR-256-1 - - - - - - - - - - June 16, 1999 Before EMILIO M. GARZA, BENAVIDES, and PARKER, Circuit Judges. PER CURIAM:* The Federal Public Defender appointed to represent Sergio Antonio Lastra-Rivera has moved to withdraw and filed a brief as required by Anders v. California, 386 U.S. 738 (1967). Lastra- Rivera has received a copy of counsel’s motion and brief but has not filed a response. Our independent review of the brief and the record discloses no nonfrivolous issue. Accordingly, counsel’s motion to withdraw is GRANTED. Counsel is excused from * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  No. -2- further responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2. 

28 So.3d 58 (2010) HUNTER v. STATE. No. 5D09-1976. District Court of Appeal of Florida, Fifth District. February 9, 2010. Decision Without Published Opinion Affirmed.

FILED May 06 2019, 8:46 am CLERK Indiana Supreme Court Court of Appeals and Tax Court ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES Neal F. Eggeson, Jr. A. Richard M. Blaiklock Fishers, Indiana Wade D. Fulford Lewis Wagner, LLP Indianapolis, Indiana Michael A. Sarafin Johnson & Bell, P.C. Crown Point, Indiana Sharon L. Stanzione Alan M. Kus Johnson & Bell, P.C. Crown Point, Indiana IN THE COURT OF APPEALS OF INDIANA G.F., May 6, 2019 Appellant-Plaintiff, Court of Appeals Case No. 18A-PL-2460 v. Appeal from the Marion Superior Court St. Catherine Hospital, Inc., The Honorable Timothy Oakes, Vatsal K. Patel, D.O., and Judge Indiana Patient’s Compensation The Honorable Caryl Dill, Fund, Magistrate Appellees-Defendants. Trial Court Cause No. 49D02-1801-PL-614 Riley, Judge. Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019 Page 1 of 23  STATEMENT OF THE CASE [1] Appellant-Plaintiff, G.F., and Appellee/Cross-Appellant-Defendant, the Indiana Patient’s Compensation Fund (the Fund), appeal the trial court’s summary judgment in favor of Appellees-Defendants, St. Catherine Hospital, Inc. (St. Catherine), and Vatsal K. Patel, D.O. (Dr. Patel), concluding that, as a matter of law, the Indiana Medical Malpractice Act (MMA) applies to G.F.’s claim against Dr. Patel. [2] We reverse and remand. ISSUES [3] G.F. and the Fund, in separate briefs, present this court with three issues on appeal, which we consolidate and restate as: (1) Whether the trial court erred by allowing St. Catherine and Dr. Patel to file a response to G.F.’s motion for summary judgment outside the time period specified in Indiana Trial Rule 56; and (2) Whether the MMA applies to claims involving negligent dissemination of protected health information. FACTS AND PROCEDURAL HISTORY [4] On June 5, 2015, G.F. received in-patient treatment at St. Catherine for pneumonia-related symptoms. While G.F. was being visited by a co-worker, Dr. Patel entered the room. With the co-worker in the room, Dr. Patel informed G.F. that his “CD4 count is low . . . you need to see your infectious Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019 Page 2 of 23  disease doctor as soon as you can!” (Appellant’s App. Vol. II, p. 12). Because G.F.’s visitor had a prior family experience with HIV, she immediately understood the implication of Dr. Patel’s communication to G.F. As soon as Dr. Patel exited the room, G.F.’s co-worker voiced her understanding of Dr. Patel’s statement: as her step-brother had died from HIV/AIDS, she recognized the inferences of discussing CD4 counts with an infectious disease doctor. Four days later, Dr. Patel phoned G.F. to apologize for what he said in front of G.F.’s co-worker. Dr. Patel had assumed the co-worker was G.F.’s fiancée. [5] As a result of what she learned on June 5, 2015, G.F.’s co-worker has severed all ties with G.F. Though G.F. and his co-worker had been good friends prior to this incident, she now no longer calls or visits G.F., she does not return G.F.’s calls, and she even refuses to acknowledge his existence at work. Suggesting that the word is out at his workplace, G.F. observed that other co- workers now “change their path when they see [G.F.] heading in their directions.” (Appellant’s App. Vol. II, p. 38). [6] On August 20, 2015, G.F. filed his Proposed Complaint for medical malpractice against St. Catherine and Dr. Patel with the Indiana Department of Insurance [IDOI], in its capacity of the Fund. Five months later, on January 21, 2016, G.F. filed an anonymous Complaint for damages against St. Catherine and Dr. Patel with the Lake County Circuit Court. On March 4, 2016, St. Catherine and Dr. Patel moved to dismiss the Lake County action for Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019 Page 3 of 23  failing to state a claim upon which relief can be granted. On April 27, 2016, the Lake County Circuit Court denied the motion to dismiss. [7] On October 19, 2017, the medical review panel rendered a split decision. The panel found no breach of standard of care in favor of St. Catherine. As to Dr. Patel, the panel concluded that G.F.’s allegations hinged upon “a material issue of fact not requiring expert opinion, bearing on liability for consideration by the court or jury.” (Appellant’s App. Vol. II, pp. 71-73). [8] On January 6, 2018, G.F. initiated an action for declaratory judgment against St. Catherine, Dr. Patel, and the Fund in Marion County Superior Court, seeking a declaration of law that his claims fell outside the ambit of the MMA. On March 10, 2018, G.F. moved for summary judgment on his declaratory judgment claims, and the Fund joined in the motion on June 1, 2018. St. Catherine and Dr. Patel failed to respond to G.F.’s motion for summary judgment within the time allotted by Indiana Trial Rule 56(C); St. Catherine and Dr. Patel sought leave to respond on April 15, 2018. On April 17, 2018, the trial court permitted the filing of a belated response. [9] On October 3, 2018, following a hearing, the trial court issued its findings of fact and conclusions thereon, denying G.F.’s motion for declaratory judgment and concluding in pertinent part that: [G.F.’s] claim involves health care that was provided by a physician, working in his professional capacity as a provider of medical services, to a patient, within the confines of a hospital, in furtherance and promotion of [G.F.’s] health. Further, the Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019 Page 4 of 23  [c]ourt finds that [G.F.] willfully and voluntarily subjected his claim to the requirements and restrictions outlined within the MMA, proceeded through the entirety of the medical review panel process, and obtained a medical review panel opinion in accordance with the MMA. Thus, because [G.F.] has willingly and voluntarily subjected himself to the MMA the [c]ourt thereby rejects his contention that his claim is not governed by the MMA, finds that it is one of medical malpractice, governed by the requirements and restrictions of the MMA, and thereby DENIES [G.F.’s] [m]otion for [s]ummary [j]udgment in its entirety. [10] G.F. now appeals. Additional facts will be provided as necessary. DISCUSSION AND DECISION I. Standard of Review [11] In reviewing a trial court’s ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. at 607-08. In doing so, we consider all of the designated evidence in the light most favorable to the non- moving party. Id. at 608. A fact is ‘material’ for summary judgment purposes if it helps to prove or disprove an essential element of the plaintiff’s cause of action; a factual issue is ‘genuine’ if the trier of fact is required to resolve an opposing party’s different version of the underlying facts. Ind. Farmers Mut. Ins. Group v. Blaskie, 727 N.E.2d 13, 15 (Ind. 2000). The party appealing the grant Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019 Page 5 of 23  of summary judgment has the burden of persuading this court that the trial court’s ruling was improper. First Farmers Bank & Trust Co., 891 N.E.2d at 607. [12] We observe that, in the present case, the trial court entered findings of fact and conclusions of law thereon in support of its judgment. Generally, special findings are not required in summary judgment proceedings and are not binding on appeal. AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct. App. 2004). However, such findings offer a court valuable insight into the trial court’s rationale and facilitate appellate review. Id. [13] In analyzing a motion for summary judgment, a court may consider only properly designated evidence. Indiana Trial Rule 56(C) requires each party to a summary judgment motion to designate to the court all parts of pleadings, designations, and other matters on which it relies for purposes of the motion. Because G.F. and the Fund dispute the timeliness of St. Catherine’s and Dr. Patel’s response to G.F.’s motion for summary judgment, we must first resolve this procedural threshold issue and determine what designated evidence is properly before us prior to turning to the merits of the case. II. Indiana Trial Rule 56 [14] As an initial matter, G.F. contends that the trial court erred in allowing St. Catherine and Dr. Patel to file a belated response to his motion for summary judgment. Trial Rule 56 states, in pertinent part: (C) The motion and any supporting affidavits shall be served in accordance with the provisions of Rule 5. An adverse party shall Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019 Page 6 of 23  have thirty (30) days after service of the motion to serve a response and any opposing affidavits . . . **** (F) Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance or permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. **** (I) For cause found, the [c]ourt may alter any time limit set forth in this rule upon motion made within the applicable time limit. In HomEq Servicing Corp. v. Baker, 883 N.E.2d 95, 98-99 (Ind. 2008) (quoting Borsuk v. Town of St. John, 820 N.E.2d 118, 124 n. 5 (Ind. 2005)), our supreme court clarified the time limits of T.R. 56 and declared that “[w]hen a nonmoving party fails to respond to a motion for summary judgment within 30 days by either filing a response, requesting a continuance under T.R. 56(I), or filing an affidavit under T.R. 56(F), the trial court cannot consider summary judgment filings of that party subsequent to the 30-day period.” This is “a bright-line rule . . . which precludes the late filing of responses in opposition to a motion for summary judgment.” Mitchell v. 10th & The Bypass, LLC, 3 N.E.3d 967, 972 (Ind. 2014). “Now firmly entrenched as an article of faith in Indiana law, this bright-line rule provides clarity and certainty to an area of the law that for too long lacked both.” Id. Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019 Page 7 of 23 [15] G.F. filed his motion for summary judgment on March 10, 2018. Accordingly, St. Catherine and Dr. Patel’s response or request for additional time was due no later than April 9, 2018. It was not until April 15, 2018, that St. Catherine and Dr. Patel sought leave to respond. As such, pursuant to HomEq’s premise, their request should have been denied by the trial court. [16] Nevertheless, St. Catherine and Dr. Patel now rely on Marion County Local Rule 203(A) to avoid the implementation of the rigid bright-line rule. Marion County Local Rule 203(A) provides that “all motions filed with the court shall include a brief statement indicating whether opposing party(ies) object to or approve of the granting of said motion.” LR49-TR5-203(A). Because G.F. failed to indicate in his motion for summary judgment whether St. Catherine and Dr. Patel agreed or objected to the motion, Appellees maintain that his motion was not properly filed until this defect was cured on April 16, 2018. Therefore, St. Catherine and Dr. Patel contend that the 30-day time period to file their response to the summary judgment motion commenced on April 16, 2018 and accordingly, their motion for leave to file a response was timely filed. [17] The Indiana Trial Rules specifically authorize the making and amending of local rules of court: Each local court may from time to time make and amend rules governing its practice not inconsistent with these rules. In all cases not provided for by rule the local court may regulate its practice in any manner not inconsistent with these rules . . . Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019 Page 8 of 23  T.R. 81. However, the rules of procedure promulgated by our supreme court are binding on all Indiana courts, and no court “can circumvent the rules and thereby avoid their application” by promulgating an inconsistent local rule. Spudich v. Northern Ind. Public Serv., Co., 745 N.E.2d 281, 286 (Ind. Ct. App. 2001). A local rule which is inconsistent with the Trial Rules is deemed to be without force and effect. Armstrong v. Lake, 447 N.E.2d 1153, 1154 (Ind. Ct. App. 1983). [18] In State v. Bridenhager, 257 N.E.2d 794, 796 (Ind. 1972), our supreme court clarified the test for determining when a procedural rule enacted by statute is inconsistent with the trial rules: To be “in conflict” with our rules . . ., it is not necessary that the statutory rules be in direct opposition to our rule, so that but one could stand per se. It is only required that they be incompatible to the extent that both could not apply in a given situation. In Armstrong, this court held that the same test would apply to a local rule alleged to be inconsistent with the trial rules. Armstrong, 447 N.E.2d at 1154. Furthermore, when two rules cover the same subject matter and one does so generally whether the other does so specifically, the more specific rule prevails. Daugherty v. Robinson Farms, Inc. 858 N.E.2d 192, 197 (Ind. Ct. App. 2006), trans. denied. [19] We recognize that Local Rule 203(A) applies to all motions filed with the Marion County trial court, whereas the requirements of T.R. 56 only apply to summary judgment motions—and therefore is the more specific rule. Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019 Page 9 of 23  Moreover, St. Catherine and Dr. Patel assume that failure to comply with Local Rule 203(A) means that a motion has not been filed or that the filing is exempt from any time requirements until the defect has been cured. However, Local Rule 203(A) does not specify a consequence or penalty and neither does the trial court’s chronological case history indicate that G.F.’s motion for summary judgment was not deemed filed for lack of compliance with the Local Rule. While Local Rule 203(A) and T.R. 56(I) are not incompatible per se, we find that the more specific T.R. 56(I) takes precedence over Local Rule 203(A) and the 30-day time period to respond to a motion for summary judgment cannot be enlarged or restricted by the application of Local Rule 203(A). 1 [20] As a result, the trial court abused its discretion by allowing St. Catherine and Dr. Patel to file a belated response to G.F.’s motion for summary judgment and 1 It should be noted that in a further effort to bring their designated evidence in front of the trial court, St. Catherine and Dr. Patel filed a cross-motion for summary judgment on May 2, 2018. However, in its Order of October 3, 2018, the trial court only ruled on G.F.’s motion for summary judgment and declared “the cross-motion for summary judgment filed by [Dr. Patel and St. Catherine] [] moot.” (Appellants App. Vol. II, p. 11). Dr Patel and St. Catherine do not appeal the trial court’s conclusion that their cross-motion for summary judgment is moot. Moreover, even if the cross-motion was properly before us for consideration, our conclusion that St. Catherine and Dr. Patel cannot designate evidence outside the time-period designated in T.R. 56 would not be altered. In Life v. Tucker Co., Inc., 948 N.E.2d 346, 351 (Ind. Ct. App. 2011), Life filed a belated response to Tucker’s motion for summary judgment, as well as a motion for partial summary judgment against Tucker which included the same arguments and designated evidence as in the belated response. We concluded that [w]hile we certainly acknowledge that Trial Rule 56(a) allows for claimants to move for partial summary judgment “at any time after the expiration of twenty days from the commencement of the action or after service of a motion for summary judgment by the adverse party,” the Lifes may not be permitted to bypass established rules of trial procedure by cloaking their response in another procedural mechanism. Doing so would render meaningless Trial Rule 56(C)’s time limit of thirty days and allow litigants to respond to summary judgment motions at their leisure so long as they also included their own motion. Id. Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019 Page 10 of 23  designate evidence in support thereof. Accordingly, we will consider only the evidence designated by G.F. and the Fund in reviewing the trial court’s summary judgment in favor of St. Catherine and Dr. Patel. III. Application of MMA on Dissemination of Protected Health Information [21] Since its enactment in 1975, the MMA has dictated the statutory procedures for medical malpractice actions. See I.C. § 34-18-1-1 et seq. The MMA is not all- inclusive for claims against healthcare providers, nor is it intended to be extended to cases of ordinary negligence. Peters v. Cummins Mental Health, Inc., 790 N.E.2d 572, 576 (Ind. Ct. App. 2003). Instead, the MMA was designed to curtail, not expand, liability for medical malpractice. Atterholt v. Herbst, 902 N.E.2d 220, 223 (Ind. 2009). As such, the MMA is in derogation of common law and should be narrowly construed. Patel v. Barker, 742 N.E.2d 29, 31 (Ind. Ct. App. 2001). [22] Similar to other statutes in derogation of the common law, the MMA is to be strictly construed against imposing any limitations upon a claimant’s right to bring suit. Peters, 790 N.E.2d at 576. When the legislature enacts a statute in derogation of the common law, courts presume that the legislature is aware of the common law, and that the legislature does not intend to make any change beyond what is declared in express terms or by unmistakable implication. Weldon v. Universal Reagents, Inc., 714 N.E.2d 1104, 1107-08 (Ind. Ct. App. 1999). Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019 Page 11 of 23 [23] By limiting provider liability, the MMA makes healthcare more affordable and accessible to patients throughout Indiana. McCarty v. Sanders, 805 N.E.2d 894, 899 (Ind. Ct. App. 2004). “The obvious purpose of the [MMA] was to protect health care providers from malpractice claims . . . not to create new and additional causes of action. Were it to create a separate cause of action it would increase the incidence of such claims rather than protect against them.” Breece v. Lugo, 800 N.E.2d 224, 227-28 (Ind. Ct. App. 2003). In Johnson v. St. Vincent Hospital, Inc., 404 N.E.2d 585, 589 (Ind. 1980), overruled on different grounds by In re Stephens, 867 N.E.2d 148 (Ind. 2007), our supreme court noted that the MMA was a legislative response to escalating problems in the medical malpractice insurance industry and was passed to address the rapidly escalating costs to physicians of malpractice insurance, the near unavailability of such coverage to physicians engaged in certain high risk specialties, and because “[h]ealth care providers had become fearful of the exposure to malpractice claims and at the same time were unable to obtain adequate malpractice insurance at reasonable prices.” Id. at 589. The MMA created “voluntary state-sponsored liability insurance for doctors and other health care providers, created a patient compensation fund, took measures to prevent injuries to patients through the negligence of health care providers, and subjected negligence claims against health care providers to special controls limiting patient remedies.” Id. at 590. Whether the case is one of medical malpractice as defined by the MMA is a question of law to be determined by the court. Weldon, 714 N.E.2d at 1107. Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019 Page 12 of 23 [24] Indiana courts have developed an analytical framework for determining whether the MMA applies to a certain claim. Courts look to the substance of a claim, not the manner in which the conduct is framed in a pleading by the claimant. Doe by Roe v. Madison Ctr. Hosp., 652 N.E.2d 101, 104 (Ind. Ct. App. 1995). To fall within the purview of the MMA, a provider’s conduct must be undertaken in the interest of, or for the benefit of, the patient’s health. In other words, the conduct must be “curative or salutary in nature or effect” for the person claiming patient status under the MMA. Collins v. Thakkar, 552 N.E.2d 507, 510 (Ind. Ct. App. 1990). The curative or salutary conduct must be directed toward the person to whom the provider owes a duty of care. See Peters, 790 N.E.2d at 577. Conversely, the MMA does not apply to conduct “unrelated to the promotion of a patient’s health or the provider’s exercise of profession expertise, skill, or judgment.” Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182, 185 (Ind. 2011). [25] Given the limiting language of the MMA, not every negligent act or omission by a health care provider constitutes medical malpractice. Putnam Co. Hosp. v. Sells, 619 N.E.2d 968, 970 (Ind. Ct. App. 1993). A medical malpractice claim under the Act exists only when the substance of the claim involves a causal connection between the negligence and the nature of the provider/patient relationship. Doe by Roe, 652 N.E.2d at 103. General negligence can occur during the course of ongoing medical treatment if the negligent act itself does not involve curative or salutary conduct, the promotion of the patient’s health, or the exercise of professional expertise, skill, or judgment. See, e.g., Thomas v. Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019 Page 13 of 23  Deitsch, 743 N.E.2d 1218, 1220-21 (Ind. Ct. App. 2001) (no medical malpractice where doctor allowed inebriated patient to leave office and patient was arrested on way home from doctor’s office for operating while inebriated); Hart v. Caylor- Nickel Hosp. Inc., 553 N.E.2d 874, 879 (Ind. Ct. App. 1990) (allegation that a bed rail properly raised by health care provider, but which gave way under plaintiff’s weight after turning himself in bed was outside the MMA); Collins v. Thakkar, 552 N.E.2d 507, 510-11 (Ind. Ct. App. 1990), trans. denied (no medical malpractice where a doctor performed an abortion on a patient without her consent). Recently, this court addressed the difference between ordinary negligence and medical malpractice which would fall under the purview of the MMA, as follows: A case sounds in ordinary negligence [rather than medical negligence] where the factual issues are capable of resolution by a jury without application of the standard of care prevalent in the local medical community. By contrast a claim falls under the [MMA] where there is a causal connection between the conduct complained of and the nature of the patient-health care provider relationship. Metz as Next Friend of Metz v. Saint Joseph Reg’l Med. Center-Plymouth Campus, Inc., 115 N.E.3d 489, 495 (Ind. Ct. App. 2018) (quoting Terry v. Cmty. Health Network, Inc., 17 N.E.3d 389, 393 (Ind. Ct. App. 2014)) (internal citations omitted). [26] Relying on this framework, G.F. and the Fund contend that the trial court erred when it concluded that G.F.’s claim against Dr. Patel fell within the purview of the MMA. G.F. does not contend that the statement by Dr. Patel led to an Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019 Page 14 of 23  inaccurate diagnosis, improper treatment, or bodily injury; rather, G.F. claims that the communication resulted in emotional harm and an irreparable loss of privacy. Characterizing Dr. Patel’s disclosure of G.F.’s confidential health care information to a third party as neither curative nor salutary to G.F., G.F. and the Fund maintain that the claim against Dr. Patel sounds in ordinary negligence. In response, St. Catherine and Dr. Patel assert that Dr. Patel’s communication of laboratory results to G.F., as well as the recommendation of follow-up care, were directly related to tests performed in furtherance of G.F.’s care and treatment and occurred while Dr. Patel was acting in his professional capacity. As such, they posit that Dr. Patel’s conduct falls squarely within the purview of the MMA. [27] In a previous case, we have held that claims alleging negligent dissemination or communication of patients’ confidential health information against a heath care provider were not governed by the MMA. In H.D. v. BHC Meadows Hosp., Inc., 884 N.E.2d 849, 851-52 (Ind. Cr. App. 2008), reh’g denied, trans. denied, a therapist at an in-patient psychiatric facility faxed the plaintiff’s diagnosis and the fact of her hospitalization to the plaintiff’s high school where the fax was viewed by school administrators and students, even though the plaintiff’s parents and the defendant had signed a confidentiality agreement that the information of plaintiff’s treatment was not to be disclosed to her school counselor. After the plaintiff filed suit for negligence and invasion of privacy, the hospital moved to dismiss the case on the grounds that plaintiff had omitted to present her claims to a medical panel. Id. at 852. Following the trial court’s Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019 Page 15 of 23  dismissal of the lawsuit because it was not brought under the MMA, the court of appeals unanimously reversed the trial court. Id. at 852. Framing the question as “whether a health care provider’s negligent or reckless dissemination of a patient’s confidential information to members of the general public comes within the purview of the [MMA],” this court analyzed the language of the MMA discussing whether each of three separate communications from the therapist to the plaintiff’s school counselor was sent for the purpose of providing health care or professional services for the patient. Id. Discarding two communications as being surveys which had not been sent for the purpose of healthcare or providing services and therefore could not constitute medical malpractice, the court of appeals determined that a third faxed communication had been sent for the “dual purpose of providing health care or professional services.” Id. at 854. This particular message, sent by the therapist to the school counselor and faxed to a machine located in the general secretarial pool in the main office, read as follows: Thanks for referral. Addressing issues of depressional stress. Doing well, withdrawn and anxious @ times. Please call @ . . . to discuss issues. Thanks again. Id. at 851-52. [28] Starting our analysis from BHC Meadows Hospital’s argument, we reasoned as follows: [The Hospital] argues that “[t]he reasonableness of [the t]herapist’s decision to communicate with [the school c]ounselor Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019 Page 16 of 23  and share confidential information during the course of [the t]herapist’s treatment constitutes the quintessential exercise of judgment in rendering professional services in caring for [plaintiff] and her serious, suicidal ideation.” We would agree with this statement on its face; however, what has been represented by [the plaintiffs] is much more than a confidential communication between a therapist and a counselor. It is undisputed that the therapist sent private, confidential information to the fax machine of a high school without knowing who had access to the machine. Indeed, we have doubts as to whether the [plaintiffs] would have experienced any injury had the therapist directly and privately communicated with H.D.’s school counselor who was already aware of her suicide note, although such communication would still have been in contravention of the [plaintiffs’] explicit wishes. For this reason, we conclude that the more appropriate question to answer is whether a health care provider’s negligent or reckless dissemination of a patient’s confidential information to members of the general public comes within the purview of the [MMA]. Id. at 854. Next, we concluded that the primary purpose of the MMA was to address difficulties health care providers were experiencing in obtaining professional liability insurance coverage. Nevertheless, we noted that the general claim asserted by the plaintiffs sounded in common law negligence and the purpose of the MMA would not be served by extending its provisions to the claim under consideration. Id. at 855. Accordingly, the court concluded that “the [plaintiffs] have articulated claims of ordinary negligence and similar claims; we are particularly persuaded that an average juror is well equipped to consider those claims.” Id. at 856. Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019 Page 17 of 23 [29] A more recent case from the Northern District of the United States District Court, interpreting Indiana’s MMA, reached a similar result. In Reed v. Rodarte, 2013 WL 594107 (N.D. Ind. 2013), Reed was injured during his employment. Rodarte—wrongly—diagnosed Reed with a sexually transmitted disease and informed Reed’s employer that this was not a work-related injury. Id. In filing his Complaint, Reed focused on the perceived violation of his privacy rights under HIPAA, state privacy laws, and state defamation laws. Id. Rodarte moved for a dismissal of the Complaint, alleging that the claim fell within the MMA. Id. The federal court reviewed the provisions of the Act, and Indiana case law pertaining to the issue of the scope of coverage, acknowledging that the MMA “extends to seemingly administrative tasks that are intricately related to patient care” because “the skillful, accurate, and ongoing maintenance of test and treatment records bears strongly on subsequent treatment and diagnosis of patients.” Id. (quoting Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182, 186 (Ind. 2011)). However, “Indiana courts have declined to extend the [MMA] to cover lawsuits stemming from unauthorized communications by a health care provider to third parties regarding the patients’ medical conditions.” Id. Relying on BHC Meadows Hospital, the federal court reasoned that “[u]nlike memorializing medical observations in a chart or authorizing a patient’s commitment, sharing a patient’s medical condition with a third party requires no ‘professional expertise, skill or judgment.’” Id. (quoting Collins, 552 N.E.2d at 510). Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019 Page 18 of 23 [30] Turning to the case at hand, G.F. does not contend that Dr. Patel’s statement led to an inaccurate diagnosis or improper treatment. Rather, in his Complaint, G.F. articulated his claims as to “whether the [MMA] applies to claims involving: the violation of a patient’s medical confidentiality; [and] the negligent or intentional disclosure of protected health information[.]” (Appellant’s App. Vol. II, p. 24). The fact that Dr. Patel’s statement was uttered in a facility that provides health care does not, by itself, make G.F.’s claim fall within the purview of the MMA. Doe ex rel. Roe, 652 N.E.2d at 104. Nor does the fact that G.F. was a patient of Dr. Patel create such a claim. Collins, 552 N.E.2d at 511. Instead, the test is based on the provider’s behavior or practices while “acting in his professional capacity as a provider of medical services.” Id. at 510. Based on these parameters, we cannot conclude that G.F.’s claims are within the boundaries of the MMA. [31] As in BHC Meadows Hospital, where the confidential information was directed at the school counselor, but instead was read by the secretarial and administrative staff of the school; likewise, here, the communication by Dr. Patel had the dual effect of providing medical information to G.F., while at the same time, an inadvertent broadcast disclosed confidential information to the visitor, a third party. It is this disclosure of confidential information that is the focus of G.F.’s claim; not the services provided by Dr. Patel. At no point did the broadcast of confidential information to the third party constitute a health care treatment to G.F., nor did Dr. Patel’s statement of G.F.’s HIV status to a third party have a curative or salutary effect on G.F. Furthermore, as in BHC Meadows Hospital Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019 Page 19 of 23  and Rodarte, we do not determine expert testimony to be necessary as “an average juror is equally equipped” to consider the elements of a state law privacy claim. See BHC Meadows Hospital, 884 N.E.2d at 856. Accordingly, G.F.’s Complaint, as it pertains to the negligent or intentional disclosure of protected health information, is not subject to the limitations of the MMA. [32] St. Catherine and Dr. Patel now maintain that, because G.F. filed his case both by a proposed complaint for medical malpractice with the IDOI, and also by an anonymous Complaint for damages in the Lake County Circuit Court, he thereby elected to file his case as a medical malpractice claim and should not now be permitted to argue that it is not governed by the MMA. Relying on Cmty Hospitals of Ind., Inc., v. Aspen Ins. UK Ltd, 113 N.E.3d 636 (Ind. Ct. App. 2018), they contend that G.F. is estopped from arguing his case should proceed pursuant to ordinary negligence principles. [33] In Aspen, this court interpreted our supreme court opinion in Manley v. Sherer, 992 N.E.2d 670 (Ind. 2013), and concluded that once plaintiffs have filed a proposed complaint with the Department of Insurance and received an unfavorable opinion of the medical panel, they no longer can contend that the MMA is not applicable to their claim. Aspen, 113 N.E.3d at 644. In Manley, the plaintiff was injured in a head on collision with Zehr, who had lost consciousness while driving due to medications prescribed by her physician, Dr. Sherer. Manley, 992 N.E.2d at 672. In evaluating the parties’ respective summary judgment arguments, our supreme court mentioned that the Manleys “filed their proposed complaint with the [IDOI] but at no time did they ever file Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019 Page 20 of 23  their complaint in court.” Id. at 673. It also observed that the Manleys, in their opposition to Sherer’s summary judgment motion, had argued that their claims were not subject to the MMA because Manley was not a patient of Sherer and thus her claim was not for medical malpractice subject to the special occurrence-based statute of limitation. Id. at 674. Before addressing the merits of the statute of limitations issue, the supreme court stated, We preliminarily reject the plaintiffs’ claim that their action against Dr. Sherer and his medical group is not governed by the [MMA]. The plaintiffs have treated it otherwise by filing their proposed complaint with the [IDOI] as required by the [MMA]. They may not now contend the [MMA] and its time limitation do not apply to their claim. Id. [34] We find the interpretation of Manley by this court in Preferred Prof’l Ins. Co. v. West, 23 N.E.3d 716 (Ind. Ct. App. 2014), trans. denied, to be more persuasive. In West, we considered the supreme court’s “remarks to be a comment particular to the facts and circumstances of the Manley case, not a statement of law.” Id at 732. The West court reasoned that We do not find that the West’s decision to simultaneously file complaints in the St. Joseph Circuit Court and the IDOI, likely done to avoid any potential statute of limitations issues, is problematic or that it thereby prevented them from pursuing a determination that the MMS did not apply to their claims. [The Fund] is in agreement, stating that plaintiffs, meaning the Wests or any others, may not decide that a case is one of medical malpractice simply by filing it as such, as that determination is Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019 Page 21 of 23  for the courts to make. As we have recognized, it is the substance of a claim, not its caption, which determined whether compliance with the MMA is necessary. Id. The West court’s interpretation of Manley is more in line with current precedents, in which a court determines whether the case is one of medical malpractice as defined by the MMA as a question of law by looking at the substance of the parties’ claims. Weldon, 714 N.E.2d at 1107; Doe by Roe, 652 N.E.2d at 104. See also Fairbanks Hosp. v. Harrold, 895 N.E.2d 732, 738 (Ind. Ct. App. 2008), trans. denied, (after medical panel found for plaintiff, court of appeals affirmed the trial court’s determination that the MMA did not cover Harrold’s claims). Accordingly, we conclude that G.F. was not estopped from pursuing a determination that the MMA did not apply to his claims. [35] We reverse the trial court’s conclusion that G.F.’s allegations constitute claims of medical malpractice subject to the applicability of the MMA. Therefore, its summary judgment in favor of St. Catherine and Dr. Patel was clearly erroneous. We remand for further proceedings in accordance with this opinion. CONCLUSION [36] Based on the foregoing, we hold that the trial court erred by allowing St. Catherine and Dr. Patel to file a response to G.F.’s motion for summary judgment outside the time period specified in Indiana Trial Rule 56. We also hold that the MMA is not applicable to claims involving negligent dissemination of protected health information and thus the trial court erred in granting summary judgment to St. Catherine and Dr. Patel. Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019 Page 22 of 23 [37] Reversed and remanded for further proceedings. [38] Bailey, J. and Pyle, J. concur Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019 Page 23 of 23 

8 So.3d 1039 (2007) RICHARD MICHAEL POWELL v. REBECCA ANN POWELL. No. 2040955. Court of Civil Appeals of Alabama. January 12, 2007. Decision of the Alabama Court of Civil Appeals without opinion. Affirmed; cross-appeal — Affirmed.

277 F.Supp.2d 547 (2003) David W. LEIDY and Kathleen E. Leidy, individually and as Co-Personal Representatives of the Estate of Roxanne Leidy and Guardians of the Estate of Amanda Leidy v. BOROUGH OF GLENOLDEN, Police Chief Edward Cooke, individually and in his official capacity, Police Officer Matthew Illich, individually and in his official capacity, County of Delaware, Police Dispatcher Raquel Lewandowski, individually and in her official capacity, Delaware County Board of Prison Inspectors, Wackenhut Corrections Corporation No. CIV.A. 01-4361. United States District Court, E.D. Pennsylvania. August 13, 2003. *548 *549 Jerome Brown, Philadelphia, PA, Philip A. Yampolsky, Cynwyd, PA, for Plaintiffs. Christopher R. Mattox, Diorio & Sereni, LLP, Media, PA, Sean P. McDonough, Dougherty, Leventhal & Price, LLP, Moosic, PA, for Defendants. MEMORANDUM DALZELL, District Judge. Gerald Bennett entered the Glenolden Borough Police Station to surrender on a bench warrant issued for failing to attend the sex offender treatment class mandated as a condition of his parole for indecent assault. But the police, instead of arresting Bennett, let him leave. Six days later, Bennett murdered with the strap of her bra Roxanne Leidy, the woman in whose home he was a boarder. He also raped her thirteen year old daughter, Amanda Leidy. Plaintiffs are David and Kathleen Leidy, the representatives of the Estate of Roxanne Leidy and the guardians of Amanda Leidy. They bring this action against the police officers and other state authorities whom they deem responsible for frustrating Bennett's surrender and enabling him to commit these horrific crimes.[1] Plaintiffs *550 allege that defendants deprived them of life and liberty under the Due Process Clause of the Fourteenth Amendment. This claim requires us to consider the doctrine of state-created danger and, as such, the interplay of private parties and state actors. Before us are defendants' motions for summary judgment. I. Standard of Review Summary judgment is proper if 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). In ruling on a motion for summary judgment, the Court must view the evidence, and make all reasonable inferences from the evidence, in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of proving that there is no genuine issue of material fact in dispute. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585 n. 10, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Once the moving party carries its burden, the nonmoving party must "come forward with `specific facts showing there is a genuine issue for trial.'" Id. at 587, 106 S.Ct. 1348 (quoting Fed.R.Civ.P. 56(e)). The task for the Court is to inquire "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505; Tabas v. Tabas, 47 F.3d 1280, 1287 (3d Cir. en banc 1995). Because defendants move for summary judgment, we set forth the facts in the light most favorable to plaintiffs. Cloverland-Green Spring Dairies, Inc. v. Penn. Milk Marketing Board, 298 F.3d 201, 205 (3d Cir.2002). II. Factual Background A. The Police Station At 5:42 p.m. on August 26, 1999, it is undisputed that Gerald Bennett entered the Glenolden Borough Police Station to surrender on a bench warrant a judge had issued for his arrest. Bennett entered the station with a man and two children. Bennett carried a duffle bag, apparently containing a change of clothes. Soon after they escorted Bennett into the station, the man and children who accompanied Bennett left. Police officer Matthew Illich was doing routine paper work when he noticed Bennett. Illich asked Bennett if he could help him and Bennett said that he was turning himself in. When Illich asked Bennett what he was turning himself in for, Bennett responded that his probation officer told him to surrender, but he would not state the reason. Illich Dep. at 14-18, 21, 25; Cooke Dep. at 79. Although Glenolden is a small community, Illich did not recognize Bennett. Illich sat Bennett down at a desk and took from him the personal information necessary to check for a warrant, i.e., name, date of birth, and social security number. Bennett also furnished a photographic identification at Illich's request. Illich Dep. at 14-18, 21, 83. Equipped with the announced fugitive's personal information, Illich telephoned the 911 dispatcher at the Delaware County Communications Center (known for purposes of this litigation as "Delcom") to *551 check whether a warrant was reported for Gerald Bennett. The dispatcher replied that one was. She noted that Gerald Bennett was wanted for violation of probation and a bench warrant for his arrest was recorded in NCIC, CLEAN, and the County Bench Book.[2] Transcript of radio call (Aug. 26, 1999) (in Pls.' Mot. Summ. J. at Ex. 7) (hereinafter "Aug. 26 Radio Call"). Illich did not ask the dispatcher to fax the printout of the NCIC and CLEAN "hit" on Gerald Bennett. The NCIC or CLEAN hit, it is undisputed, not only corroborated that there was a warrant for Bennett but also stated the county of issue, Delaware County, and the offense on which Bennett violated probation—indecent assault. Lewandowski Dep. at 31; Cooke Dep. at 62. Though Illich did not request a fax, there is a dispute as to whether a fax of the NCIC hit was sent to him. Illich denies having received it, and Police Chief Edward Cooke, who was also in the station that evening, has no specific recollection of seeing the fax. But Raquel Lewandowski, an experienced Delcom dispatcher and the dispatcher that evening, attests that it is her standard practice to fax the NCIC and CLEAN printout to the officer whether or not the officer requests it. Police Chief Edward Cooke confirms that experienced Delcom dispatchers do fax a printout of the NCIC or CLEAN hit regardless of whether the officer requests it. Illich Dep. at 74-76; Lewandowski Dep. at 59-60, 72; Cooke Dep. at 87, 88, 135. In view of this dispute of fact, we must assume on summary judgment that Officer Illich received the NCIC and CLEAN fax from dispatcher Lewandowski. After informing Illich that a bench warrant was published in NCIC, CLEAN, and the County Bench Book, police dispatcher Lewandowski told Illich that she would obtain confirmation of the warrant and call Illich back. Aug. 26 Radio Call. As it turns out, there is a distinction between checking and confirming a warrant. An officer "checks" whether one is subject to a warrant by running an inquiry on NCIC and CLEAN. If NCIC and CLEAN reveal that the person is subject to a warrant, the warrant has "checked out", and the person is placed in custody. The officer then must "confirm" the warrant. The officer confirms the warrant by obtaining a "hard copy" of the warrant, or the warrant itself. A facsimile of the warrant will also do. The officer furnishes the warrant to the constable who delivers the person to the Delaware County Prison ("the Prison"). Without the warrant, the Prison will not accept the fugitive. These policies for checking and confirming a warrant are further described infra Part II.C. The Delaware County warrants were stored in the Delaware County Prison. Consequently, to confirm the warrant, the Delcom dispatcher had to call the Prison to ask that the intake clerk retrieve the warrant and fax it to Officer Illich at the Glenolden Police Department. Since Illich expected that the warrant would arrive in *552 his fax machine momentarily, he called Constable Gerald Bosch to "get him started" with picking up Bennett and delivering him to the Prison. Illich Dep. at 18. Several minutes after they last spoke, the Delcom dispatcher telephoned Illich to inform him that the Prison did not have a warrant on Bennett. The transcript of that conversation evidences Illich's surprise, and even incredulity, that a warrant could not be found: [Dispatcher:] Um, the prison doesn't have anything on him. Mr. Gerald Bennett. [Illich:] Well that's funny, I just got a confirmation from CLEAN, there were squaring that away, County Bench and NCIC. [sic] [Dispatcher:] Yeah, but there's no hard copy. . . . Aug. 26 Radio Call at 3. Illich admitted that it is "unusual" for a warrant to come up on NCIC, CLEAN, and the Bench Book, but for the Prison not to have a copy of it. Indeed, Illich had never before experienced this discrepancy. Illich Dep. at 68-79. His suspicion that something was amiss was confirmed by the suspect's behavior. Bennett was "insistent" that he was wanted for violation of probation. "Bennett . . . appeared convinced that there should be a warrant for himself." Illich Dep. at 18, 56-57. But in tension with his certitude about his surrender, Bennett was vague and evasive about his crimes and the nature of his probation violation. Illich Dep. at 17, 19, 28-30, 56; See, e.g., id. at 30. ("He said, `Ah, I just got myself in a little trouble.' That was the extent of what I was able to elicit out of him."); id. at 19 ("I couldn't get anything out of him as far as what he said to his probation officer. He would not elaborate on what he had been on probation for."). Bennett's surrender, coupled with his evasiveness about his criminal offense, led Illich to conclude that he was a "wanted person." Illich Dep. at 28, 30-31. Illich telephoned Constable Bosch to tell him that the warrant could not be found and that he did not need to pick up Bennett. Illich also asked the constable to check among the constable warrants, or the warrants maintained by a constable and issued by a district justice. Illich apparently told Bennett about the difficulties confirming the warrant, and Bennett's demeanor changed noticeably. He became "antsy" and mused aloud, "maybe I'll just go." Illich Dep. at 19-22, 69-70. Illich consulted Police Chief Cooke, who was at the back of the station, about the Bennett problem. Police Chief Cooke had been in his office, but had seen Gerald Bennett arrive and had recognized the man who escorted him to the station as the assistant manager at the local Blockbuster. Cooke Dep. at 76, 30. Cooke spoke with Bennett briefly and then decided to release him because the police were "unable to confirm the existence of a warrant." Cooke Dep. at 77, 78, 86. Cooke advised Bennett, "Why don't you just go out there tomorrow and turn yourself into the probation officer?" Bennett appeared "receptive to the suggestion." Cooke Dep. at 77-78. Illich ushered Bennett to the door. At 6:28 P.M., less than an hour after he came to surrender, Bennett left the police station. Despite the troubling circumstances of their release of Bennett, the police officers never bothered to get Bennett's address. An address, in fact, was required on the incident report, a standard police form. Illich Dep. at 35-36; Cooke Dep. at 68-72, 80-81. The officers also did not bother to record the name of Bennett's probation officer, although Bennett had given it to them. Cooke Dep. at 77. It is undisputed that minutes after Bennett went on his way, Illich received a *553 phone call from Constable Bosch. The constable reported that the Prison found the warrant. The Delcom dispatcher called with the same disquieting news. On hearing this, Illich sped off in his patrol car to find Bennett. Cooke headed home. Cooke Dep. at 118. Illich checked the bus stops and pay phones within walking distance of the police station in a search that lasted, he said, fifteen to twenty minutes. Illich at 22-24. Aside from Officer Illich's perfunctory search, no one made any effort to find Bennett. Illich 24; Cooke Dep. 117-122. Police Chief Cooke did not contact the assistant manager at Blockbuster who had brought Bennett to the police station. Nor did the officers call the Delaware County Office of Adult Probation to check whether Bennett reported there. B. Telephone Call to the Prison As can be gathered, when police dispatcher Raquel Lewandowski called the Prison to confirm the warrant, she was given an inaccurate report that the warrant could not be found. It is possible to discover from the record how the effort to find the warrant went awry. The conversation between police dispatcher Lewandowski and Prison booking specialist Michelle Shannon, in which she missed the warrant on Bennett, was brief. We reproduce it in full. Hello Hello, this is Radio Room Hi Can you check for um, Bennett, last name is B-E-N-N-E-T-T Okay Gerald Birth date? His birth date is 8/20/69 All right, hold on Thanks Ah, huh Um, we don't have one Nothing? No, I didn't see anything. All right, I'll tell Glenolden to let him go then. All right Thanks You're welcome Bye, bye Aug. 26 Radio Call; Shannon Dep. at 38. Michelle Shannon testified that she thought that she heard "Joe Bennett." Shannon Dep. at 27. Further, as the transcript of the telephone call reflects, neither party made any effort to ensure that the correct name and spelling of the suspect was transmitted, such as to repeat back and spell the suspect's name. Shannon simply entered the last name "Bennett" in the county computer (in which the warrants kept at the Prison are logged), and when she saw that no fugitive appeared on her computer screen with the full name "Joe Bennett" declared that the Prison did not have a warrant. Aug. 26 Radio call; Shannon Dep. at 27-32; Pelleriti Dep. at 23. Constable Bosch, after Illich told him that the warrant could not be found, called the Prison himself and spoke to correctional officer Michael Pelleriti, who immediately found the warrant. Bosch Dep. at 12, 17-18; Pelleriti Dep. at 23. C. Police Department and Delaware County Handling of Warrants Delaware County and the Glenolden Police Department maintain a policy for "checking" and "confirming" warrants. Though not written down, the policy is authoritative at the county and municipal levels. To be sure, the policy has been articulated in the context of street arrests as opposed to voluntary surrenders. There is, however, little doubt that this practice is what Police Chief Cooke and *554 Police Officer Illich had in mind on the evening that Gerald Bennett tried to surrender. When an officer wants to check whether one is subject to a warrant, he or she radios to the dispatcher at Delcom and requests an NCIC and CLEAN inquiry. If NCIC and CLEAN report an open warrant, the officer places the person in custody and drives him to a police station. Cooke Dep. at 60. The officer then must confirm the warrant. Confirming a warrant is done because: An NCIC printout is not a legal document and has no — it's not from the Court. It's just a tool that's available to police. And it's up to the police officer, once he's armed with that NCIC hit, to confirm the validity of the warrant or the existence of a warrant. Cooke Dep. at 62. Though reliable, NCIC and CLEAN are not foolproof. Because of human error, or because a warrant has been rescinded and NCIC and CLEAN have not been updated, or because a person shares the same name or personal information as a wanted suspect, NCIC or CLEAN may report that someone is subject to a warrant who is not. Cooke Dep. at 64-68; Lewandowski Dep. at 63-66, 75. Confirming a warrant thus protects people's liberty against unnecessary and unlawful intrusion. Confirming a warrant is also done for another reason. The Prison, where those wanted on County warrants are detained, will not accept an inmate unless the constable delivering him has the warrant in hand. Cooke Dep. at 111; Lewandowski Dep. at 39-41,; Bosch Dep. at 27-28; Pelleriti Dep. at 43. Confirming a warrant is simply a way of verifying that a warrant is active and valid. The warrant is obtained from the jurisdiction that issued it. Since Delaware County issued the warrant for Bennett, and County warrants were kept in the Prison, the dispatcher had to call the Prison and request that the Prison fax Illich a copy. Once Illich received the faxed warrant, Constable Bosch could then come and bring Bennett to the Prison. Cooke Dep. at 62-63, 111. This litigation has exposed several possible flaws in the system of checking and confirming warrants. There is no policy to reconcile a discrepancy about the existence of a warrant. In other words, if one source of information says there is a warrant and another source of information says there is not, there is no requirement that the officer figure out which information is right or seek guidance on how to do so. Here, where four sources of information said that Bennett was subject to a warrant (Gerald Bennett himself, NCIC, CLEAN, and the Bench Book) and one source of information suggested he was not subject to a warrant (the Prison), Illich, an inexperienced police officer, was left to his own devices. Illich Dep. at 72; Cooke Dep. at 159-61; Lewandowski Dep. at 64. The absence of any guidance to officers on how to reconcile a discrepancy about the status of a warrant is all the more glaring given that warrants are confirmed several times a day and the Prison has failed to confirm valid warrants in the past. Lewandowski Dep. at 69-70; ltr. of Police Chief Edward Cooke to Warden Irwin Goldberg (9/2/99) (in Pls.' Mot. Summ. J. at Ex. 3); Cooke Dep. at 147-48, 158-59. Similarly, there are two situations in which a warrant is not confirmed which have very different consequences, although Delaware County treats them alike. The first is where the officer disconfirms the warrant.[3] The second is where the officer *555 neither confirms nor disconfirms the warrant.[4] In both instances, the suspect is released.[5] The officer need not even inquire into what the suspect is wanted for before releasing him in this manner. Cooke Dep. at 135-40. Nor do there appear to be even minimal measures that an officer must follow before deciding to release a suspect on the ground a warrant cannot be confirmed. Though there is a holding cell in the police station, there is no policy that addresses whether and under what circumstances a suspect should be detained while the officer confirms the warrant. There is no policy directing what procedures should be followed in confirming a warrant and what information is sufficient for an officer to conclude that a warrant has been (as it were) disconfirmed. Though it is quite clear what is necessary to confirm a warrant, no policies or procedures address at what point an officer can conclude that there is indeed no warrant. Officers Illich and Cooke released Bennett shortly after hearing that the Prison could not find the warrant. Other officers attest that they would have held Bennett longer and taken other investigative steps given the circumstances here. Constable Bosch at 30; Hill Dep. at 73; Gallagher Dep. at 16-17. Finally, there is no protocol dealing with a suspect's release when a warrant cannot be confirmed. No procedure exists, for example, that would find out whether the person is wanted for a minor offense or a serious crime. There seems to be no duty even to get the suspect's address or to confirm his identity. Given the lack of policy guidance governing the process of confirming a warrant and the detention of the suspect while confirmation takes place, it appears that, with the exception of Officer Illich's failure to get Bennett's address in order to prepare an incident report, nothing the officers did violated departmental policy. D. The Prison and Warrants The practice of storing County warrants at the Prison apparently dates back decades, and appears to derive its origins from when the Prison was the only law enforcement organization in the jurisdiction that was open twenty four hours a day and seven days a week. Hill Dep. at 18-20, 51. The warrants are maintained in the Intake Unit of the Prison. About 1996, Delaware County contracted out operation of the Prison (called the George W. Hill Facility) to Wackenhut Correctional Facility, a for-profit prison operator. Wackenhut runs the Prison *556 pursuant to a contract ("Contract") with the Delaware County Board of Prison Inspectors. The Delaware County Board of Prison Inspectors, together with Delaware County's Office of Superintendents, monitor Wackenhut's compliance with the Contract. Sexton Dep. at 12-16, 28; Hill Dep. at 8-10. The Contract contains the rules and regulations governing the day-to-day operation of the Prison. Sexton Dep. at 18. Though it provides for everything from the commissary to the laundry, it is silent on maintaining and retrieving warrants. Until this incident, in which the Prison failed to confirm the warrant on Gerald Bennett, the Delaware County of Board of Prison Inspectors and the Office of Superintendents never monitored the Prison's handling of warrants. Hill Dep. at 14, 22, 59; Sexton Dep. at 36-37. Within months of taking over, Wackenhut made staffing changes in the Intake Unit. Wackenhut replaced trained correctional officers with entry-level employees with no law enforcement background, known as "booking specialists." Pelleriti Dep. at 10, 16-17. Michelle Shannon was one such booking specialist, and she testified that the post she assumed at the Prison was her first job since graduating high school, apart from babysitting her niece and working at the neighborhood Friendly's and Wawa. Shannon Dep. at 7. Booking specialists were given no formal training on how to respond to inquiries about warrants. Shannon Dep. at 10-11, 17; Gallagher Dep. at 10-19; Pelleriti Dep. at 10-11. Thousands of open warrants were kept alphabetically in filing cabinets in the Intake Unit. They were also logged in the county computer. The untrained booking specialists were given no protocol or checklist to use when searching for warrants, such as (a) to read back the name and spelling of the suspect in question to the dispatcher, (b) to read to the dispatcher the names of all those listed as fugitives in the county computer with the same last name as the suspect, (c) to search for a warrant in the filing cabinet even if it does not come up in the computer, and (d) to check the fax machine for warrants that are newly arrived. Pelleriti Dep. at 39-41; Shannon Dep. at 18. Either (a) or (b) would have likely averted catastrophe here. E. Gerald Bennett We now turn to Gerald Bennett himself. In March of 1999, Bennett was released on parole after serving 11 ½ months in prison for indecent assault and for the prior offense of simple assault. He was assigned to probation officer Mary Beth DePaulis, a specialist in the supervision of sex offenders. DePaulis Dep. at 18, 21. When in their second meeting Bennett informed DePaulis that he again had not attended sex offender treatment class, a condition of his parole, DePaulis warned Bennett that his failure to participate in the program would result in a bench warrant being issued for his arrest. DePaulis Dep. at 21-22. When Bennett still failed to participate in the program, DePaulis sought, and obtained, a bench warrant from the Honorable Frank T. Hazel of the Delaware County Court of Common Pleas.[6] DePaulis Dep. at 21-22, 39. After Judge Hazel issued the bench warrant, Bennett telephoned DePaulis, and acknowledged his refusal to participate in the sex offender treatment class. Bennett also revealed that he was using illegal drugs. DePaulis instructed Bennett to turn himself in. Shortly thereafter, Bennett *557 came to the Glenolden Borough Police Station, which brings us to the events of this case. DePaulis Dep. at 29-39. On September 1, 1999, six days after he attempted to surrender to the Glenolden Police, Bennett fatally strangled Roxanne Leidy with the strap of her bra, and raped her thirteen year old daughter, Amanda Leidy. Roxanne and Amanda Leidy lived in a Delaware County apartment building, and Bennett resided with them. III. Substantive Due Process Analysis The Due Process Clause of the Fourteenth Amendment provides: "No State shall ... deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. It is well-settled that the Clause contains a substantive element that prohibits arbitrary governmental action regardless of the procedural safeguards afforded. County of Sacramento v. Lewis, 523 U.S. 833, 840, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 195, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989); Daniels v. Williams, 474 U.S. 327, 331-32, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Plaintiffs allege that the defendants permitted Gerald Bennett to leave, instead of arresting him, and thus created the opportunity for Bennett to commit his horrible crimes. Where, as here, someone allegedly has been deprived of life, liberty, or property at the hands of private individuals, analysis must begin with DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). See, e.g., Schieber v. City of Philadelphia, 320 F.3d 409, 416 (3d Cir. 2003); Brown v. Penn. Dep't of Health Emergency Med. Servs. Training Inst., 318 F.3d 473, 477 (3d Cir.2003). Joshua DeShaney was a young boy whose father beat him over an extended period of time. The State of Wisconsin knew of the abuse that Joshua suffered at his father's hands, and even took measures to help ensure the boy's well-being. The Department of Social Services took temporary custody of him and then sent a case-worker to monitor his family. 489 U.S. at 192-93, 109 S.Ct. 998. Despite telling indications that Joshua remained in grave danger from his abusive father, the State did nothing else. E.g. id. at 193, 109 S.Ct. 998 ("The caseworker dutifully recorded these incidents in her files ... but she did nothing more."). Eventually, Joshua was so severely beaten by his father that he suffered brain damage and was placed in a home for the profoundly disabled. Id. Joshua and his mother instituted an action against the Wisconsin Department of Social Services and its officials alleging they deprived Joshua of his right to liberty under the Due Process Clause of the Fourteenth Amendment. The Court of Appeals for the Seventh Circuit dismissed their claim, and the Supreme Court granted certiorari to decide "when, if ever, the failure of a state or local governmental entity or its agents to provide an individual with adequate protective services constitutes a violation of the individual's due process rights." Id. at 194, 109 S.Ct. 998. The Supreme Court resolved a circuit split in which several courts had decided, in an approach inconsistent with that of the Seventh Circuit, that once the State undertakes to rescue a child from private danger it assumes an affirmative duty to secure the child's liberty and life. Id. The Supreme Court recalled the text and legislative history of the Fourteenth Amendment and observed that the Fourteenth Amendment Due Process Clause is "phrased as a limitation on the State's power to act," not as a stricture on the behavior of private persons or a guarantee that the State provide "minimal levels of safety and security." Id. at 195, 109 S.Ct. *558 998. "Its purpose was to protect the people from the State, not to ensure that the State protected them from each other. The Framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes." Id. at 196, 109 S.Ct. 998. In short, the Due Process Clause "forbids the State itself to deprive individuals of life, liberty, or property" without due process of law. Id. at 195, 109 S.Ct. 998 (emphasis added). "Consistent with these principles," the Court continued, "the Due Process Clause[] generally confer[s] no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property."[7]Id. at 196, 109 *559 S.Ct. 998. "If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them." Id. at 196-97, 109 S.Ct. 998. Holding that "as a general matter ... a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause," the Court denied Joshua DeShaney's claim as asserting only a failure to protect. Id. at 197, 201, 109 S.Ct. 998. DeShaney does not necessarily and in all instances foreclose holding the State responsible for violence that private citizens inflict. Its holding that the State itself must cause the deprivation of life, liberty, or property in question does not, as a logical matter, preclude holding the State responsible where state action so enabled or encouraged private violence that the State can fairly be said to have caused it. As Judge Posner has trenchantly put it, "If the state puts a man in a position of danger from private persons and then fails to protect him ... it is as much ... as if it had thrown him into a snake pit." Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982). Realizing this, our Court of Appeals in 1996 announced a state-created danger doctrine which imposes liability under the Due Process Clause where the State has acted to create or increase a risk of harm that culminates in loss of life, liberty or property at the hands of private actors. See Kneipp v. Tedder, 95 F.3d 1199, 1201 (3d Cir.1996). This state-created danger doctrine consists of four elements[8]. "Determining the appropriate lens through which we must view actions in the state-created danger context, though, is a vexing problem." Brown, 318 F.3d at 479. We will begin by discussing the fourth element of Kneipp because it captures the state action requirement as DeShaney elucidates it. It also provides our fundamental reason for rejecting plaintiffs' claim. A. Did state actors use their authority to create an opportunity for harm that would not otherwise have existed? As we noted, the Fourteenth Amendment Due Process Clause does not require the State to provide protective services. If it does not require the State to provide protective services at all, it follows that it does not require it to provide adequate protective services. See Brown, 318 F.3d at 478; DeShaney, 489 U.S. at 202-03, 109 S.Ct. 998. Because plaintiffs at bottom complain about the adequacy of protective services, as a matter of law we must deny their § 1983 claim. To be sure, plaintiffs' argument has appeal. They contend that Police Officer Illich and Police Chief Cooke, by putting Bennett back on the street when, as a surrendering fugitive, he had come to turn *560 himself in, created an opportunity for Bennett to attack Roxanne and Amanda Leidy that would not have otherwise existed. Compelling as it is, we must reject this contention. Plaintiffs assume that the reference point for analyzing Kneipp element four is the moment when Bennett walked into the police station. We disagree. Under the Fourteenth Amendment, defendants were under no duty to obtain the warrant in the first place. Indeed, it does not follow as invariable supervision practice that a failure to comply with a term of probation or parole inevitably leads to an arrest warrant. Had no warrant ever issued, Bennett would still have committed his offenses. DeShaney instructs us that the failure to protect against private harm is not a deprivation of life or liberty under the Fourteenth Amendment. To violate the Fourteenth Amendment, the State itself must deprive an individual of life, liberty, or property, and after DeShaney its failure to protect an individual from private harm, alone, is no longer a viable theory. We must thus assess whether plaintiffs assert a failure to protect them from Bennett and something more. At first glance, when state actors put back on the street a fugitive who was surrendering on an open warrant, it appears that they actually created the opportunity for a crime to occur under element four.[9] But when we recall the entire context —that Bennett was a sex offender before these state actors became involved and that the State put him in prison, released him on parole, and issued a bench warrant for his arrest, but failed to accept his voluntary surrender—it becomes clear that the wrongs of which plaintiffs complain is that the State did not do enough to protect them from Bennett. "[A] constitutional duty to protect an individual against private violence may exist ... if the state has taken affirmative action which increases the individual's danger of, or vulnerability to, such violence beyond the level it would have been at absent state action." Freeman v. Ferguson, 911 F.2d 52, 55 (8th Cir.1990).[10] In the absence of any state action, Bennett still would have committed these offenses, or, to put it another way, there is no evidence to conclude that he would not have. State action neither made Bennett more violent nor made Roxanne Leidy and Amanda Leidy more vulnerable to Bennett.[11] *561 Illich and Cooke may have taken Bennett into custody. But when they released him he posed no more of a danger than he did before he came into the station. DeShaney, 489 U.S. at 201, 109 S.Ct. 998 ("That the State once took custody of Joshua does not alter the analysis, for when it returned him to his father's custody, it placed him in no worse position than that in which he would have been in had it not acted at all . . . ."). Other cases reinforce our analysis. In some cases where law enforcement officers were held responsible for a state-created danger, the officers acted to instigate private violence.[12] In others, the officers acted to place people in harm's way who would otherwise not have been at risk.[13] In others, the conduct of officers investigating crimes set off other hazards.[14] In a final set of cases, the officers intervened in such a way as to cut people off from their private sources of protection.[15] In contrast, where police officers took insufficient measures to avert or control private violence, courts have not deemed the loss of life or liberty to be the result of state action.[16] By foiling Bennett's surrender, the defendants gave inadequate protective service to the community. But inadequate protective services, like the failure to provide protective services at all, constitute only a failure to protect, and without more we must (reluctantly) deny plaintiffs' claim. Although we have found that plaintiffs' claim fails element four of Kneipp because *562 the defendants did not act to create or increase the danger that Gerald Bennett posed, we will in the interest of completeness briefly consider the other three Kneipp elements. B. Was the harm ultimately caused foreseeable and fairly direct? The defendants do not contest that Bennett's crimes were the fairly direct result of his abortive surrender. We therefore turn to whether the crimes that Bennett committed were foreseeable to the individual defendants. 1. Officer Illich and Chief Cooke Just as it is foreseeable that a drug user who fails to participate in drug treatment will relapse on drugs, it is foreseeable that a sex offender who fails to participate in sex offender treatment may well be more likely to commit a sex offense. While it may be true that Illich and Cooke did not know that Bennett's refusal to participate in sex offender treatment led to the warrant, there were enough other indications that Bennett was a sexual offender whose sexually-laden crimes were foreseeable to them. Both officers had reason to believe Bennett was a criminal subject to an open warrant. Bennett came to the station carrying a duffle bag and announcing his surrender. The check of NCIC, CLEAN, and the County Bench Book that the officers made — based upon the information Bennett himself gave them — corroborated that he was indeed wanted on an open warrant. Furthermore, Bennett's demeanor — his insistence there was a warrant and his reticence to discuss his criminal offense — bolstered the officers' belief that Bennett was a criminal. Illich Dep. at 17, 19, 28-30, 56; Cooke Dep. at 68-69, 127; see also Cooke Dep. at 76. In fact, the only evidence that Bennett was not wanted was the Prison's report that the warrant could not be found, a report that was at a minimum surprising, and one that the officers did not bother to verify or explain. The reason for the warrant was not a mystery. The NCIC and CLEAN search that Lewandowski performed at Illich's request revealed that Bennett violated his "probation" for indecent assault. Although Illich did not request the NCIC and CLEAN report, dispatcher Lewandowski testified that she faxed the NCIC and CLEAN report to him, and on summary judgment we must infer that she did. Even if Illich did not get the NCIC and CLEAN report from Lewandowski, the standard police protocol is that he should have requested it. Lastly, Gerald Bennett's rap sheet was available to Illich based upon the personal information that the surrendering fugitive supplied him. The rap sheet featured convictions of indecent assault, simple assault, robbery, and firearm offenses. We conclude that the information that (a) Bennett was wanted for violation of parole (or, as the NCIC reported, "probation") for a conviction of indecent assault, (b) Bennett's criminal history, and (c) his evasiveness about his criminal offense, made it foreseeable that Bennett would commit a violent sex offense. At a minimum, we hold that a reasonable jury could so find. 2. Dispatcher Lewandowski Whether the Delcom dispatcher could have foreseen Bennett's offenses is also a matter appropriate for a jury. On the one hand, Lewandowski had at her disposal law enforcement databases that contained Bennett's warrant status and criminal history. On the other hand, she did not have the opportunity to observe Bennett's demeanor and it appears that the patrol officer — not the dispatcher — has *563 the responsibility for deciding what information to obtain on a suspect and making inferences about the information. While a close call, we conclude that a jury could find that Bennett's offenses were foreseeable to Lewandowski. 3. Shannon The plaintiffs maintain that Michelle Shannon, who worked in the intake unit of the Prison as a booking specialist, and who handled the call from Lewandowski inquiring whether there was an open warrant in the Prison on Gerald Bennett, had access to information that would have forewarned her that Bennett had a propensity for committing sex crimes. They note that Shannon could have learned of Bennett's criminal history from the computer terminals in the intake unit. Even if we overlook the fact that there is no evidence from which to find that Shannon knew how to use the computers in question, we conclude that no trier of fact could find that Shannon could have foreseen the crimes that Bennett committed. Shannon was a clerical employee with no law enforcement background. Given this, she was not in a position to understand the risk that releasing Gerald Bennett posed. C. Did the state actors act in willful disregard for the safety of plaintiffs? This prong must be modified in light of Supreme Court case law since Kneipp. In County of Sacramento v. Lewis, 523 U.S. 833, 845-55, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), the Supreme Court made clear that for state action to violate the substantive Due Process Clause it must shock the conscience. Only conduct that is truly egregious will "shock the conscience." While the standard is situation-specific, "conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level," whereas negligence is never enough to shock the conscience. See id. at 846-49, 118 S.Ct. 1708. With this standard in mind, we turn to the individual defendants. 1. Police Chief Cooke We think that the behavior of Police Chief Cooke was not only reckless but bad enough that a reasonable jury could conclude that it shocks the conscience[17]. Police Chief Cooke released Gerald Bennett in conscious disregard for the risk that he posed to the public. Chief Cooke did not care what Gerald Bennett was on probation for. He did not care what the violation of probation was. He was not *564 even concerned whether Gerald Bennett was a sexual predator or a senior member of Al Qaeda. The record can be read to support the disturbing conclusion that what Chief Cooke was most concerned with was showing Bennett the door when learning that the Prison did not have the warrant.[18] This is not the first time that the Prison failed to confirm a warrant. Cooke knew that the Prison failed to confirm valid warrants in the past. Cooke Dep. at 147-148, 158-59; Letter of Edward Cooke to Irwin Goldberg (Sept. 2, 1999). Nevertheless, Cooke released Bennett without making any effort to determine whether there was a warrant, in the face of obviously conflicting information. The defendants contend that Cooke was just following County policy and, thus, had no choice but to behave in the manner he did. While the record may be susceptible to this reading, it is equally susceptible to the conclusion that County policy was not in the final analysis responsible for the release of Bennett. For example, while the well-settled policy and practice was for the warrant to be confirmed before the suspected fugitive would be delivered to the Prison, there was no policy directing how to confirm a warrant or dictating at what point a warrant could not be confirmed. Rather, the policy seemed to leave those questions to common sense, a commodity that was conspicuously absent here. Chief Cooke bureaucratically threw up his hands and concluded that he could not confirm the warrant based upon the lone word of the Delcom dispatcher even though the confessed suspect was detained (if at all) for only a few minutes. Nor was there a policy obliging the officer to ignore the suspect's criminal history and the magnitude of his parole violation or to release the suspect without taking enough information *565 from him so that he could be arrested if the warrant were later found. The defendants' argument that the Fourteenth Amendment required Cooke to behave as he did is equally without merit. An officer may arrest one without a warrant so long as there is probable cause. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). Cooke does not deny that there was probable cause to arrest Bennett here. E.g. Cooke Dep. at 102 ("NCIC hit is hard probable cause to detain."). Of course, one arrested without a warrant is entitled to a probable cause hearing within forty-eight hours. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). But Cooke, in a tiny fraction of that time, and without exploring avenues of inquiry into whether there was a warrant, decided that Bennett should be released. Having made no serious attempt to figure out whether there was a warrant and releasing Bennett in the face of conflicting information — including Bennett's own surrender — Cooke's decision to release Bennett could shock the conscience. Cooke "suggested" to Bennett that he turn himself into his probation officer the following morning. But he never checked whether Bennett did. He did not so much as take down Bennett's address or the name of his probation officer in the event that the Prison found the warrant. When the Prison did find the warrant minutes after Bennett left, instead of attempting to pursue Bennett (who was on foot and carrying a duffle bag), Cooke decided to go home. In the days that followed, Cooke made no effort to find Bennett. He did not call the probation office to inquire whether Bennett reported there. He did not even call the assistant manager at Blockbuster who had escorted Bennett to the police station. In summary, a jury could conclude that Police Chief Cooke's supine, bureaucratic inaction constituted conscience-shocking deliberate indifference. 2. Police Officer Illich Many of these criticisms of Cooke could of course be leveled at Illich. But in our view Illich's behavior does not reach the conscience-shocking level. Illich was an inexperienced employee who went to his supervisor for help. Once Illich briefed Cooke on the details of Bennett's attempt to surrender, Cooke took over and made the decision that Bennett should be released. Because Illich realized he was confronted with an unusual situation, went to his supervisor for help, and then deferred to his supervisor's instruction, Illich's conduct could not shock the conscience of a reasonable jury. 3. Dispatcher Lewandowski Nor could police dispatcher Lewandowski's conduct be deemed to shock the conscience of a reasonable jury. Lewandowski correctly performed the search of NCIC, CLEAN, and the County Bench Book. She told Illich that a warrant was listed. She called the Prison to confirm the warrant, and reported to Illich that the warrant could not be found. While performing these tasks, she monitored the radio in order to receive calls from other officers. The worst that can be said of Lewandowski is that she was negligent. But negligence is not a legitimate basis to conclude that a state actor's conduct shocks the conscience. 4. Booking Specialist Shannon Michelle Shannon was an entry-level employee with no law enforcement experience and no formal training on handling of warrants. While reasonable jurors could find her negligent, we believe that such *566 jurors could not find her carelessness in searching for the warrant to shock the conscience. Employee incompetence, being not unusual, is not shocking and is not the kind of outrageous abuse of power against which the Fourteenth Amendment Due Process Clause guards. See Lewis, 523 U.S. at 846-47, 118 S.Ct. 1708 (explaining that only executive behavior that is brutal, offensive, or otherwise egregious is conscience shocking and, thus, arbitrary in the constitutional sense); see generally Collins v. City of Harker Heights, Texas, 503 U.S. 115, 129, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). D. Was there some relationship between the State and the plaintiffs? There must be "some relationship" between plaintiffs and the State which would make the plaintiffs foreseeable victims in the tort sense. We note that some circuits have implicitly rejected the "some relationship" requirement of the Kneipp test. As the Seventh Circuit has stated, "When the police create a specific danger, they need not know who in particular will be hurt" for "[s]ome dangers are so evident, while their victims are so random, that state actors can be held accountable by any injured party." Reed v. Gardner, 986 F.2d 1122, 1127 (7th Cir.1993); see generally Matthew D. Barrett, Failing to Provide Police Protection: Breeding a Viable and Consistent `State-Created Danger' Analysis for Establishing Constitutional Violations under Section 1983, 37 Val. U.L.Rev. 177, 218-19 (2002) (describing the divergent approaches of the circuits on whether there must be a foreseeable plaintiff). While it has been refined, neither the Supreme Court nor our Court of Appeals have repudiated the "some relationship" test. Our task thus remains to assess whether "some relationship" between plaintiffs and the State has been established. Gerald Bennett lived in an apartment with Roxanne and Amanda Leidy when he attacked them, a fact the defendant state actors did not know. Even if Illich or Cooke had asked Bennett his address, it is not clear that Bennett would have given them the address of the apartment where he lived with plaintiffs. Bennett was a transient who resided at several addresses. DePaulis Dep. at 25-26. Moreover, the defendants had no reason to know that Bennett posed a particular risk of harm to the women with whom he lived. It is true that to be a foreseeable plaintiff within the meaning of the some relationship test, the particular plaintiff need not have necessarily been foreseeable. It is enough that the plaintiff is among a class of foreseeable victims. Kneipp, 95 F.3d at 1209 n. 22; Morse v. Lower Merion School Dist., 132 F.3d 902, 912-14 (3d Cir.1997). The Court of Appeals in Morse left undecided the "by no means [] easy question" of whether "all those present in Lower Merion High School" constituted a sufficiently distinct class of persons to be a foreseeable class within the meaning of the some relationship test. Id. at 914. Even viewing the question as whether Roxanne and Amanda Leidy were part of a class of foreseeable victims, we must conclude that plaintiffs do not satisfy the "some relationship" element. Roxanne Leidy and Amanda Leidy were foreseeable to the defendants only in the general sense that they were female residents of Delaware County. This made them part of a vast and diffuse, rather than discrete, class of foreseeable victims as Kneipp requires. See Morse, 132 F.3d at 912-14. E. Municipal Liability In addition to the individual defendants, plaintiffs assert a claim of substantive due process against the municipal defendants and other subdivisions of the *567 state — Glenolden Borough, Delaware County, Delaware County Board of Prison Inspectors, and the for-profit prison operator Wackenhut. For these defendants to be held responsible for the deprivation of a constitutional right, they must be "the moving force" behind the constitutional violation. Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Municipal policy, practice, or custom must cause the deprivation of the constitutional right. See id. at 690-91, 694, 98 S.Ct. 2018. A jury could conclude that policies or practices of these defendants caused Gerald Bennett to be released when he came to surrender. The Delaware County and Glenolden Borough practice of "checking" and "confirming" warrants could be seen as fostering Bennett's release. Further, the Delaware County Board of Prison Inspectors' acquiescence as Wackenhut transferred responsibility for retrieving warrants to poorly-trained entry-level workers could reasonably be seen as rendering the Delaware County Board of Prison Inspectors and Wackenhut responsible as well. The lax training of the entry-level workers tasked with handling the warrants led directly to the booking specialist, Michelle Shannon, missing Bennett's warrant. Nevertheless, while we do not dispute the causal nexus between the policies and practices of the municipal defendants and Wackenhut and Bennett's release, the defendants cannot be held liable because their behavior did not cause the deprivation of a constitutional right. As we have explained, the failure of the government to protect citizens from crime, without more, does not violate the Fourteenth Amendment. F. Conclusion By our holding, we do not condone defendants' behavior. Roxanne and Amanda Leidy endured unspeakable horrors in part because of some defendants' lassitude and incompetence. As plaintiffs' expert put it, "Threads of missed opportunities and failure to perform routine investigative steps wove themselves into a braid of events which ultimately culminated in a horrible tragedy which most certainly would have been averted if everyone in the system had done their jobs properly." Expert Report of O'Reilly at 10. The fact of the matter is that the sufficiency of protective services is for the people, through their elected representatives, to decide. See DeShaney at 196, 109 S.Ct. 998. Just as Delaware County (through the private prison company Wackenhut) saved money by replacing trained correctional officers with entry level employees, jurisdictions throughout the country are faced with the difficult task of deciding how to spend scarce public resources. Though the defendants here surely will win no awards for good law enforcement, the quality and breadth of police protection is the preserve of the states and not judges and juries under the Fourteenth Amendment, at least as the Supreme Court in has construed it. IV. State Law Analysis[19] Plaintiffs also assert claims under state law. They first allege negligent infliction of emotional distress against Wackenhut and the individual defendants. The Pennsylvania Political Subdivision Tort Claims Act immunizes individual officials from liability for personal injuries to the same extent as the local agencies that employ them except, however, *568 that individual officials may be held liable for acts amounting to actual fraud, actual malice, or willful misconduct. See 42 Pa. C.S. §§ 8541-42, 8545, 8550. Since there is no evidence from which a jury could find that the individual-official defendants intended to violate the law or to bring about the harm that resulted to the plaintiffs, we are constrained to conclude that under the Act they are immune from liability for negligent infliction of emotional distress. See Brown v. Muhlenberg Township, 269 F.3d 205, 219 (3d Cir.2001) (defining willful misconduct as entailing intent to harm); Sameric Corp. of Del., Inc. v. City of Philadelphia, 142 F.3d 582, 600-01 (3d Cir.1998) (defining willful misconduct as involving knowledge that conduct is unlawful). This leaves us to consider the tort against remaining defendants Wackenhut and Michelle Shannon. Negligent infliction of emotional distress affords relief for emotional distress caused by contemporaneous observation of an injury to a close relative. Mazzagatti v. Everingham, 512 Pa. 266, 516 A.2d 672 (1986). Minor plaintiff Amanda Leidy not only was sexually attacked by Gerald Bennett, but was in the apartment when he strangled her mother. There can be no doubt that the young Ms. Leidy suffered lasting and profound distress as a consequence of Bennett's terrible criminal acts. The only question is whether the distress that she endured can be attributed to the negligence or other tortious behavior of the defendants. While negligent infliction of emotional distress affords a remedy to the close relatives of victims, there must be an underlying tort.[20] The issue becomes whether the murder of Roxanne Leidy can be attributed to the negligence of Wackenhut or Michelle Shannon.[21] Negligence consists of four elements: a duty recognized by law requiring the defendant(s) to conform to a certain standard of conduct; failure to conform to the standard required; a causal connection between the conduct and injury; and actual damages or loss. Morena v. South Hills Health Sys., 501 Pa. 634, 462 A.2d 680, 684 n. 5 (1983). In general, the law recognizes no duty to protect others from harm. Emerich v. Phila. Ctr. for Human Dev., 554 Pa. 209, 720 A.2d 1032, 1036 (1998) ("Under common law, as a general rule, there is no duty to control the conduct of a third party to protect another from harm."); Restatement (Second) of Torts § 315 (1965). Therefore, to hold defendants Shannon and Wackenhut responsible for the criminal torts Bennett committed, plaintiffs invoke the following exception, which the Restatement suggests to the general rule: § 324A Liability to Third Person for Negligent Performance of Undertaking One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary *569 for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking. Restatement (Second) of Torts § 324A (1965). We will consider cases in which the courts of Pennsylvania have recognized a duty under § 324A to assess whether or not § 324A of the Restatement supplies a duty here. In Emerich, 720 A.2d at 1040, the Supreme Court of Pennsylvania recognized a duty of a psychiatrist to warn "a specifically identified or readily identifiable" third person about whom a patient has communicated "a specific and immediate threat of serious bodily harm." In that case, a patient disclosed to his psychiatrist that he intended to kill his exgirlfriend. Id. at 1034-35. In DiMarco v. Lynch Homes-Chester County, 525 Pa. 558, 583 A.2d 422, 424-25 (1990), the Pennsylvania Supreme Court recognized the duty of a doctor to warn a patient with hepatitis to refrain from sexual relations. Similarly, in Troxel v. A.I. Dupont Institute, 450 Pa.Super. 71, 675 A.2d 314, 316, 321 (1996), the Superior Court recognized the duty of a doctor to warn a patient with cytomegalovirus, a disease which is particularly contagious to pregnant women, to avoid physical proximity to women who are pregnant. Though plaintiffs rely on Troxel and DiMarco, subsequent cases disclose that those cases turn on the peculiar nature of infectious diseases, the unique expertise of physicians, and the limited and relatively controllable class of persons whom a patient with a communicable disease is likely to infect. In two cases after DiMarco, the Pennsylvania courts declined the invitation to extend DiMarco beyond infectious diseases. Witthoeft v. Kiskaddon, 557 Pa. 340, 733 A.2d 623 (1999) (deciding that failure of doctor to warn patient and Pennsylvania Department of Transportation about poor visual acuity does not render doctor liable to third person whose car the patient strikes); Crosby v. Sultz, 405 Pa.Super. 527, 592 A.2d 1337 (1991) (same). The lynchpin of both decisions was that a defendant does not ordinarily owe a duty to a plaintiff who is no more a foreseeable victim than the public at large. See Witthoeft, 733 A.2d at 629-30; Crosby, 592 A.2d at 1345. Recently, in F.D.P. v. Ferrara, 804 A.2d 1221 (Pa.Super.2002) the Pennsylvania Superior Court addressed the question whether a mental health institution had a duty to a child whom a child molester released on furlough sexually assaulted. The Court recalled the general rule that there is no duty to protect third persons from harm and held that no exception to the general rule applied.[22]Id. at 1228-32. Because the law does not recognize a duty to protect others from harm, *570 and the case law does not warrant finding that an exception to that general rule exists here, we conclude that Wackenhut and Shannon did not have a duty to protect Roxanne and Amanda Leidy from Bennett. Consequently, the claim of negligent infliction of emotional distress must fail. The claim of negligent hiring and supervision also fails because neither Wackenhut nor Shannon breached a duty of care toward plaintiffs. Since all substantive claims will be dismissed, state law claims that are derivative of them — namely, wrongful death and survival — will be dismissed as well. An appropriate Order will follow. ORDER AND NOW, this 13th day of August, 2003, upon consideration of the motion for summary judgment of Wackenhut Corrections Corporation and Michelle Shannon (Doc. No. 30), the motion for summary judgment of County of Delaware, Delaware County Board of Prison Inspectors, and Raquel Lewandowski (Doc. No. 31), and the motion for summary judgment of the Borough of Glenolden, Edward Cooke, and Matthew Illich (Doc. No. 32), and the responses and replies thereto, in accordance with the Memorandum issued this day, it is hereby ORDERED that: 1. The motions for summary judgment are GRANTED; 2. JUDGMENT IS ENTERED in favor of defendants, Wackenhut Corrections Corporation, Michelle Shannon, County of Delaware, Delaware County Board of Prison Inspectors, Raquel Lewandowski, Borough of Glenolden, Edward Cooke, and Matthew Illich, and against plaintiffs, David W. Leidy and Kathleen E. Leidy, individually and as co-representatives of the Estate of Roxanne Leidy and co-guardians of the minor Amanda Leidy; and 3. The Clerk shall CLOSE this case statistically. NOTES [1] Plaintiffs invoke our federal question jurisdiction, as their civil rights claim is grounded on 42 U.S.C. § 1983. Defendants are the Borough of Glenolden, Chief of Police Edward Cooke, Police Officer Matthew Illich, Delaware County Communications Center dispatcher Raquel Lewandowski, the County of Delaware, the Delaware County Board of Prison Inspectors, Wackenhut Corrections Corporation, and an employee of Wackenhut Corrections Corporation, Michelle Shannon. [2] NCIC (National Crime Information Center) and CLEAN (Criminal Law Enforcement Assistant Network) are computer databases that law enforcement officers commonly use. NCIC reports wanted and missing persons nationwide and CLEAN is specific to the Commonwealth of Pennsylvania. The fields in both databases are the same, and for wanted persons, include name, date of birth, social security number, race, place of issue, date of issue, and the reason for the warrant. Since the warrant for Gerald Bennett was issued by a subdivision of the Commonwealth of Pennsylvania, the warrant appeared in both NCIC and CLEAN. Lewandowski Dep. at 27-32, 41; Hill Dep. at 17. The County Bench Book is an updated binder kept in Delcom that lists all fugitives wanted on Delaware County warrants. Lewandowski Dep. at 38, 66. [3] have the agency tell you that that warrant has been taken care of and rescinded and we forgot to take it out of NCIC. Cooke Dep. at 64. [4] agency could tell you, small department, I can't get a hold of the detective, he's not around, I believe there might be a warrant in his office, and I can't get my hands on it. Cooke Dep. at 64. [5] So if I understand what you're saying, in Example No. 1, the agency says that the hit is not valid because the warrant previously existed but has since been rescinded? A: Yes. Q: So as opposed to obtaining confirmation that a warrant exists, in that instance, you're getting confirmation that the warrant does not exist? A: Yes. Q: And what happens next? A: Then the person will be released. ... Q: And Example No. 2 that you gave me ... was where the issuing agency is indicating they believe there's a warrant, but they can't place their hands on it immediately? A: Yes. Q: What's supposed to happen then? A: The person will be released. Cooke Dep. at 65-67. [6] The sex offender treatment class consisted of an initial session with a psychiatrist and therapist followed by weekly group therapy classes. DePaulis Dep. at 23-25. [7] The holding of DeShaney, that the State itself must deprive an individual of life, liberty, or property was not a constitutional departure. See Civil Rights Cases, 109 U.S. 3, 11-18, 3 S.Ct. 18, 27 L.Ed. 835 (1883) (deciding that the Fourteenth Amendment guarantees individual liberty against governmental and not private invasion). Where DeShaney is significant is in its elaboration of the relationship between state action and the deprivation of life, liberty, or property under the Fourteenth Amendment. Before DeShaney it could have been argued that the State deprives one of life, liberty, or property by failing to furnish the citizen with the means to enjoy those rights. In that vein it could have been argued that by failing to supply food and shelter to the needy, or failing to provide effective police protection, the State deprives people of life, liberty or property. DeShaney forecloses that understanding. E.g. id. at 196, 109 S.Ct. 998 ("[T]he Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual."). Based on its reading of the text—"the Clause is phrased as a limitation on the State's power to act"—and its understanding of the intent of the Framers—"the Due Process Clause of the Fourteenth Amendment was intended to prevent government from abusing its power or employing it as an instrument of oppression"—the Supreme Court held that the Due Process Clause generally does not oblige the State to protect individuals from private danger. Id. at 195-96, 109 S.Ct. 998 (quotations and alterations omitted). The decision of DeShaney rests on a "negative" notion of liberty or the idea that rights serve to curtail government authority, a view Judge Posner has expressed as follows: [T]he Constitution is a charter of negative rather than positive liberties. The men who wrote the Bill of Rights were not concerned that government might do too little for the people but that it might do too much to them. The Fourteenth Amendment, adopted in 1868 at the height of laissez-faire thinking, sought to protect Americans from oppression by state government, not to secure them basic governmental services. ... [A contrary view] would turn the clause on its head. It would change it from a protection against coercion by state government to a command that the state use its taxing power to coerce some of its citizens to provide services to others. Jackson v. City of Joliet, 715 F.2d 1200, 1203-04 (7th Cir.1983). For a critique of the view that the Due Process Clause operates as a restraint on government authority, but not as a guarantee that the government preserve individual life, liberty, and property against private invasion, see Steven J. Heyman, The First Duty of Government: Protection, Liberty and the Fourteenth Amendment, 1991 Duke L.J. 507 (Dec.1991) (opining that the Fourteenth Amendment required the states to protect the fundamental rights of all persons, and that those fundamental rights are inalienable, natural law rights, including the right to protection against private violence); Robin West, The Constitution and the Obligations of Government to Secure Material Preconditions For a Good Society: Rights, Capabilities, and the Good Society, 69 Fordham L.Rev.1901, 1906-12 (2001) (observing that just because constitutional rights obtain against the State does not mean that they do not extend to state action as well as state inaction); Susan Bandes, The Negative Constitution: A Critique, 88 Mich. L.Rev. 2271, 2308-2327, 2346-47 (suggesting that in the modern social welfare state, the failure of the State to protect against private violence is the deprivation of life, liberty or property). We do not take sides in this debate, and under DeShaney, we cannot. [8] The Court of Appeals recapitulated the four Kneipp factors as: "(1) The harm ultimately caused was foreseeable and fairly direct; (2) the state actors acted in willful disregard for the safety of the plaintiff; (3) there existed some relationship between the State and the plaintiff; and (4) the state actors used their authority to create an opportunity that otherwise would not have existed for the private party to cause harm." Brown, 318 F.3d at 479 (citing Kneipp, 95 F.3d at 1208). It bears mentioning that the Brown panel scrutinized the case twice, once after argument on April 18, 2002 and again upon panel rehearing submitted on September 12, 2002. See id. at 473. Shortly after the panel vacated its decision, we placed this case in civil suspense pending final appellate action in Brown. See Leidy v. Borough of Glenolden, C.A. No. 01-4631, docket no. 43 (E.D.Pa. Oct. 1, 2003). We restored this case to active status the day after the panel released its January 22, 2003 iteration. [9] A jury could readily find that had the defendants arrested him, Bennett would not have had the opportunity to commit these offenses. The testimony of probation officer DePaulis discloses that once Bennett was held on the bench warrant the initial hearing on the probation violation would not have taken place for at least two weeks and Bennett would have been kept in custody until then. At the hearing, the probation officer can recommend to the judge (to whom it is her job to report) a range of dispositions. DePaulis stated that she would likely have recommended to Judge Hazel that Bennett have his parole revoked, or, at the very least, that Bennett undergo a psychiatric evaluation before a disposition be made. DePaulis Dep. at 31-32, 42-43, 55, 57-58. [10] Accord Schieber, 320 F.3d at 416 ("[A] constitutional violation may occur when the state acts in a way that makes a person substantially more vulnerable to injury from another source than he or she would have been in the absence of the state intervention."); DeShaney, 489 U.S. at 201, 109 S.Ct. 998 ("That the State once took custody of Joshua does not alter the analysis, for when it returned him to his father's custody, it placed him in no worse position than that in which he would have been in had it not acted at all ...."). [11] Admittedly, Kneipp element four can be read as satisfied here if we assess state action only from the moment that Bennett walked in the door of the police station forward. But this is in part because element four is so elastic. It could, for example, cover anyone on supervision who commits a new offense. Even the state action complained of in DeShaney can be seen as satisfying it. We have thus construed element four in a manner that harmonizes it with DeShaney, as Brown was at such pains to do. By failing to execute a warrant issued by the court, defendants placed plaintiffs in no greater danger than had the state actors not acted at all. [12] Butera v. District of Columbia, 235 F.3d 637, 641-44 (D.C.Cir.2001) (recruiting drug user to serve as undercover buyer in murder investigation); Monfils v. Taylor, 165 F.3d 511, 513-15 (7th Cir.1998) (disseminating tape of telephone call by anonymous informant as to criminal about whom he informed); Roberson v. City of Philadelphia, No. 99-3574, 2001 WL 210294, at *12 (E.D.Pa. Mar. 2, 2001) (telling one feuding family that the rival family went to police to file complaint). [13] Cornelius v. Town of Highland Lake, 880 F.2d 348, 351 (11th Cir.1989) (dispatching "community work squad" of inmates to vicinity of town hall); Wood v. Ostrander, 879 F.2d 583, 586 (9th Cir.1989) (arresting driver and impounding car forcing passenger to walk home alone on high-crime highway). [14] Estate of Smith v. Marasco, 318 F.3d 497, 502-07 (3d Cir.2003) (deploying officers replete with riot gear and "flash bang distraction devices" causing suspect to suffer cardiac arrest); Reed v. Gardner, 986 F.2d 1122, 1127 (7th Cir.1993) (arresting designated driver). [15] Kneipp, 95 F.3d at 1211 (separating intoxicated pedestrian from escort); Schieber, 320 F.3d at 414-415, 427-28 (discouraging neighbors from attempting rescue). We note that Schieber was dismissed on other grounds. 320 F.3d at 117-23 (holding that conduct of police officers did not shock the conscience). The entire Court of Appeals panel and the District Court, nevertheless, subscribed to the view that separating one from her private source of protection can constitute the deprivation of life or liberty under the Fourteenth Amendment. 320 F.3d at 414-15, 423-25, 427-28. [16] Brown v. Grabowski, 922 F.2d 1097 (3d Cir.1990) (failing to institute criminal charges or advise victim to get restraining order); Commonwealth Bank & Trust Company v. Russell, 825 F.2d 12 (3d Cir.1987) (escaped prison inmate); Roberson, 2001 WL 210294, *1, 12 (failure to execute arrest warrant); Henderson v. City of Philadelphia, No. 98-3861, 1999 WL 482305, aff'd without opinion at 216 F.3d 1076 (3d Cir.2000) (young man jumping out window at sight of state officials arriving to bring him to asylum); Estate of Burke v. Mahoney City, 40 F.Supp.2d 274 (E.D.Pa.1999) (refusing to defuse a fracas at party). [17] The standard shocks the conscience "duplicates no traditional category of common-law fault." Id. at 848, 118 S.Ct. 1708. Conduct that shocks the conscience in one circumstance may fail to in another. Id.; see generally Schieber, 320 F.3d at 417-21; Smith, 318 F.3d at 508-509. The Supreme Court has found that in situations calling for a rapid response and involving the pull of competing obligations, such as with a high-speed car chase or prison riot, only an intent to harm will shock the conscience. In contrast, where the circumstances allow the luxury of relaxed deliberation largely free of the pull of competing obligations, such as with a prison official performing routine inmate care, deliberate indifference will shock the conscience. Lewis, 523 U.S. at 853-54, 118 S.Ct. 1708. The circumstances of this case more closely resemble that of a prison official performing routine care than a car chase or riot. Illich and Cooke were not pressured by time or a resistant suspect. See, e.g., Cooke Dep. at 105; Illich Dep. at 14-15. Bennett's confession and the appearance of the warrant on NCIC and CLEAN gave the officers probable cause to detain. We thus find deliberate indifference to have been enough to shock the conscience here. [18] The following excerpts illustrate Police Chief Cooke's deliberate disregard for the risk that Gerald Bennett posed to the public: Q: Did you care one way or the other whether he was on probation for a violent crime or a non-violent crime? A: That wasn't the issue that night. Q: So the answer was no, you didn't care one way or the other whether it was a violent or a nonviolent crime? A: I never — I didn't give it any thought. Q: Did you give any thought to whether or not Mr. Bennett was a dangerous individual? A: No. Q: Did you make any effort to investigate whether or not Mr. Bennett had a prior history of being a dangerous individual? A: I did not personally, no. Q: Did anyone in the Glenolden Police Department? A: I don't know. . . . A: I didn't ask him if he was convicted of speeding or murder. I didn't ask him any of that. . . . Q: You indicated that you told Mr. Bennett to contact his probation officer. Did you care one way or the other whether he agreed that he would? A: In the absence of the warrant, it didn't matter to me if he contacted him or not. . . . Q: Well, just knowing in general what you know today, which is that Mr. Bennett had some kind of a sex offense in his background, would you have acted any differently on August 26th, 1999, than the way you did act? A: I doubt it. Q: And if Mr. Bennett told you on the night in question, I served 11½ months for indecent assault and as a condition of my parole, I was required to attend sex offender treatment classes and I haven't so they issued a warrant for my arrest, would you have acted any differently than you acted? A: Probably not. Cooke Dep. at 136-44. See generally Expert Report of Henry T. O'Reilly at 7-8 (criticizing Police Chief Cooke for his cavalier disregard of the risk of Gerald Bennett to the community and commenting that, "Fortunately, this attitude is not shared by the rest of the law-enforcement profession."). [19] We exercise our supplemental jurisdiction because of the need, after so much legal exertion by all concerned, to bring this painful matter to a close. [20] Put differently, if the defendant is not liable for the personal injury to the victim, then he or she is not liable for the emotional distress caused to the relative of the victim. Liability for the personal injury is a threshold matter that must be established before liability to the bystander can be proved. See, e.g., Everingham, 516 A.2d at 674, 677 (negligent infliction of emotional distress asserted by relative of child run over by negligent driver); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672, 674 (1979) (same); Sonlin v. Abington Memorial Hosp., 748 A.2d 213, 215 (Pa.Super.2000) (negligent infliction of emotional distress asserted by family of child permanently injured by medical malpractice). [21] We apply Pennsylvania law, and, where the issue at bar has not been addressed by the Pennsylvania Supreme Court, we hazard to predict how the Pennsylvania Supreme Court would decide it. Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 406 (3d Cir. 2000). [22] We also note that recently the Alabama Supreme Court, following the decisions of other state courts on the subject, held that, in the absence of a special relationship with the plaintiff or the foreseeability that the plaintiff would come to harm, a prison does not have a duty of care towards the victim of a crime by an escaped inmate. See Alabama Department of Corrections v. Thompson, No. 1001191, 2003 WL 329168 (Ala. Feb. 14, 2003). Given the extreme consequences the opposite holding would have, we suspect the Pennsylvania Supreme Court would follow Alabama's lead.

Knopf v Sanford (2015 NY Slip Op 05762) Knopf v Sanford 2015 NY Slip Op 05762 Decided on July 2, 2015 Appellate Division, First 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 July 2, 2015 Gonzalez, P.J., Sweeny, Renwick, Saxe, Feinman, JJ. 15613 113227/09 15074/11 [*1] Michael A. Knopf, et al., Plaintiffs-Appellants, vMichael Hayden Sanford, et al., Defendants-Respondents. [And Another Action] Berry Law PLLC, New York (Eric W. Berry of counsel), for appellants. Dorsey & Whitney LLP, New York (Nathaniel H. Akerman of counsel), for respondents. Order, Supreme Court, New York County (Milton A. Tingling, J.), entered December 24, 2014, which granted that part of defendants' motion to cancel certain notices of pendency, and sub silentio denied that part of defendants' motion for costs and sanctions, unanimously affirmed, with costs. Supreme Court had jurisdiction to cancel the notices of pendency. Although this Court previously extended the subject notices (110 AD3d 502 [1st Dept 2013]), this does not render them immune to subsequent motions to cancel pursuant to CPLR 6514 (see e.g. Bowery Boy Realty, Inc. v H.S.N. Realty Corp., 55 AD3d 766 [2d Dept 2008], lv denied 11 NY3d 715 [2009]). The notices of pendency were properly cancelled because plaintiffs failed to show that money damages would be inadequate (see Hoffmann Invs. Corp. v Yuval, 33 AD3d 511 [1st Dept 2006]). Whether defendants are able to pay such damages is irrelevant to the determination of whether they are the appropriate remedy (see American Cities Power & Light Corp. v Williams, 189 Misc 829, 835-836 [Sup Ct, NY County 1947] ["The adequacy of the legal remedy for damages does not depend on the collectibility of the claim"]; cf. Bertoni v Catucci, 117 AD2d 892, 895 [3d Dept 1986]). Furthermore, the cancellation of the notices of pendency was mandatory pursuant to CPLR 6514(a). CPLR 6514(a) provides, in relevant part, that "[t]he court, upon motion of any person aggrieved and upon such notice as it may require, shall direct any county clerk to cancel a notice of pendency, if service of a summons has not been completed within the time limited by section 6512." CPLR 6512 provides that a notice of pendency is only effective if a summons is served upon the defendant within 30 days after filing. Here, plaintiffs failed to serve defendant Pursuit Holdings, LLC within this 30-day period. "Nail-and-mail" substitute service was ineffective because that method of service is only appropriate for serving individuals, not corporate entities (see Napic, N.V. v Fverfa Invs., 193 AD2d 549 [1st Dept 1993]; Lakeside Concrete Corp. v Pine Hollow Bldg. Corp., 104 AD2d 551 [2d Dept 1984], affd 65 NY2d 865 [1985]). Since defendants moved to cancel the notices of pendency pursuant to CPLR 6514, and not CPLR 6515, the posting of an undertaking was not required (see Lessard Architectural Group, Inc., P.C. v X & Y Dev. Group, LLC, 88 AD3d 768, 770 [2d Dept 2011]; Reingold v Bowins, 34 AD3d 667, 668 [2d Dept 2006]). The court providently exercised its discretion in declining defendants' request for costs and sanctions pursuant to CPLR 6514(c) and 22 NYCRR 130-1.1, as there is no evidence of bad faith by plaintiffs. We have considered the remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: JULY 2, 2015 CLERK

4 F.Supp.2d 737 (1998) Douglas JONES, Co-Administrator of the Estate of Douglas M. Jones, Jr., et al., Plaintiffs, v. Russel D. BEATTY, et al., Defendants. No. 4:96CV2668. United States District Court, N.D. Ohio, Eastern Division. April 30, 1998. *738 *739 *740 Kent B. Schneider, Hermann, Cahn & Schneider, Cleveland, OH, for Plaintiffs. David Cooper Comstock, Jr., Thomas J. Wilson, Comstock, Springer & Wilson, Youngstown, OH, for Defendants. MEMORANDUM OPINION GWIN, District Judge. On March 21, 1997 the defendants filed a motion for summary judgment in this § 1983 action [Doc. 16]. The defendants claim that they did not violate the plaintiffs' decedent's civil rights and, alternatively, that the affirmative defense of qualified immunity shields Defendants Officer Ronald E. Oldland and Village of Poland Chief of Police Russel D. Beatty from any liability. For the reasons set forth below, the Court grants the defendants' motion for summary judgment. I On the evening of June 6, 1996, Defendant Officer Oldland was on patrol for the Defendant Village of Poland. While sitting in his patrol car, Officer Oldland observed a white Pontiac Trans Am traveling northbound on State Route 170 in the village. The decedent, Douglas M. Jones, Jr., was playing his car stereo loudly. According to Oldland, Jones turned the stereo down when he saw the police car. At that point Oldland followed Jones and initiated a traffic stop. Both vehicles pulled into the parking lot of Western Reserve Joint Fire District Station 1. Officer Oldland left his patrol car and approached the Trans Am. He requested Jones' driver's license, registration, and insurance card. Jones gave the officer those items. Oldland reports that at this time he noticed a strong odor of alcohol on or about Jones. Under questioning, Jones admitted drinking alcohol prior to the stop. Officer Oldland then returned to his car to obtain information from the Mahoning County radio dispatcher on the driver. After obtaining the necessary information, Oldland returned to the Trans Am. Oldland asked Jones to exit the vehicle to submit to a field sobriety test. Jones complied. Prior to initiating the test, Oldland asked Jones if he possessed any weapons. Jones replied that he did not. Officer Oldland patted Jones down to confirm that Jones did not have any weapons. Officer Oldland then asked Jones to move towards the front of the vehicle in order to take the sobriety test. The officer had his back turned and heard something fall to the ground. Officer Oldland turned around to see Jones picking the object up from the ground. According to Oldland, he was able to identify the object as a gun magazine. Under questioning, Jones admitted that he had a gun in the car. After Jones acknowledged the existence of a gun in the car, Jones took a step towards the Trans Am. Officer Oldland ordered Jones to place his hands on the car. Jones then turned around and placed his hands on the vehicle. Oldland attempted to place handcuffs on Jones, but Jones broke free and headed towards the open car door on the driver's side. Knowing that there was a gun in the automobile, and being in fear for his life, Officer Oldland drew his weapon and *741 pursued Jones in an attempt to prevent both Jones' access to the car and his control of the weapon. Despite Oldland's efforts, Jones obtained access to the interior of the vehicle, and began to reach around beneath the seat in the center console area. Oldland, in an effort to prevent Jones from gaining access to the gun, attempted to control Jones' arms by laying on top of him in the vehicle. Jones pushed back, and somehow put the car into gear, while still struggling with Oldland. Jones then stepped on the accelerator, causing the vehicle to accelerate rapidly forward. Oldland continued to yell for Jones to stop, but the car moved forward rapidly with Oldland being dragged. Officer Oldland continued his efforts to limit Jones' access to the weapon, in addition to screaming for Jones to stop. Jones refused. As the Trans Am continued its rapid acceleration, Oldland risked being thrown from the vehicle and run over. According to Officer Oldland he feared for his life. Oldland fired his weapon, which was located at that time somewhere in the vicinity of Jones' shoulder or neck. Jones continued to struggle with Oldland, and Oldland fired his weapon two more times as the Trans Am continued moving forward. Jones ceased struggling. Both men fell from the vehicle as the vehicle continued to move forward. After flipping out of the vehicle, Oldland came to rest on his stomach, with his gun still in his hand. Jones came to rest face down on the pavement, having been fatally shot. An ambulance took Officer Oldland to the hospital. Subsequently, the Ohio Bureau of Criminal Identification and Investigation (BCII) and the state Highway Patrol undertook an investigation. The investigation confirmed there was a gun in the Trans Am, which a friend had loaned to Jones. Plaintiffs Douglas Jones and Charmaine Jones, co-administrators of the estate of the decedent, filed suit pursuant to 42 U.S.C. § 1983 and state law seeking $ 5 million in damages. Plaintiffs allege that Oldland violated decedent's civil rights when he fired three shots at Douglas Jones, Jr. resulting in the latter's death. The complaint is not clear whether plaintiffs also wish to pursue separate state claims including wrongful death, a survival action, assault, battery, and intentional infliction of emotional distress. Plaintiffs sued Chief of Police Russell D. Beatty and the Village of Poland as well as Officer Oldland. Oldland and Beatty are being sued in both their official and individual capacities. Both Officer Oldland and Beatty have asserted qualified immunity as an affirmative defense. II Pursuant to Federal Rule of Civil Procedure 56, summary judgment shall be rendered when requested if the evidence presented in the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In assessing the merits of the motion, this court shall draw all justifiable inferences from the evidence presented in the record in the light most favorable to the non-moving party. Woythal v. Tex-Tenn Corp., 112 F.3d 243, 245 (6th Cir.), cert. denied, ___ U.S. ___, 118 S.Ct. 414, 139 L.Ed.2d 317 (1997). However, an opponent to a motion for summary judgment may not rest upon the mere allegations or denials of his pleadings, but must set forth through competent and material evidence specific facts showing that there is a genuine issue for trial. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Miller v. Lorain County Bd. of Elections, 141 F.3d 252, 255-56 (6th Cir.1998). Specifically, to survive a motion for summary judgment on an excessive force claim under § 1983, the plaintiff must designate specific facts demonstrating that the police officer acted unreasonably. Smith v. Freland, 954 F.2d 343, 345 (6th Cir. cert. denied, 504 U.S. 915, 112 S.Ct. 1954, 118 L.Ed.2d 557 (1992)). *742 III Generally, government officials performing discretionary functions have qualified immunity "shielding them from civil damages liability, as long as their actions could reasonably have been thought to be consistent with the rights they are alleged to have violated." Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The general rule of qualified immunity is intended to provide government officials with the ability to reasonably anticipate when their conduct may give rise to liability for damages. Id. 483 U.S. at 646, 107 S.Ct. 3034. Where a public official's "duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken `with independence and without fear of consequences.'" Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (citation and footnote omitted). Whether or not qualified immunity exists in a given case is a legal question for the court, unless there is a genuine issue of material fact regarding whether the defendant actually committed acts which would violate a clearly established right. Monday v. Oullette, 118 F.3d 1099, 1102 (6th Cir. 1997). It is the plaintiffs' ultimate burden of proof to establish that the defendants are not entitled to qualified immunity. Wegener v. City of Covington, 933 F.2d 390, 392 (6th Cir.1991). In a § 1983 action, the first step in a qualified immunity analysis is to determine whether, based on the applicable law, a constitutional violation has occurred. Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996). In this case, the alleged constitutional violation is that Officer Oldland violated Douglas M. Jones, Jr.'s Fourth Amendment right as a free citizen to be free from the use of excessive force during the seizure. Even when an officer has probable cause to seize an individual, the police officer may only use a reasonable amount of force when effecting the seizure. Monday, 118 F.3d at 1104 (citing Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). Claims of excessive force under the Fourth Amendment are analyzed under an objective reasonableness standard. Smith, 954 F.2d at 345-47. The test under the Fourth Amendment for the reasonableness of the force used cannot be defined precisely or applied mechanically. Monday, 118 F.3d at 1104 (citing Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). To properly apply the reasonableness test the court must pay careful attention to the facts and circumstances of each particular case. Id. Courts consider whether the suspect posed an immediate threat to the safety of the officer or others and whether the suspect was actively resisting arrest or attempting to escape arrest by fleeing. Id. Appropriately, courts assess reasonableness from the perspective of the reasonable officer on the scene, not with the benefit of hindsight. Id. (citing Graham, 490 U.S. at 397, 109 S.Ct. 1865). If, upon applying these tests, the court determines that no constitutional violation has occurred, then the court need go no further. However, if the court determines there was a constitutional violation, it must proceed to the next step of the qualified immunity analysis. Dickerson, 101 F.3d at 1158. The court next must determine whether the violation involved "clearly established constitutional rights of which a reasonable person would have known." Id. at 1158 (citation omitted). In order to be "clearly established," the right allegedly violated must be defined in a particularized and relevant sense rather than on a general level. Anderson, 483 U.S. at 640, 107 S.Ct. 3034. "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. It is not necessary that the conduct previously was held unlawful, but in light of the pre-existing law the unlawfulness of that conduct must be apparent. Id. If it is determined that the right is clearly established, then the court must determine whether the plaintiff has alleged sufficient facts, supported by sufficient evidence, to indicate what the officer did was "objectively unreasonable in light of the clearly established *743 constitutional rights." Dickerson, 101 F.3d at 1158 (citation omitted). IV As previously noted, the first step in qualified immunity analysis is to determine whether a constitutional violation has occurred. Plaintiffs allege a violation of the decedent's Fourth Amendment right to be free from the use of excessive force. In order to determine whether the force utilized was reasonable, the Court must pay careful attention to the facts and circumstances of each particular case. Russo v. City of Cincinnati, 953 F.2d 1036, 1044 (6th Cir.1992).[1] Here, the plaintiffs cite two incidents in which they contend Officer Oldland conducted himself improperly: the initial traffic stop and the subsequent use of deadly force against the decedent. Defendants assert that Officer Oldland initiated the traffic stop because Douglas Jones, Jr. drove by with the car stereo playing at an unusually high volume and then turned the music down upon seeing the officer. Plaintiffs allege that Officer Oldland did not have probable cause to pull the decedent over. Plaintiffs claim that the driver allegedly traveling behind the decedent did not hear the music. Construing that evidence in a light most favorable to the plaintiffs does not change matters.[2] The Court finds the use of deadly force was reasonable. The decedent admittedly had been consuming alcohol according to Officer Oldland's testimony. The BCII report confirmed the presence of alcohol in the decedent's blood. The decedent had a gun located somewhere in the interior of the vehicle. The officer also was aware that the decedent possessed ammunition for the weapon. The decedent attempted to flee, first by running for his vehicle when Oldland attempted to place handcuffs on him, and then by putting the vehicle in gear and pressing the accelerator. All the while the decedent was reaching around inside the vehicle, presumably to obtain control of his weapon. The decedent accelerated the vehicle and dragged Officer Oldland at a high rate of speed. Despite the repeated urging of Officer Oldland, the decedent did not stop the car. It was only after using deadly force that Officer Oldland was able to stop the decedent. The Court looks at the reasonableness of the officer's actions from the perspective of a reasonable officer on the scene, not with the benefit of hindsight. Graham, 490 U.S. at 396, 109 S.Ct. 1865. In determining reasonableness, a court allows for the fact that police officers often are forced to make split-second judgments about the amount of force that is necessary in a particular situation, in "tense, uncertain and rapidly evolving circumstances." Id. 490 U.S. at 396-97, 109 S.Ct. 1865. Under Graham, personal notions of proper police procedure should not be substituted for the instantaneous decision of a police officer at the scene. Smith, 954 F.2d at 347. "We must never allow the theoretical, sanitized world of our imagination to *744 replace the dangerous and complex world policemen face every day. What constitutes `reasonable action' may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure." Id. It was reasonable for Officer Oldland to fear for his life. The decedent could have gained control of his weapon at any time and fired on Officer Oldland. Jones could have continued to drag the officer at increasing rates of speed eventually resulting in the officer's death or serious injury. Any reasonable officer in these circumstances would have feared for his or her life. For such officers, the use of deadly force would have been justified. At trial, the plaintiffs would bear the burden of proving that the defendant used excessive force, or that the force used was unreasonable under the circumstances. Miller. v. Taylor, 877 F.2d 469, 472 (6th Cir. 1989). Since a police officer's use of deadly force is constitutionally permissible under appropriate circumstances,[3] proof that the officer used deadly force alone does not satisfy the first element of a § 1983 claim. Id. Plaintiffs also must show that Officer Oldland's conduct was unjustified under the circumstances. Id. Plaintiffs here have failed to do so. They present the testimony of an independent witness to the events who requested anonymity. According to this anonymous witness, Jones' car moved at a "normal" rate of speed, Officer Oldland was dragged only a short distance, and two shots were fired after the car stopped. The witness' statement contradicts the physical evidence in this case as the witness testifies to only two shots being fired when the BCII reports confirm that three shots were fired at the decedent. It is not the role of the court to determine the credibility of evidence. The court must construe this evidence in the light most favorable to the plaintiff. Even if the Court accepts this evidence, it does not create a genuine issue of material fact. Plaintiffs place particular emphasis on the anonymous witness' assertion that the car had stopped before the shots were fired. Even if that is true, it is not material to whether or not Officer Oldland's use of deadly force was reasonable. At that point, the decedent already had displayed conduct which would place Officer Oldland in reasonable apprehension for his life. The decedent still had a gun within his reach, as well as the gas pedal of the car, and already had shown no regard for Officer Oldland's life. The standard is that of a reasonable officer at the scene. The Court finds that Officer Oldland conducted himself in an objectively reasonable manner given the circumstances. Therefore, the Court concludes that Officer Oldland did not violate the decedent's constitutional right to be seized without excessive force. V Even if Officer Oldland had violated the decedent's constitutional rights, he would be entitled to the defense of qualified immunity. The next step in a qualified immunity analysis is to determine whether the alleged violation involved a clearly established constitutional right of which a reasonable person would have known. Dickerson, 101 F.3d at 1158. If it is determined that a right is clearly established, then the court must determine whether what the officer did was objectively unreasonable in light of the clearly established constitutional right. Adams v. Metiva, 31 F.3d 375, 387 (6th Cir.1994). The right to be free from unreasonable seizures, and to be free from the use of excessive force, is clearly established under the Fourth Amendment for purposes of a claim of qualified immunity.[4] Therefore, the next inquiry is whether Officer Oldland acted reasonably in light of that clearly established right. *745 Officer Oldland found himself in a dangerous and escalating situation in which the suspect not only had a gun within his reach, but proceeded to accelerate the vehicle 1 and drag Officer Oldland along the street at a high rate of speed. The scenario unfolded quickly and Officer Oldland had to make a virtually instantaneous decision as to whether the use of deadly force was permitted under the circumstances. The officer was legitimately in fear for his life and that permits the use of deadly force.[5] Plaintiffs have failed to allege sufficient facts raising a genuine and material factual dispute whether Officer Oldland's conduct was objectively unreasonable under the circumstances. Therefore, Officer Oldland is entitled to the defense of qualified immunity in the event a constitutional violation was found. VI As to the potential liability of Defendant Police Chief Beatty, a supervisor should not be held liable under § 1983 if the subordinate is not liable. Aponte Matos v. Toledo Davila, 135 F.3d 182, 192 (1st Cir. 1998). Additionally, the Sixth Circuit does not allow a supervisor to be held liable under § 1983 for the actions of his or her subordinates without a showing that the supervisor either encouraged the specific conduct at issue or in some way directly participated in it. Keehl v. DeBottis, 776 F.Supp. 1216, 1218 (E.D.Mich.1991) (citing Hays v. Jefferson County, Ky., 668 F.2d 869 (6th Cir.), cert. denied, 459 U.S. 833, 103 S.Ct. 75, 74 L.Ed.2d 73 (1982)). A plaintiff must show that the supervisor authorized, approved of, or knowingly acquiesced in the specific conduct of the officer. Walton v. City of Southfield, 995 F.2d 1331, 1340 (6th Cir.1993). Here, plaintiffs have presented no evidence to indicate that Defendant Beatty either encouraged or directly participated in the conduct in question. Even if plaintiffs could establish that Beatty encouraged or participated in the conduct at issue, Beatty would still be entitled to the defense of qualified immunity based on this Court's determination that the conduct in question was reasonable under the circumstances. VII The language and the legislative history of § 1983 compel the conclusion that Congress did not intend a local government to be held liable solely because it employs a tortfeasor. Monell v. Department of Social Services of City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Municipal liability under § 1983 cannot be based on the traditional respondeat superior theory. Id. Absent a finding that the alleged constitutional violation was a result of a policy or custom of the municipality, the local government as an entity cannot be held liable. Id. 436 U.S. at 694, 98 S.Ct. 2018. Based on the Court's determination that Officer Oldland, in his official capacity, did not violate the decedent's constitutional rights, the Village of Poland is not liable for damages. Additionally, even if a constitutional violation had occurred, plaintiffs have offered no evidence that the alleged violation was the result of a policy or custom of the defendant village. VIII Defendant Officer Oldland did not violate the civil rights of Douglas M. Jones, Jr., when he fired three shots fatally wounding Jones. Officer Oldland acted reasonably in using deadly force in this regrettable incident. Defendants Chief of Police Beatty and the Village of Poland also are not liable under § 1983 as no constitutional violation occurred. Plaintiffs have failed to raise a material factual issue precluding summary judgment on their federal claims. The Court will dismiss any pendent state claims so that plaintiffs can pursue these claims in the state's courts.[6] *746 IX For the reasons outlined above, the Court grants the defendants' motion for summary judgment. IT IS SO ORDERED. NOTES [1] Of some relevance here, the Sixth Circuit in Russo goes on to say: that the reasonableness inquiry in an excessive force action is an objective one, which should disregard the underlying intent or motivation of the defendant. To determine whether exigent circumstances exist, a court should look to the "facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether he [was] actively resisting arrest or attempting to evade arrest by flight." 953 F.2d at 1044 (citations omitted). [2] The usual rule appears to be that a police officer does need probable cause in order to initiate a traffic stop. Whren v. U.S., 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (Fourth Amendment "balancing" of governmental and individual interests not in doubt when probable cause present). Whether Oldland's initial stop of decedent's vehicle presents a constitutional violation need not be resolved to grant defendants qualified immunity. The complaint, and the argument over qualified immunity, is concerned with the use of deadly force when the decedent tried to flee the scene. If defendants were guilty of a constitutional violation in stopping Jones' car that evening, such a violation does not excuse the conduct of either Jones or Oldland. The Court believes a constitutional infirmity here simply would be immaterial. In any event, the officer probably had probable cause to detain the decedent before the shooting when Jones admitted that he had a weapon and that he had been drinking. [3] See, Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985); Miller, 877 F.2d at 472 n. 3. [4] The right to be free from unreasonable seizures is articulated in California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). The right to be free from the use of excessive force was established in Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). [5] In Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), the Court determined that the use of deadly force is permissible when the officer reasonably believes that the suspect poses a threat of serious physical harm to the officer or to others. [6] United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). The doctrine of "pendent" jurisdiction permits federal courts to entertain state claims which would otherwise lack subject matter jurisdiction so long as the state claim is "joined" with a related federal claim, the two arising out of the same event or connected series of events. Because pendent jurisdiction is principally associated with federal question jurisdiction, where the existence of a federal claim supports jurisdiction over a "pendent" state claim, disposition of the federal claim allows the district court to exercise its discretion to allow any unresolved state claims to be heard in the state courts. 28 U.S.C.A. § 1367.

In The Court of Appeals Sixth Appellate District of Texas at Texarkana No. 06-15-00155-CR BOBBY JAY KENNEDY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 5th District Court Cass County, Texas Trial Court No. 2012 F 0232 Before Morriss, C.J., Moseley and Carter,* JJ. Memorandum Opinion by Justice Carter _______________________________ *Jack Carter, Justice, Retired, Sitting by Assignment  MEMORANDUM OPINION In the early morning hours of July 4, 2012, Bobby Jay Kennedy, a Trooper with the Texas Department of Public Safety (DPS), saw a fourteen-year-old-boy sneaking around in his front yard in an attempt to see his stepdaughter. Kennedy caught the boy, stuck a pistol in his mouth, escorted him into his house, and handcuffed him. During an interview with Kenneth Bond, a Ranger with the Texas Ranger Division of DPS, Kennedy admitted to his actions. A jury ultimately convicted Kennedy of aggravated assault with a deadly weapon. Kennedy was sentenced to two years’ imprisonment and was ordered to pay a $10,000.00 fine, but his sentence was suspended, and he was placed on community supervision for five years. On appeal, Kennedy argues that the trial court erred in failing to suppress his statement to police and in restricting his cross-examination of Bond on the voluntariness of that statement. We find that the trial court did not abuse its discretion in denying the motion to suppress. We further find that Kennedy failed to preserve his second point of error related to the limitation of the scope of his cross-examination of Bond. Accordingly, we affirm the trial court’s judgment. I. The Trial Court Did Not Abuse its Discretion in Overruling the Motion to Suppress A. Standard of Review Kennedy argues that the trial court erred in overruling his motion to suppress a recorded statement/interview in which he admitted to putting a pistol in the victim’s mouth. “The standard of review for the trial court’s ruling on a motion to suppress is abuse of discretion.” Harris v. State, 468 S.W.3d 248, 254 (Tex. App.—Texarkana 2015, no pet.) (citing Oles v. State, 993 2 S.W.2d 103, 106 (Tex. Crim. App. 1999); Freeman v. State, 62 S.W.3d 883, 886 (Tex. App.— Texarkana 2001, pet. ref’d)). “[T]he trial court is the ‘sole and exclusive trier of fact and judge of the credibility of the witnesses’ and the evidence presented at a hearing on a motion to suppress, particularly where the motion is based on the voluntariness of a confession.” Colvin v. State, 467 S.W.3d 647, 657 (Tex. App.—Texarkana 2015, pet. ref’d) (alteration in original) (quoting Delao v. State, 235 S.W.3d 235, 238 (Tex. Crim. App. 2007)). “Thus, in reviewing the trial court’s factual determination of the circumstances surrounding the interrogation, we give almost total deference to the trial court.” Id. (citing Martinez v. State, 348 S.W.3d 919, 922–23 (Tex. Crim. App. 2011)). However, we employ a de novo standard when evaluating whether a reasonable person would have felt free to terminate the questioning and leave because that is a mixed question of law and fact that does not depend on a trial court’s credibility determination. Id. (citing Thompson v. Keohane, 516 U.S. 99, 113–14 (1995); State v. Saenz, 411 S.W.3d 488, 490 (Tex. Crim. App. 2013)). B. Grounds for the Motion to Suppress Kennedy based his motion to suppress on Garrity v. New Jersey, 385 U.S. 493, 496 (1967) and Miranda v. Arizona, 384 U.S. 436, 467 (1966). He argued that Bond failed to provide Garrity and Miranda warnings and that his confession was coerced.1 1 While a major portion of Kennedy’s appellate brief focuses on Garrity, it also mentions Miranda, complains of Bond’s failure to issue Miranda warnings, and interweaves arguments relevant to Miranda into the Garrity analysis. For example, he points to Bond’s failure to issue Miranda warnings in support of his position that it was objectively reasonable for him to believe that his employment with DPS could be terminated if he failed to cooperate with Bond’s investigation. Out of an abundance of caution, we interpret Kennedy’s brief broadly as a challenge to the trial court’s rulings on both Garrity and Miranda. 3  1. Garrity Garrity involved police officers who were under investigation for misconduct. Before being questioned by employees with the office of the Attorney General of New Jersey, each officer was warned “(1) that anything he said might be used against him in any state criminal proceeding; (2) that he had the privilege to refuse to answer if the disclosure would tend to incriminate him; but (3) that if he refused to answer he would be subject to removal from office.” Garrity, 385 U.S. at 494. The officers answered the questions, and over objection, their answers were used against them in criminal proceedings. Id. at 495. The officers argued that their statements were coerced. The United States Supreme Court framed the Fifth Amendment issue raised by those factual circumstances as whether the officers were “deprived of [their] free choice to admit, to deny, or to refuse to answer” and concluded that they were. Id. at 496. The Court reasoned that the choice imposed on the officers “was one between self-incrimination or job forfeiture,” which the Court deemed “the antithesis of free choice to speak out or remain silent.” Id. at 496–97. Finding that the officers were under such pressure as to render them disabled from making a free and rational choice, the Court found that their statements were coerced. Id. at 497. It wrote, “[T]he protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and . . . it extends to all, whether they are policemen or other members of our body politic.” Id. at 500. In his suppression motion, Kennedy argued that he was faced with the same Hobson’s choice as the officers in Garrity due to the following language in the DPS manual (the Manual): 4  The Department may cause a separate and independent Administrative Inquiry to be conducted into matters concerning an employee’s performance, conduct, or fitness for duty. Such Administrative Inquiry may be conducted before a complaint investigation or the filing of a formal complaint. In any investigation conducted by the Department, either on the basis of a complaint or as an Administrative Inquiry, members of the Department have an obligation to be forthright and straight forward with investigators of the Department . . . [and] shall be completely honest, truthful and straightforward and not attempt in any way to obscure the truth or, through the use of vague, broad, general, nonresponsive, or obstructionist answers, impede or in any way interfere with the Department’s ability to ascertain the truth of the matters in question. The State responded by arguing that Garrity did not apply to Kennedy’s interview with Bond because Bond was conducting a criminal investigation, not an administrative investigation like the one being conducted in Garrity. The State supported its position by reference to the following portions of the Manual: Nothing in this chapter shall preclude a separate and completely independent criminal investigation of a Department employee who is the subject of an administrative complaint investigation. . . . Employees who are questioned by a Department investigator during an administrative complaint investigation which involves allegations that could be criminal in nature should be advised that since they are required to fully cooperate and answer all questions posed by the investigator, information obtained from the employee is information which the courts have held is not admissible against that individual in a criminal prosecution arising out of the same set of facts. . . . This is in accordance with the Supreme Court decision in the case of Garrity v. State of New Jersey . . . . It should be remembered that the provisions of the preceding paragraph apply only in the instances wherein the employee is involved in an administrative complaint investigation or been ordered to cooperate. . . . It shall be a violation of Department policy for any member of the Department who is engaged in an Administrative Inquiry of a Department employee to divulge to any other person engaged in a criminal investigation of the same Department employee . . . any statement or information derived from a statement made by the Department employee who is the subject of both investigations. 5  2. Miranda Kennedy also argued that Miranda warnings should have been given prior to his interrogation. Custodial interrogation places “‘inherently compelling pressures’ on the persons interrogated.” Thompson, 516 U.S. at 107 (quoting Miranda, 384 U.S. at 467). Under Miranda, “[p]rior to any [custodial] questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney . . . .” Coffey v. State, 435 S.W.3d 834, 841 (Tex. App.— Texarkana 2014, pet. ref’d) (quoting Miranda, 384 U.S. at 444). “Under both the [f]ederal constitutional standard and the Texas Confession Statute, evidence obtained as a result of a custodial interrogation is inadmissible unless the State proves the officer gave proper warnings and shows an affirmative waiver of rights by the accused.” Id. at 840–41 (quoting Hutchison v. State, 424 S.W.3d 164, 175 (Tex. App.—Texarkana 2014, no pet.)); see Miranda, 384 U.S. at 444. The State responded to Kennedy’s motion to suppress by arguing that the interview was noncustodial in nature. The State maintained that the warnings required by Miranda are only triggered when a person undergoes custodial interrogation or, in other words, the “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, 384 U.S. at 444; Herrera v. State, 241 S.W.3d 520 (Tex. Crim. App. 2007). “Article 38.22 constraints on the use of an accused’s statements apply only to custodial interrogations.” Colvin, 467 S.W.3d at 657 (citing Wolfe v. State, 917 S.W.2d 270, 282 (Tex. Crim. App. 1996)). “Thus, ‘[i]f an accused is not in custody when he makes a statement, then the question of voluntariness does not arise.’” Id. 6 (alteration in original) (quoting Wolfe, 917 S.W.2d at 270). “Stationhouse questioning does not, in and of itself, constitute custody.” Id. (quoting Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996)). C. Evidence at the Suppression Hearing At the hearing on the motion to suppress, Bond testified that the district attorney’s office received a complaint against Kennedy and that he was assigned to conduct a criminal investigation into the “uncorroborated allegations.”2 Bond informed the trial court that he called Kennedy before the interview to inform him that he was conducting a criminal investigation into an incident that happened at his house on July 4, 2012. When Bond asked Kennedy if he would speak with him, Kennedy met with Bond in person for the interview, which was conducted on July 19, 2012.3 Bond freely admitted that he did not issue any Garrity or Miranda warnings because he “was conducting a non-custodial interview on the criminal investigation.” Bond opined that the interview was non-custodial “[b]ecause [Kennedy] was not under arrest and he was free to leave at any time.” He also told Kennedy that he was not in any kind of trouble. At the end of the interview, Kennedy left and went back on duty. 2 Bond also testified that the Texas Rangers do not conduct administrative investigations and that the Office of Inspector General (OIG) under DPS’s Internal Affairs Department oversees administrative investigations. During cross-examination, Bond testified that DPS conducted an administrative investigation as a result of the same complaint. Bond forwarded a copy of his report to the OIG at their request, adding, “I understand they conducted an administrative investigation after the criminal investigation.” 3 Bond later testified that he did not specifically inform Kennedy that he did not have to speak with him, although he stated that he told Kennedy he was free to leave. 7  Kennedy initially stated that he did not recall whether Bond had informed him that he was conducting a criminal investigation during their telephone conversation, but later claimed, “I wasn’t informed or told that I was under a criminal investigation.”4 Kennedy testified, “The Ranger explained to me that this was voluntary, per se, but I—as familiar as I am with the DPS General Manual, if you don’t cooperate or if you violate one of the ten general orders, then you can be disciplined up to termination.” Kennedy stated that Bond never said that his employment would be terminated if he invoked his Fifth Amendment right. Yet, when asked if he felt free to ignore Bond’s request, Kennedy answered, “Not exactly . . . I felt a bit compelled to go up there and speak to him.” Although Kennedy admitted that he was aware that the interview was non- custodial and that he was free to leave, he also testified, “I did not feel free to leave. . . . I knew if I did leave and wouldn’t cooperate with him consequences would come down the chain of command.” When asked if he felt coerced, Kennedy said, “So to speak.” The recording of the interview was played for the trial court. Boyd began the interview by telling Kennedy that he appreciated Kennedy’s decision to engage in the interview, that he was not in any kind of trouble, and that the Rangers investigated allegations involving criminal conduct. Boyd said, “This is a noncustodial interrogation. Noncustodial in every way. . . . You’re free to leave at any time if you want.” In response to this statement, Kennedy shook his head up 4 Kennedy also testified, “[H]e didn’t specifically tell me I was being charged with a crime.” However, at the time of the interview, Kennedy was not formally charged with a crime. 8 and down and said, “[O]h, yeah,” indicating that he understood the noncustodial nature of the interview.5 D. Trial Court’s Findings and Analysis As a result of Garrity, statements made during an administrative investigation in which complete candor is compelled under threat of job loss are inadmissible in a criminal proceeding against the declarant. Here, Kennedy argues the inverse of Garrity—that statements made during a criminal investigation cannot be used against the declarant during criminal proceedings if the defendant subjectively perceives that his job is at risk. Garrity does not stand for this proposition. In determining that Garrity was not implicated, the trial court relied on United States v. Trevino, 215 F.App’x 319 (5th Cir. 2007). In that case, the Fifth Circuit determined that a court must “look at the surrounding circumstances, specifically focusing on whether the questioning was coercive” in order to determine whether the defendant is faced with either making an incriminating statement or being fired. Id. at 322. The Fifth Circuit noted that Trevino was told that he was free to leave the interrogation room, his supervisors were not present in the room, and no one indicated that his job would be in jeopardy if he failed to cooperate with the investigation. The same is true here. In its findings of fact, the trial court determined that Bond was assigned to conduct a criminal investigation, not an administrative one, and that Bond was not a part of the OIG. The court further found that Bond told Kennedy that his investigation was criminal in nature, that Bond told Kennedy that he was free to leave at any time, and that Bond 5 Kennedy then explained that he retrieved his weapon when he heard his dogs barking, went outside, and saw a head duck down behind his neighbor’s truck. Kennedy admitted that he grabbed the boy and stuck his pistol in the boy’s face. He told Bond that he was trying to protect his family. 9 never threatened Kennedy with loss of employment. These were factual disputes resolved by the trial court. We give deference to these factual determinations when the findings are supported by evidence in the record. The evidence adduced at the suppression hearing also indicated that Bond’s supervisors were not present during the interrogation, that the Manual’s mandate for truthful answers applied only to administrative proceedings, and that nothing but Kennedy’s subjective belief supported the idea that he could be fired for refusing to answer Bond’s questions. Accordingly, we find that the trial court did not abuse its discretion in concluding that Kennedy was not “deprived of his free choice to admit, to deny, or to refuse to answer.” Garrity, 385 U.S. at 496. Likewise, we also find no abuse of discretion in the trial court’s determination that Miranda warnings were not required because the interview was noncustodial. One is in custody “only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest.” Dowthitt, 931 S.W.2d at 254. In Dowthitt, the Texas Court of Criminal Appeals suggested four scenarios wherein a person might be deemed in custody: (1) when the suspect is physically deprived of his freedom of action in any significant way, (2) when a law enforcement officer tells the suspect he cannot leave, (3) when law enforcement officers create a situation that would lead a reasonable person to believe his freedom of movement has been significantly restricted, and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect he is free to leave. Id. at 255. “[T]he restriction upon freedom of movement [in situations one through three] must amount to the degree associated with an arrest as opposed to an investigative detention.” Id. 10  Kennedy acknowledged that the interview was “voluntary, per se,” although he subjectively felt that he was required to speak with Bond. However, “the custody determination is based entirely upon the objective circumstances”; the subjective intent of the law enforcement officer and of the defendant are “irrelevant except to the extent that they may be manifested in the words or actions of law enforcement officials . . . .” Id. at 254. Here, Bond called Kennedy and asked him if he would be willing to speak with him about “uncorroborated allegations” of wrongdoing committed by Kennedy on July 4, 2012. Of his own volition, Kennedy agreed and travelled to meet with Bond. Bond informed him that the interview was noncustodial and that he was free to leave. His freedom of movement was not restrained during the interview. Bond’s questioning was conducted in a conversational, non-threatening tone. Kennedy wore his trooper uniform and returned to duty after the short interview. The voluntary and noncustodial nature of Bond’s interview “places [Kennedy’s] situation outside the scope of Miranda.” Salinas v. Tex., 133 S.Ct. 2174, 2180 (2013). Since we conclude that the trial court did not abuse its discretion in finding that Bond was not required to issue Garrity and Miranda warnings to Kennedy, we overrule Kennedy’s first point of error.6 6 Furthermore, statements similar to the ones made by Kennedy in his interview were introduced at trial without objection, prior to the introduction of his interview with Bond. Officer Jeb Newkirk, a patrol officer with the City of Atlanta Police Department, responded to the call at Kennedy’s home on July 4 and recorded his encounter with Kennedy using his dash-cam. On camera, Kennedy told Newkirk that he held the boy at gunpoint and also said, “I put my Sig [Sauer] in his mouth.” Newkirk clarified that Kennedy’s statement was an admission to placing his pistol in the boy’s mouth. Newkirk testified that Kennedy questioned the boy and said, “Well, I couldn’t understand what he was saying with the barrel of my gun in his mouth.” After the jury watched Kennedy’s interview with Bond, the boy testified, “[Kennedy] told me to get up and open my mouth. I did it, and he put the gun in my mouth and he grabbed me by the back of the head.” The boy also stated that Kennedy walked him across his yard while holding the gun in his mouth. 11 II. Kennedy Did Not Preserve any Issue in Relation to Limitation of Cross-Examination In his second point of error, Kennedy argues that the trial court’s ruling constituted a limitation of his cross-examination of Bond on the issue of voluntariness of his statement. The relevant portion of the transcript from the cross-examination is as follows: A. When someone is placed into custody, that’s when Miranda applies, yes, sir. Q. You’ve got to read Miranda to anyone -- anyone ever given a Miranda warning in a non-custodial setting? A. I’m sure officers do that. As Rangers, we are pretty versed in the 4th amendment and 5th and 6th amendment, and we try to -- and 38.22, which is in the Code of Criminal Procedures under Written Statements, and if it’s non- custodial, then generally I know that I was taught not to Mirandize. Q. So your governing principle then is 38.22, Texas Code of Criminal Procedure? A. Yes, sir. . . . Q. In a recorded statement, it’s governed by its sister statute, correct? A. Yes. Q. What would you classify this as being? This would be a recorded statement? A. This would be a non-custodial recorded interview. Q. So would 38.23 or 38.22 be applicable here? A. No, sir. Q. Neither? A. No, sir. Q. I mean what does control in this sort of situation? 12  A. He wasn’t in custody. Q. Are all 38.22 statement recordings absolutely in custodial? A. Yes, sir. Q. Every one? A. Custodial, and if an interrogation occurs at the time. And in this one, it did. Q. Ranger, is it your testimony that there has never been a non- custodial statement taken under either 38.22 or 38.23? A. I know from my interpretation of 38.22, Miranda does not apply in a non-custodial setting. Q. Okay. Well, then, does 38.22 apply, Ranger? I’m not trying to argue with you but – [BY THE STATE]: Your Honor, I believe that’s been asked and answered. [BY THE DEFENSE]: I don’t believe it’s been answered. THE COURT: Counsel approach. (The following conference at the bench) (Out of the hearing of the jury) THE COURT: You’re asking him about the law. The court has already ruled on that. I’m not sure why you’re asking him that. Where are you going? It’s a non-custodial investigation. [BY THE DEFENSE]: Because we are still entitled to raise the issue of voluntariness of any statement given within the context of submitting it to the jury. THE COURT: This does effect the – 13  [BY THE DEFENSE]: Well, Your Honor, I will develop this more fully to make it clear. The written policies of DPS are exactly the option of -- THE COURT: That’s not what you’re asking. You’re asking him about Ranger warnings under 38.22 and 38.23. [BY THE DEFENSE]: He just testified that 38.22 is what controls. I’m only responding to what he’s answered. I didn’t bring up 38.22, he did. THE COURT: He brought up the prior warnings. This is not the issue you seem to be trying to argue. [BY THE DEFENSE]: I tried to elicit from him the way this time - - can we do this out of the presence of the jury? THE COURT: Yes. The objection is sustained. The question was asked and answered. I want you to be careful when you – [BY THE DEFENSE]: Your Honor, before we let the jury go at the end of the case, I want to make a bill, and I’ll do it more clearly. THE COURT: That’s fine. You may proceed. From this portion of the transcript, it is clear that Bond had already testified that he did not believe that Texas Code of Criminal Procedure, Articles 38.22 and 38.23, applied. On this record, it appears that the trial court was preventing counsel from attempting to elicit cumulative testimony. Accordingly, we do not find that the trial court’s ruling specifically limited Kennedy’s cross-examination on the issue of voluntariness. Nevertheless, Kennedy argues that “the trial court instructed the Appellant’s counsel to disengage his line of questioning when it was clear that the questioning was going to establish a factual dispute as to the voluntariness of the Appellant’s statement.” Even if we determined that counsel’s questions could be interpreted as an inquiry into the voluntariness of Kennedy’s statement, the issue was not preserved. 14  “[W]hen an accused desires to elicit certain specific responses from a State’s witness but is precluded from doing so by the trial judge, the record must contain an offer of proof in order to preserve error.” Franklin v. State, 459 S.W.3d 670, 679 (Tex. App.—Texarkana 2015, pet. ref’d) (citing Duke v. State, 365 S.W.3d 722, 725 (Tex. App.—Texarkana 2012, pet. ref’d); TEX. R. EVID. 103(a)(2)). An offer of proof allows a trial judge to reconsider his ruling in light of the evidence elicited and also enables an appellate court to determine whether the evidence should have been allowed. Id. (citing Mays v. State, 285 S.W.3d 884, 890 (Tex. Crim. App. 2009)). Although Kennedy informed the trial court that he would “make a bill,” the bill of exception made by counsel failed to mention Bond or the alleged limitation of his cross- examination and did not include either a suggestion of the questions counsel wished to ask of Bond or Bond’s likely answers to those questions. “When . . . there is no bill of exception or offer of proof to show the facts the defendant could have proved through cross-examination of an adverse witness, the issue has not been preserved for appellate review.” Id. (quoting Lewis v. State, 126 S.W.3d 572, 579 (Tex. App.—Texarkana 2004, pet. ref’d)). Because it is unclear what further cross-examination of Bond would have yielded, Kennedy has failed to preserve his second point of error for our review. 15 III. Conclusion We affirm the trial court’s judgment. Jack Carter Justice Date Submitted: August 17, 2016 Date Decided: September 27, 2016 Do Not Publish 16 

FOURTH DIVISION BARNES, P. J., RAY and MCMILLIAN, JJ. NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules September 28, 2015 In the Court of Appeals of Georgia A15A0911. LAGON v. THE STATE. BARNES, Presiding Judge. A Clayton County jury found Shelton LaGon guilty of one count of statutory rape, two counts of aggravated child molestation, two counts of child molestation, and two counts of aggravated sexual battery. LaGon filed a motion for new trial, as amended, which the trial court denied. On appeal, LaGon contends that the trial court erred by failing to appoint different counsel to represent him at trial; by starting the trial and conducting portions of the proceedings in his absence after LaGon refused to enter the courtroom; and by declining to grant LaGon a continuance for an alleged discovery violation committed by the State. For the reasons discussed below, we affirm. Following a criminal conviction, we view the evidence in the light most favorable to the verdict. Towry v. State, 304 Ga. App. 139 (695 SE2d 683) (2010). So viewed, the evidence showed that during the time period in question, the victim lived with her older brother and her maternal grandmother in Clayton County. The victim’s mother did not have custody of the victim or her brother, but she frequently would visit her children at the grandmother’s home. LaGon was a friend of the victim’s mother and had known the victim and her brother since they were small children, and he would attend family gatherings with them. In June 2012, the victim was 12 years old and LaGon was 35 years old. One day that month, LaGon visited the grandmother’s home. Only the victim and her brother were there at the time. After sending the victim’s brother away to purchase some marijuana, LaGon approached the victim, who was taking a shower, and told her that he had sent her brother away and that “he [knew] something [they] could do.” Once the victim got out of the shower and put on some clothes, LaGon approached the victim again and told her to come into the bedroom with him. LaGon told the victim to bend over the bed, and he then removed her pants and had vaginal sex with her. The victim started to bleed and was scared during the encounter. After having sex with the victim, LaGon left before the brother returned home. The victim turned 13 later that summer. Several months passed, and LaGon then attended a family gathering at the grandmother’s home when the victim was out of school on Thanksgiving break. That night, after the victim’s mother left to do some 2 holiday shopping and the other family members had fallen asleep, the victim got up to use the bathroom. When she came out of the bathroom, LaGon approached her with his penis exposed. LaGon instructed the victim to bend over, removed her pants, and told her that they were going to “try something new.” LaGon then penetrated the victim’s vagina with his finger and had anal sex with her. LaGon left the home before the victim’s mother returned from the store. On December 15, 2012, LaGon attended another family gathering at the grandmother’s home. That night, the victim’s mother and brother fell asleep on the living room couch. LaGon and the victim were still awake in the same room. After making sure that everyone else was asleep, LaGon pulled down the victim’s pants and penetrated her vagina with his finger. LaGon then had the victim perform oral sex on him while he rubbed her buttocks. The victim’s grandmother was asleep in her bedroom while the other family members were in the living room. However, the grandmother woke up during the middle of the night, and as the victim was performing oral sex on LaGon, the grandmother came into the living room on her way to check the lock on the front door. Although the living room was dark except for the light from the television, the grandmother could see that someone was performing oral sex on LaGon on the couch. 3 The grandmother could tell that the person performing oral sex wore a gray shirt and at first assumed that it was the victim’s mother. But the grandmother then realized that only the victim was wearing a gray shirt and that she must have been the one performing oral sex on LaGon. The grandmother screamed at LaGon and kicked him out of her home. The grandmother and mother took the victim to the hospital. The victim initially denied to her grandmother and mother that anything had happened with LaGon, but then began crying at the hospital and told them that she had oral sex with LaGon and previously had vaginal and anal intercourse with him. The victim also spoke with detectives about what had occurred, and she subsequently underwent a physical examination and was taken to a child advocacy center where a recorded forensic interview was conducted. LaGon was arrested and indicted on one count of statutory rape, two counts of aggravated child molestation, two counts of child molestation, and two counts of aggravated sexual battery.1 At the ensuing jury trial, the victim, her mother, her grandmother, and her brother testified to the events as set out above. The lead 1 LaGon also was indicted on one count of rape, but the State later requested and obtained entry of a nolle prosequi on that count. 4 detective assigned to the case, the pediatric nurse who conducted the physical examination of the victim, and the forensic interviewer also testified. Additionally, the State introduced and played a recording of the victim’s forensic interview. After the trial court denied LaGon’s request for new counsel, LaGon refused to attend the first few days of the trial. However, on the fourth day of the trial, LaGon was present and testified in his own defense. LaGon denied that he ever had sexual contact with the victim and claimed that it had been the victim’s mother performing oral sex on him when the grandmother walked into the living room. LaGon admitted, however, that when he initially spoke with a detective in a recorded telephone conversation, he never claimed that the victim’s mother was the one performing oral sex on him. According to LaGon, the victim’s mother had falsely accused him because she did not want her boyfriend to know that she had performed oral sex on LaGon. After hearing the conflicting testimony, the jury found LaGon guilty of the charged offenses. LaGon filed a motion for new trial, as amended, and the trial court conducted a hearing and denied the motion. This appeal followed. 1. LaGon contends that the trial court committed reversible error by denying 5 his request to discharge his appointed counsel and replace him with another attorney. We disagree. An indigent defendant has no absolute right under the Sixth Amendment to counsel of his own choice. Hulett v. State, 296 Ga. 49, 56 (3) (766 SE2d 1) (2014). Rather, “[a] request by an indigent criminal defendant to discharge one court-appointed counsel and have another substituted in his place addresses itself to the sound discretion of the trial court.” (Footnote omitted.) Nicely v. State, 277 Ga. App. 140, 141 (1) (625 SE2d 538) (2006). A trial court abuses its discretion only if the defendant’s request “is supported by objective considerations favoring the appointment of [new] counsel, and there are no countervailing considerations of comparable weight.” (Citation and punctuation omitted.) Hulett, 296 Ga. at 56 (3). Here, the record reflects that LaGon was arrested in January 2013 and was appointed counsel a few days later. The same counsel had represented LaGon in a prior case and thus was familiar with LaGon. After his appointment in the present case, counsel met with LaGon at the jail and spoke with him on the telephone on several occasions, participated in reciprocal discovery with the State, and filed pretrial motions on LaGon’s behalf. 6  The case was specially set for trial on January 13, 2014. When the case was called on that date, LaGon did not express any dissatisfaction with his representation or move for a continuance to secure new counsel. However, because the prosecuting attorney had a conflict, the case was reset for February 3, 2014. When the case was called on February 3, 2014, LaGon rose in open court and for the first time expressed his dissatisfaction with his appointed counsel and his desire for new representation. LaGon claimed that his trial counsel had refused to interview the State’s witnesses; had denied his request to let him watch the recording of the victim’s forensic interview and hear the audio recording of his telephone conversation with the detective; refused to subpoena a potential defense witness; and had failed to retain an expert to review the forensic interview. LaGon’s appointed counsel responded that he had made efforts to convince the State’s witnesses to speak with him but had been unsuccessful, which he explained was “not uncommon in a case of this nature.” Counsel also explained that he had offered LaGon an opportunity to watch the victim’s forensic interview, but LaGon had refused to watch it. Additionally, counsel told the court that he had planned to have LaGon listen to his recorded telephone conversation with the detective shortly before trial, but a bad winter storm had prevented him from meeting with LaGon to 7 play the tape for him. Counsel further stated that he was unaware of any favorable defense witnesses who could be subpoenaed, and that he had made a strategic decision, after reviewing the recorded forensic interview, not to hire an expert. After listening to LaGon and his appointed counsel, the trial court denied LaGon’s request for new counsel, but ordered that LaGon would be afforded an opportunity to watch the recording of the victim’s forensic interview and listen to the audio recording of his telephone conversation with the detective during a recess before the trial commenced. In denying LaGon’s request for new counsel, the trial court credited appointed counsel’s explanations and found that he had made “sufficient efforts on behalf of his client and ha[d] made understandable tactical decisions” to which the court would give deference. The trial court further concluded that LaGon had the benefit of an appointed attorney who was “trained and experienced in the law” and that his “strong advice” was for LaGon to take advantage of his counsel’s training and experience. Following a recess during which LaGon listened to the victim’s forensic interview and his telephone conversation with the detective, the trial court further noted that LaGon had been arrested in January 2013 but had not expressed any desire for new counsel until approximately 19 months later, on the morning of trial, and had 8 presented no evidence that would justify delaying the proceedings so that new counsel could be obtained. Consequently, the trial court made the additional finding that LaGon’s request for new counsel was done “for the purpose of delaying the proceedings.” In light of this record, the trial court did not err in denying LaGon’s request to discharge his appointed counsel and obtain new representation. Sitting as the factfinder on this issue, the trial court was entitled to disbelieve LaGon and instead rely on his appointed counsel’s explanation of what had transpired between them and what preparation he had done on the case. See Hickey v. State, 259 Ga. App. 240, 243 (2) (a) (576 SE2d 628) (2003). Consequently, the trial court was authorized to find that LaGon had failed to demonstrate that his appointed counsel was unable or unwilling to effectively represent him. See Feaster v. State, 283 Ga. App. 417, 419 (2) (641 SE2d 635) (2007). Moreover, given the timing of LaGon’s request, the trial court was authorized to find that LaGon was simply attempting to use the discharge of his appointed counsel and employment of new counsel as a dilatory tactic. See Nicely, 277 Ga. App. at 141 (1); Hickey, 259 Ga. App. at 244 (2) (a). 9  The trial court also was entitled to find that any dissatisfaction that LaGon had with his appointed counsel was outweighed by the countervailing considerations that counsel had been working on the case for approximately 19 months and that removing him from the case would further delay a trial that had already been continued once before. See Hulett, 296 Ga. at 57 (3); Waddell v. State, 292 Ga. App. 801, 804 (665 SE2d 893) (2008). And, at least some of LaGon’s concerns with his appointed counsel were mitigated by the trial court’s decision to afford LaGon an opportunity to watch the victim’s forensic interview and listen to his recorded telephone conversation with the detective before the trial commenced. Accordingly, because the record supports the trial court’s conclusion that LaGon’s personal preference for new counsel was not supported by objective considerations that outweighed countervailing considerations, the court did not abuse its discretion in denying his request to discharge his appointed attorney and obtain new counsel. See Hulett, 296 Ga. at 58 (3). LaGon therefore was not entitled to a new trial on the asserted ground. 2. LaGon contends that the trial court violated his constitutional right to be present at his trial by allowing the third day of the trial (February 5, 2014) to proceed in his absence. According to LaGon, he told jail personnel that he wanted to attend 10 the third day of the trial, but they refused to bring him to the courtroom after allegedly telling him that he was not needed in the proceedings. We conclude that LaGon’s contentions are belied by the record and provide no basis for reversal. Under the Sixth Amendment to the United States Constitution, a criminal defendant has the right to be present in the courtroom at all critical stages of his trial. See U.S. Const. Amend. VI; Tennessee v. Lane, 541 US 509, 523 (124 SC 1978, 158 LE2d 820) (2004); Illinois v. Allen, 397 U.S. 337, 338 (90 SCt 1057, 25 LE2d 353) (1970). Similarly, the Georgia Constitution affords a criminal defendant the right to be present at every stage of the proceedings materially affecting his case. See 1983 Ga. Const., Art. I, Sec. I, Par. XII; Wilson v. State, 274 Ga. 637, 639 (3) (555 SE2d 725) (2001). But the right to be present belongs to the defendant, and the defendant is free to waive that right. See Lonchar v. State, 258 Ga. 447, 452 (2) (a) (369 SE2d 749) (1988). In addition to an express waiver of his right to be present at trial, a defendant can implicitly waive his right to be present by conducting himself in a disruptive manner before the trial court or by voluntarily absenting himself from the proceedings. See Allen, 397 U.S. at 342-343; Weaver v. State, 288 Ga. 540, 542-543 (3) (705 SE2d 627) (2011); Coley v. State, 272 Ga. App. 446, 449 (3) (612 SE2d 608) (2005); Anderson v. State, 238 Ga. App. 866, 873 (3) (519 SE2d 463) (1999). A 11 defendant also can waive his right to be present through counsel, if the waiver is made by counsel in the defendant’s presence or with his express permission, or if the defendant subsequently acquiesces to counsel’s waiver. See Allen v. State, 199 Ga. App. 365, 367-368 (6) (405 SE2d 94) (1991). We will affirm the trial court’s finding of waiver if there is any evidence to support it. See id. at 368 (6). Although LaGon complains in this enumeration of his absence from the third day of trial, his absence on that day can only be fully understood through a rendition of the facts leading up to, including, and following that date. The relevant facts are as follows. The First Day of Trial (February 3, 2014). As previously noted, on the morning of the first day of trial, LaGon asked to discharge his appointed counsel and obtain new counsel, but the trial court denied his request. The trial court then called a recess so that, among other things, LaGon could review the victim’s forensic interview and his telephone interview with the detective. However, that afternoon, when the trial court reconvened the proceedings, a sheriff’s deputy informed the court that LaGon was in the “attorney’s booth” that was “just one wall away from the courtroom” and was refusing to return to the courtroom. The trial court instructed the deputy to speak with LaGon and inform him that if he failed to return to the 12 courtroom, the court would “take the position that he has voluntarily chosen to be absent from his trial.” The trial court then called a recess so that the deputy could speak with LaGon in the attorney’s booth. After the recess, the deputy reported back to the trial court that he had informed LaGon that by refusing to come into the courtroom, LaGon would be giving up his right to attend the trial. According to the deputy, LaGon continued to refuse to come into the courtroom but insisted that his refusal was not a waiver of his right to attend the proceedings. The trial court then instructed the deputy to go back to the defendant and tell him that he needs to come into the courtroom. . . . And then I want you, to the extent you can, to cause him to come into the courtroom. However, if you determine that the only way you could cause him to come into the courtroom would be by engaging him in a fight, a physical struggle, . . . then stop and come report that back to me. Following another recess, the deputy reported to the court, “[LaGon] said we’re going to have to drag him in here if that’s what it takes.” The trial court instructed LaGon’s attorney to “step into the attorney booth and see if [LaGon] will speak with you on this issue.” After meeting with LaGon, trial counsel reported, “[LaGon] has indicated to me that unless there is an agreement that 13 a new attorney be appointed he would have to be physically dragged into the courtroom.” The trial court subsequently stated on the record, I have done everything I can think of to persuade [LaGon] to come out, including the information which has been conveyed to the defendant by the deputy sheriffs at my direction and at my direction by his own attorney, and as I understand it further, that the defendant’s brother has been asked to speak with him as well. After LaGon’s counsel confirmed that LaGon’s brother had tried to persuade him to attend court, the trial court instructed the deputies to once again tell LaGon “it’s time to come to court,” but cautioned the deputies that if a violent struggle would be necessary to accomplish that goal, to “stop and then come back and report that back to me.” After another recess, the sheriff’s deputy in charge of courtroom security reported back to the trial court, “[LaGon’s] still refusing. He has his legs wrapped around the seat. So in order to get him out here he’s going to fight us.” At that point, the trial court ruled that LaGon had voluntarily waived his right to be present at trial, but adjourned the case for the day, thereby giving LaGon time to reconsider his decision not to attend his trial. 14  The Second Day of Trial (February 4, 2014). On the second day of trial, the lower court began the proceedings by asking LaGon’s trial counsel if he had spoken with LaGon that morning about his willingness to attend trial. LaGon’s trial counsel informed the court, “He indicates to me he does not wish to participate.” LaGon’s counsel also informed the trial court that LaGon was refusing to change out of a jumpsuit and into courtroom attire. Jurors were brought into the courtroom and voir dire commenced. Before selection, the jury was instructed that LaGon had made a voluntary decision to absent himself from the proceedings but that jurors should “not hold that fact against the defendant in any way whatsoever. It’s not a relevant factor in your decision at all if you’re selected to participate as a juror[.]” After voir dire, the jury was sworn and the trial court again cautioned that LaGon’s voluntary absence from the courtroom should not play any role in the juror’s decision in the case. The trial then proceeded in LaGon’s absence. When the trial court later adjourned the trial for the evening, the trial court instructed the jurors not to report back until 1:30 p.m. the following afternoon to accommodate the court’s calendar in another jurisdiction. The Third Day of Trial (February 5, 2014). When the trial court reconvened the proceedings around 1:30 p.m. the following day, the court first noted that a 15 sheriff’s deputy had informed the court that LaGon had been asked if he wished to come to court that day. The deputy said that LaGon had responded that “he would not leave the jail unless he was dragged out of the jail and brought into the courthouse.” The trial court concluded that LaGon was continuing to voluntarily absent himself from the proceedings. Additional witnesses testified at that point. After a recess, the trial court noted on the record that the court had been informed by a sheriff’s deputy that LaGon now wished to come into the courtroom and be present for trial. The trial court called a further recess so that LaGon could get dressed in civilian attire and be brought to the courtroom. Following the recess, LaGon’s counsel reported to the trial court, “[LaGon] expressed to me that he has wanted to come to court all day and that he was told that jail personnel had been told he wasn’t needed. Now that he’s come here he’s told me he does not want to participate in this case.” After hearing counsel’s report, a sheriff’s deputy clarified to the trial court that LaGon had simply been told by jail personnel that he was not needed for court that morning and was only scheduled for court that afternoon. LaGon’s counsel then told the trial court that he had informed LaGon that there had been no court that morning but that, once LaGon was informed that the 16 victim had already testified, Lagon decided he no longer wished to attend the day’s proceedings. Concluding that LaGon was continuing to voluntarily absent himself from the courtroom, the court proceeded with trial for the remainder of the day in LaGon’s absence. The Fourth and Fifth Days of Trial (February 6-7, 2014). The next morning, LaGon came to the courtroom. LaGon was present for the remainder of the trial and testified in his own defense. At the hearing on his motion for new trial, LaGon testified that he chose not to attend his trial because he believed he was not being represented well by his appointed counsel. According to LaGon, he thought he could stop the trial by refusing to attend. However, LaGon later admitted that he knew the trial was taking place without him. LaGon’s appointed counsel also testified at the hearing that he had specifically advised LaGon of his right to attend his trial and that the trial court would proceed with the trial without him if he refused to come into the courtroom. Based on this combined record, the trial court was authorized to find that LaGon was voluntarily absent for the first three days of trial and thus waived his constitutional right to be present during those proceedings. 17  The record shows that [LaGon] was repeatedly advised of his right to be present at trial, and he refused to attend. On the other hand, when he wanted to do so, [LaGon] attended the trial. The trial court instructed the jury that they were not to consider [LaGon’s] absence in their deliberations. We find no error [in the trial court’s decision to conduct the first three days of the proceedings in LaGon’s absence]. Coley, 272 Ga. App. at 449 (3). See Anderson, 238 Ga. App. at 873 (3). In reaching this conclusion, we note that once LaGon refused to enter the courtroom and attend the trial proceedings, the trial court was not required “to make moment-by-moment inquires” as to whether LaGon had changed his mind and wished to be present. (Citation and punctuation omitted.) Weaver, 288 Ga. at 543 (3). Rather, it was sufficient for the trial court to have the sheriff’s deputies and LaGon’s appointed counsel periodically speak with LaGon and inquire whether he had changed his mind and wished to attend, particularly since LaGon indicated that he would only return to the courtroom and speak with the trial court if physically forced to do so by the deputies. See id. Lastly, while LaGon claims that he repeatedly asked to be taken to the courtroom on the third day of trial but was thwarted by jail personnel, the trial court was not required to reach such a conclusion. Rather, there was evidence from which 18 the trial court could find that the jail personnel simply told LaGon that he was not needed in the courtroom during the morning of the third day because the court was conducting other unrelated business, but that LaGon otherwise was given an opportunity to attend the court proceedings that afternoon but refused to do so. Accordingly, because there was evidence that would support a finding that LaGon knowingly and voluntarily chose to absent himself from the courtroom, the trial court did not err by proceeding with trial in his absence. See Allen, 199 Ga. App. at 368 (6) (applying an any evidence standard to the waiver question). 3. In a related enumeration of error, LaGon contends that the trial court violated his constitutional right to be present by starting the trial in his absence. According to LaGon, because he refused to enter the courtroom before the jury had been empaneled and sworn, waiver principles did not apply, and the trial court thus could not start the trial. We are unpersuaded under the specific circumstances of this case. It is true that if a criminal defendant free on bond or on his own recognizance fails to appear at the start of trial, the trial court cannot try the defendant in absentia; instead, the trial court must delay the start of trial and rely on other sanctions such as bench warrants and bond forfeitures. See Stacey v. State, 254 Ga. App. 461, 462 (1) 19 (562 SE2d 806) (2002); Riley v. State, 252 Ga. App. 781, 781-782 (1) (556 SE2d 917) (2001); Loper v. State, 191 Ga. App. 515, 515-516 (1) (382 SE2d 212) (1989); Pollard v. State, 175 Ga. App. 269, 269-270 (333 SE2d 152) (1985). Waiver principles do not apply in that context, and if the trial court conducts the trial in the absence of the defendant, the court violates the defendant’s constitutional right to be present, entitling him to a new trial. See id.2 A trial “starts” once a jury has been empaneled and sworn. See Pollard, 175 Ga. App. at 270. The present case, however, is clearly distinguishable. This is not a case where a defendant out on bond or his own recognizance failed to appear at the trial proceedings when they commenced and then was tried and convicted in absentia. Rather, LaGon was in state custody and made a conscious choice to attend some but not all of his trial, threatening to violently resist if the sheriff’s deputies attempted to compel his attendance in the courtroom and thereby disrupt the court proceedings. Other courts have held that a defendant’s right to be present at trial is not violated in the circumstance where the defendant is in custody and makes clear to the trial court 2 In contrast, a criminal defendant free on bond or his own recognizance who is present when the trial starts, but later absconds during the course of the trial, waives his right to be present, and the trial can proceed forward in his absence. See Hill v. State, 290 Ga. 493, 494-495 (2) (722 SE2d 708) (2012); Estep v. State, 238 Ga. App. 170, 171-172 (1) (518 SE2d 176) (1999). 20 that he will not attend the start of trial without causing a disruption. See, e.g., United States v. Sterling, 738 F3d 228, 235-237 (11th Cir. 2013) (district court committed no error in finding that the defendant had waived his presence at trial under federal procedural rules, where the defendant, while in interview room before trial commenced, made clear that he would have to be forcibly brought into the courtroom); United States v. Benabe, 654 F3d 753, 768-774 (7th Cir. 2011) (district court did not violate defendants’ right to be present at trial under federal constitutional and procedural rules by removing the disruptive defendants before the jury was selected). Cf. United States v. Perkins, 787 F3d 1329, 1338-1339 (11th Cir. 2015) (any purported constitutional or procedural error in the defendant’s failure to be present at the beginning of trial was invited error and would not be reviewed on appeal, given that the defendant had refused to leave the interview room on the day his trial was set to begin in an effort to “sabotage the criminal proceedings”). We similarly conclude that where a criminal defendant who is in state custody – after being made aware of his right to be present and that the trial will proceed forward in his absence – refuses to attend the start of his trial without causing a disruption, the trial court has the discretion to conclude that the defendant has waived his right to be present for the proceedings and begin the trial in his absence. As the 21 United States Supreme Court has noted, “trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case.” Allen, 397 U.S. at 343. See Weaver, 288 Ga. at 542-543 (3). And we do not believe that in this context, a trial court should be required to have a resistant defendant forcibly transported into the courtroom in front of shocked jurors so that he can quickly waive his right to be present and then be removed, simply so that it can be said that the defendant was “present” at the start of trial. Forcing the defendant to actually come into the courtroom, for no other reason than to have the jurors briefly eyeball him, would have served no good purpose, but instead would have endangered the safety of all assembled, prejudiced the defendant before the jury, and undermined the dignity of the court. United States v. Perkins, No. 1:10-CR-97-1-JEC-LTW, 2013 WL 3820716, at *21 (N.D. Ga. July 23, 2013), aff’d, 787 F3d 1329 (11th Cir. 2015). Accordingly, we conclude that the trial court committed no error by beginning LaGon’s trial in his absence, given that LaGon was in custody and was informed of his right to be present and that the trial would proceed without him, but made clear 22 that he would not enter the courtroom without a fight. LaGon therefore is not entitled to a new trial on the enumerated ground. 4. Lastly, LaGon contends that the trial court committed reversible error by declining to grant a continuance after the State belatedly turned over the victim’s hospital medical records in violation of the reciprocal discovery statute. We are unpersuaded. Where the trial court has denied a motion for a continuance for a discovery violation, the defendant must show not only that the court erred in denying the continuance, but also that he was harmed by the denial. Murray v. State, 328 Ga. App. 192, 195 (3) (761 SE2d 590) (2014). Here, LaGon failed to make a proffer of the medical records, which therefore have not been made part of the appellate record, and he has not otherwise shown how a continuance would have been benefitted him. The record reflects that defense counsel received the medical records on the second day of trial, and the proceedings recessed for the day before the State’s first witness, the victim, had been subject to cross-examination. And, as previously noted, the trial court did not start the trial on the third day until that afternoon because of a scheduling conflict, and it was only at that point that defense counsel began his cross- examination of the victim. Thus, LaGon’s counsel had the entire morning of the third 23 day of trial and the previous night to review the medical records and then use them for the cross-examination of the victim and other subsequent witnesses if he wished to do so. Accordingly, even if the State violated the discovery statute by its belated production of the victim’s medical records, Lagon has failed to carry his burden of establishing that the violation was harmful and thus is not entitled to a new trial on that basis. See id. Judgment affirmed. Ray and McMillian, JJ., concur. 24 

946 F.2d 891 U.S.v.Stephenson* NO. 91-4415 United States Court of Appeals,Fifth Circuit. SEP 27, 1991 1 Appeal From: E.D.Tex. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2

617 F.2d 942 80-1 USTC P 9307 UNITED STATES STEEL CORPORATION, Appellant-Cross-Appellee,v.COMMISSIONER OF INTERNAL REVENUE, Appellee-Cross-Appellant. Nos. 167, 514, Dockets 79-4092, 79-4112. United States Court of Appeals,Second Circuit. Argued Nov. 29, 1979.Decided March 12, 1980. Robert T. Duffy, and Gilbert S. Rothenberg, Washington, D. C. (M. Carr Ferguson, Asst. Atty. Gen., William A. Friedlander, Gary R. Allen, and R. Bruce Johnson, Attys., Tax Div., Dept. of Justice, Washington, D. C., of counsel), for the Commissioner, appellee-cross-appellant. Haliburton Fales, II, and David Sachs, New York City (White & Case, New York City, A. Chauncey Newlin, Allan L. Gropper, and Michael L. Lieberman, New York City, of counsel), for United States Steel Corp., appellant-cross-appellee. Before LUMBARD, MESKILL and NEWMAN, Circuit Judges. LUMBARD, Circuit Judge: 1 This consolidated appeal1 from two decisions of the Tax Court, Quealy, J., arises out of the development by United States Steel Corporation ("Steel") of newly discovered Venezuelan iron mines in the 1950's, and the financial arrangements resulting from the creation of two Steel subsidiaries to mine and transport ore. Two distinct questions of tax law are presented: first, what kind of evidence is sufficient for a taxpayer to challenge successfully the Commissioner's determination that payments between a parent and a subsidiary are not "arm's length" and thus are subject to reallocation under § 482 of the Internal Revenue Code; and second, whether Treasury Regulations 1.1502-34A and 1.1502-35A,2 which require a corporation filing consolidated returns to reduce its basis in obligations of an affiliate to the extent it takes advantage of losses sustained by the affiliate which the affiliate could not itself have utilized, require a basis reduction in the case of an affiliate which could not have taken the losses in question during the period when consolidated returns were filed, but could have made use of them in subsequent separate return years. 2 We find that the Tax Court, in the first case, T.C. Memo. 1977-140, did not give sufficient weight to the taxpayer's evidence supporting its contention that charges between the taxpayer and its subsidiary were arm's length, and for that reason we reverse the judgment of the Tax Court sustaining, with modifications, the Commissioner's reallocation of income; in the second case, T.C. Memo. 1977-290, in which the Tax Court held that no basis reduction was required, we also reverse, because we think that the applicable Treasury Regulations allow a taxpayer to look, for basis reduction purposes, only to consolidated return years in determining whether losses could have been availed of by an affiliate. I. The Reallocation Issue 3 Taxpayer, United States Steel Corporation, is a major vertically integrated producer of steel. In addition to steel-making plants, it owns iron ore mines in the United States and elsewhere. In 1947, Steel discovered a vast new source of iron ore in Cerro Bolivar, a remote part of northeastern Venezuela on the Orinoco River. The transport of Orinoco ore to the Atlantic required the dredging of an extensive channel. Steel proceeded to develop these mines at a cost of approximately two hundred million dollars. In 1949, Steel formed Orinoco Mining Company ("Orinoco"), a wholly-owned Delaware subsidiary, to own and exploit the Cerro Bolivar mines. 4 Orinoco began selling ore from its mines in 1953. Initially, the ore purchased by Steel from Orinoco was transported to the United States in chartered vessels owned by two independent companies, Universe Tankships, Inc., ("Universe") and Joshua Hendy Corp. ("Hendy"). But in December 1953, Steel incorporated another wholly-owned subsidiary, Navios, Inc., ("Navios") in Liberia. Navios, with its principal place of business in Nassau, in the Bahamas, was a carrier which did not own any vessels. From July 1954 on, Navios, instead of Steel, chartered vessels from Universe, Hendy, and other owners, and Steel paid Navios for the transport of ore from Venezuela to the United States.3 Navios was an active company, having in the period 1954-60 between 53 and 81 fulltime employees.4 5 Although Steel was by far the largest customer of Navios, Navios sold its transport services to other domestic steel producers (collectively "the independents") and to foreign steel companies. The prices charged by Navios to other domestic ore importers during the relevant period were the same prices charged to Steel, though the rates charged to companies importing ore to countries other than the United States were different. 6 Like Navios, Orinoco did not sell exclusively to Steel, although its parent was by far its largest customer. Orinoco sold to the independents and to foreign steel companies at the same prices it charged Steel. 7 Orinoco sold ore bound for the United States FOB Puerto Ordaz, Venezuela in an attempt to arrive at a fair market price in order to minimize conflict with the Venezuelan taxing authorities, who had the power to revalue, for taxation purposes, the price at which Orinoco sold its ore if they considered that price too low. United States prices of iron ore were set, during the period in question, by an annual auction of ore from the Mesabi range of Minnesota, which established the so-called "Lower Lake Erie" price. Through its subsidiary Oliver Mining Co., Steel sold significant amounts of Mesabi ore. 8 Orinoco was subject to a Venezuelan tax of up to 50% on income, and to a United States tax of 48% on any residue not offset by foreign tax credits. Steel was subject to a United States tax of 48% of net income. Navios was subject to a 2.5% excise tax in Venezuela and no tax in the United States. Dividends paid by Navios to Steel, of course, would be taxed at a rate of 48%. 9 Navios was a highly successful venture: Steel found itself in 1960 with a wholly-owned subsidiary possessing nearly $80 million in cash and cash equivalents. Navios paid no dividends to Steel during the period involved in this case. In effect, then, Navios became an offshore tax shelter. But, as the Tax Court found, Steel's decision to create Navios is not in itself a justification for the Commissioner's reallocation of income, since Navios served a major business purpose unrelated to tax-shifting: allowing Steel to reap the cost savings of using a non-United States-flag fleet. 10 In the tax years 1957 through 1960, Navios earned approximately $391 million in gross revenues, all on the transport of iron ore from Venezuela to various points in the eastern continental United States and in Europe. Of this total, revenues from Steel amounted to $286 million, or 73% of the total; and from independent domestic steel purchasers $21 million, or 5% of the total.5 11 Two steel companies, Bethlehem Steel and Eastern Gas and Fuel Associates, used other means of transportation for ore which they purchased from Orinoco. Bethlehem had mines and exported from Venezuela small quantities of ore from the Orinoco area prior to Steel's development of its mines. Bethlehem had earlier set up a transportation system from minehead to the United States to which it adhered during the period in question. Eastern Fuel and Gas, a much smaller concern, contracted directly with shipowners, including its own shipowning affiliates.6 12 During 1957-60, there was no information publicly available from which a "market price" for the carriage of iron ore by sea could be determined. Unlike the practice in the oil tanker industry, for example, ship charter contract prices for ore carriage were not published. 13 The Commissioner determined that Navios had overcharged Steel by 25%, and allocated income from Navios to Steel as follows: 14 1975-1977 Total No. of Haz. No. of No. of Cars Haz. Mat. Railroad Mat. Consists In Cars In Containing Cars Cars People Equipment Derailments Consists Haz. Mat. Damaged Relea- Evacuat- Damage ($) sing ed 1975 637 48,669 4,711 891 126 3,345 18,128,364 1976 627 45,363 2,642 736 152 13,679 22,894,291 1977 673 50,007 3,118 949 153 10,696 29,670,284 TOTAL 1,937 144,039 10,481 2,576 421 27,720 70,692,939 15 On the basis of these figures, the Commissioner asserted deficiencies against Steel as follows: Taxable Year Amount Allocated 16 ------------ ---------------- 17 1957 $11,072,585.00 1958 13,042,107.00 1959 13,624,330.00 1960 14,402,384.00 ---------------- $52,141,406.00 18 The Tax Court reviewed the history of Steel's relations with its subsidiaries Navios and Orinoco and concluded that a § 482 reallocation was justified because Steel had caused Navios to charge rates such that, at all times, the delivered price of Orinoco-origin ore in the United States was equivalent of the Lower Lake Erie price. In the Tax Court's view, this equivalence served several purposes. First, it protected Steel's interest in the revenues of its subsidiary, Oliver Mining Co., by insuring that the Lower Lake Erie price was not undercut by cheaper foreign ore. Second, because Steel could be sure of selling its Orinoco production so long as the delivered United States price did not exceed the Lower Lake Erie price, it enabled Steel to earn "extra" profits. Third, such extra profits, because they were earned through Navios, were not subject to Venezuelan tax and were sheltered from United States tax. 19 Judge Quealy then reviewed the figures used by the Commissioner in his reallocation. The Commissioner had used an approach that looked to profits and determined that a certain percentage of Navios' profits was in excess of what would fairly reflect income. Judge Quealy, by contrast, used two alternative means of arriving at what Navios' revenues would have been had it charged a "market" price for its services. First, he extrapolated hypothetical rates for 1957-60 from what Universe and Hendy charged in their 1954 contracts with Steel, adding adjustments to account for increased costs, risk and profits. As a check on the accuracy of this historical approach, Judge Quealy also constructed hypothetical rates based on estimates of what Navios' costs had been in the taxable years in question, adjusting these estimates to allow for risk and profit. He then chose the method which, for each taxable year, would result in the lowest reallocation in favor of the government.7 20 The figures arrived at by the Tax Court provide for reallocation of income as follows from Navios to Steel: 21 Taxable Year Deficiency ------------ -------------- 1957 $11,100,174.68 1958 10,272,076.07 1959 9,884,214.27 1960 16,814,959.53 -------------- $48,071,424.55 22 We are constrained to reverse because, in our view, the Commissioner has failed to make the necessary showings that justify reallocation under the broad language of section 482, which provides in full: 23 In any case of two or more organizations, trades, or businesses (whether or not incorporated, whether or not organized in the United States, and whether or not affiliated) owned or controlled directly by the same interests, the Secretary may distribute, apportion, or allocate gross income, deductions, credits, or allowances between or among such organizations, trades, or businesses, if he determines that such distribution, apportionment, or allocation is necessary in order to prevent evasion of taxes or clearly to reflect the income of any of such organizations, trades, or businesses. 24 The Treasury Regulations provide a guide for interpreting this section's broad delegation of power to the Secretary, and they are binding on the Commissioner. Treas.Reg. 1.482-1(b) states in part that "(t)he standard to be applied in every (§ 482) case is that of an uncontrolled taxpayer dealing at arm's length with another uncontrolled taxpayer." This "arm's length" standard is repeated in Treas.Reg. 1.482-1(c), and this subsection makes it clear that it is meant to be an objective standard that does not depend on the absence or presence of any intent on the part of the taxpayer to distort his income. 25 Treasury Reg. 1.482-2(b) governs the situation presented by the case at bar, in which a controlled corporation performs a service for a controlling corporation allegedly "at a charge which is not equal to an arm's length charge as defined in subparagraph (3) of this paragraph." Subparagraph (3) defines an arm's length charge for a service which is an integral part of the business of the corporation providing it as "the amount which was charged or would have been charged for the same or similar services in independent transactions with or between unrelated parties under similar circumstances considering all relevant facts." 26 We think it is clear that if a taxpayer can show that the price he paid or was charged for a service is "the amount which was charged or would have been charged for the same or similar services in independent transactions with or between unrelated parties" it has earned the right, under the Regulations, to be free from a § 482 reallocation despite other evidence tending to show that its activities have resulted in a shifting of tax liability among controlled corporations. Where, as in this case, the taxpayer offers evidence that the same amount was actually charged for the same service in transactions with independent buyers, the question resolves itself into an evaluation of whether or not the circumstances of the sales to independent buyers are "similar" enough to sales to the controlling corporation under the circumstances, "considering all relevant facts." In our view, "considering all the relevant facts," the evidence was sufficient to show similar enough transactions with independent buyers to establish that the price Steel paid Navios was an arm's length price. 27 The evidence referred to above consists of Steel's uncontested showing that the amounts Steel paid Navios for ore transport were the same rates paid by other independent purchasers of Orinoco ore. The Commissioner argues that the payment of the same rates by Steel and by independent buyers does not alone show, "considering all the relevant facts", that Steel paid an arm's length price. 28 Judge Quealy found that although purchasers of Orinoco ore were not required to use Navios' transport services, "most purchasers would not be in a position to contract independently for transportation of the ore to the site of their mills." (T.C. Memo. 1977-140 at 62). But, as we have stated above, two steel companies, Bethlehem Steel and Eastern Fuel and Gas, did make such independent arrangements. Bethlehem was a large corporation with financial resources comparable to those of Steel, but Eastern was a relatively small company whose ability to do without Navios is persuasive evidence that Judge Quealy's reliance on the notion that independent steel buyers were somehow forced to use Navios out of economic necessity was misplaced. 29 The following table sets forth the amount of ore carried for some of the larger independent United States buyers, and the resulting charges made by Navios, during the years in question: 30 Amount Paid Year Name of Purchaser Tonnage Navios 1957 Shenango Furnace 150,027 $ 1,403,024 Jones & Laughlin 55,517 497,341 Pittsburgh Steel 157,252 1,422,247 Sharon Steel 268,216 2,587,853 Youngstown S. & T. 83,697 814,215 United States Steel 7,223,187 65,274,437 1958 Shenango Furnace 247,014 2,483,631 Jones & Laughlin -- -- Pittsburgh Steel 54,445 528,535 Sharon Steel 114,688 1,173,485 Youngstown S. & T. 74,967 767,532 United States Steel 8,116,477 76,042,677 1959 Shenango Furnace 299,480 2,975,927 Pittsburgh Steel -- -- Sharon Steel 215,004 2,141,493 Youngstown S. & T. 79,630 793,150 United States Steel 8,716,798 80,278,352 1960 Shenango Furnace 66,377 410,863 Pittsburgh Steel -- -- Sharon Steel 163,968 823,119 Youngstown S. & T. -- -- 31 These figures show that the shipments of Orinoco ore to independent American buyers represented a series of transactions substantial in both frequency and volume. Although Steel's shipments were larger, transactions on the order of the carriage of 100,000 tons of ore (for which Navios would have charged approximately $1 million) cannot be dismissed as an arrangement a company would make without some attention to the possibility of securing more favorable terms. Nor can purchasers like Pittsburgh Steel, Sharon Steel, Jones & Laughlin and Youngstown Sheet & Tube be considered commercially unsophisticated or incapable of bearing the costs of seeking lower rates. It is true, as the Commissioner points out, that none of the independent domestic purchasers bought enough in one year to fill one of the very largest ore carriers chartered by Navios, but Navios also chartered smaller vessels, down to 20,000 ton capacity, and thus any argument that the independents were forced, in effect, to pool their transport requirements is untenable.8 32 In sum, the record shows that over four years' time half a dozen large corporations chose to use the services of Navios despite the fact that they were not compelled to do so. In such circumstances, we think the taxpayer has met its burden of showing that the fees it paid (which were identical to those paid by the independents) were arm's length prices. We do not say that, had different or additional facts been developed, the Commissioner could not have countered the taxpayer's showing and sustained the validity of his reallocation. Such a counter-showing would have required evidence that Navios' charges, although freely paid by other, independent buyers, deviated from a market price that the Commissioner could have proved existed for example, if worldwide ore-shipping contracts had been recorded and published during the period in question. 33 The Commissioner also argues that the fact that Steel paid the same rates as the independents is itself sufficient evidence that Steel was overcharged. The reasoning behind this counter-intuitive argument is that, in essence, Steel's relationship to Navios was that of a long-term charterer while the independents were short-term charterers; and that it is axiomatic that a long-term charterer pays a lower annual rate than a short-term charterer, because a shipowner prefers the freedom from market vicissitudes offered by a long-term charter. We are not persuaded by this line of argument. The shipowner who locks himself into a long-term charter bears the risk that charter rates will go up. Moreover, Steel's relationship to Navios was not that of charterer at all; Navios chartered ships from Universe and Hendy, and Steel purchased Navios's services as a carrier. Thus the Commissioner's analogy is not persuasive. 34 The Commissioner also points out that some of the Orinoco ore was shipped to Great Britain, but that although the distance from Venezuela to Great Britain is, on the average, 54% greater than the distance to the United States, the rates charged by Navios were not 54% higher than the Venezuela-to-United States rates. We do not view this as persuasive. First, there is nothing in the record to support the premise of the Commissioner's argument that charter rates are or should be an arithmetical multiple of distance traversed, nor is there any expert evidence as to the additional marginal cost of transport to Britain. The British rates are therefore of only speculative relevance to this case.9 Second, it may be, as the Commissioner suggests, that Navios was constrained to set lower rates for its European customers than for its American customers because the effective ceiling on the price of delivered ore in Europe was set by the price of Swedish ore, while the effective American ceiling was set by the Lower Lake Erie price. If the former was lower than the latter, shipping rates to Europe might have to be reduced. But the fact that sellers of ore, providers of ore transport, and ore buyers were all influenced by the price of a competing product does not mean that a price is not an arm's length price. 35 There is, however, a more sophisticated version of this argument which is entitled to scrutiny. Assume that an unrelated carrier would charge, as its Venezuela-U.S. rate, an amount which, when added to the price of Orinoco ore sold FOB, equalled the Lower Lake Erie price. Assuming further common ownership of Navios and Steel, but not of Orinoco, no case could be made out that Navios' rates were not arm's length, because for economic reasons unrelated to common ownership the price the carrier charged was the price any carrier would have charged and thus the price that would have been arrived at in a transaction between unrelated buyers and sellers. But add to this the fact that Steel also controlled Orinoco and therefore could reduce the price of Orinoco ore in order to increase Navios' share. The resulting price for Navios' services Lower Lake Erie price minus Orinoco FOB price would not be an arm's length price because it would have been affected by Steel's ownership of Orinoco, though not by Steel's ownership of Navios. 36 Attractive as this argument is in the abstract, it is a distortion of the kind of inquiry the Regulations direct us to undertake. The Regulations make it clear that if the taxpayer can show that the amount it paid was equal to "the amount which was charged . . . for the same or similar services in independent transactions" he can defeat the Commissioner's effort to invoke § 482 against him. The amount paid for Navios' services by Sharon Steel, Youngstown Sheet & Tube and other corporations was the same price paid by Steel. The only question, then, is whether the transactions were "independent." 37 We think that "independent" in this context must be viewed in contrast to the concept of joint ownership or control that is at the core of § 482. The transactions between Navios and Jones & Laughlin, Sharon and Youngstown were "independent" in that Steel had no ownership or control interest in any of these firms and thus was not in a position to influence their decision to deal with Navios. To expand the test of "independence" to require more than this, to require that the transaction be one unaffected by the market power of the taxpayer, would be to inject antitrust concerns into a tax statute. But in § 482, a tax statute, it is appropriate to limit the concept of what is not "independent" to actions influenced by common ownership or control. 38 We do not think that in order so to hold it must be shown that Navios' prices were the result of a perfectly competitive market. Prices arrived at by independent buyers and sellers in arm's length transactions may vary from such a perfect market price depending on factors extraneous to § 482. 39 Of course, in some markets, all "arm's length" transactions would occur at truly competitive prices. But the more imperfect the market, the more likely it is that "arm's length" transactions will take place at prices which are not perfect market prices. To use § 482 to require a taxpayer to achieve greater fidelity to abstract notions of a perfect market than is possible for actual non-affiliated buyers and sellers to achieve would be unfair. Thus, for example, Judge Quealy's reliance on the fact that Bethlehem did not use Navios' services ("Presumably, Bethlehem found that it could do the job for less." T.C. Memo. 1977-140 at 68.) even if correct factually,10 is irrelevant. The fact that transactions take place in the market place at different price levels does not, by itself, prove that transactions between unrelated buyers and sellers, such as Navios and Jones & Laughlin are not at "arm's length." The Regulations say that "independent transactions with or between unrelated parties" are enough to insulate a taxpayer's price from § 482. We decline to use the "all relevant facts" clause to transform this limited approach into a requirement that the taxpayer's price be the result of a perfectly competitive market. 40 Nor does the statute require that all independent transactions be at the price taxpayer charged or paid; therefore, the fact that Orinoco ore bought by Bethlehem Steel was transported to the United States at rates different from what Navios charged Steel and other customers is irrelevant. Since there were independent transactions significant in number and dollar amount and occurring over a long period of time, we need not address the question of how many such "independent transactions" at the taxpayer's price would be needed to insulate taxpayer from § 482 in a situation where a preponderance of the "independent" transactions take place at a price far different from the price paid or charged by taxpayer. 41 In at least one portion of Judge Quealy's opinion, however, it appears that the reason he relied upon to hold Navios' charges too high is not at all a matter involving the comparison of rates Steel paid to those paid by other steel companies. He said that what the rates paid by Steel must be measured against in order to see if a § 482 reallocation is justified is "what might be a reasonable charge for a continuing relationship involving the transportation of more than 10 million tons of iron ore per year." Jt. App. at 69. If this is indeed the inquiry, then the fact that other steel companies paid Navios the same rates Steel did is irrelevant. Judge Quealy explicitly recognized this: 42 The comparability tests in the regulations cannot be relied on because the transportation of iron ore on the basis proposed by the petitioner and Navios had never been done previously. There could be no "independent transactions with unrelated parties under the same or similar circumstances" within the meaning of section 1.482-1(d)(3) of the regulations. Jt.App. at 69-70. 43 We are constrained to reject this argument. Although certain factors make the operations undertaken by Navios for Steel unique at one point, for example, Navios' ore-carriers were the largest of their kind in the world the approach taken by the Tax Court would lead to a highly undesirable uncertainty if accepted.11 In very few industries are transactions truly comparable in the strict sense used by Judge Quealy. Every transaction in wheat, for example, is more or less the same, except for standard variations in amount, time of delivery and place of delivery. But few products or services are as fungible as wheat. To say that Pittsburgh Steel was buying a service from Navios with one set of expectations about duration and risk, and Steel another, may be to recognize economic reality; but it is also to engraft a crippling degree of economic sophistication onto a broadly drawn statute, which if "comparable" is taken to mean "identical", as Judge Quealy would read it would allow the taxpayer no safe harbor from the Commissioner's virtually unrestricted discretion to reallocate.12 II. The Consolidated Return Issue 44 Orinoco, although very profitable once full exploitation of its mines began, experienced large operating losses during its first few years of life. During this period it was sustained by cash infusions made available by Steel on open account. The second portion of this case, a cross-appeal by the Commissioner from the Tax Court's decision, T.C. Memo. 1977-290, also by Judge Quealy, concerns the proper treatment of Orinoco's eventual repayment of these open account advances in light of the fact that Steel had taken advantage of Orinoco's operating losses in consolidated returns filed during the years 1950-55. The Commissioner seeks approximately $1,600,000 in deficiencies from Steel, relying on Treasury Regulations 1.1502-34A and 1.1502-35A,13 which require a reduction in basis of a parent corporation's holding of stock or other obligations (e. g., open account obligations) of a corporation with whom it files consolidated returns to the extent of any losses sustained by the affiliated corporation which the affiliate could not have taken itself. The question for decision is whether or not the period during which the affiliate could have taken the loss is limited, for purposes of the above cited Regulations, to those years in which consolidated returns were filed. The Commissioner sought to reduce Steel's basis in obligations of Orinoco. Steel asserted a right to avoid, in effect, such a reduction on the grounds that, because Orinoco had income and paid taxes in 1956-60, Orinoco's 1950-55 losses could not be said to have been losses which Orinoco could not have availed itself of, because they might have been available to Orinoco as a loss carry over in 1956-60. 45 Judge Quealy held that the Regulations in question were ambiguous as to the validity of Steel's interpretation. Since the purpose of the Regulations was to prevent "double deductions", and, in Judge Quealy's view, "double deductions" would not result if the taxpayer's argument was accepted, Judge Quealy decided in favor of Steel.14 We reverse. In our view, a parent that takes advantage of an affiliate's losses must reduce its basis without regard to the fact that the affiliate, in subsequent separate-return years, may earn a profit and pay taxes on that profit. 46 During the years 1950-55, Steel made open account advances to Orinoco totalling some $154 million. During those same years, Steel and Orinoco filed consolidated tax returns, in which $52 million of Orinoco's operating losses were used to offset net income of Steel and other affiliated corporations joining in the consolidated return. Orinoco repaid the entire $154 million in advances to Steel during the period 1956-60. 47 The Commissioner seeks to apply Regulation 1.1502-35A to Steel's receipt of the Orinoco repayments. This Regulation provides that when a corporation disposes of the obligations of an affiliate, it must reduce its basis in the obligations by the excess of the losses sustained by the affiliated corporation during the consolidated return period (calculated in accordance with Regulation 1.1502-34A) over the corporation's basis in its affiliate's stock. Orinoco's repayment was clearly a "disposition" within the meaning of the Regulations. Steel's basis in its Orinoco stock was $30 million, which was increased, by stipulation of the parties, by $18 million to reflect imputed interest on monies advanced by Steel. The $52 million in Orinoco losses during 1950-55 was $4 million over the $48 million basis, and thus the Commissioner seeks a $4 million reduction in basis on Steel's receipt of the $154 million in repayments. 48 Steel argues that there can be no such excess under Regulation 1.1502-35A, because that Regulation uses as a key element in the equation just described the basis adjustment formula of subsection (b)(2)(i) of Treas.Reg. 1.1502-34A and, Steel maintains, subsection (b)(2)(i) mandates no basis reduction at all in its case. 49 Regulation 1.1502-34A deals with required basis reductions when a parent disposes of stock of an affiliate whose losses it has utilized on consolidated returns; 1.1502-35A adapts the underlying logic of 1.1502-34A to dispositions of obligations of the affiliate other than stock, i. e. bonds or open account obligations. Subsection (b)(2)(i) of Reg. 1.1502-34A provides for a basis reduction as follows: 50 (b)(2)(i) All losses of such issuing corporation sustained during taxable years for which consolidated income tax returns were made or were required (whether or not the taxable year 1929 or any prior or subsequent taxable year) after such corporation became a member of the affiliated group and prior to the sale of the stock to the extent that such losses could not have been availed of by such corporation as net loss or net operating loss in computing its net income or taxable income, as the case may be, for such taxable years if it had made a separate return for each of such years. 51 The purpose of Regulations 1.1502-34A and 1.1502-35A is to prevent what is called a "double deduction," which in this context refers to the possibility that, but for such a provision, a corporation could in effect use an affiliated corporation's losses twice the first time as operating losses that serve to reduce the overall tax liability of the group of companies filing consolidated returns, and the second time when the parent of the loss company sells its stock in the subsidiary, at which time the tax due on the sale might be reduced by the parent's ability to take a capital loss deduction because of any decline in the value of the stock.15 See Ilfeld Co. v. Hernandez, 292 U.S. 62, 54 S.Ct. 596, 78 L.Ed. 1127 (1934). 52 The basis reduction, whose formula is contained in subsection (b)(2)(i), is an effort to negate this "double deduction." But the required basis reduction extends only to "such losses (as) could not have been availed of by such corporations as net or net operating loss in computing its net income or taxable income, as the case may be, for such taxable years if it had made a separate return for each of such years." Thus Steel argues that Orinoco's losses are not such as would trigger subsection (b)(2)(i) because Orinoco could have taken the 1950-55 losses in 1956-60 as loss carry overs; in essence, Steel's position is that all that is required to escape basis reduction is that the taxpayer show that the loss incurred during the consolidated return period would have become available to the taxpayer at some time, even in a later separate return year. The Commissioner responds by pointing out that the loss must have been available during the period in which consolidated returns were filed, because the phrase "such years" at the end of subsection 1.1502-34A limits the class of years in which loss availability can insulate a parent from the rigors of 1.1502-34A to "taxable years for which consolidated income tax returns were made or were required." 53 We agree with the Commissioner. In our view, it is clear that "such taxable years" and "each of such years" clearly refer the reader back to "taxable years for which consolidated income tax returns were made." Since "such" assumes that a word already used is being referred to, there can be only one alternative to the interpretation we have just set out that "such" refers to the category described in parentheses early in the paragraph: ("whether the taxable year 1929 or any prior or subsequent taxable year"). But, as the Commissioner argues, this phrase is simply meant to modify the phrase that comes before it, and to establish as the relevant category those years in which taxpayer filed consolidated returns whether before, during or after 1929.16 54 Such a reading of the phrase "such years" is compelled by the nature of the hypothetical question subsection (b)(2)(i) directs us to answer. When the Regulations speak of determining whether a loss is one that "could not" have been taken by a corporation, the question posed is a purely hypothetical one: Assuming that, during certain years in which consolidated returns were filed, separate returns had been filed in that case would the affiliate have been able to make use of its losses? By using the phrase "if it had made a separate return the Regulations assert a counterfactual condition to what is assumed to have happened during the years in question that the corporation filed a consolidated return. Because Orinoco made money in 1956-60, Steel says, it "could" have taken the 1950-55 losses. But if the phrase "if it had made a separate return" is applied to Orinoco, the fallacy in Steel's reasoning becomes apparent. Orinoco did file separate returns in 1956-60; it makes no sense to apply the mandatorily hypothetical language of the Regulations to years in which separate returns were in fact filed. And the Regulations cannot mean "if it had made a separate return for each of all the years prior and subsequent to 1929" since that would mean that the corporation had never filed a consolidated return and Regulations 1.1502-34A and 1.1502-35A would not apply at all. Thus, it is evident that in this case "such years" cannot refer solely to the years 1956-60, nor to all the years prior to 1960; the only possible interpretation, as well as the one most in keeping with the drafting of the Regulations, is that the years 1950-55, when consolidated return were filed, were meant. 55 Two more points support our reading of the Regulations: first, if the draftsmen had contemplated that the Regulations would apply to any but a year in which the corporation had filed a consolidated return, the phrase "if it had made a separate return" should have been "if it had made, or did make, a separate return"; and second, because the event that triggers Regulations 1.1502-34A and 1.1502-35A is the taking, by the parent, of an affiliate's loss, even if the affiliate filed separately in a subsequent year it still "could not" take the loss in question, not because of its own tax situation, but simply because the loss had already been taken by the parent corporation. The argument made by Steel thus requires us to assume a double level of "ifs" in the Regulation: in order for a corporation to show that it "could" have availed itself of a loss, it not only has to be able to say that some separate return year occurred in which the loss would have been available, but that such availability would not have been affected by the fact that the loss had already been taken. Our interpretation of the subsection avoids this problem because, once it recognized that the phrase "if it had made a separate return for each of such years" can refer only to consolidated return years, it is clear that the subsection is assuming away the actual deduction of the loss by the parent on the consolidated return. 56 Because we find no ambiguity in the wording of the Regulations, we need not examine in detail the reasoning Judge Quealy used to show that no double deduction would result if the taxpayer were given the right to limit his basis reduction in the manner used by Steel. It may be, as Judge Quealy reasoned, that there are situations in which no threat of double deductions is present because of the fact pattern of the individual case. But the Regulations do not permit such a case by case approach. The relevant Regulations are clearly based on the theory that a blanket rule is needed to deprive the taxpayer of "the use of its subsidiary's net operating losses to gain a double tax benefit (1) to offset the taxpayer's separate income through consolidation; (2) to reduce the taxpayer's gain or increase its loss upon the sale of the subsidiary's stock at a price which reflects those losses." AMBAC Industries, Inc. v. C. I. R., 487 F.2d 463, 467 (2d Cir. 1973). Obviously in a case in which the price at which the subsidiary's stock is sold does not, for whatever reasons, accurately reflect the losses of the subsidiary, AMBAC's analysis is not wholly applicable. But the Regulations eschew a case by case approach to such problems in favor of a "bitter with the sweet" rule that hedges the advantages of consolidated returns with certain balancing disadvantages. 57 Accordingly, the decisions of the Tax Court sustaining and modifying reallocations of income from Navios to Steel, and disallowing the Commissioner's reduction of Steel's basis in open account obligations of Navios, are hereby reversed. 1 The appeal comes to us under 26 U.S.C. § 7482 2 New Regulations governing consolidated returns became effective December 31, 1965, but the old Regulations remain effective with regard to years prior to 1966. The Regulations in force during the period at issue in this case are currently tagged with the letter "A" to indicate that they have been superseded. Throughout this opinion, we refer to the Regulations controlling this case as 1.1502-34A and 1.1502-35A, their current designation 3 Between 80% and 95% of Navios' charters were "time charters" and the remainder were "voyage charters" 4 Certain corporate changes in structure effective December 31, 1959, by which Navios was placed under the aegis of a holding company, Navigen, which also operated certain non-Venezuelan activities, are not relevant to the issues in this case 5 The remaining 22% was sold to foreign steel companies 6 The record does not contain evidence as to the costs incurred by Bethlehem or Eastern in transporting the Venezuelan ore they bought and imported to the United States 7 We do not reach the many issues raised by Steel, and raised on cross-appeal by the Commissioner, regarding the correctness of methods employed by Judge Quealy to calculate the amount of income to be allocated to Steel 8 The record shows that some of the independents' purchases were made in very large units, up to 250,000 tons. And the record is devoid of evidence that the independents' purchases were made at short notice (or that ship charters were not available at short notice). Consequently, there is no basis for speculating that independent steel buyers were constrained to use Navios' services because of the unpredictable character of their purchases 9 There was, moreover, expert testimony offering reasons why charter rates to the United Kingdom would be higher, on a day-by-day comparison, than charter rates to the United States. This testimony cited such factors as United Kingdom port charges and the variable weather in the North Atlantic 10 But see n.4, supra 11 In addition to the resultant uncertainty as to whether or not the Commissioner would be justified in making an allocation, there is the second level of uncertainty present in all § 482 cases governed by a standard as general as that of "arm's length" transactions of how much of a reallocation the Commissioner will be entitled to. We need not criticize or endorse the calculating methods employed by either the Commissioner or the Tax Court in order to make this point; it is sufficient to point out that the Commissioner arrived at a total reallocation of $52 million, while the Tax Court arrived at a total of $25 million 12 Steel argues that various aspects of Venezuelan tax law and United States antitrust law, principally the Robinson-Patman Act, 15 U.S.C. §§ 13, 21(a) compelled the price structure under examination. Cf. Commissioner v. First Security National Bank of Utah, 405 U.S. 394, 92 S.Ct. 1085, 31 L.Ed.2d 318 (1972) (reallocation under section 482 denied where receipt of income reallocated would have violated federal banking law). Because of our disposition of the case, we need not reach these issues 13 See n.2, supra 14 Judge Quealy's decision speaks in terms of an "offset" to the basis reduction to account for the fact that Orinoco realized net income in 1956-60 (and thus arguably "could" have availed itself of the loss deductions in question). It is nowhere argued that the Regulations mention such an "offset", and the only justification for such an "offset" is the limit contained in subsection (b)(2)(i) of Reg. 1.1502-34A that restricts those losses which count towards basis reduction to losses which could not have been taken by the affiliate. Thus in this opinion we discuss whether or not Steel is entitled to exclude from its basis reduction Orinoco's 1950-55 losses rather than directly address the question of whether to allow an offsetting credit to a basis adjustment, because in our view Steel's right to exclude the 1950-55 losses from its basis reduction calculations is the controlling question of law. Since we hold that such an exclusion is forbidden by the Regulations, we do not reach the question of whether or not, if it were allowed, the best means for implementing it would be by such an "offset" as Steel proposes. Finally, we note that Orinoco earned enough money in 1956-60 so that, assuming arguendo that any of the 1950-55 losses were available to it for purposes of subsection (b)(2)(i), all of the 1950-55 losses could have been taken by Orinoco and thus the entire $4 million basis reduction asked for by the Commissioner would be wiped out 15 Even where the value of the stock does not decline, to permit a parent to sell a subsidiary's stock without a basis reduction after the parent has utilized operating loss deductions of the subsidiary would allow a less easily identified but valuable "double deduction" in that the value to the parent of the operating loss deduction would be ignored in computing the tax due on disposition, a result that would not accurately reflect the economic benefits realized by the parent. This problem might better be called a problem of potentially untaxed gains rather than a "double deduction," but this is simply a question of terminology 16 Further support for our reading of the Regulations can be gleaned from the prior history of the Regulations in issue. Section 1.1502-34A is the counterpart to Article 34(c)(2) of Treasury Regulations 75, issued under section 141(b) of the Revenue Act of 1928. This Article included the phrase "during each of the consolidated return periods (including only the taxable year 1929 and subsequent taxable years) . . . to the extent that such losses could not have been availed of by such corporation as a net loss in computing its tax for such periods if it had made a separate return for each of such periods." The repetition of the word "periods", here in opposition to the word "year" in the phrase in parentheses, makes it clear that "such" and "each of such" pick up only the prior reference to periods of time in which consolidated returns had been filed rather than refer to the phrase in parentheses. Given the similarity in structure and language of this Article to the Regulation we are construing, we think this counts in favor of the Commissioner's argument

882 F.Supp. 1176 (1994) Nancy D. MURPHY v. FRANKLIN PIERCE LAW CENTER. Civ. No. C-93-65-B. United States District Court, D. New Hampshire. November 17, 1994. *1177 Russell F. Hilliard, Gary B. Richardson, Upton, Sanders & Smith, Concord, NH, for Franklin Pierce Law Ctr. Dennis Murakami, Lexington, MA, for Nancy D. Murphy. MEMORANDUM AND ORDER BARBADORO, District Judge. Nancy Murphy suffers from a chronic vision impairment known as diplopia.[1] After being dismissed as a Franklin Pierce Law School student, she sued the Law Center alleging that she was the victim of unlawful discrimination on the basis of her disability and sex in violation of § 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. § 794 (West Supp.1994), Title IX of the Education Amendments of 1972, 20 U.S.C.A. §§ 1681 and 1682 (West 1990), and the Fourteenth Amendment's Equal Protection Clause. She also alleged that the Law Center's discharge procedures violated her rights under the Fourteenth Amendment's Due Process Clause and state contract law. The matter is before me on the parties' cross-motions for summary judgment. *1178 I. FACTS A. Franklin Pierce Law Center Franklin Pierce Law Center is a private, nonprofit corporation that receives some federal financial assistance. The Law Center does not offer a part-time program and, with limited exceptions, it requires students to complete their degree requirements within three years. Franklin Pierce publishes rules that limn its academic requirements and procedures for disciplinary action. The rules require that students must maintain a grade point average ("GPA") of 2.00 or higher, earn at least eighty-four credits, with no more than nine of those credits falling below a grade of C-, and satisfy any terms of academic probation. If a student fails to meet these minimum standards, he or she is subject to the oversight of the school's Academic Standards Committee. Students within the Committee's jurisdiction may be placed on probation, suspended, or dismissed. Probationary students must submit a plan to the Committee explaining their poor performance and offering recommendations for corrective action. The Committee may accept, modify or reject a student's plan when setting probation terms. It may also subject probationary students to revised eligibility requirements. B. Murphy's First Year: Fall 1987 — Spring 1988 Murphy disclosed her visual impairment in her admission application. She described her condition as double vision that first manifested itself when she was a teenager. She claimed that the condition worsened significantly after she was involved in an automobile accident during her second year of college. After undergoing two surgical procedures and "ocular motility therapy," however, she claimed that she no longer needed eyeglasses and concluded that "I continue today to read well without impairment." Murphy thus presented her condition as a hurdle that she had overcome rather than an impairment that would require accommodation upon admission. Franklin Pierce admitted Murphy for the Fall 1987 term. She took the same fifteen-credit course load as the other first year students, but was placed on probation after her second semester because her cumulative GPA was below 2.00. In accordance with the Law Center's rules, Murphy submitted a corrective action plan to the Academic Standards Committee. She did not allege that her low GPA had been caused by her visual impairment. Instead, she attributed her performance to poor test taking skills, panic when taking exams, "culture shock," and a thyroid condition. The Committee responded by accepting Murphy's proposed class schedule for the fall term. In light of her self-described "panic," however, the Committee required her to take practice exams throughout the semester. It also informed her that she must earn no grade less than C -, achieve at least a 2.00 GPA for the fall semester, and raise her cumulative GPA to 2.00 by the end of her second year. Finally, in commenting upon her thyroid condition, the Committee informed her that "[f]or our part, while sympathetic to the health problems you have, and willing to consider accommodations before health problems impact on performance, we do not see them as a basis for lessening of standards and will not be able to waive these terms of probation should you come to us after the fact with the explanation that you could have done better except for ill health." C. Murphy's Second Year: Fall 1988 — Spring 1989 Murphy successfully completed her probationary requirements for the Fall 1988 semester, receiving a GPA of 2.08. However, the Academic Standards Committee required her to submit another corrective action plan at the end of her second year because she received a D in Evidence and thereby violated the Law Center's rule prohibiting students from having more than nine credits below C -. Murphy alleged for the first time in her second corrective action plan that her academic difficulties were due in part to her visual impairment. She also described her condition in detail and delineated her method of managing the condition through muscle therapy, diet, rest, reading time management, *1179 and the occasional use of prism lenses. She further stated that her doctor recommended "being awake for three hours in the morning before reading, and sleeping when I have difficulty converging or when I experience muscle strain."[2] Because Murphy claimed that her impairment caused her to experience pain and headaches, she requested three-day rest periods between exams to allow her time to rest and manage her reading schedule without strain. She also stated "[a]lthough I have not previously brought this to the attention of the Academic Standards Committee, I did write briefly about the condition in my personal statement. I also spoke about it with Professor Arpiar Saunders during my admission interview." The Committee accepted Murphy's explanation for her poor performance and allowed her to return for a fifth semester. However, it again placed her on probation. This time, the Committee required her to achieve a GPA of 2.30 or higher for each semester of her third year, receive no D's or F's, and no more than one C - in either semester, and submit a proposed course schedule for the Committee's approval. The Committee also informed her that "if these conditions are not met, we will not entertain any new plans for rehabilitation, i.e., you will be dismissed if these terms are not met." Murphy chose not to appeal the Committee's decision and instead began negotiations with the Committee concerning her fall courses. The Committee rejected her request to participate in a five credit clinical program with the public defender's office and informed her that she would need to achieve a 2.67 GPA if she elected to participate in the Law Center's Civil Practice Clinic. After being informed that the Dean had agreed to allow her to take a reduced course load, the Committee accepted her proposal to take courses in Criminal Law, Commercial Paper, Real Estate Transactions, and Estate Planning. The Commercial Paper course was a "mini course" with the final exam scheduled several weeks prior to the regular final exam period. She was to be graded on a single exam in only one of the other three courses. In the other two courses, class participation or papers were to be a significant part of her final grade. D. Murphy's Fall 1989 Semester Murphy earned a 1.89 GPA for the fall term. She received failing grades in both Commercial Paper and Real Estate Transactions, a C in Criminal Law, and an A - in Estate Planning. She was granted extra time to complete her Criminal Law and Real Estate Transactions exams. Although she did not receive extra time for her Commercial Paper exam, she was allowed to retake the exam with extra time. On her second try, she received a D. Murphy was dismissed as a student on February 8, 1990, because the Law Center claimed that she had failed to meet the terms of her probation and otherwise failed to successfully complete the requirements for the degree program. Murphy timely appealed her dismissal and, for the first time, asked that the Law Center accommodate her disability by allowing her to take oral exams. E. Murphy's Appeal to the Faculty Board and her Department of Education Complaint In denying Murphy's appeal, the Faculty Board concluded that Murphy had been dismissed because she lacked the analytical skills to succeed rather than because she was disabled. In this regard, the Faculty Board noted: There is a clear pattern in Ms. Murphy's transcript as a whole. The only two courses in which she got A - are taught and evaluated in a special way. In one, the examination is open book and takehome. In the other there are class presentations of projects. In both, the work is done in teams, the benefits of mutual instruction *1180 and learned cooperation being considered (in those courses) sufficient to outweigh the conceded risk of high grades for one or more team members who assent to the answers without understanding or is coached through a presentation. Further, evaluation is based on what might be called the mastery method which anticipates most students will ultimately be correct on nearly every point and therefore nearly every conscientious group earns an A of some sort. The only B's in the transcript are in practicum-type courses largely if not solely evaluated on the basis of a series of exercises or clinical work. Every D, F, or C - on the transcript is in a traditional, conceptual subject with a final exam. Ms. Murphy's higher grades in the basics are straight C's in Torts, Constitutional Law, Business Associations, Criminal Procedure and Criminal Law. Two D's and two C -'s were earned in basic courses in the first year — before Ms. Murphy says her vision became a problem. The Faculty Board also analyzed Murphy's exam answers and concluded that the kinds of errors she repeatedly made in her exams were "not errors of reading, nor the kind that more time on an exam would cure." Accordingly, the Faculty Board determined that Murphy's failure to succeed was unrelated to her disability. Murphy filed a complaint with the United States Department of Education, Office of Civil Rights ("OCR") on August 7, 1990. In response, OCR determined that Franklin Pierce had not violated § 504 of the Rehabilitation Act or its accompanying regulations, 34 C.F.R. § 104.1 et seq. (1992). II. DISCUSSION A. The Summary Judgment Standard It is axiomatic that a court does not find facts in ruling on a motion for summary judgment. Instead, the court construes the evidence in the light most favorable to the non-movant and determines whether the moving party is entitled to judgment as a matter of law. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir.1988). Less well understood is the effect that burdens of proof frequently have on the resolution of summary judgment motions. If the party moving for summary judgment has the burden of proof at trial, the court will grant the motion only if: (1) the moving party initially produces enough supportive evidence to entitle the movant to judgment as a matter of law (i.e., no reasonable jury could find otherwise even when construing the evidence in the light most favorable to the non-movant), and (2) the non-movant fails to produce sufficient responsive evidence to raise a genuine dispute as to any material fact. Fitzpatrick v. Atlanta, 2 F.3d 1112, 1115-17 (11th Cir.1993). In contrast, if the non-movant bears the burden of proof, the court will grant the motion if: (1) the movant alleges that the non-movant lacks sufficient proof to support one or more elements of her case, and (2) the non-movant is unable to produce sufficient responsive evidence to withstand a motion for judgment as a matter of law. Id.; see also, Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992). Thus, the amount and quality of the responsive evidence that the non-movant must produce to successfully resist a motion for summary judgment will depend upon whether the non-movant bears the burden of proof at trial. Fitzpatrick, 2 F.3d at 1115-17. With these standards in mind, I turn to the merits of the cross motions for summary judgment. B. The Rehabilitation Act Claim A § 504 claimant must allege that she is (1) an "individual with a disability,"[3] (2) who is "otherwise qualified," and (3) who was *1181 denied participation in a program or activity receiving federal funds, (4) "solely because of her disability." Cook v. Rhode Island Dept. of Mental Health, Retardation & Hosp., 10 F.3d 17, 22 (1st Cir.1993). In this circuit, the plaintiff bears the burden of proving all four elements of her § 504 claim. Id. But see Taub v. Frank, 957 F.2d 8, 10 (1st Cir.1992) (noting that "the plaintiff bears the initial burden of establishing that he is entitled to protection under the Act"). Compare Teahan v. Metro-North Commuter R.R., 951 F.2d 511, 514 (2d Cir.1991) (burden of proof remains with plaintiff but burden of production shifts to defendant once plaintiff establishes prima facie case), cert. denied, ___ U.S. ___, 113 S.Ct. 54, 121 L.Ed.2d 24 (1992), with Wood v. Omaha Sch. Dist., 985 F.2d 437, 438 (8th Cir.1993) (burden of proof shifts to defendant once plaintiff establishes prima facie case) and Fitzpatrick, 2 F.3d at 1127 n. 17 (same) and Smith v. Barton, 914 F.2d 1330, 1339 (9th Cir.1990) (same), cert. denied, 501 U.S. 1217, 111 S.Ct. 2825, 115 L.Ed.2d 995 (1991), and Arneson v. Heckler, 879 F.2d 393, 396 (8th Cir.1989) (same on remand, 53 Fair Empl.Prac.Cas. (BNA) 963, 1990 WL 116658 (E.D.Mo.1990), modified and rev'd on other grounds sub nom., Arneson v. Sullivan, 946 F.2d 90 (8th Cir.1991)) and Treadwell v. Alexander, 707 F.2d 473, 475 (11th Cir.1983) (same) and Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372, 1387 (10th Cir.1981) (same). Franklin Pierce argues that it is entitled to summary judgment because Murphy cannot prove either that she was dismissed solely because of her disability or that she was otherwise qualified to complete her Law Center studies. I address each argument in turn. 1. Solely by reason of disability Section 504 protects only those persons who are subjected to discrimination under federally funded programs solely because of their disabilities. 29 U.S.C.A. § 794(a). Thus, if a disabled person is denied participation in a program because she is unable to meet a facially neutral program requirement, she will not be entitled to relief under § 504 unless she can establish either that the requirement was merely a pretext for unlawful discrimination, Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 722 (2d Cir.1994), or that she was unable to meet the requirement because of her disability, Teahan, 951 F.2d at 516. Murphy concedes that Franklin Pierce dismissed her because she failed to meet both the Law Center's minimum grade requirements and the terms of her probation. Moreover, she does not contend that the Law Center established either its minimum requirements or her probation terms as a pretext for unlawful discrimination. Instead, she argues that she has a § 504 claim because her disability prevented her from meeting the requirements and probation terms. Ordinarily, a claim such as this raises a question of fact that cannot be resolved by a motion for summary judgment. Id. at 517. But see McGregor v. L.A. Univ., 3 F.3d 850, 860 (5th Cir.1993) (court affirmed grant of defendant's motion for summary judgment), cert. denied, ___ U.S. ___, 114 S.Ct. 1103, 127 L.Ed.2d 415 (1994). A plaintiff, however, cannot survive a motion for summary judgment challenging the sufficiency of a claim on which she bears the burden of proof at trial without offering any supporting evidence. Wynne v. Tufts Univ. Sch. of Medicine, 976 F.2d 791, 796 (1st Cir.1992) (plaintiff may not rest upon conclusory allegations when pretext is at issue), cert. denied, ___ U.S. ___, 113 S.Ct. 1845, 123 L.Ed.2d 470 (1993); see also, Fitzpatrick, 2 F.3d at 1115-17. Here, Murphy has not produced any evidence to counter the Law Center's substantial evidence suggesting that her failure to succeed was caused by her deficient analytical skills rather than her disability. Since Murphy must prove at trial that she was dismissed solely because of her disability, her failure to produce any responsive evidence on the issue dooms her § 504 claim. 2. Otherwise qualified Murphy's § 504 claim also fails because she has not produced sufficient evidence in response to the Law Center's motion to convince a reasonable jury that she is otherwise qualified. In making this determination, the court may not focus solely on whether the plaintiff can meet the program's *1182 minimum requirements in spite of her disability. Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 720, 83 L.Ed.2d 661 (1985). Instead, it must determine whether the plaintiff's disability can be reasonably accommodated through changes in the program's requirements that do not alter its essential nature or unduly burden the program's sponsor. School Bd. v. Arline, 480 U.S. 273, 287 n. 17, 107 S.Ct. 1123, 1131 n. 17, 94 L.Ed.2d 307 (1987). If, however, the plaintiff cannot succeed in spite of her disability, even with all reasonable accommodations, she is not entitled to relief under § 504. See id. Murphy claims that she is otherwise qualified because she could meet the Law Center's minimum requirements if the school allowed her to take oral exams. She has offered no evidence, however, to support this contention. First, the undisputed evidence establishes that she failed to achieve passing grades even after she received all of the accommodations suggested by her physician. See McGregor, 3 F.3d at 856, 860 (plaintiff who received similar accommodations and still failed was not otherwise qualified). Second, the only evidence in the record suggesting that she has the analytical skills to be a successful law student is the Law Center's decision to admit her in spite of her disability. However, not every student admitted to Law Center is qualified to receive a degree. See id. at 854-55. Thus, this evidence, standing alone, is not sufficient to convince a reasonable jury that Murphy could succeed if she were allowed to take oral exams. Since Murphy has produced no other evidence to support her claim, I also grant Franklin Pierce's motion for summary judgment on this basis. C. Education Amendments Claim Murphy contends that Franklin Pierce violated Title IX[4], because the Law Center denied her an accommodation for her disability that it had approved for an unidentified male student with a similar disability. Franklin Pierce challenges this claim by arguing that Murphy lacks any supporting evidence. As with other statutes prohibiting discrimination on the basis of sex, the plaintiff bears the burden of proving her Title IX claims. Lipsett v. University of P.R., 864 F.2d 881, 896-97 (1st Cir.1988) (applying disparate treatment standards under Title VII to Title IX claims). Here, Murphy has offered no evidence to support her claims that the unnamed male student received preferential treatment. Nor does she offer any evidence suggesting that the male student's disability was enough like hers to entitle her to a similar accommodation. Since Murphy has not requested additional time to respond to the Law Center's motion pursuant to Fed. R.Civ.P. 56(f), she cannot avoid summary judgment on this grossly inadequate claim simply by asking for an opportunity to prove the claim at trial. Garside v. Osco Drug, Inc., 895 F.2d 46, 49 (1st Cir.1990); see also, Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 988 (1st Cir. 1988). D. Fourteenth Amendment Claims Murphy claims that the Law Center violated her Fourteenth Amendment rights to equal protection and due process. Although Franklin Pierce has moved for summary judgment on these claims, Murphy's objection and supporting memorandum make no mention of her constitutional claims. By failing to address the Law Center's challenges to those claims in her responsive memorandum, Murphy has waived her right to object to the claims' dismissal. Reed Paper Co. v. Proctor & Gamble Distributing Co., 807 F.Supp. 840, 850 (D.Me.1992); see also, Collins v. Marina-Martinez, 894 F.2d 474, 481 n. 9 (1st Cir.1990). E. State Law Claims Having dismissed Murphy's federal claims, I decline to exercise my discretion to retain *1183 jurisdiction over state law claims. See 28 U.S.C.A. § 1367(c)(3) (West 1993). Accordingly, I dismiss these claims without prejudice. CONCLUSION Franklin Pierce's motion for summary judgment (document no. 10) is granted with respect to counts I, II, and III of plaintiff's complaint, and plaintiff's cross-motion for summary judgment (document no. 13) is denied. Plaintiff's state law claims are dismissed without prejudice. SO ORDERED. NOTES [1] Diplopia is caused by congenital weakness of the muscles controlling convergent focus of the eyes. According to the plaintiff, this condition severely hinders her ability to focus on printed material. [2] In an August 11, 1989 letter, Murphy's doctor informed her: "I would suggest that you avoid situations that are particularly stressful to your eyes, such as taking several examinations in rapid succession. As a matter of fact, it would be advisable that you break up your study and reading into well defined segments of time such as two hours at a time, or three hours at the most, and I hope that you will be able to avoid the development of headaches and assorted problems." [3] The Act was amended in 1992 to substitute "disability" for "handicap." Pub.L. 102-569, § 102(p)(32). The Act's definition of "individual with a disability" includes "any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such impairment, or (iii) is regarded as having such an impairment." 29 U.S.C.A. § 706(8) (West Supp.1994). The parties do not dispute that Murphy is disabled within the meaning of the statute. [4] Title IX states in pertinent part: "No person in the United States shall, on the basis of sex, be excluded from participation in, or be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance...." The parties do not dispute that Franklin Pierce qualifies as an institution which receives federal financial assistance. 20 U.S.C.A. § 1681 (West 1990).

17 Cal.3d 99 (1976) 549 P.2d 1251 130 Cal. Rptr. 155 DEBORAH J. CLIFTON et al., Plaintiffs and Appellants, v. RAYMOND SAMUEL ULIS, Defendant and Respondent. DOLORES REID et al., Plaintiffs and Appellants, v. RAYMOND SAMUEL ULIS, Defendant and Respondent. Docket No. L.A. 30570. Supreme Court of California. June 4, 1976. *101 COUNSEL Samuel A. Keesal, Jr., Stephen Young, Peter R. Boutin and Robert H. Logan for Plaintiffs and Appellants. Hagenbaugh & Murphy and Michael Thomas for Defendant and Respondent. OPINION SULLIVAN, J. In these consolidated actions for damages for wrongful death and for personal injuries, all plaintiffs appeal from a judgment entered on jury verdicts in favor of defendant Raymond Samuel Ulis and against the respective plaintiffs. *102 About 8:05 p.m. on the evening of August 11, 1970, plaintiffs' northbound automobile was involved in a head-on collision with defendant's southbound camper-pickup truck on Interstate Highway 5 near Los Angeles. The collision occurred in one of the southbound lanes of the highway. In support of their claim that defendant's negligence was the sole proximate cause of the collision, plaintiffs contended at trial that just before impact, defendant's truck had been weaving back and forth on the highway and had crossed over into the northbound lanes, forcing plaintiffs to take evasive action by crossing over into the southbound lanes, and that when defendant's truck suddenly swerved back to its proper lane, the vehicles collided. Of the six persons in plaintiffs' automobile, the three in the front seat were killed in the collision, and the three in the rear were severely injured. Shortly before 10 a.m. on the day of the accident, defendant and his wife, Barbara Ulis, left Grass Valley, where they had been vacationing, to return to their home in Los Angeles. They stopped at a winery along the way to taste wines, and stopped again near Bakersfield for dinner. Plaintiffs' theory at trial was that defendant's vehicle crossed the highway center line just before the accident because defendant was fatigued, had fallen asleep, had been drinking, and/or was confused by highway construction near the scene of the accident. Consistent with this theory, plaintiffs presented two witnesses who testified at trial that at the scene of the accident and subsequently at the hospital, Mrs. Ulis was yelling or screaming "Where's my husband? Is my husband dead? We didn't mean to kill anybody. He just went to sleep. I tried to get my husband to take a rest." Mrs. Ulis testified in the presence of the jury that the last thing she recalled before the accident was stopping for dinner and that she remembered nothing until about 10 days after the accident because of injuries to her head. On the basis of this testimony, plaintiffs attempted to introduce evidence of a telephone call which Mrs. Ulis allegedly made to the home of the deceased driver two to three days after the accident, during which she allegedly told Mrs. Anna Chatman, the mother of the deceased driver, and Mrs. Ruth Carr, a neighbor, that (1) her husband did not mean to kill anyone; (2) he had been tired and sleepy from the long drive; (3) he had had a bit of wine; (4) she had told him to stop and rest; and (5) he had fallen asleep at the wheel. Plaintiffs' theory was that the evidence constituted a prior inconsistent statement by Mrs. Ulis and therefore was admissible under an exception to the hearsay rule. (Evid. *103 Code, § 1235.) Defendant objected to the evidence as being hearsay and not falling within any exception to the hearsay rule. Plaintiffs thereupon made an offer of proof in respect to the evidence of the alleged telephone call. To this end, a hearing was held outside the presence of the jury at which plaintiffs called Mrs. Chatman and Mrs. Carr who testified as to Mrs. Ulis' telephone call. Plaintiffs then called Mrs. Ulis to the stand, who, still out of the jury's presence, testified that her husband had not told her that he was tired, that she had not told him to stop and rest, and that he had not fallen asleep at the time of the accident. The trial court sustained defendant's objection on the ground that the offered evidence did not come within the purview of the prior inconsistent statement exception to the hearsay rule. Relying on People v. Sam (1969) 71 Cal.2d 194 [77 Cal. Rptr. 804, 454 P.2d 700], the court ruled that the alleged telephone conversation was inadmissible because it was not inconsistent with Mrs. Ulis' testimony before the jury to the effect that she had no present recollection of the period following dinner on the evening of the accident until about 10 days later. At a subsequent point in the trial, the court allowed plaintiffs to read to the jury Mrs. Ulis' testimony given by her outside the jury's presence in connection with plaintiffs' offer of proof. The testimony read to the jury included Mrs. Ulis' statements that her husband had not told her that he was tired, that she did not tell him to stop and rest, and that he had not fallen asleep at the wheel. After the jury had heard this testimony, plaintiffs again raised the issue of the admissibility of Mrs. Ulis' alleged telephone call. The court adhered to its ruling that evidence of the telephone call could not be admitted into evidence as a prior inconsistent statement. (1) Plaintiffs contend that the trial court committed prejudicial error in refusing to admit evidence of the alleged telephone call under the prior inconsistent statement exception to the hearsay rule. We agree. Section 1235 of the Evidence Code[1] makes admissible the prior inconsistent statement of a witness not only to impeach his credibility but *104 also to prove the truth of the matters stated. In People v. Sam, supra, 71 Cal.2d 194, we observed that "[i]n enacting section 1235 of the Evidence Code, the Legislature has retained the fundamental requirement that the witness' prior statement in fact be `inconsistent with his testimony at the hearing' before it can be admitted." (Id., at p. 210.) Accordingly, we held that a witness' prior statement was inadmissible where the witness testified that he had no present recollection of the statement because there was nothing with which the prior statement could be inconsistent. Fairly stated, Sam stands for no more than the proposition that "prior statements are not admissible to impeach a witness whose answers to questions are exclusively of the `I-don't-remember' variety." (Jefferson, Cal. Evidence Benchbook (1972) § 10.1, p. 136; see People v. Spencer (1969) 71 Cal.2d 933, 942, fn. 10 [80 Cal. Rptr. 99, 458 P.2d 43].) In contrast to Sam, the case of People v. Green (1971) 3 Cal.3d 981 [92 Cal. Rptr. 494, 479 P.2d 998], involved a witness who gave evasive answers as well as claiming a lack of recollection. We held that such deliberate evasion constituted implied testimony of denial so that prior statements inconsistent with the implied testimony were admissible under Evidence Code section 1235. In reaching this result, we observed that "[i]nconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness' prior statement [citation], and the same principle governs the case of the forgetful witness." (Id., at p. 988; see also Fibreboard Paper Products Corp. v. East Bay Union of Machinists (1964) 227 Cal. App.2d 675, 699 [39 Cal. Rptr. 64].) We need not have recourse to the Green rule in order to find that evidence of the alleged telephone call was admissible as a prior inconsistent statement. In the presence of the jury, Mrs. Ulis first testified that she had no recollection of the period of time following dinner on the evening of the accident until approximately 10 days later. It is clear that evidence of the telephone call was not admissible on the basis of this testimony since, under the Sam rule, Mrs. Ulis' lack of present recollection did not constitute testimony with which her telephone call could be inconsistent. In spite of Mrs. Ulis' subsequent testimony out of the jury's presence that her husband had not told her that he was tired, that she had not told him to stop and rest, and that he had not fallen asleep at the time of the accident, which directly contradicted the content *105 of her alleged telephone call, the trial court properly excluded the proffered evidence. Since at that point Mrs. Ulis' contradictory testimony had not been heard by the jury, the question of admissibility was still controlled by Sam.[2] The complexion of the trial changed, however, when such testimony was read to the jury. When plaintiffs again sought to introduce evidence of the telephone call, the trial court improperly continued to rely on Sam to support its exclusionary ruling. Mrs. Ulis' testimony no longer consisted exclusively of "I-don't-remember" answers. Rather, the jury had now heard her expressly deny that her husband had told her that he was tired, that she had told him to stop and rest, and that he had fallen asleep. Mrs. Ulis' prior hearsay statements made over the telephone to Mrs. Chatman and Mrs. Carr were clearly inconsistent with this express testimony of denial. Therefore, regardless of Mrs. Ulis' earlier testimony that she had no recollection of the accident or the 10-day period thereafter, when the subsequent testimony was read to the jury evidence of her telephone call at that point became admissible as a prior inconsistent statement, and the trial court erred in excluding it.[3] (2) Whether the trial court's error constitutes grounds for reversal depends on whether the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; Evid. Code, § 354.) In People v. Watson (1956) 46 Cal.2d 818 [299 P.2d 243], we stated that "a `miscarriage of justice' should be declared only when the court, `after an examination of the entire cause, including the evidence,' is of the `opinion' that it is *106 reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Id., at p. 836.) (3) Application of the Watson standard compels the conclusion that a miscarriage of justice resulted in this case. The question of whether defendant had fallen asleep at the wheel was of the utmost importance to plaintiffs. Exclusion of the telephone call forced plaintiffs to rely upon the spontaneous statements made by Mrs. Ulis at the scene of the accident and at the hospital to prove that defendant was asleep at the time of the collision. The alleged statements made by Mrs. Ulis over the telephone two or three days after the accident were consistent with the statements she made while in a hysterical state. Had the proffered evidence been admitted, the jury might have accepted plaintiffs' theory that defendant's negligence was the sole proximate cause of the collision. Under such circumstances, it is quite probable that a result more favorable to plaintiffs would have been reached in the absence of the trial court's error. Accordingly, the judgment must be reversed. In view of our disposition of this case, it is unnecessary to address plaintiffs' remaining contentions. The judgment is reversed. Wright, C.J., McComb, J., Tobriner, J., Mosk, J., Clark, J., and Richardson, J., concurred. NOTES [1] Section 1235 provides: "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770." Section 770 provides: "Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or (b) The witness has not been excused from giving further testimony in the action." [2] We assume that Evidence Code section 1235 reaches only that testimony which is heard by the trier of fact, inasmuch as it is the trier of fact who must weigh the inconsistency. The correctness of this assumption is implicit in the Law Revision Commission's comment to section 1235, which justifies the removal of prior inconsistent statements from the protection of the hearsay rule on the ground that since the trier of fact has the declarant before it and can observe his demeanor and the nature of his testimony, the trier is in "as good a position to determine the truth or falsity of the prior statement as it is to determine the truth or falsity of the inconsistent testimony given in court." In addition, the case law reflects that questions concerning the admissibility of prior inconsistent statements typically arise in the context of contradictory testimony heard by the jury. (See, e.g., People v. Williams (1973) 9 Cal.3d 24, 37-38 [106 Cal. Rptr. 622, 506 P.2d 998].) [3] We are not here confronted with the situation in which the witness testifies at a hearing other than the one at which the question of the admissibility of a prior inconsistent statement arises. (See People v. Rojas (1975) 15 Cal.3d 540, 548 [125 Cal. Rptr. 357, 542 P.2d 229].) The testimony of Mrs. Ulis was given by her at trial, the very hearing at which the admissibility of her prior inconsistent statements arose. The fact that she first testified to the telephone call outside of the jury's presence does not alter this conclusion since her testimony was subsequently read to the jury.

217 B.R. 581 (1998) In the Matter of Scott & Janice NIDIVER, Debtors. Bankruptcy No. BK97-41095. United States Bankruptcy Court. D. Nebraska. February 2, 1998. *582 Howard T. Duncan, Omaha, NE, for Debtors. Jerry L. Jensen, Omaha, NE, for Asst. U.S. Trustee. John A. Wolf, Grand Island, NE, Chapter 7 Standing Trustee. MEMORANDUM JOHN C. MINAHAN, Jr., Bankruptcy Judge. This Chapter 7 case is before the court to consider approval of the debtors' reaffirmation of their obligation to pay bankruptcy counsel for legal services rendered before the bankruptcy case was filed. Such a reaffirmation agreement serves the laudatory purpose of permitting a cash poor debtor to file a Chapter 7 bankruptcy case on credit, and to avoid the often suspected scenario in which counsel place the cash poor debtor in a Chapter 13 case, so that legal fees can be paid over time. The reaffirmation of pre-petition debt for bankruptcy related legal services raises three issues: First, is debtors' counsel disqualified from representing the debtors in connection with the bankruptcy case because, as a pre-petition creditor, counsel does not qualify as a "disinterested" person under sections 327 and 328 of the Bankruptcy Code? Second, as a condition to enforceability, is the bankruptcy court required to approve the reaffirmation agreement and, in connection therewith, is the bankruptcy court required to have a hearing which is attended by the debtors? Finally, on the merits, should the bankruptcy court approve reaffirmation of an unsecured, pre-petition obligation to pay bankruptcy related attorney fees? I conclude that bankruptcy counsel is not disqualified from further representation of the debtors, that court approval of the reaffirmation agreement is required after a hearing attended by the debtor, and that in this case the reaffirmation agreement is approved. Disinterested Requirement It is well established that an attorney who holds a claim against the bankruptcy estate may not be employed as a professional person to represent a Chapter 11 debtor in possession, or the creditors' committee in Chapter 11. As a creditor of the estate, counsel is not disinterested and may not be employed by or compensated from the bankruptcy *583 estate. See §§ 327 and 328, see also In re Pierce, 809 F.2d 1356 (8th Cir.1987), In re Patterson, 53 B.R. 366 (Bankr.D.Neb. 1985). The Eighth Circuit recently concluded that an attorney holding a trust deed on a bankruptcy debtor's real estate was not disinterested and not entitled to receive compensation from estate assets for post-petition legal services rendered to the debtor. See In re Mahendra, 131 F.3d 750 (8th Cir.1997). However, these cases are not controlling on the issues before the court. This is a Chapter 7 case, and the bankruptcy estate will be administered by a standing trustee. The standing trustee may retain counsel as a "professional person," with approval of the court. Trustee's counsel must be "disinterested," and trustee's counsel may be compensated from the bankruptcy estate. Debtors' counsel will not represent the bankruptcy estate, will not have a fiduciary duty to creditors, and will not be employed as a "professional person" to render services to be compensated from the bankruptcy estate. The section 327 and 328 requirement of disinterest is simply not applicable to the debtors' counsel in a Chapter 7 case. Debtors' counsel is, of course, subject to ethical restraints but the existence of a client's obligation to pay reasonable, undisputed attorney fees, does not disqualify a lawyer from further representation of the client. There is no legal or ethical basis for concluding that debtors' counsel may not continue to represent the debtors in connection with this bankruptcy case, notwithstanding the fact that counsel is owed money by his clients for bankruptcy related legal services rendered before the bankruptcy case was filed. Court Approval and Hearing Requirements Reaffirmation of a dischargeable debt may impair a bankruptcy debtor's fresh start. Under the Bankruptcy Act, debtors could inadvertently reaffirm debts by conduct, or become obliged to pay a discharged debt upon entry of a default judgment. Because of these considerations, § 524 of the Bankruptcy Code of 1978 enjoins enforcement of discharged debts, voids judgments on discharged debts, and subjects reaffirmation agreements to close regulation. See 4 LAWRENCE P. KING, COLLIER ON BANKRUPTCY ¶ 524.04 (15th ed.1997). In relevant part, section 524(c)(6), provides that a reaffirmation agreement is enforceable only if: (A) in a case concerning an individual who was not represented by an attorney during the course of negotiating an agreement under this subsection, the court approves such agreement as — (i) not imposing an undue hardship on the debtor or a dependent of the debtor; and (ii) in the best interest of the debtor. This section makes explicit that court approval of the reaffirmation agreement is required in this case because the debtors were not represented by an attorney in the course of negotiating the agreement. Debtors' counsel obviously is in an adverse position to his clients respecting negotiation of the terms of the reaffirmation of counsel's fees. Counsel should, as was done in this case, make clear to the client and the court, that counsel does not represent the debtor respecting the reaffirmation agreement. And counsel obviously cannot, and did not, file the affidavit contemplated by § 524(c)(3). The quoted language of § 524(c)(6) also requires the court to make particular findings of fact, which suggests, at minimum, that the court must have an evidentiary basis for making such findings. Reaffirmation agreements negotiated without the assistance of counsel are not enforceable unless approved by the court. The next question is whether the court must hold a reaffirmation hearing. I conclude that a hearing is required by § 524(d). However, § 524(d) is not without difficulties, as it is not well drafted and can be read as applicable only to reaffirmation agreements entered into after a discharge order is entered. Section 524(d) of the Bankruptcy Code reads, in part: . . . . If a discharge has been granted and if the debtor desires to make an agreement *584 of the kind specified in subsection (c) of this section and was not represented by an attorney during the course of negotiating such agreement, then the court shall hold a hearing at which the debtor shall appear in person and at such hearing the court shall. . . . This language can be read as permitting approval of reaffirmation agreements entered into after a discharge order is entered. Such a literal reading of § 524(d), however, is inconsistent with the requirement of § 524(c)(1) which unambiguously requires that reaffirmation agreements be made before entry of a discharge order. Subsections 524(c) and (d) should be read consistently with each other with deference to the statutory cross-reference by § 524(d) to § 524(c). Read consistently and in context, subsection (d) refers only to "agreements of the kind specified in subsection (c)," and in subsection (c), reaffirmation agreements must be entered into before the entry of a discharge order. Subsection (d) should not be read as providing an exception to the § 524(c) requirement that reaffirmation agreements be entered into prior to discharge.[1] Read consistently with § 524(c), § 524(d) requires the court to hold a reaffirmation hearing respecting pre-discharge reaffirmation agreements, negotiated without the assistance of counsel. Reaffirmation Approval I conducted a reaffirmation hearing which was attended by the bankruptcy debtors and debtors' counsel. I advised the debtors of the information set forth in § 524(d)(1) and (2). I have reviewed the reaffirmation agreement, and it fully complies with § 524(c)(6), and includes the required clear and conspicuous language. Importantly, the reaffirmation agreement does not place any limitations on the debtors' statutory right to rescind the agreement. Reaffirmation agreements which limit the debtors' right to rescind should not be approved. Cf. In re Perez, 177 B.R. 319 (Bankr.D.Neb.1995). Based on the debtors' statements, I conclude that the reaffirmation agreement will not impose an undue hardship on the debtors, or a dependent of the debtors. See § 524(c)(6) (quoted above). A more difficult question is whether the reaffirmation agreement is in the "best interest" of the debtors as required by § 524(c)(A)(6)(ii). Arguably, it is never in the best interest of a bankruptcy debtor to reaffirm a pre-petition unsecured claim. If a debtor wants to pay a pre-petition discharged obligation, the debtor is free to do so. See § 524(f). When a bankruptcy debtor wants to reaffirm a pre-petition unsecured debt, counsel should explain that the debtor is free to pay the debt without entering into a reaffirmation agreement. I believe counsel should also generally discourage reaffirmation of unsecured debts. Reaffirmation agreements which involve a substantial detriment to the debtor with no corresponding benefit, wherein the debtor receives no new consideration in exchange for reaffirmation, should not be recommended by counsel and, if the debtor is not represented by counsel, should not be approved by the court. In the context of reaffirmation agreements, there is a world of difference between the reaffirmation of secured and unsecured debts. It may be reasonable and necessary for rehabilitation for a bankruptcy debtor to reaffirm a secured debt in order for the debtor to retain collateral. In the instance of an unsecured debt, it is not so clear that the debtor will receive any benefit from such reaffirmation. When court approval of the reaffirmation agreement is required, the court should closely examine the reaffirmation agreement and circumstances *585 to determine whether reaffirmation is in the debtor's best interest as is required by § 524(c)(6)(A)(ii). On the facts of this case, there are identifiable benefits to be realized by the debtors by reaffirming the obligation to pay counsel for pre-petition bankruptcy related legal services. By reaffirming the debt, the debtors are assured that bankruptcy counsel will continue to provide the debtors with legal representation in connection with this bankruptcy case. The bankruptcy debtors are in need of legal services in connection with the many contingencies which may arise during the pendency of this case, such as responding to objections to claimed exemptions, filing objection to claims, and responding to other contested matters. Continual representation of debtors by counsel is an identifiable, substantial benefit to the debtors. Counsel is familiar with the debtors' financial affairs and has worked for the debtors in preparing this bankruptcy case for filing. The established relationship of debtors and counsel, and counsel's knowledge of the debtors' financial affairs are important considerations. It will be of substantial benefit for the debtors to have continuity of counsel in this case, and it is unrealistic to think that debtors could hire new counsel at this time, with a Chapter 7 bankruptcy case pending. I conclude that it is in the best interest of the debtors that the reaffirmation agreement be approved. Procedural Aspects In closing, I conclude that the debtors' counsel followed appropriate procedures in seeking approval of the reaffirmation agreement. As there is some uncertainty as to what procedures should be followed, let me make explicit what debtors' counsel did in this case. Debtors' counsel fully complied with Bankruptcy Rule 2016(b), by disclosing compensation and agreements in connection with the compensation, and he did this at the time the bankruptcy petition was filed. The proposed reaffirmation agreement was filed within a few days after the bankruptcy case was commenced. The reaffirmation agreement fully complied with section 524, in that it included the required conspicuous language. A copy of the proposed reaffirmation agreement was mailed to the debtors, the Chapter 7 Standing Trustee, and the United States Trustee. The reaffirmation agreement did not limit or restrict the debtors' statutory right to rescind the agreement. A motion requesting approval of the reaffirmation agreement was filed with the court. The debtors appeared at a duly conducted hearing on the reaffirmation agreement. Debtors' counsel appeared at the reaffirmation hearing, however, he made clear that he was not representing the debtors in connection with the reaffirmation agreement. IT IS THEREFORE ORDERED, that the debtors' may retain Mr. Howard Duncan to represent them in this bankruptcy case without approval of the bankruptcy court. IT IS FURTHER ORDERED, that the Reaffirmation Agreement (Fil. #4) is approved. IT IS SO ORDERED. NOTES [1] In In re Whitmer, 142 B.R. 811 (Bankr. S.D.Ohio 1992), the court stated that the language used in section 524(d), which implies that reaffirmation agreements may be entered into post-discharge is unfortunate. The court stated that the legislative history of the section indicates that the purpose of the language is to ensure that reaffirmation hearings are still held when the debtor is not represented by counsel in negotiating the agreements, even though discharge hearings are no longer mandatory. Id. at 813. See also In re Reed, 177 B.R. 258 (Bankr.N.D.Ohio 1995)(once the court has entered a discharge the deadline for making reaffirmation agreements has passed), In re Grabinski, 150 B.R. 427 (Bankr.N.D.Ill.1993)(reaffirmation agreement must be obtained before debtor receives a discharge).

Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 4-13-2007 Sarker v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-5109 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Sarker v. Atty Gen USA" (2007). 2007 Decisions. Paper 1310. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1310 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected].  NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ——————— No. 05-5109 ——————— MOHAMMED EMDADUL HAQUE SARKER, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent ——————— Petition for Review of an Order of the United States Department of Justice Board of Immigration Appeals BIA File No. A76-506-649 ——————— Submitted Under Third Circuit LAR 34.1(a) November 8, 2006 Before: SCIRICA, Chief Judge, McKEE and STAPLETON, Circuit Judges (Filed: April 13, 2007) ——————— OPINION ——————— McKEE, Circuit Judge Mohammed Emdadul Haque Sarker petitions for review of the October 20, 2005, Order of the Board of Immigration Appeals denying his motion to reopen proceedings, and affirming the Immigration Judge’s order of removal. For the reasons that follow, we will deny the petition. I. Inasmuch as we write primarily for the parties who are familiar with the factual and procedural history of this appeal, we need not reiterate the facts except insofar as may be helpful to our brief discussion. On November 16, 2004, Sarker, represented by new counsel, attorney Anser Ahmad, filed a second motion to reopen removal proceedings to contest proceedings that had culminated in Sarker being ordered removed in absentia. The motion alleged that Sarker’s wife had filed an I-130 petition on his behalf, that Sarker had not received notice of the removal hearing mailed to his Philadelphia address, and that Sarker’s former attorney, Marvic Thompson, provided ineffective assistance of counsel in relation to the first motion to reopen. The motion also stated that Sarker intended to file an ineffective assistance of counsel claim against Thompson. The IJ denied Sarker’s second motion to reopen holding that it was barred by 8 C.F.R. § 3.23(b)(1) (1998) (corresponding provisions now codified at 8 C.F.R. 1003.23(b)(1), (4) (2005)), which allows only one morion to reopen absent certain circumstances that are not present here. The BIA affirmed the IJ’s determination that Sarker’s second motion to reopen was barred by 8 C.F.R. § 1003.23(b)(4)(ii) (2005). The BIA also ruled that, even if the 2 motion were not barred based upon Sarker’s allegation of ineffective assistance of counsel, Sarker failed to meet the requirements for establishing ineffective assistance of counsel under the procedure set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). This petition for review followed. II. We have jurisdiction pursuant to 8 U.S.C. § 1252 (2000). We review the BIA’s denial of a motion to reopen removal proceedings for abuse of discretion. McAllister v. A.G. of the United States, 444 F.3d 178, 185 (3d Cir. 2006). As we recently explained in Luntungan v. A.G. of the United States, 449 F.3d 551, 555 (3d. Cir. 2006), the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 expressly limits the number of motions to reopen Sarker can file. See 8 C.F.R. 1003.23(b)(4)(ii) (“[a]n alien may file only one motion pursuant to this paragraph.”). Sarker claims that the numerical limitation should not be applied to him because he did not receive effective assistance of counsel for his first petition to reopen. Assuming arguendo that the single motion limitation does not apply to an alien who initially receives ineffective assistance of counsel in trying to reopen a removal proceeding after being ordered removed in absentia, we nevertheless agree with the BIA’s conclusion that Sarker did not properly raise that claim here. In Lu v. Ashcroft, 259 F.3d 127, 132, we adopted the requirements for asserting a claim for ineffective assistance of counsel that had been set forth in Matter of Lozada, supra. Lozada requires that the motion alleging ineffective assistance of counsel must be supported by an affidavit “that sets forth in detail the agreement that was entered into with former counsel 3 with respect to the actions to be taken on appeal and what counsel did or did not represent to the respondent in this regard[.]” In addition, former counsel must be informed of the allegations and provided an opportunity to respond prior to appeal to the BIA. Where applicable, the motion should also state whether a complaint has been filed with appropriate professional disciplinary authorities and, if not, it should explain why no such complaint was filed. 19 I. & N. Dec. at 639. Here, it is undisputed that Sarker twice filed motions to reopen removal proceedings. App. 16-27, 39-48. Thus, absent some exception, Sarker’s second motion to reopen is numerically barred by the plain language of the governing statute and regulation. See Luntungan, 449 F.3d at 557. Sarker does not precisely explain whether he is seeking an equitable tolling of time limits on motions to reopen or a “tolling” of the numerical limit on such motions. Petitioner’s Br. at 13-14. However, under either theory, he must satisfy the Lozada requirements for raising a claim of ineffective assistance of counsel. As the Attorney General notes, Sarker’s affidavit only states that Sarker “intends to file a Lozado (sic) claim against Attorney Thompson.” App. 17. Sarker received a copy of the IJ’s removal order on January 24, 2002. App. 16. He has been represented by his present counsel since November 2004. Sarker has therefore had sufficient time to comply with the requirements for raising an ineffective assistance of counsel claim. See also Mahmood, 427 F.3d at 252-53 (denying petition for review based on equitable tolling claim for want of due diligence). Accordingly, the BIA did not abuse its discretion in denying the instant motion to reopen. 4  Sarker also seeks relief based on his changed personal circumstances. He is now married to a United States citizen and they have a child who is also a citizen. Sarker’s wife submitted an I-130 petition on his behalf promptly after their marriage. Petitioner’s Br. at 14-15. As the Government correctly notes, the governing statute and regulation do not recognize this exception to the limitation imposed on motions to reopen. Respondent’s Br. at 12; see 8 U.S.C. 1229a(c)(7); 8 C.F.R. 1003.23(b)(4)(ii). Rather, the regulations only recognize “changed circumstances arising in the country of nationality or in the country to which deportation has been ordered,” not the petitioner’s changed personal circumstances here. 8 C.F.R. 1003.2(c)(3)(ii) (2005); see, e.g., Haddad v.Gonzales, 437 F.3d 515, 517 (6th Cir. 2005); Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005). III. For the foregoing reasons, we will deny the petition for review . 5 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 96-1037 JEFF BARGE, Plaintiff - Appellant, versus THE DAILY JOURNAL CORPORATION; T/A WASHINGTON JOURNAL, and several of its officers and em- ployees; CHARLES MUNGER; GERALD SALZMAN; J. P. GUERIN; TIMOTHY SUMNER ROBINSON; CAROL ANGEL; LISA ADAMS; ANDREJS ZOMMERS, Defendants - Appellees. Appeal from the United States District Court for the District of South Carolina, at Beaufort. Dennis W. Shedd, District Judge. (CA-95-2972-9-19AJ) Submitted: June 28, 1996 Decided: July 12, 1996 Before MURNAGHAN, WILKINS, and MOTZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Jeff Barge, Appellant Pro Se. Wallace K. Lightsey, WYCHE, BURGESS, FREEMAN & PARHAM, P.A., Greenville, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Appellant appeals from the district court's order dismissing his civil complaint. We have reviewed the record and the district court's opinion and find no reversible error. Accordingly, we af- firm on the reasoning of the district court. Barge v. Daily Journal Corp., No. CA-95-2972-9-19AJ (D.S.C. Dec. 20, 1995). We dispense with oral argument because the facts and legal contentions are ade- quately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2 

800 F.Supp.2d 1030 (2011) CITY OF LINCOLN, NEBRASKA, Plaintiff, v. WINDSTREAM NEBRASKA, INC., Defendant. No. 4:10CV3030. United States District Court, D. Nebraska. July 25, 2011. *1031 Rodney M. Confer, Jocelyn W. Golden, Steven J. Huggenberger, City Attorney's Office, Lincoln, NE, for Plaintiff. Erin L. Ebeler, Krista L. Kester, Paul M. Schudel, Edward H. Tricker, Woods, Aitken Law Firm, Lincoln, NE, for Defendant. MEMORANDUM AND ORDER RICHARD G. KOPF, District Judge. The plaintiff, City of Lincoln, Nebraska ("City"), commenced this action on January 13, 2010, in the District Court of Lancaster County, Nebraska, to collect occupation taxes from the defendant, Windstream Nebraska, Inc. ("Windstream"). The action was removed to this court on February 12, 2010, based on diversity jurisdiction. See 28 U.S.C. §§ 1332 and 1446(a). The City claims that Windstream and its predecessor, Alltel Nebraska, Inc., underreported their gross receipts and underpaid occupation taxes since January 1, 2001. The parties have filed cross-motions for partial summary judgment.[1] Their motions include two common issues: (1) whether a statute of limitations precludes the City from collecting unpaid occupation taxes that accrued prior to August 1, 2005;[2] and (2) the date from which *1032 the City is entitled to collect compound interest on unpaid occupation taxes.[3] Windstream also argues that only "telecommunications service," as defined by the Nebraska Telecommunications Regulation Act, Neb.Rev.Stat. § 86-121 ("the offering of telecommunications for a fee"), is subject to being assessed occupation tax by the City, and it seeks determinations that (1) to the extent the City's ordinances in effect prior to October 1, 2010, assessed occupation tax on items other than telecommunications service, the ordinances are unenforceable and violate Neb.Rev.Stat. §§ 86-704, 15-202, and 15-203, and (2) certain provisions must be stricken from the City's current tax ordinances, which became effective on October 1, 2010, because their provisions exceed the scope of the City's power to regulate telecommunication companies and assess occupation tax. For the reasons discussed below, (1) on issue of the statute of limitations, I will grant in part Windstream's motion and deny the City's motion, (2) on the issue of compound interest, I will grant in part the City's motion and deny Windstream's motion, and (3) on the remaining issues raised by Windstream, I will deny its motion. DISCUSSION "A party may move for summary judgment, identifying each claim or defense— or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In ruling on a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of all inferences that may be reasonably drawn from the evidence. See Dancy v. Hyster Co., 127 F.3d 649, 652-53 (8th Cir.1997). It is not the court's function to weigh evidence in the summary judgment record to determine the truth of any factual issue; the court merely determines whether there is evidence creating a genuine issue for trial. See Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir.1999). The moving party bears the burden of showing there are no genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986.) 1. Statute of Limitations Windstream maintains that the applicable statute of limitations is Neb.Rev.Stat. § 25-206, which provides, in part, that "an action upon a liability created by statute, other than a forfeiture or penalty, can only be brought within four years." Windstream argues that the City's occupation tax is "a liability created by statute" within the meaning of section 25-206 because Neb.Rev.Stat. § 86-704(4)(a)(i) provides that "[a] municipality shall not levy a tax, fee, or charge for any right or privilege of engaging in a telecommunications business... other than ... [a]n occupation tax authorized under section 14-109, 15-202, 15-203, 16-205, or 17-525 [.]" Sections 15-202 and 15-203 apply to a city of the primary class, such as the City of Lincoln, and authorize the municipality "to levy an occupation tax on public service property or corporations in such amounts as may be proper and necessary," Neb.Rev.Stat. § 15-202, and "to raise revenue by levying and collecting a license or occupation tax on any person, partnership, limited liability company, corporation, or business within the limits of the city and regulate the same *1033 by ordinance[.]" Neb.Rev.Stat. § 15-203. The City counters that the occupation tax was created by ordinance, not by statute, and contends that the ordinance was enacted pursuant to authority granted by the City's home rule charter, not by statute. In Millard Rural Fire Protection Dist. No. 1 v. City of Omaha, 226 Neb. 50, 409 N.W.2d 574 (1987), a fire protection district brought an action against the City of Omaha for a determination of the rights, duties, and responsibilities of the district and the city with respect to areas annexed by the city between 1968 and 1984. The district court found that Neb.Rev.Stat. §§ 25-206, 25-207, and 25-212 were applicable and each barred any claim of the district arising prior to 1980. The Nebraska Supreme Court affirmed, stating: Section 25-206 provides: "An action upon a contract, not in writing, expressed or implied, or an action upon a liability created by statute, other than a forfeiture or penalty, can only be brought within four years." (Emphasis supplied.) Section 25-207 provides in part: "The following actions can only be brought within four years: ... (3) an action for the injury to the rights of the plaintiff, not arising on contract, and not hereinafter enumerated...."[4] Section 25-212[5] provides: "An action for relief not hereinbefore provided for can only be brought within four years after the cause of action shall have accrued." No matter which of the above sections is applied to an action commenced under § 31-766,[6] the action must be commenced within 4 years after the effective date of the annexation ordinance. The present action was commenced by the district on February 10, 1984. Therefore, all the district's annexation claims arising prior to February 10, 1980, were barred. The district court did not err in so determining. 409 N.W.2d at 578-79. So, too, in the present case, if the City's occupation tax is not considered "a liability created by statute" within the meaning of section 25-206, the action is still subject to the general 4-year statute of limitations contained in sections 25-207(3) and 25-212. The City, however, claims immunity from any statute of limitations enacted by the Nebraska Legislature. It offers two reasons. First, the City claims that it is not time-limited when suing to collect unpaid occupation taxes because it operates under a home rule charter.[7] It states that neither *1034 the charter nor the Lincoln Municipal Code impose a limitations period. "It is well established that under a home rule charter, a city's power must be consistent with and subject to the constitution and laws of this state, except as to local matters of strictly municipal concern." Home Builders Ass'n of Lincoln v. City of Lincoln, 271 Neb. 353, 711 N.W.2d 871, 877 (2006). "The constitutional limitation that a home rule charter must be consistent with and subject to the laws of the state simply means that on matters of such general concern to the people of the state as to involve a public need or policy, the charter must yield to state legislation. But until the superior authority of the state has been asserted by a general statutory enactment, the municipality may properly act under its charter." Id. at 878 (citations omitted). The City contends that the occupation tax is a matter of strictly local concern, while Windstream takes the position that it clearly involves a matter of statewide concern because it relates to telecommunications service that is regulated by the state. Both parties' arguments miss the mark. The issue here is not the City's taxing authority or the state's regulation of telecommunications companies; rather, the relevant issue is the City's ability to bring suit on stale claims. In Thompson v. City of Omaha, 235 Neb. 346, 455 N.W.2d 538 (1990), municipal employees brought an action against the City of Omaha seeking to recover unpaid overtime wages. The city defended against the action by asserting it was barred by claims statutes, applicable to cities of the metropolitan class, which required the employees to file claims with the city comptroller within 18 months. The Nebraska Supreme Court affirmed the dismissal of the action on this basis even though the city operated under a home rule charter. It stated: In arguing that the claims statutes do not apply in this case, the employees contend that Omaha is a home rule charter city, and wage claims against Omaha are solely of local concern. We have decided in this regard that "when the Legislature enacts a law affecting municipal affairs which is of state-wide concern, the state law takes precedence over any municipal action taken under the home rule charter." Omaha Parking Authority v. City of Omaha, 163 Neb. 97, 104, 77 N.W.2d 862, 868 (1956). The claims statutes affect access to the state courts and the state law remedies. These are issues of statewide concern. Consequently, Omaha's home rule charter does not affect the applicability of the claims statutes to wage claims against the city. Id. at 541. Neb.Rev.Stat. §§ 25-206, 25-207(3), and 25-212 likewise affect access to the state courts and the state law remedies. "A purpose of a statute of limitations is to prevent recovery on stale claims. The mischief which a statute of limitations is intended to remedy is general inconvenience resulting from delay in assertion of a legal right which it is practicable to assert." Anonymous v. St. John Lutheran Church of Seward, 14 Neb.App. 42, 703 N.W.2d 918, 925 (2005) (citations omitted). One or more of these statutes of limitations will apply to the present action regardless of whether the City's occupation *1035 tax on telecommunications service is a matter of strictly local concern or is a matter of statewide concern. Second, the City argues that it has immunity from the statutes of limitations because it acted in a governmental capacity when imposing the occupation tax. This argument does not find any support under Nebraska law. "The maxim nullum tempus occurrit regi [lapse of time does not bar the right of the crown] only applies in favor of the sovereign power, and has no application to municipal corporations deriving their powers from the sovereign, although their powers, in a limited sense, are governmental. Thus the statute [of limitations] runs for or against towns and cities in the same manner as it does for or against individuals." May v. School Dist. No. 22, 22 Neb. 205, 34 N.W. 377 (1887.) See also Chaffee v. City of Omaha, 145 Neb. 418, 16 N.W.2d 852, 854 (1944) ("As a general rule, statutes of limitations run in favor of, as well as against, municipalities."); In re Ernst's Guardianship, 158 Neb. 15, 62 N.W.2d 110, 111 (1954) ("[I]mmunity from a general statute of limitation is accorded only to the sovereign power, the state, and does not extend to subdivisions of the state unless the Legislature specifically so provides."). I therefore find that a 4-year limitations period, as provided by Neb.Rev. Stat. §§ 25-206, 25-207(3), or 25-212, applies to this action. Windstream asserts that "[a]ny claim by the City that relates to amounts the City claims were underreported by [Windstream] on any monthly statement due and owing prior August 1, 2005, are subject to the statute of limitations." (Filing 72 at 9.) It also states that "[g]iven the payment and reporting structure established by the City, the first claim that could have accrued on or after August 1, 2005, would be for occupation taxes relating to July 2005. Therefore, any amounts claimed by the City that relate to months prior to July 2005 are barred as a matter of law." (Filing 72 at 11.) The City does not refute these statements, except to note that it "intends to offer, if necessary, [arguments and evidence] regarding issues of deception and concealment by Windstream's employees regarding information requested by City, and City's detrimental reliance on assurances given by Defendant's employees." (Filing 77 at 14.) 2. Compound Interest In its motion for partial summary judgment, Windstream requests a ruling that "[t]he City's claim for compound interest on amounts that accrued prior to October 1, 2010, is without merit and should be dismissed." (Filing 71.) Windstream argues in its supporting brief that "it was only after this litigation had been filed that the City amended its ordinances to allow for interest on past due amounts to be compounded on a quarterly basis. Lincoln Municipal Code § 3.24.090. Further, that change only became effective as of October 1, 2010." (Filing 72 at 12.) In its motion for partial summary judgment, the City requests a ruling that it "is entitled to compound interest and penalties on telecommunication occupation taxes as of August 3, 2010 and after that date." (Filing 75.) The City argues: City concedes that Nebraska case law is clear that it is not entitled to compound interest if not otherwise provided by statute or contract. Priest v. Priest, 251 Neb. 76, 82, 554 N.W.2d 792, 797 (1996). Lincoln Municipal Code did not allow for compound interest on unpaid telecommunication occupation tax payments until the enactment of Ordinance No. 19410 on July 19, 2010, which *1036 amended L.M.C. § 3.24.090 as follows: "All deferred payments shall draw interest at the rate of one percent (1%) per month and shall be compounded quarterly. After default for six months, a penalty of five percent (5%) shall be added in addition to the interest charges." (Ex. 6 [filing 76-6], p. 5) Under Article V, Section 2 of the City's Charter, "[a]ll ordinances, except as hereinabove prescribed, shall take effect fifteen days after passage." (Ex. 4 [filing 76-4], p. 4; Ex. 2 [filing 76-2], ¶ 7) Therefore, as amended, L.M.C. § 3.24.090 became effective on August 3, 2010, fifteen days after its passage by City Council. (Ex. 2 [filing 76-2], ¶ 9) Compound interest is therefore imposed by City on deferred telecommunication occupation taxes after August 3, 2010. Windstream is mistaken in its claim that the compound interest has an effective date of October 1, 2010 (p. 12 of Windstream's brief); October 1, 2010 is actually only the effective date of the amendment to L.M.C. § 3.24.080 in Ordinance No. 19410 on telecommunication occupation tax. (Ex. 6 [filing 76-6], p. 1, "Commencing January October 1, 2010, there is hereby levied....") The Court should rule as a matter of law that City is not entitled to compound interest on telecommunication occupation taxes prior to August 3, 2010, but that City is entitled to compound interest and penalties as of August 3, 2010 and after that date. (Filing 77 at 15.) Windstream concedes in its reply brief that the effective date of the compound interest provision is not October 1, 2010, but it argues the effective date actually is August 6, 2010, because the City did not publish the ordinance until July 30, 2010. Article V, Section 2 of the City's Charter states that "ordinances fixing a penalty of forfeiture for the violation thereof shall not take effect until fifteen days after passage, and in no case before one week after the publication thereof in the manner above prescribed," absent an emergency. (Filing 76-4 at 4.) The City, in its reply brief, "recognizes that the parties are quarreling over a matter of three days of compound interest," but states that it "does believe the date on which compound interest applies is a matter that the Court can definitively decide on summary judgment." (Filing 86 at 8.) Later in the same brief, however, the City urges that "[a]s a matter of law, the Court should conclude that City is entitled under L.M.C. § 3.24.090, as amended, to assess compound interest on telecommunication occupation taxes as of and after August 3, 2010." (Filing 86 at 10.) "Forfeiture" has been defined by the Nebraska Supreme Court as "a penalty by which one loses his rights and interest in property." Arthur v. Trindel, 168 Neb. 429, 96 N.W.2d 208, 215 (1959). It is evident that the City's collection of compound interest does not result in the imposition of a "penalty of forfeiture." The effective date of the compound interest provision therefore was August 3, 2010. Windstream appears to take the position that compound interest cannot be charged on any taxes that became due prior to the effective date of the ordinance amendment, while the City appears to claim that it can charge compound interest on the total amount of taxes owing from and after that date. The parties, however, have not discussed this apparent dispute in their briefs, nor have they cited any legal authority in support of their respective positions. As a result, at this time I will only decide the question of the ordinance's effective date; if there is a dispute regarding the computation of compound interest, the issue can be taken up at the time of trial. *1037 3. Occupation Tax Finally, Windstream contends that "as a matter of law, only revenue sources directly attributable to `telecommunications service' as defined by the Nebraska Revised Statutes are subject to being assessed occupation tax by the City." (Filing 72 at 12.) In particular, Windstream objects to the City assessing occupation tax on revenue derived from equipment sales, installation, and maintenance. Pointing to definitions found in the Communications Act of 1934, 47 U.S.C. § 153, and the Nebraska Telecommunications Regulation Act, Windstream insists that "telecommunications service" is a standard industry term which does not include equipment. To the extent that defining "telecommunications service" is material to the City's claim for unpaid occupation taxes,[8] I find there is a genuine dispute as to the meaning of such term.[9] Windstream next notes that the Nebraska Telecommunications Regulation Act ("NTRA") "preempt[s] and prohibit[s] any regulation of a telecommunications company by counties, cities, villages, townships, or any other local governmental entity." Neb.Rev.Stat. § 86-123(3). As previously discussed, another statute provides that "[a] municipality shall not levy a tax, fee, or charge for any right or privilege of engaging in a telecommunications business... other than ... [a]n occupation tax" as authorized by law. Neb.Rev.Stat. § 86-704(4)(a)(i). Municipal occupation taxes must be "uniform in respect to the class upon which they are imposed," Neb.Rev. Stat. §§ 15-202, 15-203, and, in the case of telecommunications businesses, "competitively neutral." Neb.Rev.Stat. § 86-704(4)(b). The NTRA provides that "[w]henever any municipality or any other local governmental entity imposes upon a telecommunications company any tax or fee as described in section 86-704, such tax or fee shall, insofar as practicable, be billed pro rata to the telecommunications company's customers receiving telecommunications service within the territorial limits of such municipality or other local governmental entity." Neb.Rev.Stat. § 86-157. The Act defines "telecommunications company" to mean "any person, firm, partnership, limited liability company, corporation, association, or governmental entity offering telecommunications service in Nebraska intrastate commerce." Neb.Rev. Stat. § 86-119. The term "telecommunications business," as used in section 86-704 (which is not part of the NTRA), is not defined in statute. Windstream infers from the foregoing statutory provisions that "the entities allowed to be assessed the occupation tax are ones that provide telecommunications service and the customers who are supposed to be the final payors of the occupation tax are those whom receive telecommunications service within the municipality that assessed the tax. Any further regulation of a telecommunications company by counties, cities, villages, townships, or any other local governmental *1038 entity is prohibited and preempted by the NTRA. Thus, as a matter of law, this Court should conclude that the only items to which telecommunication occupation tax is allowed to be assessed by the City of Lincoln are to those items that are properly classified as telecommunications service under the Nebraska statutes." (Filing 72 at 20 (emphasis in original).) "It is not within the province of a court to read a meaning into a statute that is not warranted by the legislative language; neither is it within the province of a court to read anything plain, direct, and unambiguous out of a statute." State ex rel. Douglas v. Herrington, 206 Neb. 516, 294 N.W.2d 330, 334 (1980). Windstream is asking me to read limitations into the statutes that do not exist. In fact, section 86-704(4)(a) was amended during the most recent legislative session to provide that "[b]eginning January 1, 2013, ... [t]he occupation tax shall be imposed only on the receipts from the sale of telecommunications service as defined in subdivision (7)(aa) of section 77-2703.04[.]"[10] 2011 Nebraska Laws, L.B. 165. Until such date, I find no statutory prohibition against a municipality assessing occupation tax on revenue that a telecommunications company earns from the sale, installation, or maintenance of equipment, for example. It is generally presumed that the Nebraska Legislature, in adopting an amendment, intended to make some change in the existing law. See Underhill v. Hobelman, 279 Neb. 30, 776 N.W.2d 786, 788 (2009.) A separate question is whether the City of Lincoln's occupation tax actually extends to such items. However, this question is beyond the scope of Windstream's motion. Windstream deemed it "premature to reference specific line items of the City's deficiency assessment in the motion for summary judgment.[11] Rather, the *1039 purpose of [Windstream's] summary judgment motion on this point is to request judgment as a matter of law that only revenue sources directly attributable to "telecommunications service" as defined by the Nebraska Revised Statutes are subject to being assessed occupation tax by the City." (Filing 79 at 12.) Windstream's request is denied. CONCLUSION A 4-year limitations period, as provided by Neb.Rev.Stat. §§ 25-206, 25-207(3), or 25-212, applies to this action, and bars any claims that accrued prior to August 1, 2005. The effective date of the amendment to Section 3.24.090 of the Lincoln Municipal Code was August 3, 2010. Before that date the City could not collect compound interest. In levying occupation tax against Windstream, the City is not limited to assessing a percentage of Windstream's gross receipts that are directly attributable to "telecommunications service" as defined by the Nebraska Revised Statutes. The meaning of the Section 3.24.080 of the Lincoln Municipal Code, including the meaning of the term "telecommunication services" as used in such section prior to October 1, 2010, will be determined at trial. IT IS ORDERED: 1. Windstream's motion for partial summary judgment (filing 71) is granted in part and denied in part, as follows: a. The motion is granted to the extent that the court finds a 4-year limitations period, as provided by Neb.Rev.Stat. §§ 25-206, 25-207(3), or 25-212, applies to this action. b. In all other respects, the motion is denied. 2. Windstream's motion for oral argument (filing 81) is denied. 3. The City's motion for partial summary judgment (filing 75) is granted in part and denied in part, as follows: a. The motion is granted to the extent that the court finds the effective date of the amendment to Section 3.24.090 of the Lincoln Municipal Code, as enacted by Ordinance No. 19410, was August 3, 2010. b. In all other respects, the motion is denied. ADDENDUM Prior to being amended by Ordinance No. 19269, which was passed by the City on August 24, 2009, Section 3.24.080 of the Lincoln Municipal Code provided: Commencing September 1, 2001, there is hereby levied upon every person, firm, partnership, corporation, or association engaged in the business of offering or providing telecommunication services to the public for hire in the City of Lincoln an occupation tax as follows: (a) Five and one-half percent (5.50%)[12] on the gross receipts resulting *1040 from any toll services and charges on basic local exchange services; interexchange services; mobile services; and other telecommunication services as follows: (1) Basic local exchange services shall include the access and transmission of two-way switched communications within the city, including local telephone and telecommunication services; (2) Inter-exchange services shall mean the access and transmission of communications between two or more local exchange areas, provided that such inter-exchange service either (a) originates from an end user within the city or (b) terminates with an end user within the city, and is charged to a service address within the city regardless of where the charges are actually paid; (3) Mobile services shall include any radio or similar communication services provided pursuant to license or authority granted by the Federal Communications Commission, charged to a service address within the city regardless of where the charges are actually paid, including cellular, radio paging, and mobile radio services; and (4) Any other similar telecommunication services involving any electronic or electromagnetic transmission of messages originating and terminating in the State of Nebraska and charged to a service address in the City of Lincoln, regardless of where the charges are actually paid. (b) Gross receipts shall not include any toll services and charges as follows: (1) For interstate telecommunications between persons in this city and persons outside of this state; (2) For local carrier access charges, transmission facilities and switching services provided to telecommunications companies; (3) From accounts charged to the United States government or any of its departments, or the State of Nebraska, or any of its agencies, subdivisions, or departments. No part or portion of the tax provided for in this chapter shall be levied upon or assessed against or taken from any such gross receipts so excepted from the provisions hereof. (Filing 73-2.) The tax rate was increased to 6% effective January 1, 2010. See Ordinance No. 19269 (filing 73-3). Amendments adopted by Ordinance No. 19410 (filing 73-4), which as passed on July 19, 2010, provide, among other things, that "telecommunication services and charges" and "sale[s] of telecommunication equipment" are subject to the occupation tax. The terms "telecommunication services" and "telecommunication equipment" *1041 are also defined. Thus, Section 3.24.080 now reads: Commencing October 1, 2010, there is hereby levied upon every person, firm, partnership, corporation, or association engaged in the business of offering, providing or selling telecommunication equipment or telecommunication services to the public for hire in the City of Lincoln an occupation tax of six percent (6%) on (1) the gross receipts resulting from any telecommunication services and charges to a customer for which telecommunication services are provided; and (2) the gross receipts resulting from any sale of telecommunication equipment. (a) Telecommunication services as used in this ordinance is defined as the provision of all communication services and equipment provided in connection therewith, operable by the general public as opposed to the employees of a telecommunications business only, using electromagnetic wire, fiber optics or radio waves to control or direct the sending and receiving of messages at a distance, and includes transmission, conveyance, or routing of voice, data, audio, video, or any other information or signals to any geographic location, or between or among geographic locations, and any transmission, conveyance, or routing in which computer processing applications are used to act on the form, code, or protocol of the content for purposes of transmission, conveyance, or routing, without regard to whether such service is referred to as voice over internet protocol services or is classified by the federal communications commission as enhanced or value added; (b) Telecommunication equipment as used in this ordinance is defined as any communication device sold for the purpose of providing or as part of a telecommunication service as defined in subsection (a) of this section, including but not limited to, phones, mobile phones, cellular phones, smart phones, pagers, and all like devices. Telecommunications equipment shall not include computers, routers, hubs, lamp and key systems or private branch exchanges. (c) Telecommunication services which are subject to this occupation tax includes but shall not be limited to: (1) Basic local exchange services as defined in Neb.Rev.Stat. § 86-105; (2) Inter-exchange services as defined in Neb. Rev. Stat § 86-111, provided that such inter-exchange service either (a) originates from an end user within the city or (b) terminates with an end user within the city, and is charged to a service address within the city regardless of where the charges are actually paid; (3) Commercial mobile services as defined in 47 U.S.C. § 332(d)(1) which include any radio or similar communication services provided pursuant to license or authority granted by the Federal Communications Commission, charged to a service address within the city regardless of where the charges are actually paid, including cellular, radio paging, and mobile radio services; (4) Any other similar telecommunication services involving any electronic or electromagnetic transmission of messages or any other communications originating and terminating in the State of Nebraska and charged to a service address in the City of Lincoln, regardless *1042 of where the charges are actually paid; (5) Any other telecommunication services that are a necessary component of the services provided, regardless of whether the services or fees are required by federal, state or local authorities or provided by the telecommunication business including, but not limited to, installation, maintenance, any premise services, service connections, late payment fees, and equipment leasing; (6) Ancillary services and charges that are associated with or incidental to the provision of telecommunication services including, but not limited to conference bridging, detailed telecommunications billing, directory assistance, vertical service, or voice mail services; and (7) Telephone cards, phone cards, calling cards, rechargeable cards, telephone tokens and any other method or device used in purchasing prepaid minutes, prepaid telecommunication service, or pay-as-you-go services. (d) Gross receipts shall not include any services and charges as follows: (1) For interstate telecommunications between persons in this city and persons outside of this state; (2)For local carrier access charges, transmission facilities and switching services provided to telecommunications companies; (3)From accounts charged to the United States government or any of its departments, or the State of Nebraska, or any of its agencies, subdivisions, or departments[;] (4) Any cable television services regulated under Chapter 5.15 of the Lincoln Municipal Code[;] (5) Any charges or services prohibited from being taxed by the Internet Tax Freedom Act[; and] (6) Any sales taxes imposed by the State of Nebraska pursuant to Neb. Rev.Stat. § 77-2703. (e) The seller of telecommunication services or equipment may itemize, as an add-on charge, the tax levied on a bill, receipt, or other invoice to the purchaser, but each seller engaged in selling telecommunication services or equipment shall remain liable for the tax imposed by this section.[13] No part or portion of the tax provided for in this chapter shall be levied upon or assessed against or taken from any such gross receipts so excepted from the provisions hereof. (Filing 73-6.) NOTES [1] Windstream has filed a separate motion requesting oral argument on its motion for partial summary judgment. The request will be denied. [2] Prior to this litigation, the City and Windstream entered into a tolling agreement for any applicable limitations period effective during the term of that agreement, beginning on August 1, 2009. Windstream contends that a 4-year limitations period applies. [3] On July 19, 2010, the City passed an ordinance amending provisions of the occupation tax. The parties disagree about the effective date of the provision for compound interest. [4] Section 25-207(3) has been applied to actions for an accounting, for example. See American Driver Serv. v. Truck Ins. Exch., 10 Neb.App. 318, 631 N.W.2d 140 (2001;) Jones v. Johnson, 207 Neb. 706, 300 N.W.2d 816, 817 (1981) (also applying § 25-212). [5] Non-substantive amendments were made to the language of section 25-212 by 2011 Nebraska Laws, L.B.9. [6] Neb.Rev.Stat. § 31-766 provides in part: "If the district and city or village do not agree upon the proper adjustment of all matters growing out of the annexation of a part of the territory located within the district, the district... may apply to the district court ... for an adjustment of all matters growing out of or in any way connected with the annexation of such territory, and after a hearing thereon the court may enter an order or decree fixing the rights, duties, and obligations of the parties." [7] "As a city of the primary class, Neb.Rev. Stat. § 15-101 (Reissue 1997), the city of Lincoln has authority to enact ordinances `not inconsistent with the general laws of the state,' Neb.Rev.Stat. § 15-263 (Reissue 1997). The Nebraska Constitution also permits a city having a population of more than 5,000 inhabitants to `frame a charter for its own government, consistent with and subject to the constitution and laws of this state.' Neb. Const. art. XI, § 2. Pursuant to Neb. Const. art. XI, § 5, the city of Lincoln adopted its charter as the home rule charter for the city. The purpose of a home rule charter is to render the city as nearly independent as possible from state interference. In re Application of Lincoln Electric System, 265 Neb. 70, 655 N.W.2d 363 (2003)." In re Genevieve C., 13 Neb.App. 665, 698 N.W.2d 462, 465 (2005.) [8] The City's ordinances do not use the term "telecommunications service." The ordinances instead refer to "telecommunication services." See Addendum to this Memorandum and Order (discussing Lincoln Municipal Code § 3.24.080). [9] In an effort to resolve this matter expeditiously, I have elected not to discuss my findings in detail. See Civil Justice Delay and Expense Reduction Plan, ¶ 12 (U.S.Dist.Ct., D.Neb., Nov. 1993) ("When motions for summary judgment are considered by a district judge and are denied on the ground that a genuine issue of material fact exists for trial, the court will issue a short opinion so stating, rather than a lengthy opinion canvassing the materials on file in support of or opposition to the motion."). [10] Neb.Rev.Stat. Neb.Rev.St. § 77-2703.04(7)(aa) provides: Telecommunications service means the electronic transmission, conveyance, or routing of voice, data, audio, video, or any other information or signals to a point, or between or among points. Telecommunications service includes such transmission, conveyance, or routing in which computer processing applications are used to act on the form, code, or protocol of the content for purposes of transmission, conveyance, or routing without regard to whether such service is referred to as voice over Internet protocol services or is classified by the Federal Communications Commission as enhanced or value-added. Telecommunications service does not include: (i) Data processing and information services that allow data to be generated, acquired, stored, processed, or retrieved and delivered by an electronic transmission to a purchaser when such purchaser's primary purpose for the underlying transaction is the processed data or information; (ii) Installation or maintenance of wiring or equipment on a customer's premises; (iii) Tangible personal property; (iv) Advertising, including, but not limited to, directory advertising; (v) Billing and collection services provided to third parties; (vi) Internet access service; (vii) Radio and television audio and video programming services, regardless of the medium, including the furnishing of transmission, conveyance, and routing of such services by the programming service provider. Radio and television audio and video programming services shall include, but not be limited to, cable service as defined in 47 U.S.C. 522, as such section existed on January 1, 2007, and audio and video programming services delivered by providers of commercial mobile radio service as defined in 47 C.F.R. 20.3, as such regulation existed on January 1, 2007; (viii) Ancillary services; or (ix) Digital products delivered electronically, including, but not limited to, software, music, video, reading materials, or ring tones[.] [11] The City states that "Windstream also ignores in its brief some of the other categories for which it has not paid occupation taxes, such as incorrectly exempted customers, intrastate private lines, and service connection charges." (Filing 77 at 16.) [12] Prior to September 1, 2001, the tax rate was 3.8%. See Ordinance No. 16424 (filing 80-3), which was passed on July 19, 1993. Ordinance No. 16424 also repealed a provision of Section 3.24.080 which taxed "the gross receipts resulting from the lease or rental of telecommunications equipment to an end user of such equipment, including any telephone, switch, or other telecommunication termination device used to provide telecommunications for hire in the city." In all other respects the language of Section 3.24.080 was the same as set forth above. Prior to November 1, 1992, however, the language of Section 3.24.080 was substantially different. The City previously "levied upon every company which maintains and operates plants and systems in the City of Lincoln for the purpose of providing any telephone service an occupation tax ... [of] Three and eight-tenths percent (3.8%) on the gross receipts resulting from rentals and tolls of the business, including the rental charges resulting from business in the City of Lincoln and all toll services and charges resulting from toll service from persons within this city to persons within this state, excluding all toll service between persons in this city and persons outside of this state, and all toll service interstate, and all interstate business and all toll service or rental charges on account of the United States government service or any of its departments, or state service or any of its departments, and no part or portion of the tax provided for in this chapter shall be levied upon or assessed against or taken from any such business so excepted from the provisions hereof." See Ordinance No. 16191 (filing 80-2), which was passed on August 24, 1992. [13] This provision was added by Ordinance No. 19454, which was passed on September 27, 2010. (Filing 76-7.)

Filed: July 15, 1996 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 95-2280 (CA-92-1288-A) Susan M. Power, Plaintiff - Appellant, versus Alexandria Physicians Group, Limited, et al, Defendants - Appellees. O R D E R The Court amends its opinion filed July 3, 1996, as follows: On the cover sheet, section 5 -- the panel information is cor- rected to read "Before ERVIN, Circuit Judge, PAYNE, United States District Judge for the Eastern District of Virginia, sitting by designation, and KELLAM,* Senior United States District Judge for the Eastern District of Virginia, sitting by designation." For the Court - By Direction /s/ Bert M. Montague Clerk UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT SUSAN M. POWER, Plaintiff-Appellant, v. ALEXANDRIA PHYSICIANS GROUP, LIMITED; BENEDICT J. SEMMES, M.D., No. 95-2280 Defendants-Appellees, and ARLINGTON HOSPITAL ASSOCIATION, Defendant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T. S. Ellis, III, District Judge. (CA-92-1288-A) Argued: April 5, 1996 Decided: July 3, 1996 Before ERVIN, Circuit Judge, PAYNE, United States District Judge for the Eastern District of Virginia, sitting by designation, and KELLAM,* Senior United States District Judge for the Eastern District of Virginia, sitting by designation. _________________________________________________________________ Affirmed by unpublished per curiam opinion. _________________________________________________________________ *Senior Judge Kellam heard oral argument in this case but died prior to the time the decision was filed. The decision is filed by a quorum of the panel. 28 U.S.C. § 46(d). COUNSEL ARGUED: John Mansfield Falk, THE FALK LAW FIRM, P.L.C., Washington, D.C., for Appellant. Edward Anthony Gonsalves, GODARD, WEST & ADELMAN, Fairfax, Virginia, for Appellees. ON BRIEF: James H. Falk, Sr., James H. Falk, Jr., Robert K. Tomp- kins, THE FALK LAW FIRM, P.L.C., Washington, D.C., for Appel- lant. Gary Albert Godard, GODARD, WEST & ADELMAN, Fairfax, Virginia, for Appellees. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION PER CURIAM: Susan M. Power obtained a verdict in the amount of $5 million against Arlington Hospital Association under the Emergency Medical Treatment and Active Labor Act ("EMTALA") in recompense for personal injuries Power sustained as a result of the hospital's failure to provide an appropriate screening examination within the meaning of EMTALA. Power v. Arlington Hospital Ass'n , 800 F. Supp. 1384 (E.D. Va. 1992) ("Power I"). While the verdict in Power I was on appeal to this court, Power instituted an action for malpractice against the hospital, the Alexandria Physicians Group, Limited and Dr. Bene- dict J. Semmes. Thereafter, this court decided Power I. Power v. Arlington Hospital Ass'n, 42 F.3d 851 (4th Cir. 1994). As a result, the verdict of $5 million in Power I was reduced to $1 million. Power then revived the dormant malpractice action and consented to the dismissal of the hospital as a defendant on the ground that it had been held liable already in Power I. The remaining defendants, Dr. Semmes and Alexandria Physicians Group, Limited, moved for dismissal contending that the $1 million EMTALA award in Power's favor in Power I constituted the entire amount recoverable by her 2 because of Virginia's $1 million medical malpractice cap. Va. Code Ann. § 8.01-581.15 (Michie 1992). Power opposed dismissal on the theory that a second cap in the amount of $1 million was available in her malpractice action against Dr. Semmes and Alexandria Physicians Group, Limited. The district court, relying principally upon this court's decision in Power I, accepted the defendants' contention and granted their motion to dismiss the complaint in this action. We have reviewed the district court's opinion, the record, the briefs and the contentions advanced by both parties at oral argument and find no reversible error. Accordingly, we affirm the decision of the district court on the reasoning of that court. Power v. Alexandria Phy- sicians Group, Limited, 887 F. Supp. 845 (E.D. Va. 1995). AFFIRMED 3 

535 F.2d 1243 U. S.v.Evans No. 75-1304 United States Court of Appeals, Second Circuit 11/6/75 1 S.D.N.Y. 2 AFFIRMED* * Oral opinion delivered in open court in the belief that no jurisprudential purpose would be served by a written opinion. An oral opinion or a summary order is not citable as precedent. Local Rule Sec. 0.23

74 Cal.Rptr.2d 541 (1998) 63 Cal.App.4th 919 James H. BELL, Plaintiff and Respondent, v. The STATE of California et al., Defendants and Appellants. No. B090764. Court of Appeal, Second District, Division Four. May 6, 1998. Rehearing Denied May 27, 1998. As Modified May 29, 1998. Review Denied July 29, 1998. *543 Daniel E. Lungren, Attorney General, Richard J. Rojo, Supervising Deputy Attorney General, Joel A. Davis, Deputy Attorney General Marsha Jones Moutrie, City Attorney, Joseph Lawrence, Assistant City Attorney, Jeanette Schachtner, Chief Deputy City Attorney, and Norman N. Hirata, Deputy City Attorney, for Defendants and Appellants. Jaffe, Trutanich, Scatena & Blum, Fred M. Blum, Carmen A. Trutanich and Robert L. Gaumer, San Francisco, for Plaintiff and Respondent. EPSTEIN, Associate Justice. Respondent was arrested by mistake; he was not the person sought under an arrest warrant. He sued those he thought responsible for the mistaken arrest. Trial was protracted, and at its end some of the appellants moved for a directed verdict. Their motion was denied. The verdict was for appellants, but was set aside upon the granting of respondent's motion for new trial. The motion was granted on proof of juror misconduct. Appellants appeal from that order. One group of appellants argues the trial court should have granted their motion for directed verdict; all appellants argue the court should have denied the motion for new trial. On the first ground, the argument is that respondent's case presented no basis for liability against appellants. On the second, appellants argue there was no jury misconduct, and if there was, it did not warrant a new trial. We conclude the trial court was compelled to deny the motion for directed verdict, and acted within its discretion in granting the motion for new trial. We therefore affirm that order. FACTUAL AND PROCEDURAL SUMMARY The factual background of the case is principally pertinent to the directed verdict issue, and less so to the motion for new trial. For the latter, it goes mainly to context and prejudice. A motion for directed verdict is properly granted "only when, disregarding conflicting evidence and giving to plaintiffs evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were given." (Estate of Lances (1932) 216 Cal. 397, 400, 14 P.2d 768.) The following summary of evidence is based on that standard, resolving disputes in and inferences from the evidence in favor of respondent as the party against whom the directed verdict was sought. For the same reason, evidence of contradictions and denials, presented with respect to some of the particulars that follow, are not recounted here. The respondent, plaintiff below, is James H. Bell. At the time, he was an investigator for the Office of the Los Angeles District Attorney. He was injured, and filed a workers' compensation claim. He was due to appear in that matter on July 9,1991. *544 He left home for the Workers' Compensation Appeals Board building in Santa Monica at 8 a.m. that morning. He was dressed in a double-breasted suit, white shirt and tie. He arrived in Santa Monica at 8:30 a.m. and parked on the street. He proceeded to the building, walked up a flight of stairs, and eventually found his way to Department 7, which he believed to be the assigned hearing room for his case. No one was there when he arrived. He sat down to wait for someone to appear. After a while, a man and woman entered the room and sat at what appeared to be the counsel table. (He later learned that the woman was his attorney in the compensation matter.) By 5 to 10 minutes after 9 a.m., respondent began to worry that he was in the wrong hearing room. The notice he had received directed him to appear at 8:30 a.m. Still, he continued to wait. After another five minutes, a woman entered the room and asked the man at the table if he knew where the judge could be found. The man pointed toward a rear door. The woman walked in that direction. As she passed respondent she glanced at him, then exited. Respondent was experienced in waiting in courtrooms, having done it for nearly 20 years. He decided to check the Master Calendar to see if he was in the correct room. He stood up from his seat, with a portfolio under his left arm, headed for the door, and walked out of the hearing room. He made a right turn in the hall, and was soon brought to a halt. The woman who had entered the hearing room and inquired about the judge was Michelle Preciado, an investigator for the State Employment Development Department (EDD). Both she and the agency that employed her were defendants below and appellants here. Ms. Preciado held the rank of Senior Special Investigator for EDD, a position that carried peace officer status. The day before, July 8, 1991, Ms. Preciado had been assigned to supervise execution of an arrest warrant for Darryl Robertson. The warrant was for violation of Unemployment Insurance Code section 2101 (making a false statement to obtain unemployment benefits without entitlement), and called for $5,000 bail. Her information was that Robertson was an African-American with the "persona of a Bryant Gumble." She was informed that he was a well-dressed man, of athletic build, who carried himself with dignity. He had close-cropped hair, and was expected to be in Department 7 of the Workers' Compensation building in Santa Monica the next morning. She also had information that there had been some sort of altercation involving Robertson in the past, and that the EDD thought he was evading service. Ms. Preciado had a particularly useful document with which to identify Robertson: a Soundex transmittal from the Department of Motor Vehicles. The Soundex consisted of a photograph of Robertson, his birthdate (January 2, 1960, making him 31 years old at the time), and other descriptive information. Following instructions, Ms. Preciado made arrangements with the Santa Monica Police Department to participate in the arrest. She did so because, although EDD investigators are peace officers, they are not armed and depend on local police to handle arrests. In response to her request, two officers of the Santa Monica Police Department met with Ms. Preciado in a parking lot near the Workers' Compensation building on the morning of July 9. They were Sergeant Willard Kemp and Officer David Enriquez. Ms. Preciado appeared with another EDD investigator, Rex Cowart. The plan was that she would identify the suspect to be arrested and the Santa Monica officers would make the arrest. Ms. Preciado was to talk to the judge and see if he would allow Robertson to be arrested in the hearing room. The four officers went to the area outside Department 7. Investigator Preciado looked inside the Department 7 hearing room and saw a man seated there, well dressed and of athletic build, holding a portfolio. She went into the hearing room. She did not ascertain whether Darryl Robertson had checked in for his hearing. Exiting the room she said, "He's in the room there." Looking through the window of the door to Department 7, Sergeant Kemp saw respondent stand up and start to leave. She informed the others of that fact. *545 Respondent emerged from the hearing room and walked past Investigator Cowart and Officer Enriquez. Investigator Preciado declared, "That was him," or "That's him." At that point respondent was suddenly grabbed from behind. Both arms were seized, one by Sergeant Kemp and the other by Officer Enriquez. Respondent's wrists were held behind his back up to his neck, forcing him to bend over at ninety degrees and to stand forward on his toes. The folder fell from his arm and spilled on the floor. At the same time he heard one of the officers say, "Hold it, fella. Freeze right there." Respondent asked "What are you guys doing?" He was told that they had a warrant to arrest him for a felony. Respondent said they had made a mistake, that his name was James Bell and that he was a District Attorney investigator. He also protested that the grip was hurting him. The response from Sergeant Kemp was, "Yeah, and I'm Mickey Mouse." Respondent continued to protest the pain he was in. After a time he heard a pop in his shoulder, indicating dislocation of a joint. He repeated that he was a District Attorney investigator. Sergeant Kemp asked for his badge and identification. Respondent said they were in the trunk of his car, but that he had a driver's license in his wallet, which was in the pocket of the coat he was wearing. Sergeant Kemp indicated that he did not want to see it, but that he wanted respondent to get his badge and investigator identification. Sergeant Kemp told Officer Enriquez they would take respondent to his car. They did so, forcing him to walk with his wrists still held behind his back at the level of his neck, requiring him to remain bent over as he walked down the stairs and out of the building. As the officers proceeded to take him down the hall, respondent saw Investigator Cowart putting papers back inside the folder that had fallen from respondent's arm. It took one to two minutes to get down the stairs; he stumbled on the way. It was a slow, painful process. Reaching the outside, respondent was asked for the location of his car; he answered, and the five of them— Sergeant Kemp, Officer Enriquez, and EDD investigators Preciado and Cowart, together with respondent, proceeded in that direction. When they reached the car Sergeant Kemp asked where respondent had the keys; he said they were in his pocket. Sergeant Kemp retrieved the keys and opened the trunk of the car. During all of this time, respondent was held in the same restraint as before. He was under arrest. Inside the trunk, Sergeant Kemp found the badge and identification, together with respondent's service revolver. Sergeant Kemp looked up and said, "I guess we owe you an apology." The grip was released, and everyone but respondent began to laugh. Respondent asked who they were looking for and why they had arrested him. Investigator Preciado held the Soundex up to Sergeant Kemp, and respondent looked over the sergeant's shoulder. He responded that "`No way does this person look like me' and that everyone needed to do a better job." Investigator Preciado grabbed the Soundex back, and the four officers started to walk away. Respondent remained at his car, in pain. He was there for 10 to 15 minutes, during which time Sergeant Kemp and Officer Enriquez left after talking to Investigators Preciado and Cowart down the street. Respondent picked up his folder from the curb, where it had been left. He noticed that Investigators Preciado and Cowart had returned to the Workers' Compensation building, and he went back the same way he had exited. Citizens came up to him, asking what happened. Many persons approached and gave him identification so that he could contact them later. He found Investigators Preciado and Cowart outside the Department 7 hearing room. He asked Investigator Preciado what agency she was with and who she was. There was no response. He then asked her for identification, and again received no response. He also asked for a business card. At that point, Investigator Preciado obtained a card from Investigator Cowart and gave it to respondent. She said, "'Do you have a problem with what happened—with what happened up here this morning, Buddy?'" Respondent said that he had a real problem about it. He asked Investigator Preciado if *546 her name was on the card; she took it back and wrote another name and told respondent, "`If you have a problem with what happened up here, you can call my supervisor.' " Respondent asked why she pointed him out as the suspect. Her answer summed up the problem: `"Well, you were the only Black guy up in Department 7, and you fit the description.'" Appellant was the only African-American in the room, but, apart from his race, he did not fit the description. He was born in 1948, and so was 43, 12 years older than the suspect Robertson. Investigator Preciado testified that, comparing the Soundex to appellant, and as a trained investigator, she could tell that appellant was not the person sought; she could see that a mistake had been made. Unfortunately, no one made that comparison at the scene. Respondent sued the City of Santa Monica and the State of California, together with the officers named in the foregoing account. The second amended complaint, the charging pleading, contained five causes of action: negligence, assault and battery, intentional infliction of emotional distress, slander per se, and false imprisonment. At trial, appellants moved for nonsuit (after respondent's opening statement and again after his case-in-chief), and the State defendants moved for a directed verdict after all evidence in the case had been presented. Nonsuit was granted on the defamation cause of action, and no issue is made of that on appeal. It was denied on all other grounds. The motion for directed verdict also was denied. After a 20-day trial and 9 days of jury deliberation, the jury returned a verdict in favor of appellants. Respondent moved for a new trial and, in the alternative, for judgment notwithstanding the verdict. The latter was denied, and the former granted on the ground of juror misconduct (The motion was denied on the other grounds presented.) The trial court stated its reasons for granting the new trial motion in a thorough 10-page order. Timely notices of appeal were filed. DISCUSSION I The State appellants (but not the City appellants) argue that the trial court erred in denying their motion for a directed verdict. Long recognized as a remedy at common law, this "demurrer to the evidence" is now codified in Code of Civil Procedure section 630. Respondent does not challenge the cognizability of a challenge to an order denying the motion on an appeal from a subsequent order granting new trial. We agree with that tacit conclusion. (See Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 384, 196 Cal.Rptr. 117.) As we have noted already, the motion must be denied if the plaintiff presents any substantial basis that justifies submission of its case to the jury. All inferences and intendments are resolved in favor of denial. In this, the scope of the trial court's review, and ours, is much like appellate review on a claim of insubstantial evidence. (See, generally, 7 Witkin, Cal. Procedure (4th ed. 1997) Trial, §§ 431, 432, pp. 492, 493.) The State appellants argue that the cause of action for false arrest should have been dismissed because there was no arrest, but only a detention. They are mistaken. If the facts in this case do not demonstrate an arrest, it is difficult to imagine what could. First and foremost, appellants acted under a warrant for arrest, and in seizing respondent, Sergeant Kemp told him that he was under arrest pursuant to a felony warrant for his arrest. He obviously was not free to leave, and he was held in close physical restraint until, to their surprise, the officers discovered that he was who he said he was, which was someone other than the person the warrant commanded the officers to arrest. The State appellants also argue that, if there was an arrest, it was performed by the City appellants. But it was accomplished by a team consisting of two peace officers from each agency, under the overall supervision of state Investigator Preciado. The same response applies to the State's effort to shift all responsibility for any assault and battery to the City appellants. *547 The State appellants argue, correctly, that imprisonment based on a lawful arrest is not false and is not actionable in tort. They assert that this principle applies because they were acting in good faith in causing respondent's arrest. There is substantial evidence to the contrary. They had a picture of the person they were after, and it manifestly did not match respondent. Respondent immediately protested that they had made a mistake, and stated his actual identity. Instead of matching his appearance to the Soundex, or accepting his invitation to check the driver's license in the wallet on his person, or the papers he had been carrying but which had been knocked out of his hand, they simply allowed the arrest to proceed as respondent was forced to his car. More significant is the careless manner in which respondent had been identified in the first place. Investigator Preciado had the Soundex, saw respondent in the hearing room, had no information that Darryl Robertson had checked in, yet told the others that the person in the room—respondent— was their man. She later justified her action by saying that he was the only Black person in the room and he matched the description. Insofar as he was the only African-American there, was well dressed, and bore himself with dignity, the statement is true. If that were enough to justify an arrest in this case, the constitutional and other safeguards that protect citizens from baseless arrest would mean little or nothing. It is not. There is ample evidence that the State appellants lacked a reasonable basis to conclude that respondent was the man they sought. The State appellants also argue that respondent's evidence is not enough to establish the tort of intentional infliction of emotional distress. Respondent does not challenge that argument in his brief, and we may deem it abandoned for purposes of this appeal. (See Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 258, fn. 3, 7 Cal.Rptr.2d 101; Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119, 210 Cal.Rptr. 109.) Finally, the State appellants argue they are immune. They cite a plethora of statutes: Civil Code section 43.55 (immunity to peace officer in making arrest pursuant to warrant if he or she acts in reasonable belief the person arrested is the one referred to in the warrant); Penal Code section 836, subdivision (2) (warrant arrest proper if officer has reasonable cause to believe the person arrested committed a felony); Civil Code section 847 (no false imprisonment liability when there is reasonable cause to believe arrest was lawful); Government Code section 820.4 (no liability where public employee acts with due care in execution or enforcement of any law); Government Code section 820.2 (immunity for discretionary acts); and Government Code section 821.6 (no liability for instituting prosecution). All but the final two citations in this series require reasonable conduct on the part of the public employees involved. As we have discussed, the record in this case is ample to justify a jury decision that the acts of the State appellants in causing respondent's arrest were unreasonable. Neither do their tactics in doing so do fall within the ambit of discretionary act immunity. That rule requires proof that the specific conduct that gave rise to the suit involved an actual exercise of discretion—a conscious balancing of risks and advantages; the term is limited to "basic policy decisions." (Johnson v. State of California (1968) 69 Cal.2d 782, 793, 73 Cal.Rptr. 240, 447 P.2d 352; Caldwell v. Montoya (1995) 10 Cal.4th 972, 979, 42 Cal.Rptr.2d 842, 897 P.2d 1320; Zuniga v. Housing Authority (1995) 41 Cal. App.4th 82, 97, 48 Cal.Rptr.2d 353.) Neither State defendant exercised that level of discretion in this case. Finally, neither of the State investigators had anything to do with initiating a prosecution, nor were they investigating anything. They were simply seeing to the execution of a warrant. Government Code section 821.6 has nothing to do with the case. It follows that the motion for a directed verdict was properly denied, as were the nonsuit motions that preceded it. We proceed to examine the issue of new trial based on juror misconduct. *548 II The authority of a trial court to grant a new trial after a jury verdict or court decision is prescribed by statute. Code of Civil Procedure section 657, subdivision 2 allows that remedy for misconduct of the jury. The provision is subject to the basic rule, stated in the initial paragraph of the statute, that the cause materially affect the substantial rights of the moving party. Experiments by the jury or a juror and unauthorized conversations about the case, outside the ambit of deliberations, may constitute misconduct sufficient to warrant a new trial. Respondent presented three declarations from jurors in support of his new trial motion. Juror B.F. declared (among other things) that Juror R. said that he had suffered the same shoulder surgery that had been performed on respondent, and had recovered without suffering the complications claimed by respondent. The more important part of this juror's declaration is that: "During the deliberations Juror [B.] advised all the other jurors that she and some other person, not a member of the jury, had attempted to recreate the sequence of events when Plaintiffs arms were placed up behind his back. She claimed that she fell over when she tried to do it. Based on this out of court recreation [sic: reenactment] of events she expressed her disbelief in the Plaintiffs testimony on this point and therefore as to his entire testimony." Juror J.R. gave a declaration stating that Juror R. had told the other jurors that he was an expert and had had the same shoulder injury as respondent, and made a good recovery without the symptoms described by respondent. Other jurors expressed confidence in Juror R.'s medical opinion. Juror R. also claimed expertise on law enforcement investigations, and expressed his view that the investigation in this case was properly done. Juror J.R. also declared that, on at least six occasions, several jurors made an issue of the fact that respondent's wife did not testify on his behalf. Juror J.R. also reported on Juror B.'s experiment in the same terms as had Juror B. F. Juror McM., in her declaration, substantially repeated the statements of Jurors B.F. and J.R. about Juror R.'s claims and Juror B.'s out-of-court experiment. Appellants presented five juror declarations. They were principally addressed to statements on other matters in the three declarations presented by respondent, although Juror R.'s statements and the fact that respondent's wife did not testify were mentioned. The last of the five declarations is by Juror R. He denied using the experience of his own shoulder injury as a basis for his decision, expressing any medical opinion or suggesting that his injury was the same as that of respondent, or claiming to be an expert on anything. None of the declarations rebutted, or even mentioned, the statements in respondent's declarations about Juror B.'s experiments or her communication of those experiments and the results to the other jurors. The standard for review of an order granting a new trial is abuse of discretion, and juror misconduct is an area in which the broad discretion is accorded to the trial judge. (8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court, § 139, p. 640.) Witkin distills the law on the point: "The trial judge is familiar with the evidence, witnesses and proceedings, and is therefore in the best position to determine whether, in view of all the circumstances, justice demands a retrial. Where error or some other ground is established, his discretion in granting a new trial is seldom reversed. The presumptions on appeal are in favor of the order, and the appellate court does not independently redetermine the question whether an error was prejudicial, or some other ground was compelling. Review is limited to the inquiry whether there was any support for the trial judge's ruling, and the order will be reversed only on a strong affirmative showing of abuse of discretion." (8 Witkin, supra, § 143, p. 644.) There is an abundance of reported decisions concerning jury experiments. The classic rule was stated by our Supreme Court *549 early in this century: "They [the jurors] may carry out experiments within the lines of offered evidence, but if their experiments shall invade new fields and they shall be influenced in their verdict by discoveries from such experiments which will not fall fairly within the scope and purview of the evidence, then manifestly, the jury has been itself taking evidence without the knowledge of either party, evidence which it is not possible for the party injured to meet, answer, or explain." (Higgins v. L.A. Gas & Electric Co. (1911) 159 Cal. 651, 657, 115 P. 313.) People v. Conkling (1896) 111 Cal. 616, 627, 44 P. 314 is a classic case. It appeared that, during the trial, two jurors borrowed a rifle similar to the one by which the deceased had been killed, and experimented by firing the rifle to determine the distance that powder marks would be carried by the fire, an issue in the case. The Supreme Court reversed the ensuing conviction. It said the experimenting jurors were too zealous, and their misconduct required retrial. "Jurors cannot be permitted to investigate the case outside the courtroom. They must describe the guilt or the innocence of the defendant upon the evidence introduced at the trial. It is impossible for this court to say that this outside investigation did not affect the result as to the character of the verdict rendered. For, when misconduct of jurors is shown, it is presumed to be injurious to defendant, unless the contrary appears." (111 Cal. at p. 628, 44 P. 314.) People v. Castro (1986) 184 Cal.App.3d 849, 229 Cal.Rptr. 280 is remarkably similar to the case before us. The ability to perceive through binoculars was an issue in the case. One of the jurors "went home and used binoculars to see if a witness could have possibly seen what he [the witness] said he did." (184 Cal.App.3d at p. 852, 229 Cal. Rptr. 280.) This was misconduct, giving rise to a presumption of prejudice that was not rebutted. (Id. at pp. 855-856, 229 Cal.Rptr. 280.) What jurors can do, as a body during deliberations, is engage in experiments which amount to no more than a careful evaluation of the evidence which was presented at trial. (People v. Cooper (1979) 95 Cal.App.3d 844, 853, 157 Cal.Rptr. 348; People v. Bogle (1995) 41 Cal.App.4th 770, 778, 48 Cal.Rptr.2d 739.) In this case, the jury had been instructed, in terms of BAJI No. 1.00.5, not to conduct experiments. The trial court would not have allowed a courtroom experiment depicting the manner in which respondent's hands and arms had been pinned behind his back. The reason was concern that doing so could cause injury. Given that, the experiment by Juror B. was not "within the lines of offered evidence." In ruling on the new trial motion, the trial court effectively applied the three-step inquiry outlined in People v. Dorsey (1995) 34 Cal.App.4th 694, 703, 40 Cal.Rptr.2d 384: determine whether the affidavits supporting the motion are admissible, whether the facts establish misconduct, and whether the misconduct is prejudicial. The trial court expressly excluded inadmissible portions of the declarations, such as passages addressed to the mental processes of the jurors. We shall allow the trial judge to explain the application of the other two factors in her own words: "In this case, the affidavits presented by the Plaintiff informed the Court that one juror conducted an experiment attempting to replicate the manner by which the plaintiff was allegedly seized by Defendant Santa Monica Police Officers. The experiment was done outside of court with unknown third parties assisting, and the results were related to the jury during deliberations. The jury was advised that the juror `fell over when she tried to do it'. "The incident the juror was attempting to replicate is not subject to experimentation because of the inability to accurately duplicate critical factors such as the size, strength and height of the individuals, the amount of force involved, and the specific or unusual physical characteristic of each individual involved. Further, experimentation is inappropriate due to the fact that, if the acts were carried out in exact fashion described by the Plaintiff, the party acted upon could easily be injured. The court would not have allowed a recreation of the actual hold in court and *550 frequently had to admonish counsel in the presence of the jury to refrain from illustrating a purported posture to the jury during their various examinations and/or cross examinations. "This `experiment' was juror misconduct on several grounds: first, the juror was obviously discussing the case outside the court with other persons in violation of the direct order of the court; second, the juror attempted to simulate the events at the scene; and, third, the fact of the experiment and its results were passed onto the other jurors. "The juror's experimental results contradicted the testimony of the Plaintiff and was consistent with the position urged by the Defendants in the trial. The action was clearly misconduct. The jury's assessment of the credibility of the witnesses was obviously paramount in the evaluation of the case. The jury's evaluation of the method by which Officers Enriquez and Kemp apprehended Mr. Bell was a critical, if not the key, factual determination[] in the outcome of this litigation. Had Plaintiffs version of these facts been believed, there would have been a breach of duty as a matter of law. The only questions remaining for the jury would have been whether this breach of duty was a cause of injury or damage to the Plaintiff and the amount of such damages, if any. In this trial, with the crucial nature of the credibility analysis, the actions: of this juror were prejudicial to Plaintiffs right to a fair trial. "The defendant offered no evidence to rebut the prejudice. The affidavit of the jury foreman affirms that the jury was told that the particular juror `tried to bring her arm up to the nape of her neck.' Rather, the defense urges that the jurors experimentation was allowable within the guidelines set forth in Higgins v. LA. Gas & Electric Co. [citation]. Those principles allow a jury, in the deliberation room, to carry out experiments within the lines of offered evidence. For the reasons stated above, this particular experiment would not have been within the lines of offered evidence even had it been conducted in the jury room with all twelve jurors present. The fact that the experiment was performed by one juror, aided by unknown third parties, outside of the court room and the deliberations, is more egregious and resulted in outside influences or extrinsic evidence permeating the jury's deliberations on perhaps the key factual determination in the case. I am unable to conclude that no reasonable probability of actual harm to the complaining party occurred." (Emphasis in original.) The parties raise a quibble that the final statement amounts to application of an erroneous standard in ruling on the motion for new trial. Read as a whole, it is clear the court was saying that the presumption of prejudice from the misconduct had not been rebutted. The trial court also considered the speculative discussion about respondent's wife not testifying, and some other matters, as indicating that there had been discussion of matters outside the record. We need not review these. The principal, and sufficient, basis for new trial was the juror's improper experiment and her report of the result to the other jurors. The trial court was well within its discretion in granting the motion for new trial on that basis. DISPOSITION The order granting new trial is affirmed. Respondent to have his costs on appeal. CHARLES S. VOGEL, P.J., and HASTINGS, J., concur.

223 P.3d 332 (2010) Johanne DICTOR, d/b/a CPCI, Appellant, v. CREATIVE MANAGEMENT SERVICES, LLC, d/b/a MC2, Respondent. No. 51778. Supreme Court of Nevada. February 4, 2010. *333 Robert M. Apple & Associates and Robert M. Apple, Las Vegas; Law Offices of Cary L. Dictor and Cary L. Dictor, San Leandro, CA, for Appellant. Pico Rosenberger and James R. Rosenberger, Las Vegas, for Respondent. BEFORE PARRAGUIRRE, C.J., HARDESTY and PICKERING, JJ. OPINION By the Court, HARDESTY, J.: In this appeal, we consider two legal doctrines: first, the application of the law-of-the-case doctrine, and second, the proper choice-of-law analysis for defenses to the subrogation of underlying tort claims. When an appellate court explicitly or by necessary implication determines an issue, the law-of-the-case doctrine provides that the determination governs the same issue in subsequent proceedings in the same case. Because our unpublished order in a previous appeal involving these same parties and stemming from the same lower court case narrowly addressed a single issue, we conclude that the district court did not violate the law-of-the-case doctrine and the district court was not precluded from applying the Missouri Property and Casualty Insurance Guaranty Association Act, Missouri Revised Statute section 375.772 (Mo.Rev.Stat. § 375.772), and other alternate legal defenses on remand. We also affirm the district court's choice-of-law conclusion, that the Missouri statute barring tort claims against an insured of an insolvent insurer precludes appellant CPCI's subrogation claims. FACTS Creative Management Services, Inc., has its principal place of business in Missouri but provides services and support to trade shows in Las Vegas. In June 2000, Loews Corporation was a vendor at a trade show in Las Vegas, and its watches and other items valued at approximately $120,000 were stolen. Loews filed a property claim with its insurance carrier, Hartford Insurance Company, which paid the claim. Hartford then subrogated the claim to CPCI, a California corporation. CPCI brought a subrogation claim against Creative asserting various causes of action, including negligence and conversion, for the loss of Loews's property. At the time of the trade show, Creative was insured by Reliance Insurance Company, which has since been declared insolvent. In 2004, Creative filed its first motion for summary judgment. The district court granted the motion based on NRS 687A.095 in the Nevada Insurance Guaranty Association Act, which provides immunity from suits to an insured of an insolvent insurer. The district court concluded that the subrogation claim was barred because Creative was an insured of Reliance, which had been declared insolvent. CPCI appealed. Days prior to the scheduled oral argument in that appeal, an amicus curiae brief was filed asserting that, through a choice-of-law analysis, Mo. Rev.Stat. § 375.772, which also precludes suits against an insured of an insolvent insurer, should apply. In that appeal, we determined that NRS 687A.095 did not apply to this case because the claim was not a "covered claim" under NRS 687A.033, which requires that either the claimant or the insured be a resident of Nevada.[1] Therefore, we reversed the district court's summary judgment and remanded the matter for further proceedings. Our order, however, was silent regarding a choice-of-law analysis and the application of Mo.Rev.Stat. § 375.772. On remand, Creative filed its second motion for summary judgment, asserting that because NRS 687A.095 is not applicable, the district court should apply a choice-of-law analysis and conclude that Mo.Rev.Stat. § 375.772 bars CPCI's suit against an insured of an insolvent insurer. After conducting a choice-of-law analysis under General Motors Corp. v. District Court, 122 Nev. 466, 134 P.3d 111 (2006), the district court determined *334 that Mo.Rev.Stat. § 375.772 applied and granted Creative's second motion for summary judgment. CPCI appeals. DISCUSSION In this appeal, we must first determine whether, under the law-of-the-case doctrine, our previous unpublished order in this case precludes Creative from asserting Mo.Rev. Stat. § 375.772 as an additional statutory defense to the underlying tort claims. If the law-of-the-case doctrine does not bar Creative from asserting Mo.Rev.Stat. § 375.772, then we must determine whether the district court properly conducted a choice-of-law analysis and, thereafter, correctly applied Mo.Rev.Stat. § 375.772 to dismiss CPCI's complaint. An order granting summary judgment is reviewed by this court de novo. Ozawa v. Vision Airlines, 125 Nev. ___, ___, 216 P.3d 788, 791 (2009). Summary judgment is appropriate when the moving party is entitled to judgment as a matter of law and there is no genuine dispute of any material fact. Id. The law-of-the-case doctrine In this appeal, CPCI argues that the issue in the prior appeal broadly answered the question whether there was a statutory defense precluding the litigation of the underlying claims. If so, CPCI maintains that the law-of-the-case doctrine prevents this same issue from being argued to the district court again. Specifically, CPCI claims that our previous order—holding that NRS 687A.095 was not applicable—also resolved the vast horizon of possible statutory defenses that could have been raised in this case, including Mo.Rev.Stat. § 375.775, and required the district court to proceed to trial. We disagree. The law-of-the-case doctrine provides that when an appellate court decides a principle or rule of law, that decision governs the same issues in subsequent proceedings in that case. Hsu v. County of Clark, 123 Nev. 625, 629, 173 P.3d 724, 728 (2007); Wheeler Springs Plaza, LLC v. Beemon, 119 Nev. 260, 266, 71 P.3d 1258, 1262 (2003). In order for the law-of-the-case doctrine to apply, the appellate court must actually address and decide the issue explicitly or by necessary implication. Snow-Erlin v. U.S., 470 F.3d 804, 807 (9th Cir.2006). However, the doctrine does not bar a district court from hearing and adjudicating issues not previously decided, see id., and does not apply if the issues presented in a subsequent appeal differ from those presented in a previous appeal. Emeterio v. Clint Hurt and Assocs., 114 Nev. 1031, 1034, 967 P.2d 432, 434 (1998); Bone v. City of Lafayette, Ind., 919 F.2d 64, 66 (7th Cir.1990) ("Subjects an appellate court does not discuss, because the parties did not raise them, do not become the law of the case by default.") Here, we conclude that the district court could entertain a renewed summary judgment motion based on an alternate statutory defense. Our previous order was narrow and strictly determined that NRS 687A.095 did not apply to this case because the claim was not a covered claim under NRS 687A.033, which requires that either the claimant or insured be a resident of Nevada. Neither CPCI nor Creative is a resident of Nevada. As a result, we ordered the district court to conduct further proceedings. Although the application of Mo.Rev. Stat. § 375.772 was presented in the amicus brief filed days prior to the oral argument in the previous appeal, our order did not explicitly or impliedly decide whether Mo.Rev.Stat. § 375.772 was applicable. Pursuant to the law-of-the-case doctrine, NRS 687A.095 cannot be applied as a statutory defense to the underlying claims. However, our prior order did not compel the district court to proceed to trial, nor did it preclude the district court from addressing alternate statutory defenses or other pretrial dispositional motions.[2] Because our previous order did not determine the applicability of Mo.Rev.Stat. § 375.772 or other possible legal defenses, we conclude *335 that the law-of-the-case doctrine did not bar the district court from considering alternate legal defenses through another motion for summary judgment.[3]See also Hoffman v. Tonnemacher, 593 F.3d 908, 910-11 (9th Cir. 2010) (the rules do not prohibit successive summary judgment motions if appropriate). Choice-of-law analysis Because we conclude that the law-of-the-case doctrine does not bar consideration of Mo.Rev.Stat. § 375.772 as a statutory defense, we also conclude that a choice-of-law analysis by the district court was appropriate. The district court looked to General Motors Corp. v. District Court, 122 Nev. 466, 134 P.3d 111 (2006), as the guiding authority for a choice-of-law analysis; however, the district court failed to follow the analysis as outlined. General Motors Corp. adopted the Restatement (Second) of Conflict of Laws as the relevant authority for Nevada's choice-of-law jurisprudence in tort cases and concluded that the most significant relationship test of section 6 of the Second Restatement governs a choice-of-law analysis, "unless another, more specific section ... applies." General Motors Corp., 122 Nev. at 468, 473, 134 P.3d at 113, 116 (emphasis added). Here, the district court immediately applied the section 6 factors without considering whether a "more specific section" of the Second Restatement applied.[4] This was error. A district court should not apply the section 6 factors until it has determined whether a "more specific section" of the Second Restatement applies.[5] CPCI's subrogation claim sounds in tort, and to succeed on that claim, CPCI would be required to prove that Creative was negligent. "A subrogation claim arising from a tort ... is properly characterized as a tort claim for choice of law purposes." Federated Rural Elec. v. R.D. Moody & Associates, 468 F.3d 1322, 1326 (11th Cir.2006). We conclude that section 161 of the Restatement (Second) of Conflict of Laws, which addresses the defenses available in tort actions, is a "more specific section" that applies to this case and should be the starting point of a choice-of-law analysis. Section 161 of the Second Restatement declares that "[t]he law selected by application of the rule of § 145 determines what defenses to the plaintiffs claim may be raised on the merits." However, section 161's comments distinguish between defenses raised on the merits of the plaintiffs claim and defenses that arise from the relationship of the parties. Section 161, comment e notes that defenses that excuse ordinary tort liability based on the relationship of the parties may be controlled by the local law where the parties are domiciled. Comment e also refers to section 156, comment f, which describes the exceptions to the choice of law for normal tort liability, recognizing that in certain situations an actor's liability may be relieved because of the parties' relationship and domicile in a state other than the state where the tortious conduct and injury occurred: *336 Whether the actor is relieved from ordinary tort liability may, on occasion, depend upon some law other than that which determines whether his conduct is tortious. This is particularly likely to be true in a situation where the actor claims to be relieved from liability because of his particular relationship to the plaintiff, and the parties are domiciled in a state other than that in which the tortious conduct and resulting injury occurred. Restatement (Second) of Conflict of Law § 156 cmt. f (1971). In adopting the Restatement (Second) of Conflict of Laws's analytical approach to control the outcome of a choice-of-law analysis, we determine that additional comments in the Second Restatement support the position that "the local law of the state where the parties are domiciled, rather than the local law of the state of conduct and injury, may be applied to determine whether one party is immune from tort liability to the other." Restatement (Second) of Conflict of Laws § 145 cmt. d (1971); Restatement (Second) of Conflict of Laws § 156 cmt. f (1971) (the law of the state where the driver and passenger are domiciled will apply although the tortious conduct and injury occurred in another state); Restatement (Second) of Conflict of Laws § 167 cmt. c (1971) (the law of the state of the parties' domicile will likely have the greatest interest in the issue of whether tort claims survive the death of one of the parties); Restatement (Second) of Conflict of Laws § 168 cmt. b (1971) (whether a charitable corporation may assert the defense of charitable immunity may be determined by the local law of the state where the plaintiff is domiciled and defendant corporation has its principle place of business). In this case, Mo.Rev.Stat. § 375.772 is not advanced as a defense to tort liability. Rather, the statute is a defense based on the relationship between an insured and an insolvent insurer. Creative is an insured of an insolvent insurer, Reliance Insurance Company. Because Creative is domiciled in Missouri, it qualifies for protection under the Missouri Property and Casualty Insurance Guaranty Association Act. See Mo.Rev.Stat. § 375.772(2)(7)(b) (West 2002 & Supp.2009) (requiring that the claimant or the insured be a resident of the state to qualify as a "covered claim"). We recognize that CPCI and Creative do not have a direct relationship; however, CPCI is the assignee of Hartford Insurance Company, an insurer whose claims against Creative are also subject to the Missouri Property and Casualty Insurance Guaranty Association Act. Although section 161, comment e implies that the parties' domicile should be shared in order for the local law of the domicile to control, in this case, Creative's domicile alone and CPCI's submission to the statutes of that domicile through its assignor, Hartford, are sufficient to invoke section 161, comment e and apply the Missouri Property and Casualty Insurance Guaranty Association Act. Although the district court's choice-of-law analysis was procedurally flawed because it did not rely upon a "more specific section" of the Restatement (Second) of Conflict of Laws prior to conducting a section 6 analysis, we conclude that the district court's determination that Missouri law applied was correct, and we will not disturb the district court's judgment even though it was reached by relying on different grounds. St. James Village, Inc. v. Cunningham, 125 Nev. ___, ___, 210 P.3d 190, 196 (2009). Creative's defense was based on Missouri's statutory bar to subrogation claims against an insured of an insolvent insurer. This defense required the district court to conduct a proper choice-of-law analysis under section 161 of the Second Restatement and apply the local law of at least Creative's domicile where the claimant's subrogation claim was subject to the Missouri Property and Casualty Insurance Guaranty Association Act. Because Creative is an insured of an insolvent insurer, we conclude that Mo.Rev.Stat. § 375.772 bars CPCI's subrogation claim against Creative. Therefore, we affirm the district court's grant of summary judgment. We concur: PARRAGUIRRE, C.J., and PICKERING, J. NOTES [1] CPCI v. Creative Management Services, Docket No. 44068, 123 Nev. 803, 210 P.3d 718 (Order of Reversal and Remand, January 12, 2007). [2] Notwithstanding appellant's argument in the briefs that our previous order broadly resolved all statutory defenses, at oral argument in this instant appeal, appellant acknowledged that our prior order would not preclude the district court from considering other statutory defenses, such as the statute of limitations, if such defenses were applicable. [3] CPCI also argues that the application of Mo. Rev.Stat. § 375.772 was an affirmative defense that was not properly pleaded. We conclude that the language in Creative's answer that "any subrogation claim is barred by NRS 687A.095 and related statutes" is sufficient to meet the affirmative defense test outlined in Clark County School District v. Richardson Construction, 123 Nev. 382, 392, 168 P.3d 87, 94 (2007). [4] Restatement (Second) of Conflict of Laws section 6 provides in pertinent part: (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. [5] We also note that courts are not bound to decide all issues in a case under the local law of only one state, but rather each issue should be separately considered and resolved by the applicable law of the potentially interested state. See Restatement (Second) of Conflict of Laws § 145 cmt. d (1971).

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA,  Plaintiff-Appellee, v.  No. 00-4403 LUCIUS ROGERS, Defendant-Appellant.  Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (CR-00-5) Submitted: January 31, 2001 Decided: February 20, 2001 Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges. Affirmed by unpublished per curiam opinion. COUNSEL Matthew A. Victor, Charleston, West Virginia, for Appellant. Rebecca A. Betts, United States Attorney, Samuel D. Marsh, Assis- tant United States Attorney, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). 2 UNITED STATES v. ROGERS OPINION PER CURIAM: Lucius Merritt Rogers appeals his criminal sentence imposed for aiding and abetting in the attempted possession of cocaine with the intent to distribute. We affirm. Rogers first contends that his sentence runs afoul of the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), because drug quantity was neither charged in the indict- ment nor submitted to the jury, but was rather determined by the court at sentencing as a sentencing factor. Under Apprendi, any fact, other than prior conviction, that increases the maximum penalty for a crime is an element of the offense, and as such, must be charged in the indictment, submitted to a jury, and proven beyond a reasonable doubt. Apprendi, 530 U.S. at ___, 120 S. Ct. at 2362-63. This court, however, has held that Apprendi does not apply to a judge’s exercise of sentencing discretion within a statutory range so long as a defen- dant’s sentence is not set beyond the maximum term specified in the substantive statute. United States v. Kinter, 235 F.3d 192, 199-200 (4th Cir. 2000); United States v. Lewis, 235 F.3d 215, 219 (4th Cir. 2000) (applying a plain error standard of review). Because Rogers’ sentence of 121 months is below the lowest possible statutory maxi- mum of twenty years, the sentence is permissible under Lewis and Kinter. We therefore find no reversible error as to this claim. Rogers next argues that, assuming that Apprendi is inapplicable, the district court erred in determining drug quantity because its rele- vant conduct determination relied upon the testimony of two wit- nesses, both of whom were unreliable. We review the district court’s determination in this regard for clear error, United States v. Fletcher, 74 F.3d 49, 55 (4th Cir. 1996), and note that the Government has the burden of establishing the amount by a preponderance of the evi- dence. United States v. D’Anjou, 16 F.3d 604, 614 (4th Cir. 1994). In conducting this review, the district court’s application of the Sentenc- ing Guidelines are given "due regard to the opportunity of the district court to judge the credibility of witnesses." 18 U.S.C. § 3742(e) (1994).  UNITED STATES v. ROGERS 3 Rogers argues that the testimony offered by Johnson and Reed was so contradictory and unworthy of credence that the district court clearly erred in relying upon their statements. A review of the record reveals that, although their statements are at times contradictory and occasionally border on the incredible, the district court was thor- oughly aware of these contradictions and credibility issues and took these concerns into account, using only those portions of the testi- mony that the district court determined to be credible and only the lowest estimates of amounts within those portions. Given this approach, we conclude that the district court’s credibility determina- tion and its ultimate determination of quantity should not be disturbed on appeal. Accordingly, we affirm Rogers’ sentence. We dispense with oral argument because the facts and legal contentions are adequately pre- sented in the materials before the court and argument would not aid the decisional process. AFFIRMED 

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE OCTAVIO CERVANTES- No. 15-70841 VASQUEZ, Agency No. A200-245-317 Petitioner, v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted September 18, 2019** Before: FARRIS, TASHIMA, and NGUYEN, Circuit Judges. Jose Octavio Cervantes-Vasquez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). * 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). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings. Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir. 2008). We deny the petition for review. We reject Cervantes-Velasquez’s contentions as to streamlining because the BIA did not streamline his case. Substantial evidence supports the agency’s determination that Cervantes- Vasquez failed to establish that the one incident of past harm rose to the level of persecution. See Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000) (persecution is an “extreme concept” that includes the “infliction of suffering or harm”). Substantial evidence supports the agency’s determination that Cervantes-Vasquez failed to demonstrate a nexus between the harm he fears in Mexico and a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an applicant’s “desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground”). Thus, Cervantes-Vasquez’s asylum and withholding of removal claims fail. Substantial evidence also supports the agency’s denial of CAT relief because Cervantes-Vasquez failed to show it is more likely than not that he would be tortured by or with the consent or acquiescence of the government if returned to 2 Mexico. See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009) (no likelihood of torture established). PETITION FOR REVIEW DENIED. 3 

395 S.W.2d 136 (1965) Warren NICHOLS, Appellant-Respondent, v. Charlotte D. BLAKE, Respondent-Appellant. No. 51184. Supreme Court of Missouri, Division No. 2. November 8, 1965. As Modified Motion November 24, 1965. *138 Sherman Landau, St. Louis, for appellant-respondent. Murphy & Kortenhof, Ben Ely, Jr., St. Louis, for respondent-appellant. As Modified on Court's Own Motion November 24, 1965. EAGER, Presiding Judge. This is a suit for personal injuries arising from an automobile collision. There is no contention that plaintiff did not make a submissible case of negligence, so it will not be necessary to discuss the facts of the occurrence in detail. Plaintiff had a verdict for $3,500. Defendant filed a motion for new trial, and plaintiff later filed his motion, but confined it to the issue of damages. At the presentation of the motions, counsel for defendant asked orally in the alternative for a new trial on damages only. The trial court overruled both motions and each party appealed. Defendant's counsel have not seen fit to brief the plaintiff's appeal as a respondent, but have limited their brief to the points on defendant's appeal. It will be necessary to consider the appeals separately. Our jurisdiction lies in the fact that plaintiff, at trial, claimed damages in the sum of $22,500, and the difference between that sum and the amount of his recovery exceeds $15,000. Pinkston v. McClanahan, Mo., 350 S.W.2d 724. Briefly, the facts of the occurrence were as now set out. On October 22, 1962, at about 10:30 a. m. defendant Charlotte D. Blake, 84 years of age, was driving a 1951 Plymouth and seeking to go from her home to some location in St. Louis County. Her husband, somewhat older, was riding with her. She had missed a turn and, immediately prior to the collision, she was retracing her route to some extent. She proceeded north on Olive Street Road to its junction with east and west Highway 40, a fourlane road with no divider, on which there was a 70 mile speed limit. A short distance west of that junction No. 40 began a distinct downslope to the west, so that the view west from the junction was much limited. According to defendant's testimony she stopped at No. 40, saw nothing coming either way, then turned slowly east (right), looked to her rear, and started very slowly to make a "U-turn," intending to get back on Olive Street. After she started to turn, she saw plaintiff's car coming from the west "fast," and tried to turn back to the right; however, the left front of her car and the right side of plaintiff's car collided; she further testified that at the moment of impact she was "stopped," and that she had not "quite gotten to the center of the highway" (perhaps inconsistent with her stated turn to the right). She was not injured and her husband was not injured. The husband was ill at the time of trial and did not testify. Plaintiff testified: that he had been traveling at approximately 55 miles an hour but had slowed somewhat before he saw the defendant because he expected to turn; that he was traveling in the lane closest to the center line; that he saw her car as he came over the crest of the hill, and it was coming out of the intersection and heading slowly east in the outer lane; that suddenly defendant began a "U-turn" and blocked both eastbound lanes; that he first started to pass her on the right but saw a steep dropoff on that side, applied his brakes, sounded his horn, and swung to the left; that, in the meantime, defendant had stopped, but started up again; that as he tried to pass on the left (getting pretty well over into the westbound lanes), the left front of defendant's car struck the right side of his car, just behind the right door. Plaintiff testified that the impact occurred in the westbound lanes. He had decreased his speed to 20-25 miles an hour, and was "almost *139 skidding" at the time. There was no other traffic. Plaintiff was thrown to his right, and against the right door or doorpost, striking the right side of his back. Both cars were eventually driven away. Plaintiff testified that the cost of repairing his car was in excess of $500, but the car was owned by the Nichols Equipment Company, a corporation, and the extent of the damage was shown, apparently, to demonstrate the force of the impact. The case was tried primarily on the issue of damages. Plaintiff had been, and was, in the business of selling certain types of industrial equipment, such as pneumatic air tools, hoisting equipment, etc.; he had worked until the end of September, 1960, for Master Power Corporation, earning $15,468.50 in the first nine months of that year. He then quit voluntarily to start his own company, selling similar lines; the new company was incorporated, but plaintiff handled most of the sales work, was its president, and obviously was the managing official. His wife and two of plaintiff's friends were directors; plaintiff owned 69% of the stock. In 1960 (three months) he received as compensation $250; in 1961, $1,200-$1,400; in 1962, $2,600 or a little more; in 1963, $12,700; and in 1964 he was drawing a salary at the same rate as 1963. He had never actually received $20,000 in any one year from either company. Plaintiff had suffered an infection of his left hip in 1941, for which there had been several operations. This left him with his left leg shortened a little more than an inch and with a restricted motion in that leg. He testified that this had not hampered his activities. In his further testimony he said: that after the collision involved here his neck and back were very sore, that his neck recuperated but that his back had progressively given him trouble, above and below the waist; that he had had no such trouble previously; that after the injury he used heat, sedatives and rest for about ten weeks before he went to a doctor; that during that period he lost about eight or nine half days from his work and that he had continued to lose from two to four half days per month up to the time of trial; that on those days he would simply quit early to go home and rest, and that he does substantially nothing but rest on Saturdays and Sundays; that it is particularly difficult for him to drive long distances as he previously did, and that he has frequently shifted to planes for his longer trips; that the injury has affected his ability to do his work in various particulars, and that "it has affected my income"; that he has entirely quit playing golf and taking care of his yard. On January 11, 1963, he went to a doctor of osteopathy, Dr. Wm. F. Luebbert, who specialized in orthopedics. He received heat treatments and manipulations, began to wear a brace prescribed for his back, and had his left shoe built up. He continued to go to this doctor about once a month. His medical bill to the time of trial was $157. No other special damages were shown. He has difficulty in sitting long in one position and is required to be careful of the type of seats he uses. He did not claim to have missed any full days of work. Plaintiff's wife largely corroborated his testimony concerning sundry of his incapacities since the injury. Nothing particularly material was developed in the testimony of the Highway Patrolman who came to the scene; he did testify that the major part of the debris was 2-3 feet south of the center line, which would seem to have placed the impact largely in the eastbound lanes. Plaintiff's osteopathic physician testified that he found (in addition to the impairment of the left hip) limited motion in plaintiff's back and muscle spasm in the region of the first and second lumbar vertebrae; his conclusion was that there was a strain of the "thoracic and lumbar spine" with inflammation of the muscles and that there was a direct connection between plaintiff's condition and the collision; he also testified that plaintiff would continue to need medical care in the future, and stated the belief that the condition resulting *140 from the collision was permanent. He admitted that the shortness of one leg, and the consequent tilting of pelvis, could cause back strain, and that it was "possible" that plaintiff's complaints could have been so caused. Dr. Earl Holt, an orthopedic surgeon, examined plaintiff about a year before the trial and noted the impairment of the left hip; he testified that it was his conclusion that any existing disability was due to the hip impairment which had caused strain on the low back, and that he found no residue of any injury to plaintiff's back from the collision. He admitted that one with such a hip was more apt to be hurt in an accident. Plaintiff's expectancy was shown to be 29.42 years. Defendant's husband was originally a defendant, but plaintiff dismissed as to him at the trial. Certain other features of the evidence will be referred to later. On plaintiff's appeal, two points are made: (1) that the court erred in refusing to admit in evidence a transcript from a Magistrate's Court which showed that defendant had entered a plea of guilty to a charge of "failure to yield right of way," being a declaration against her interest; and (2), that the amount of the verdict and judgment was "unrealistic, unjust, and grossly inadequate * * *." We first consider that appeal. On (1), supra, plaintiff cites Myers v. Maryland Casualty Co., 123 Mo.App. 682, 101 S.W. 124, 127; Neibling v. Terry, 352 Mo. 396, 177 S.W.2d 502, 152 A.L.R. 249. These opinions merely state the doctrine that the results of criminal proceedings, generally, are not admissible in civil actions because the parties, the issues, and the requirements of proof are different; but that, as an exception to the rule, pleas of guilty have been received as confessions or declarations against interest. This point was not raised in plaintiff's motion for a new trial in any manner, and it is now foreclosed. The motion for new trial attacked only the inadequacy of the verdict. It would be entirely too tenuous to say that the present point was included because it conceivably might have affected the size of the verdict. As a further reason, if any could conceivably be needed, the admission of such an exhibit could only go to establish defendant's liability, and the verdict itself established that. The point is denied. On the alleged inadequacy of the verdict plaintiff cites Donahoo v. Illinois Terminal R. R. Co., Mo., 300 S.W.2d 461, Gooch v. Lake, Mo., 327 S.W.2d 132, and 25 C.J.S. Damages § 40, as holding that impairment of earning capacity is a proper element of compensation. There would seem to be no doubt concerning the validity of the principle, but the evidence must establish that contention with reasonable certainty in order to justify submission. C.J.S., supra. Here, this element of damage was specifically submitted in Instruction No. 9. Apparently, what counsel really argues is that the jury disregarded this evidence. Counsel says that because plaintiff was earning at the rate of $20,000 a year in the first nine months of 1960, before he left the Master Power Corporation, he was entitled to have the jury consider all of his lost time, past and future, on that basis. One difficulty with the argument is that plaintiff voluntarily abandoned the employment where he was earning at that rate, and started a new business in which many elements might affect his own earnings, as well as those of the new corporation. One could hardly say without speculation that either before or after trial he would have earned at the rate of $20,000 per year in his new employment, except for the disability he claimed to have suffered. All of this evidence was before the jury and it passed on the issue. He testified that he did lose some time from his work and suffered various inconveniences. The jury also had evidence before it that any remaining incapacity was due to his prior hip impairment; on that theory, if accepted, the jury could have awarded him a sum computed as compensation for certain *141 inconveniences and loss of time for a period immediately following the accident. It seems unnecessary here to review our various cases discussing the question of inadequate verdicts. See generally: Brown v. Moore, Mo., 248 S.W.2d 553; Hufft v. Kuhn, Mo., 277 S.W.2d 552; Steuernagel v. St. Louis Public Service Co., 361 Mo. 1066, 238 S.W.2d 426; Spica v. McDonald, Mo., 334 S.W.2d 365; Glore v. Bone, Mo., 324 S.W.2d 633, and cases there cited; Pinkston v. McClanahan, Mo., 350 S.W.2d 724. It has been said that the appellate court should interfere only when the verdict is "grossly and shockingly inadequate" (Brown, supra), or when it appears to have been the result of "passion and prejudice" Brown, Hufft, Pinkston) or "misconduct of the jury" (Pinkston) or an "arbitrary abuse" of the jury's discretion (Brown, Pinkston). We consider the better rule to be that, while of course the appellate court does not weigh the evidence, it should "limit its inquiry to the determination of whether there is substantial evidence to support the jury's verdict and whether the trial court abused its discretion in refusing to grant plaintiff a new trial." (Bone, supra); and, further, that "* * * by the phrase `substantial evidence to support the verdict,' as here used, is meant and it includes whether the amount of the verdict is responsive to the evidence on the issue of damages, * * *." (Pinkston, supra.) Applying these rules, we may not say that this verdict was not responsive to the evidence as a whole, or that there was not substantial evidence to support it. The trial court gave this matter careful consideration as indicated in its memorandum opinion. We certainly may not say that it abused its discretion. Plaintiff's Point 2 is denied. On defendant's appeal four points are raised: (1) that the court erred in permitting plaintiff's counsel to argue to the jury a calculation of lost earnings at the rate of $20,000 a year; (2) that the court erred in not permitting defendant's counsel to read to the jury the prayer of plaintiff's original petition for $3,500 in damages; (3) that it was error to permit in evidence the earnings of Nichols Equipment Company; and (4) that the reference in argument by plaintiff's counsel to "settlement negotiations" constituted prejudicial error. We take up these points in the order stated. On (1), counsel cite two cases to the effect that it is erroneous to permit an argument by counsel upon any basis not supported by the evidence. Reese v. Illinois Terminal R. R. Co., Mo., 273 S.W.2d 217; Wartenbe v. Car-Anth Mfg. & Supply Co., Mo.App., 362 S.W.2d 54. There need be no argument about that principle, as such. Here counsel for plaintiff argued, over objections, that based on plaintiff's "proven earning capacity" of $20,000 a year, he lost $40 for each lost half day, and that such lost earnings, computed to continue as in the past for the period of his expectancy, would be $33,120. There was evidence that for the first nine months of 1960 plaintiff's earnings were at the rate of $20,000 a year. But he abandoned that rate of earnings and his job, and embarked upon a new career of his own choosing. It would be highly speculative to say that he could attain that rate of earning in his new business, for there are entirely too many elements involved in such a venture. We hold that it was improper to argue here a specific anticipated loss based on plaintiff's earnings in his prior and abandoned position. While this argument was improper, we do not consider that it was prejudicial. Counsel make no specific point here (although they did in the trial court) that the verdict was excessive, but more or less seek to "back into" that contention, stating that the verdict's "excessive nature reflects the effect of the lost earnings argument by plaintiff's counsel." It can hardly be conceived that the jury here was substantially motivated by that argument. The amount of the verdict was well within the range of the permissible evidence, if the jury believed the substantial parts of plaintiff's testimony. *142 Next counsel complain of the refusal to permit the reading to the jury of plaintiff's prayer for $3,500 in his original petition, later twice amended and standing at $22,500 at trial. That petition was filed on January 2, 1963, which, as counsel emphasize, was nine days before plaintiff first went to a doctor. The court did permit the reading of a paragraph from that petition stating that plaintiff had incurred medical expense. Apparently, the theory of the trial court in rejecting the offer to read the prayer was that the prayer was, legally, no part of the petition and that it had nothing to do with the issues. There are cases which so state. Richards v. Earls, 345 Mo. 260, 133 S.W.2d 381, 385, citing cases; Zimmerman v. Jones, Mo.App., 236 S.W.2d 401, 404. These are opinions in which the court sought to determine the nature of the respective suits, generally whether law or equity; and those statements mean, as we interpret them, that the prayer may not be considered as a substantive part of the petition so as to alter its true nature. However, if a party has made a claim or statement which is inconsistent with his claims at trial, it should be received as a declaration against his interest, for whatever it may or may not be worth,—whether it be in the prayer of a petition or in an extrajudicial statement or otherwise. See, generally, Carter v. Matthey Laundry & Dry Cleaning Co., Mo., 350 S.W.2d 786. But, again, we cannot find that the refusal of this evidence was prejudicial. The estimate of damages by a plaintiff and his attorney, made little more than two months after an injury, could hardly be of persuasive importance, and the verdict rendered certainly does not reflect any inflation by reason of the omission of this evidence. Next, counsel urge error in admitting evidence of the net earnings of Nichols Equipment Company, the corporation organized by plaintiff in 1960. These were shown to be as follows: 1962—$326.31; 1963—$5,295.94; 1964 (through July)—a loss of $6,002.90. Objection was made that the court should only permit evidence of the earnings of plaintiff personally. In the years just enumerated plaintiff was drawing compensation from that company in the amounts stated previously. Plaintiff's theory was that, it being largely a one-man company, "What the company earns I earn." Originally the corporation was a party to the suit, seeking recovery for the damage to its car, but it had withdrawn as a party before trial. Defendant says that any loss of earnings by the corporation could not be recovered by the plaintiff individually, and that there was no justification for the evidence. Counsel cite Seymour v. House, Mo., 305 S.W.2d 1, which is not at all decisive on this question. It does indicate that while a loss of business profits (to an individual) is generally too speculative to permit evidence thereof as an item of special damage, nevertheless, in those situations where the element of personal service predominates, the evidence may be shown, merely as an aid in determining the pecuniary value of plaintiff's loss of time in connection with the supposed impairment of his earning capacity. The evidence in our case involved a corporation. On the whole, we think that the evidence here was inadmissible, but actually it tended to prove so little concerning plaintiff's earning capacity in a newly established business, and it was so inconsistent within itself (establishing a substantial profit for 1963, after the accident, and a loss for 1964) that it could not possibly have resulted in any substantial prejudice to the defendant. Such a verdict as this could be sustained by evidence of moderate pain, the inconveniences suffered, and a limitation of activities, business and personal, past and future. Of these things there was evidence. And, with all the objections which were made to this evidence, and the colloquy which ensued, the jury could hardly have been misled. The last point made may be taken care of very briefly; counsel insists that the court erred in permitting plaintiff's counsel to argue that the case should have been settled. The theory of the exclusion *143 of evidence (and argument) concerning settlement negotiations is that such efforts should be encouraged and, if they fail to materialize, a party should not be penalized. Kelsey v. Kelsey, Mo.App., 329 S.W.2d 272. The situation here is in reverse. There were no negotiations for settlement and plaintiff's counsel merely commented that this was the kind of case that should have been settled. Therein, if any inference was to be drawn, it would seem that he weakened his tactical position, and the defendant could not complain. Certainly there was no prejudice to defendant. See, generally, Harrison v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 348, 352-353. The trial court considered very carefully both motions for new trial. We conclude that it acted well within its discretionary limits in overruling both. On plaintiff's appeal, and on defendant's appeal, the judgment is affirmed. All of the Judges concur.

36 A.3d 349 (2012) KOSTYSHYN v. STATE/NEW CASTLE COUNTY OFFICE OF CODE ENFORCEMENT. No. 701, 2011. Supreme Court of Delaware. January 24, 2012. DECISION WITHOUT PUBLISHED OPINION Appeal Dismissed.

846 F.Supp. 1400 (1994) Elaine and Guy THOMAS, et al., Plaintiffs, v. FAG BEARINGS CORPORATION, INC. and Fag Kugelfischer Georg Schaefer KGaA, Defendants. No. 92-5070-CV-SW-8. United States District Court, W.D. Missouri, Southwestern Division. April 6, 1994. *1401 *1402 *1403 John M. Parisi, Bobbie R. Bailey and Lynn R. Johnson, Shamberg, Johnson, Bergman & Morris, Chartered, Overland Park, KS, Kenneth B. McClain, Gregory Leyh, Independence, MO, John M. Klamann, Payne & Jones, Overland Park, KS, Michael A. Gould, Raaji Deen Kanan, Gould & Duchardt, North Kansas City, MO, for plaintiffs. David Field Oliver, M. Jan Day, Smith, Gill, Fisher & Butts, Kansas City, MO, Eric S. Aronson, John M. Scagnelli, Whitman & Ransom, Newark, NJ, for defendants. MEMORANDUM OPINION AND ORDER STEVENS, Chief Judge. This matter is before the Court on the following motions: plaintiffs' amended motion for class certification and defendant FAG Bearing's motion for partial summary judgment on plaintiffs' claims of mental anguish, fear of cancer, increased risk of cancer and medical monitoring. I. Motion for Class Certification In order to maintain a class action, a proposed class must meet the prerequisites of numerosity, commonality, typicality and adequate representation as provided for in Fed.R.Civ.P. 23(a). However, those elements are "necessary, but not sufficient conditions for a class action." Advisory Committee notes to Rule 23. In addition to satisfying the four elements in Rule 23(a), the Court must find that a class is an appropriate vehicle to resolve this dispute. The Federal Rules of Civil Procedure outline three factual situations in which a class action is appropriate. See Fed.R.Civ.P. 23(b)(1)-(3). Since, as discussed below, the Court finds that plaintiffs cannot satisfy any of the scenarios under Rule 23(b)(1)-(3), the Court need not address the four prerequisite factors found in Rule 23(a). Plaintiffs submit that the proposed class should be certified under either Rule 23(b)(2) or 23(b)(3). Rule 23(b)(2) provides that a class is an appropriate mechanism where "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Fed.R.Civ.P. 23(b)(2). Such definition "does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages." Advisory Committee notes to Rule 23(b)(2). Plaintiffs assert three types of relief that would satisfy Rule 23(b)(2). First, plaintiffs claim that the response costs under CERCLA are essentially equitable in nature and qualify as "injunctive" or "declaratory" relief. While some courts may have stated that CERCLA response costs are equitable in nature, this does not change the fact that the relief sought by plaintiffs in this case is predominantly money damages. An award of costs incurred in response to contamination cannot be construed otherwise. This is not a sufficient basis for a class under Rule 23(b)(2). Even if the Court were to find that CERCLA damages satisfy the rule, the claims of the representatives would not be typical of the other class members. Of the named representatives, the Village of Silver Creek alleges response costs of approximately $534,000, while the other named representatives either allege response costs under $100 or nothing at all. Some named plaintiffs may not even have claims under CERCLA, see infra, while those who do will have differing claims. The Court finds that the claims of the class representatives are not typical of the rest of the class. Second, plaintiffs request injunctive relief under RCRA. They seek to have the court order FAG Bearings to cease and desist from all future releases of TCE.[1] Since FAG Bearings voluntarily stopped using TCE in 1981 and has not used it since, it is unlikely that the injunctive relief requested under RCRA is the "raison d'etre" of plaintiffs' lawsuit, and has no purpose other than to serve as a basis for attorney fees. This relief is clearly incidental to the monetary relief requested, if not altogether unnecessary. *1404 For that reason, this is not a sufficient ground on which to certify this proposed class. Finally, plaintiffs argue that class action treatment is appropriate because they seek future medical monitoring. While plaintiffs seek to couch such damages in the guise of injunctive relief for the purposes of this motion, their complaint requests "the future costs of medical monitoring." Such costs are nothing more than "compensation for necessary medical expenses reasonably anticipated to be incurred in the future." Elam v. Alcolac, 765 S.W.2d 42, 209 (Mo.Ct.App.1988), cert. denied 493 U.S. 817, 110 S.Ct. 69, 107 L.Ed.2d 36 (1989). Absent anything more than an exchange of money, as requested by plaintiffs, these damages cannot be injunctive in nature. They are simply another element of tort damages. Werlein v. United States, 746 F.Supp. 887, 895 & 904 (D.Minn.1990), vacated in part on other grounds, 793 F.Supp. 898 (D.Minn.1992). Since this claim is not for injunctive relief, it cannot form the basis of a class under Rule 23(b)(2). See Brown et al. v. S.P.E.T.A. et al. (Paoli Railyard PCB Litigation, 1987 WL 9273, at *11, *14, 1987 U.S. Dist. LEXIS 5095, at *34 (April 8, 1987). Next, plaintiffs assert that the class should be certified under Rule 23(b)(3) because the questions of law or fact common to the members predominate over any questions affecting only individual members, and that a class is superior to other available methods for a fair and efficient adjudication of the controversy. Fed.R.Civ.P. 23(b)(3). In making this determination, the court is to consider the interest of individual plaintiffs in controlling their own litigation, the nature and extent of other litigation already commenced by class members, the desirability of concentrating the litigation in this court, and the difficulties likely to be encountered. Id. The Advisory Committee notes that a "mass accident" resulting in injuries to numerous persons is ordinarily not appropriate for a class action because of the likelihood that significant questions, not only of damages, but also of liability and defenses to liability, would be present, affecting the individuals in different ways. In these circumstances an action conducted nominally as a class action would degenerate in practice into multiple lawsuits separately tried. Notes of Advisory Committee to Fed. R.Civ.P. 23(b)(3). In the present case, while there are undoubtedly common issues of law and fact, such as whether FAG Bearings released TCE into the groundwater, the individual issues of causation and damage so overshadow those in numerosity and complexity to render a class action unhelpful. See Paoli Railyard PCB Litigation, supra, at *10, *14, at 29-32. The Court anticipates that plaintiffs' proof of causation, if offered consistently with the Court's February 10, 1994 opinion, will require individualized proof for each plaintiff. As an example, a test of the well water of nominal plaintiffs Steven Lee and Rebecca Luebber failed to disclose the presence of TCE. Not only does this indicate that their proof of contamination will be different from other plaintiffs, but it underlines the complex nature of hydrogeology. Because the results vary markedly from well-to-well, expert testimony on the actual source of contamination for each well may be required. Assuming causation is proved, each plaintiff must prove entitlement to damages. The measure of damages is dependent almost exclusively on individual factors. As discussed below, all medical damages (mental anguish, cancerphobia, increased risk of cancer and medical monitoring) require proof of individual injury. Other damages claims, such as CERCLA response costs, diminution in property value, loss of use and enjoyment, and annoyance, would also require individualized proof. This would start hundreds or thousands of individual mini-trials on complex causation and damages issues, while the only benefit of a class would be that the ruling of several common, but not particularly daunting issues, would be made applicable to the entire class. The Court does not believe that result is consistent with the language or spirit of Rule 23(b)(3)(C), (D). Since the Court finds that a class is not a superior, or even *1405 desirable mechanism in this case, plaintiffs' argument that the class should be certified under Rule 23(b)(3) is rejected. The Court finds that certification of plaintiffs' proposed class is not appropriate under any of the provisions of Fed.R.Civ.P. 23(b). Accordingly, plaintiffs' motion for class certification will be denied.[2] II. FAG Bearings' Motion for Summary Judgment on Mental Anguish, Increased Risk of Cancer, Fear of Cancer, and Medical Monitoring. Summary Judgment Standard Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). If a party is unable to make a sufficient showing to establish the existence of some essential element of its case upon which it will bear the ultimate burden of proof at trial, all other facts are necessarily immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 321, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A party seeking summary judgment bears the initial burden of demonstrating to the court that an essential element of the nonmoving party's case is lacking. Id. The burden then shifts to the nonmoving party to come forward with sufficient evidence to demonstrate that there is a factual controversy as to that element, or to explain why such evidence is not currently available. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Fed.R.Civ.P. 56(e). If the nonmoving party fails to respond, summary judgment, if appropriate, shall be entered against that party. Fed.R.Civ.P. 56(e). The standard for determining whether a factual dispute is genuine is the same as the standard applied to motions for a directed verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. at 2511. The "genuine issue" summary judgment standard is "very close" to the "reasonable jury" directed verdict standard: "The primary difference between the two motions is procedural; summary judgment motions are usually made before trial and decided on documentary evidence, while directed verdict motions are made at trial and decided on the evidence that has been admitted." Bill Johnson's Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983). Id. at 251, 106 S.Ct. at 2512. The standard under both is whether the evidence is sufficiently at odds as to require a jury to decide, or whether the case is so one-sided that one party must prevail as a matter of law. Id. If [a party] in a run-of-the-mill civil case moves for summary judgment or for a directed verdict based on the lack of proof of a material fact, the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [non-moving party] on the evidence presented. The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict. Id. at 251, 106 S.Ct. at 2512. Therefore, the standard on this motion is whether the plaintiffs have demonstrated that there will be evidence which would allow a reasonable jury to find in their favor on these claims. The facts must be viewed in the light most favorable to the nonmoving party, who must be given the benefit of all reasonable inferences which may be made from the facts disclosed in the record. Adickes v. S.H. *1406 Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Raschick v. Prudent Supply, Inc., 830 F.2d 1497, 1499 (8th Cir.1987), cert. denied, 485 U.S. 935, 108 S.Ct. 1111, 99 L.Ed.2d 272 (1988). In applying the Supreme Court's standard for summary judgment, this Court is guided by the following language from Celotex Corp. v. Catrett: One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose.... The Federal Rules of Civil Procedure have for almost 50 years authorized motions for summary judgment upon proper showings of the lack of a genuine, triable issue of material fact. Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to "secure the just, speedy and inexpensive determination of every action." Fed.R.Civ.P. 1.... Rule 56 must be construed with due regard not only for the rights of persons asserting claims or defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing those claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis. 477 U.S. at 323-27, 106 S.Ct. at 2553-55. A. Mental Anguish To recover for mental anguish, the condition must be medically diagnosable and of sufficient severity to be medically significant. Bass v. Nooney, 646 S.W.2d 765, 772 (Mo. banc 1983); Davis v. Shelton, 710 S.W.2d 8, 10 (Mo.Ct.App.1986). A condition that is medically significant is one that is severe enough to require medical attention. Id. at 773 n. 4; see also Greco v. Robinson, 747 S.W.2d 730, 735 (Mo.Ct.App.1988). "Mere upset, dismay, humiliation, grief and anger" do not suffice. Davis v. Shelton, 710 S.W.2d at 11 (quoting Bass v. Nooney, 646 S.W.2d at 773 n. 4). Where no medical evidence is offered to substantiate individual's claims of anguish, summary judgment is proper. Greco v. Robinson, 747 S.W.2d 730 (Mo.Ct.App.1988). Furthermore, where medical treatment is not sought until the eve of summary judgment, the claim of anguish may not be "of sufficient severity to be medically significant." Davis v. Shelton, 710 S.W.2d at 11. In response to FAG Bearings' request for admissions, plaintiffs admitted that prior to the filing of this suit, none of them had been "treated, examined or otherwise evaluated ... by any mental health care professional for the specific purpose of determining whether they suffered annoyance, inconvenience, trouble, vexation, loss of peace of mind, and/or fear of contracting future illness or disease as a result of their exposure to TCE." Response to FAG Bearings' first request for admissions, attached to FAG Bearings' motion for summary judgment as Exhibit D. All plaintiffs, with the exception of Elaine Moretz, Earle Doman, and Dalene Doman, also admitted that they had not been so examined since the suit was filed. In a supplemental brief filed April 4, 1994, plaintiffs include psychological evaluations of Elaine Moretz, Earle Doman and Dalene Doman conducted by Elizabeth Penick, Ph.D. on January 8, 1994. Plaintiffs do not explain why these evaluations, or reference to them were not included in the suggestions in opposition to FAG Bearings' motion for summary judgment that were filed on March 11, 1994. In those suggestions, plaintiffs relied solely on reference to Dr. Kilburn's group study and references to future depositions of mental health experts. If the experts referred to included Dr. Elizabeth Penick, plaintiffs should have so stated and included the evaluations they now wish to have included as part of the record on this motion. The psychological evaluation of Earle Doman included a diagnosis of "mild-to-moderate stress reaction" that the psychologist attributes largely to the discovery of the TCE contamination. Dr. Penick's evaluation of Dalene Doman included diagnoses of "adjustment disorder *1407 with mixed anxiety and depressive features," "major depression in full remission," and "simple phobia, mild, chronic." Dr. Penick attributes the adjustment disorder to the well contamination. That disorder was diagnosed because of "increased levels of anxiety, tension and worry." The major depression and the phobia do not seem to be related to the well contamination. Elaine Moretz was diagnosed with "post-traumatic stress disorder" and simple phobia. The phobia is not related to the contamination. The disorder was attributed mostly to the discovery of contamination, although Moretz has undergone a divorce and a cancer scare within the last two years. All three plaintiffs visited Dr. Penick on the same day at the direction of their lawyers. Because plaintiffs did not seek medical attention until instructed to do so by their lawyers, their condition does not appear to have been so significant in their eyes that it required medical attention. Although they were each diagnosed with conditions of differing types, none sought treatment of their condition in the past and do not appear to have plans to do so in the future. At their depositions in December, these plaintiffs indicated they had no plans to seek the help of mental health professionals based on their exposure to TCE. Upon review of the psychological evaluations, although there may be diagnoses attributable in part to TCE exposure that are medically diagnosable, the Court finds that those conditions are not "medically significant."[3] The Court gives great weight to the fact that these diagnoses come very late in the game, see Davis v. Shelton, 710 S.W.2d at 11, and the fact that plaintiffs did not seek evaluation until directed to do so by their attorneys. Furthermore, the diagnoses of the Domans and their subjective complaints in their deposition testimony, do not surpass the "mere upset, dismay, humiliation, grief and anger" that Bass v. Nooney, supra, said does not suffice to establish a claim. Earle Doman deposition, at 33-34, Dalene Doman deposition, at 26-28. Elaine Moretz's diagnosis, though more substantial, is made less significant in its relation to the TCE exposure because of the other severe stresses present in the past two years. The depositions of the other plaintiffs show that they are worried and concerned about their exposure, but have not been treated or diagnosed with any mental health condition based on those worries and concerns. In this case, the three plaintiffs who have sought mental health evaluation cannot show that their complaints are medically significant, and no other plaintiff has offered medical evidence to show that their anguish is either medically diagnosable or medically significant. Furthermore, the subjective complaints of anguish alleged by plaintiffs in their depositions are not, under Missouri law, "medically diagnosable" or "of sufficient severity to be medically significant." Bass v. Nooney, 646 S.W.2d at 773 n. 4 ("Mere upset, dismay, humiliation, grief and anger" do not suffice); Greco v. Robinson, 747 S.W.2d 730, 735 (Mo.Ct.App.1988) (nervousness, headaches and stomach problems not sufficient to support claim); Hayes v. Dunn, 709 S.W.2d 164 (Mo.Ct.App.1986); Davis v. Shelton, 710 S.W.2d 8, 11 (Mo.Ct.App.1986) (muscle twitching, weakness, nightmares and loss of sleep insufficient). Plaintiffs assert that depositions of their mental health experts that have not been taken will reveal evidence to satisfy the Bass v. Nooney test. Plaintiffs do not need deposition testimony of their own experts before they can present facts in opposition to a summary judgment motion. They can obtain such facts by affidavit. Fed.R.Civ.P. 56(f). Surely by the time plaintiffs' suggestions were filed, plaintiffs knew the nature and substance of their experts' opinions and could prepare affidavits setting forth those opinions and the facts on which they are based. Also, as will be discussed below, this Court will require individualized medical proof for all damage claims. Generalized medical testimony as to group diagnoses is not sufficient. *1408 The supplemental brief contains no other mental health professional evidence and the Court will assume that no further individual evaluations have been done. Since it does not appear that these as-yet-undeposed mental health experts have examined individuals, the Court need not wait for their opinions on this issue. Accordingly, since plaintiffs cannot prove the necessary elements of a claim for mental anguish, summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 321, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). B. Fear of Cancer A claim for fear of contracting cancer in the future is subject to the same standard of proof as mental anguish, supra. Bennett v. Mallinckrodt, Inc., 698 S.W.2d 854, 866-67 (Mo.Ct.App.1985) (fear of cancer claim arising out of radiation exposure), cert. denied, 476 U.S. 1176, 106 S.Ct. 2903, 90 L.Ed.2d 989 (1986). Plaintiffs must prove that the distress resulting from their fear of cancer is medically diagnosable and sufficiently severe to be medically significant. Id. at 867 (citing Bass v. Nooney, 646 S.W.2d at 772-73). No plaintiff, even those diagnosed by Dr. Penick, suffers a medically diagnosable condition related primarily to their fear of contracting cancer. Since no plaintiffs can meet the standard articulated in Bennett, summary judgment is appropriate as to this claim. C. Increased Risk of Cancer A claim for increased risk of cancer is simply an element of damages seeking compensation for future consequences of present damage. Like all other elements of damage in Missouri, "future damages in a personal injury action are not compensable unless reasonably certain to occur." Bennett v. Mallinckrodt, Inc., 698 S.W.2d at 867. In order to recover, plaintiffs must prove that the risk of contracting cancer (or any other disease) is a reasonable certainty. Id.[4] To show that a risk is a reasonable certainty, there must be evidence of a quantified risk — medical evidence must establish that an individual plaintiff will more likely than not develop cancer. Elam v. Alcolac, Inc., 765 S.W.2d at 208 (actionable if "the toxic exposure has induced some biological manifestation from which the anticipated cancer is reasonably certain to occur — as quantified by expert testimony as a probability of occurrence greater than 50 percent."). Evidence of an "unquantified" risk of cancer is not probative. Id. Therefore, this element of damage requires proof of actual present injury and medical evidence that future development of cancer is reasonably certain to occur. FAG Bearings contends that no plaintiff has any evidence of any present physical injury. Plaintiffs argue that a study by Dr. Kaye H. Kilburn is evidence of physical injury. Plaintiffs also argue that physical injury should be interpreted very broadly to *1409 include an invasion of plaintiffs' interests by TCE. Dr. Kilburn's Study During depositions of the nominal plaintiffs, no plaintiff was able to identify any physical injury sustained as a result of the TCE contamination. In response to FAG Bearings' requests for admissions, plaintiffs admitted that they had not sought medical evaluation, examination or treatment of any sort for the purpose of determining whether they had suffered physical injury as a result of the contamination.[5] Plaintiffs also stated that "at the present time, plaintiffs do not have sufficient information to determine whether their exposure to TCE has caused them to suffer any `physical injury.'" Response to FAG Bearings' first request for admissions, attached to FAG Bearings' motion for summary judgment as Exhibit D. On February 19-20, 1994, Dr. Kilburn, a professor of medicine at the University of Southern California School of Medicine, examined a group of 82 potential class plaintiffs for the purpose of determining whether they, as a group, have neurobehavioral impairments.[6] The doctor and a group of his associates subjected the 82 residents (72 adults and 10 children) to a battery of cognitive and neurological tests, such as tests measuring reaction time, blink reflex latency, sway balance, memory recall and color vision. The tests also included questions about the subjects' medical symptom histories and their exposure to various types of situations. The test did not examine each persons' degree of exposure to TCE. Using statistical analysis, Dr. Kilburn then compared the results of the tests of Joplin residents to the results of tests he performed on a group of 117 individuals outside of Phoenix. This Phoenix group was considered to be a referent (control) group against which the Joplin tests results could be measured. As a result of the comparison, Dr. Kilburn concluded that the Joplin group suffered impairments resulting from TCE exposure: I would conclude that the exposed population [the Joplin group] was abnormal in a number of ways that are statistically important, and, furthermore, they approach statistical significance in several other areas. Kilburn deposition, at 102. Dr. Kilburn further testified that the residents of Silver Creek and Saginaw Village "have suffered impaired function performance" as a result of TCE contamination, and that the impairment is an "adverse health effect." Kilburn deposition, at 174. In the course of the study, the medical records of the subjects were not consulted, no clinical evaluations (with the exception of the tests performed by Kilburn's group) were done, and no individual conclusions were reached. Dr. Kilburn acknowledged that his epidemiological study was not determinative of any individual's condition: "[e]pidemiology isn't a science of going from groups to one. It's a science of talking about group behavior. Clinical medicine deals with ones, and it would take some combination of the two to come up with some agreement for each individual." Kilburn deposition, at 171. Allowing proof of group harm as a substitute for individual harm would not serve any notion of justice. Uninjured plaintiffs would receive windfalls, while plaintiffs who have now, or later develop, actual injuries would be undercompensated. Bennett v. Mallinckrodt, Inc., 698 S.W.2d at 867.[7] Therefore, proof of actual individual injury is necessary. To the extent Dr. Kilburn's study is not evidence of individual harm, it is not relevant and not admissible. Dr. Kilburn's study may indicate that this group of 82 individuals, some of whom may *1410 be nominal plaintiffs, suffer certain impairments in function. However, the study does not, and by Dr. Kilburn's own admission, cannot identify physical injury in any individual that is a party to this lawsuit. Viewed in combination with plaintiffs' admissions that they have not been examined, evaluated or treated to determine whether they suffer any injury due to TCE exposure, and that they do not have sufficient information to determine whether they suffer such injuries, it is clear that plaintiffs cannot prove the present physical injury element of this claim. Without proof of this essential element, all other facts are immaterial and all plaintiffs' claims for increased risk of cancer must fail. Celotex Corp. v. Catrett, 477 U.S. 317, 321, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). D. Medical Monitoring A claim for the future costs of medical monitoring is similar to that for increased risk of cancer. An increased risk of cancer claim compensates now for later probable injury, while a medical monitoring claim pays now for costs of detecting later injury. The future costs of medical monitoring are compensable as "necessary medical expenses reasonably certain to be incurred in the future." Elam, 765 S.W.2d at 209; Werlein v. United States, 746 F.Supp. 887, 904 (D.Minn.1990), vacated in part on other grounds, 793 F.Supp. 898 (D.Minn.1992). Entitlement to the costs of future medical monitoring requires plaintiff to prove actual present injury and an increased risk of future harm. Werlein, 746 F.Supp. at 904; Ball v. Joy Technologies, Inc., 958 F.2d 36, 39 (4th Cir.1991), cert. denied ___ U.S. ___, 112 S.Ct. 876, 116 L.Ed.2d 780 (1992). The Elam court did not require the same type of quantified risk necessary for the increased risk of cancer claim. Instead, it allowed a medical opinion that each plaintiff suffered a significant risk of cancer as a basis for the claim. Elam, 765 S.W.2d at 208-09. To prove medical necessity, each plaintiff must show, by individual proof, that factors such as the nature and extent of their exposure, the seriousness of their present injury, the increased risk of disease, the seriousness of the diseases that are possible, and value of early of diagnosis of those diseases, dictate that medical surveillance, beyond that which is normal, will be necessary in the future. See Ayers v. Jackson Township, 106 N.J. 557, 525 A.2d 287, 312 (1987). In keeping with Missouri's standard of proof for future damages, the monitoring must be probably, not just possibly, necessary. cf. Bennett v. Mallinckrodt, Inc., 698 S.W.2d at 867; See In re Paoli Railyard PCB Litigation, 916 F.2d 829 (3d Cir.1990). Just as plaintiffs cannot present any evidence of actual injury to any individual in support claims of increased risk of cancer, they cannot present any evidence of actual injury to support claims for future costs of medical monitoring. Furthermore, while Dr. Kilburn did express his opinion that medical monitoring for the plaintiffs would be an "excellent idea," that assessment was not based on any consideration of any individual case, their medical history, their medical prognosis, or their exposure to TCE.[8] Plaintiffs cannot establish that the future costs of medical monitoring are medically necessary. Accordingly, summary judgment must be granted as to these claims as well.[9] Although the Court is foreclosing plaintiffs from recovering on any of these four theories in this lawsuit, it does not wish to preclude plaintiffs from ever recovering should they develop physical injuries attributable to this TCE contamination. Exposure to potentially hazardous substances is certainly a serious event and those injured should be compensated. *1411 However, that compensation must be made in accordance with accepted legal principles. Either because injuries are not presently apparent or because plaintiffs were unable to discover evidence of such injuries, they are unable to recover at this time under Missouri law. At some future time, when such evidence is available or such injuries are apparent, the Court intends that they be able to bring such claims without suffering preclusive effects from this Order. Accordingly, it is ORDERED that plaintiffs' motion for class certification is DENIED. It is further ORDERED that defendant FAG Bearings' motion for summary judgment on nominal plaintiffs' claims for mental anguish, increased risk of cancer, fear of cancer, and the costs of future medical monitoring is GRANTED. These claims are to be dismissed without prejudice. NOTES [1] The RCRA count also requests attorney fees. [2] While it is true that some individuals may not have the financial incentive to bring a separate action for the TCE contamination, some others, such as Shannon Lewis, whose case this Court remanded last year, have done so. The Court believes that those who have incurred significant injury will not hesitate to bring suit on their own behalf. [3] The Court in no way intends to denigrate the diagnoses of these plaintiffs. However, the Court must determine whether those diagnoses satisfy the requirements of Missouri law. Due to the timing and nature of these evaluations, the Court finds that they do not. [4] In a toxic tort case where the plaintiffs suffered a multitude of present injuries, the court in Elam v. Alcolac, Inc., 765 S.W.2d 42 (Mo.Ct.App.1988), cert. denied, 493 U.S. 817, 110 S.Ct. 69, 107 L.Ed.2d 36 (1989), declined to adopt a broad reading of the Bennett court analysis of increased risk of cancer. Instead, the court discussed two different theories of increased risk of cancer. One, (the Bennett view) treats the damages as the future consequences of present injury; the other, which does not require manifestation of present injury, compensates for the cost of the injury proportionately reduced by the probability that the injury will not occur. Either theory requires proof of quantified risk. Since there was no such proof, either claim would fail and the Elam court did not have to choose between them. However, the Bennett court, four years earlier, expressly rejected the second theory: Damages based on mere mathematical probabilities significantly undercompensate those who actually develop cancer and are a windfall to those who do not. No acceptable definition of justice would contemplate such a result. Bennett v. Mallinckrodt, Inc., 698 S.W.2d at 866. The court held that the mere increased risk of cancer alone is not a present injury. This Court believes that Elam dictum aside, the Bennett approach, requiring present injury and reasonably certain future consequences, is the proper application of Missouri law to this developing area of tort law. See also Amendola v. Kansas City Southern Ry. Co., 699 F.Supp. 1401, 1407 (W.D.Mo.1988) (requiring actual injury for fear of cancer under F.E.L.A.). [5] Plaintiffs did indicate they may obtain such attention in the future. The responses were dated February 10, 1994. [6] It is unclear from the deposition testimony whether each nominal plaintiff was a member of the group tested. The group consisted of volunteers from the proposed class. Kilburn deposition, at 16. [7] Although the issue cannot be resolved by existing deposition testimony, is reasonable to assume that the results of Joplin test included some individuals who performed better and some who performed worse than the referent group. [8] There are also questions as to whether medical monitoring would be of any benefit since there are only "preliminary ideas" on the treatment of TCE-related impairments. See Paoli Railyard PCB Litigation, 916 F.2d 829, 852 (3d Cir.1990), cert. denied 499 U.S. 961, 111 S.Ct. 1584, 113 L.Ed.2d 649 (1991). Also, Dr. Kilburn indicates that a central value of the monitoring would be to provide the medical community with insight into TCE exposure. Although that goal is laudable, it is not the proper reason for imposition of this type of relief. [9] While plaintiffs are not entitled to medical monitoring costs in this present action, they may be available at the request of the government under 42 U.S.C. § 9604(i)(1)(D), (E).

783 F.2d 102 30 Ed. Law Rep. 42 Marco SAMAYOA, by his mother Estela SAMAYOA, et al.,Plaintiffs-Appellants,v.CHICAGO BOARD OF EDUCATION, et al., Defendants-Appellees. No. 85-1313. United States Court of Appeals,Seventh Circuit. Argued Nov. 8, 1985.Decided Feb. 12, 1986. Yvon D. Roustan, Chicago, Ill., for plaintiffs-appellants. Robert J. Shepard, Law Dept., Dept. of Educ. City of Chicago, Chicago, Ill., for defendants-appellees. Before BAUER, WOOD, and FLAUM, Circuit Judges. HARLINGTON WOOD, Jr., Circuit Judge. 1 The complaint was filed in August, 1981, alleging racial discrimination against Cubans, American Indians, and white students in the operation of the Walt Disney Magnet School, a Chicago public elementary school. Four amended complaints and four years later, a new set of plaintiffs, the original plaintiff children having outgrown this suit, filed a notice of appeal for interlocutory consideration of the district court's dismissal of Counts I and II, leaving the remaining Count III for trial.1 Plaintiffs have since dismissed the appeal as to Count II. 2 Present plaintiffs are children whose parents or guardians received letters in June, 1981, advising that they were accepted for enrollment in the prekindergarten program at Disney school the following September. Plaintiffs who were then three- or four-years old have now also grown out of the kindergarten category and enrolled in other schools, public or private. Shortly after the receipt of the letters of acceptance, the plaintiffs received letters of apology from the school board withdrawing the previous enrollment offers. The explanation was that in accordance with a desegregation plan the racial/ethnic quotas applicable for admission to magnet schools, including Disney, were modified for the benefit of blacks, Mexicans, and Puerto Ricans. 3 Count I of the current amended complaint, at issue in this appeal, charges that the Chicago Board of Education and others violated the civil rights of the plaintiffs secured by the First, Fifth and Fourteenth Amendments of the Constitution. Plaintiffs, as relief, sought a declaration that the acts of defendants were unconstitutional and that defendants be preliminarily and permanently enjoined from enforcing the desegregation plan quotas as applied to the Disney school. The district judge dismissed Count I by applying the rationale of United States v. Board of Education of Chicago (Johnson III), 567 F.Supp. 290 (N.D.Ill.1983). The approval of the desegregation plan for the entire school system having been approved, United States v. Board of Education of Chicago, 554 F.Supp. 912 (N.D.Ill.) aff'd, 717 F.2d 378 (7th Cir.1983), the district court held that collateral attack was precluded on separate aspects of the approved plan. 4 Count II, the appeal of which was withdrawn by plaintiffs, alleges that the terms and conditions of the deed conveying the Disney school property from the federal government to the City of Chicago which required compliance with Title VI of the Civil Rights Act of 1964 prohibiting racial discrimination in federally-funded programs had been violated. Plaintiffs sought specific performance of the covenants contained in the deed so as to entitle plaintiffs to reinstatement in Disney school. Count II was dismissed by the district judge on the basis that the defendants had neither violated Title VI nor any other federal antidiscrimination statute by their actions alleged in Count II and therefore Count II failed to state a claim. 5 Count III, which remains in the district court for trial, alleges both a due process and an equal protection violation of the rights of the children plaintiffs. Plaintiffs complain that the school board held a "purported hearing" to consider the enrollment revocations which did not meet the minimal standards of procedural due process. After the hearing the school board reconsidered its holding and allegedly admitted five- and six-year-old children who also had been originally rejected along with the younger plaintiffs in this suit. No reason for the difference in treatment was allegedly given. Among other things plaintiffs seek an order of reinstatement of plaintiffs as students at Disney school, and further ask that defendants be enjoined from attempting to reject plaintiffs as students in violation of their constitutional rights. The district court found no merit to the equal protection claim, but retained the count for trial on the due process issue. 6 We need not recount for these purposes a series of motions by plaintiffs under the various complaints and counts seeking temporary restraining orders and preliminary injunctions from none of which were interlocutory appeals attempted. 7 Plaintiffs relying on 28 U.S.C. Sec. 1292(a)(1)2 base this interlocutory appeal merely on the dismissal of Count I which among other things sought the permanent injunction relief. It can be seen that the simple factual background of the change in school admission policy constitutes the basis for each of the three counts. Each count alleges constitutional and statutory civil rights violations and seeks to reverse the admission policy and restore the students' admissibility by injunction or other similar order. The appellate review sought of Count I is clearly interlocutory as Count III remains for trial in the district court. After the dismissal of the appeal of Count II, it also remains in the district court without final judgment having been entered. 8 Title 28 U.S.C. Sec. 1292 authorizes appeals of interlocutory orders on limited grounds, one of which is refusing an injunction. No distinction is made in the section between preliminary and permanent injunctions. Count I sought both a preliminary and permanent injunction. The latter was, in effect, denied by reason of the dismissal of Count I. Preliminary injunctions were by motions sought, denied, and reconsidered, and denied again. As was observed in Donovan v. Robbins, 752 F.2d 1170, 1173 (7th Cir.1985), preliminary injunctions have more of an emergency character than the seeking of a permanent injunction which usually takes additional trial time. However, plaintiffs sought no interlocutory appellate review of the denials of temporary injunctions about which there could have been little question of jurisdiction. If relief was not so urgent on those occasions as to justify interlocutory appeal, any urgency is even less now. Much time has now passed. The plaintiffs are no longer kindergarten age and are enrolled in school elsewhere. There is no pressing practical necessity for appellate review of Count I at this time. 9 It is clear that merely postponing consideration of a request for injunctive relief as distinguished from actually denying a request for injunctive relief can constitute a distinction affecting interlocutory appeal. Donovan, 752 F.2d at 1173. The dismissal of Count I may be considered to have been an effective denial of a permanent injunction so as to make it reviewable by interlocutory appeal. The dismissal was not, however, directed specifically toward the denial of permanent injunctive relief, but for the purposes of this case we accept that interpretation. However, that does not end the matter of jurisdiction. If the permanent injunction had been granted, the right to an interlocutory appeal by the defendants would be incontrovertible, but the denial of a permanent injunction under the circumstances in which it occurred in this case deserves additional consideration before interlocutory jurisdiction is to be found. 10 In addition to section 1292(a) relied upon by plaintiffs, Fed.R.Civ.P. 54(b) also serves a useful purpose in the jurisdiction analysis.3 Under that section, in the absence of the entry of final judgment having been expressly directed, and in the absence of an express determination having been made by the district court that there is no reason for delay, the district court's ruling on Count I remains subject to revision by the district court at any time before entry of a final judgment disposing of all the claims. The district judge chose to make neither of those express determinations. 11 Count III, which remains for trial, involves the same factual situation, alleges constitutional violations, and seeks essentially the same remedy. Counts I, II and III, therefore, are not so separable that it can be said that the district court will not reconsider Count I or Count II following greater development of the law and the facts by the trial of Count III. Merely by noting that possibility, however, we do not mean to imply we take any position on the merits of Counts I or II. Plaintiffs' right to appeal could be timely as to all counts when the district court enters final judgment as to all counts. 12 We see no special need for appeal at this time. Plaintiffs, if there was some urgency, could have sought interlocutory review of the denials of the various preliminary injunctions that were sought over the past few years, but they did not. This appeal is based only on the fact that a permanent injunction was prayed for in Count I which count was dismissed on its merits. The dismissal did not directly address the resulting denial of a permanent injunction. There can be no emergency at this late date. No new harm can befall plaintiffs if appeal of Count I is delayed until the whole case is decided.4 Plymouth County Nuclear Information Committee, Inc. v. Boston Edison Co., 655 F.2d 15 (1st Cir.1981). It could be argued that it could perhaps be useful to adopt a brighter jurisdictional line, but this case on its facts does not require consideration of a general rule. 13 Therefore, the mere dismissal of Count I which included the request for a permanent injunction cannot in these particular circumstances bestow jurisdiction for interlocutory review. The parties shall bear their own costs. Appeal dismissed for lack of jurisdiction. 1 Originally filed as a class action plaintiffs have abandoned the class action and seek relief only for the individual plaintiffs 2 28 U.S.C. Sec. 1292(a) provides in pertinent part: (a) Except as provided in subsections (c) and (d) of this section, the courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States, ... granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court. 3 Fed.R.Civ. 54(b) provides: When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. 4 See generally 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure 3924 (1977)

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) LKJ Crabbe Inc. ) ASBCA No. 60331 ) Under Contract No. W9124E-15-D-0002 ) APPEARANCE FOR THE APPELLANT: Mr. Kevin Crabbe President APPEARNCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney Harry M. Parent III, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE WOODROW ON APPELLANT'S MOTION FOR RECONSIDERATION On November 28, 2018, appellant timely moved for reconsideration of the Board's October 29, 2018 opinion. LKJ Crabbe Inc., ASBCA No. 60331, 18-1 BCA i1 37,193. In its motion for reconsideration, LKJ Crabbe contends that the Board erred when it concluded that the government had no obligation to notify appellant of an alleged clerical error in appellant's bid. DISCUSSION In deciding a motion for reconsideration, we examine whether the motion is based upon newly discovered evidence, mistakes in our findings of fact, or errors of law. Precision Standard, Inc., ASBCA No. 58135, 16-1 BCA ,i 36,504 at 177,860. A motion for reconsideration does not provide the moving party the opportunity to reargue its position or to advance arguments that properly should have been presented in an earlier proceeding. See Dixon v. Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014). The moving party must show a compelling reason why the Board should modify its decision. ADT Construction Group, Inc., ASBCA No. 55358, 14-1 BCA ,i 35,508 at 174,041. LKJ Crabbe argues that the contracting officer (CO) violated FAR 14.407-2 when he failed to seek verification of LKJ Crabbe's bid based on an alleged clerical error in the pricing of the bid (mot. at 3). I. Failure to Seek Bid Verification Based on Alleged Clerical Error It is unclear from appellant's motion what "clerical error" would have triggered the CO's obligation pursuant to FAR 14.407-2 to seek verification of appellant's bid pricing. In our opinion, we understood LKJ Crabbe as alleging that rounding up appellant's bid price from $0.0095 per sq. ft. to $0.01 per sq. ft. "increased appellant's total price by an additional $282,150, which would have prevented LKJ Crabbe from being the lowest bidder." 18-1 BCA ,r 37,193 at 181,068. We made this statement based on appellant's post-hearing brief, which stated that "[t]he error associated with the pricing for routine project cleaning would have added an additional $282,150.00 to the bid price by simply moving the decimal over two spots where it was intended and where the government systems can accept bid pricing" (app. post-hearing br. at 24). However, according to LKJ Crabbe, we misstated appellant's original contention regarding the alleged clerical error in appellant's bid (mot. at 2). In its motion for reconsideration, LKJ Crabbe maintains that rounding up its unit prices "would only have increased the total price by $150 per contract year." Appellant also challenges our mathematical calculations regarding the rounding up of appellant's unit prices (mot. at 3). However, other than alluding to "faulty math of the decision in paragraph two of#3 discussion point," appellant does not explain why our conclusions are factually incorrect. Confusingly, LKJ Crabbe states that "[e]ven if the rounding of the .0095 price were to be allowable it still has to be preceded by a call or some form of communication with the bidder" (mot. at 3). Instead, LKJ Crabbe argues that the CO's failure to seek verification of the bid price "kept the appellant from realizing a clerical error that would have increased its total price by $282,150 which would have caused the appellant[']s bid to be well out of contention for this award" (id.).* LKJ Crabbe does not identify the alleged clerical error that would have increased its bid price by $282,150. We conclude that appellant's main concern is the CO's failure to request price verification, not the magnitude of the alleged clerical error. II. Discussion For two reasons, we find no merit to appellant's contention that the CO possessed a duty, pursuant to FAR 14.407, to notify appellant of the alleged clerical error in its bid. First, there was no apparent error in LKJ Crabbe's bid. Second, we do not possess jurisdiction to entertain a challenge to the government's evaluation of LKJ Crabbe's bid (which is a separate question than whether there was a mistaken bid). * It is not at all clear to us how to reconcile appellant's assertion that the rounding of its bid by the government's software only made a $150 annual difference in price, with its continued reference to a $282,150 difference. In the end, it does not matter for the reasons set forth in this decision. 2  FAR 14.407-1 requires COs to request verification of a bid only in "'cases of apparent mistakes and in cases where the contracting officer has reason to believe that a mistake may have been made.'' After the opening of bids, contracting officers shall examine all bids for mistakes. In cases of apparent mistakes and in cases where the contracting officer has reason to believe that a mistake may have been made, the contracting officer shall request from the bidder a verification of the bid, calling attention to the suspected mistake. If the bidder alleges a mistake, the matter shall be processed in accordance with this section 14.407. Such actions shall be taken before award. FAR 14.407-1 (emphasis added). FAR 14.407-2, Apparent clerical mistakes, in turn. addresses a clerical mistake that is "apparent on its face in the bid." (a) Any clerical mistake, apparent on its face in the bid, may be corrected by the contracting officer before award. The contracting officer first shall obtain from the bidder a verification of the bid intended. Examples of apparent mistakes are- (1) Obvious misplacement of a decimal point. ... FAR 14.407-2(a)(l) (emphasis added). Here, there was no apparent clerical error in appellant's bid. Appellant intended to state its prices in that manner, so there was no actual error in the bid. 18-1 BCA ,i 37,193 at 181,059, finding 10. The fact that LKJ Crabbe's bid contained unit prices carried out to four decimal places is not an "apparent clerical mistake" in the same sense as an "obvious misplacement of a decimal point," the example set forth in FAR 14.407-2(a)(l). Rounding up a dollar amount carried out four decimal places is much less obvious a change than a dollar amount with a decimal misplaced four places. For example, rounding up appellant's unit price of $0.0095 to $0.01 is much less significant as mistakenly moving the decimal place to the right by four places, e.g., from $0.0095 to $95.00, which would render a unit price of $95.00. Moreover, the fact that the government's software would not accept prices carried out to four decimal places is not a clerical mistake, but rather a factor applied universally to all bidders on the contract. By its terms, FAR 14.407 applies to mistakes in bids, not to the government's evaluation of the bids. Challenging how the 3 I government input LKJ Crabbe's bid into the government's computer system relates to the government's evaluation of its bid, not to a clerical error in the bid itself. A challenge to the government's evaluation of its bid does not qualify as a proper claim "arising under or relating to" this contract, as required by FAR 2.101. We previously have held that where an appellant's claim is based upon a government decision concerning a contract not yet in existence, the Board lacks jurisdiction to hear the case because the claim "does not arise under or relate to appellant's contract.'· Amaratek. ASBCA No. 60503, 16-1 BCA iJ 36.491 at 177,832 ( quoting Statistica, Inc., ASBCA No. 44116, 92-3 BCA ,i 25,095 at 125,126). A claim challenging the government's evaluation of a bid is more in the nature of a bid protest, over which the Board lacks jurisdiction. Statistica, 92-3 BCA ,i 25,095 at 125, 126-27 ( citing Coastal Corp. v. United States, 713 F.2d 728, 730 (Fed. Cir. 1983)). Therefore, we find no basis to grant appellant's motion for reconsideration. Zulco International, Inc., ASBCA No. 55441, 08-1 BCA ,i 33,799 at 167,319 (motion for reconsideration must be based on newly discovered evidence, factual mistake, or errors of law). CONCLUSION For these reasons, LKJ Crabbe's motion for reconsideration is denied. Dated: January 22, 2019 . "\ ) . / ' . .~ ___;: I KiiNNETFii. WcsooROW Administrative Judge Armed Services Board of Contract Appeals I concur RICHARD SHACKLEFORD J. REID PROUTY Administrative Judge Administrative Judge Acting Chairman Vice Chairman Armed Services Board Armed Services Board of Contract Appeals of Contract Appeals 4  I certify that the foregoing is a true copy of the Opinion and Decision of the Armed Services Board of Contract Appeals in ASBCA No. 60331, Appeal ofLKJ Crabbe Inc., rendered in conformance with the Board's Charter. Dated: JEFFREY D. GARDIN Recorder. Armed Services Board of Contract Appeals 5 

2 So.3d 789 (2009) Nancy LOTT, Appellant, v. Harris D. PURVIS and BRJ, Inc., Appellees. No. 2007-CA-02082-COA. Court of Appeals of Mississippi. February 10, 2009. *790 Alexander Ignatiev, attorney for appellant. Brian Barry Hannula and Edwin S. Gault, Jackson, attorneys for appellees. EN BANC. ISHEE, J., for the Court. ¶ 1. Following the failure of Nancy Lott or her attorney to appear at a hearing on a motion for summary judgment, the Circuit Court of Lamar County granted the motion in favor of Harris D. Purvis and BRJ, Inc. (BRJ). Lott now appeals from the circuit court's order granting summary judgment in favor of Purvis and BRJ. She argues only one issue—the circuit court erred as matter of law in granting the motion. Finding Lott's argument to be without merit, we affirm the judgment of the circuit court. FACTS AND PROCEDURAL HISTORY ¶ 2. On January 25, 2007, Lott filed a complaint in circuit court alleging that the negligence of Purvis caused her injuries. The complaint further alleged that Purvis was acting in the scope of his employment for Keithco Petroleum, Inc. (Keithco). ¶ 3. Lott alleged in the complaint that on the day of the accident, she was stopped in the parking lot of a Chevron station in Lamar County, Mississippi. While stopped, the defendant, Purvis, allegedly operated his eighteen-wheeler tanker truck in a negligent manner so that he backed it into the stopped vehicle occupied by Lott. According to Lott, Purvis failed to make sure the path behind him was clear before backing up the truck. It was Lott's original belief that the truck driven by Purvis was owned by Keithco. Lott claimed that the vehicle she was driving sustained damage and that she suffered bodily injury because of the accident. ¶ 4. Following a motion for summary judgment filed by Keithco, the parties agreed to allow Lott to amend her complaint to substitute BRJ for Keithco as a defendant. Thereafter, BRJ and Purvis filed a second motion for summary judgment. In that motion, Purvis and BRJ *791 argued that Lott failed to produce any evidence that the accident with Purvis in any way caused her injuries. More specifically, Purvis and BRJ argued that Lott failed to designate any witnesses by the deadline to do so and that her medical records did not establish a causal connection between the alleged negligent conduct and Lott's alleged injuries. ¶ 5. The circuit court held a hearing on Purvis and BRJ's second motion for summary judgment. However, neither Lott nor her attorney attended the hearing, and the circuit court granted summary judgment in favor of Purvis and BRJ. Not only did she fail to attend the hearing on the motion for summary judgment, but Lott never responded to the motion until after the circuit court had granted it. On October 3, 2007, the circuit court signed an order granting Purvis and BRJ's motion for summary judgment, but Lott did not file a response to that motion until October 18, 2007. ¶ 6. Following the circuit court's grant of summary judgment, Lott filed a motion to set aside the judgment, which the circuit court denied. Lott then filed a motion to alter or amend the judgment. She withdrew that motion, however, electing instead to file the present appeal. STANDARD OF REVIEW ¶ 7. This Court's standard of review regarding a circuit court's grant of a motion for summary judgment is as follows: The Court employs a de novo standard of review in reviewing a lower court's grant of summary judgment motion. Roussel v. Hutton, 638 So.2d 1305, 1314 (Miss.1994). Summary judgment is appropriate if the evidence before the Court—admissions in the pleadings, answers to interrogatories, depositions, affidavits, etc.—shows there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Newell v. Hinton, 556 So.2d 1037, 1041 (Miss.1990). This Court does not try issues on a Rule 56 motion, but only determines whether there are issues to be tried. [Miss.] Ins. Guar. [Ass'n] v. Byars, 614 So.2d 959, 963 (Miss.1993). In reaching this determination, the Court examines affidavits and other evidence to determine whether a triable issue exists, rather than the purpose of resolving that issue. Comment, Miss. R. Civ. P. 56. Miss. Gaming Comm'n v. Treasured Arts, 699 So.2d 936, 938(¶11) (Miss.1997). DISCUSSION ¶ 8. Lott presents only one issue on appeal—whether the circuit court erred as a matter of law in granting Purvis and BRJ's motion for summary judgment. Lott argues that the motion for summary judgment was not properly filed and was not supported by the facts. She comes to this conclusion based on the fact that Purvis and BRJ's motion was unaccompanied by affidavits or other evidence. Lott further argues that the only reason the circuit court granted the motion was because she and her attorney failed to appear at the hearing on the motion. ¶ 9. Despite her assertions, there is no requirement that a party filing a motion for summary judgment must accompany the motion with any affidavits. Rule 56(b) of the Mississippi Rules of Civil Procedure provides that "[a] party against whom a claim, counter-claim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof." ¶ 10. In Fruchter v. Lynch Oil Co., 522 So.2d 195, 198 (Miss.1988), the supreme *792 court addressed the law regarding the burden of proof required to support a motion for summary judgment. The supreme court stated that "[t]he burden of producing evidence in support of or in opposition to a motion for summary judgment is a function of our rules regarding the burden of proof at trial on the issue in question." Id. A party moving for summary judgment bears no more burden of proof than what he bears at trial. Id. The movant's burden is one of production and persuasion, not of proof. Id. (citing Brown v. McQuinn, 501 So.2d 1093, 1095 (Miss.1986)). "[T]he movant has the job of persuading the court, first, that there is no genuine issue of material fact and, second, that on the basis of the facts established, he is entitled to judgment as a matter of law." Id. ¶ 11. Once the party moving for summary judgment has shown an absence of a genuine issue of material fact, the "burden of rebuttal falls upon the [nonmoving] party" to "produce specific facts showing that there is a genuine material issue for trial." Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1213 (Miss.1996). The "[nonmoving] party's claim must be supported by more than a mere scintilla of colorable evidence; it must be evidence upon which a fair-minded jury could return a favorable verdict." Id. at 1214. Bare assertions are not enough to avoid summary judgment, and the nonmovant may not rest upon the allegations in her pleadings. Watson v. Johnson, 848 So.2d 873, 878(¶ 18) (Miss.Ct.App.2002) (citing Travis v. Stewart, 680 So.2d 214, 218 (Miss.1996)). ¶ 12. In the present case, Purvis and BRJ successfully showed an absence of material fact with regard to Lott's case. Purvis and BRJ alleged in their motion for summary judgment that Lott failed to produce any evidence to show that her alleged injuries were causally related to the accident with Purvis. Contrary to Lott's claim that the circuit court only granted the motion for summary judgment because she and her attorney did not show up at the hearing on the motion, the circuit court stated in its order granting the motion that the decision was "based on [P]laintiff's lack of evidence supporting her allegations that Defendants' alleged wrongdoing was the cause in fact of her injuries...." ¶ 13. As required by Rule 56(b), Purvis and BRJ filed a motion alleging that Lott did not satisfy her burden of presenting evidence of each of the necessary elements of negligence. In First Nat'l Bank v. Olive, 330 So.2d 568, 572 (Miss.1976) (quoting Hudson v. Farrish Gravel Co., Inc., 279 So.2d 630, 636 (Miss.1973)), the supreme court said that: Ordinarily, no recovery can be had where resort must be had to speculation or conjecture for the purpose of determining whether or not the damages resulted from the act of which complaint is made, or some other cause, or where it is impossible to say what of any portion of the damages resulted from the fault of the defendant and what portion from the fault of the plaintiff himself. ¶ 14. In order to proceed on her claim of negligence, Lott was required to present specific evidence of the following: (1) a duty owed to her by Purvis and BRJ, (2) a breach of that duty, (3) a causal connection between Purvis's conduct and her alleged injuries, and (4) damages she suffered. Spoo v. T.L. Wallace Constr. Co., 858 So.2d 199, 202(¶ 11) (Miss.Ct.App.2003). Notwithstanding Lott's failure to appear at the hearing on the motion, the circuit court considered the evidence and found nothing to establish a causal connection. Even on appeal, Lott does not point to any witness or evidence indicating that Purvis's actions caused her alleged injuries. ¶ 15. As the circuit court did, we find nothing in the record to indicate that Lott's alleged injuries were the result of *793 the alleged negligence of Purvis. In addressing Rule 56, the supreme court has stated that: [W]here the party opposing the motion for summary judgment on a claim or defense upon which it bears the burden of proof at trial, and the moving party can show a complete failure of proof on an essential element of the claim or defense, other issues become immaterial and the moving party is entitled to summary judgment as a matter of law. Crain v. Cleveland Lodge 1532, Order of Moose, Inc., 641 So.2d 1186, 1188-89 (Miss.1994) (citing Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So.2d 413, 416 (Miss.1988)). First, Lott failed to file a timely response to Purvis and BRJ's motion. Second, Lott's untimely response to the motion further failed to point to any evidence indicating that her alleged injuries were the result of Purvis's actions. ¶ 16. After reviewing the record before this Court, we agree with the circuit court that Lott presented no evidence of causation aside from her own allegations. Accordingly, there was no genuine issue of material fact as to the causation element of negligence. We find that the circuit court properly granted summary judgment in favor of Purvis and BRJ, and we affirm that judgment. ¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF LAMAR COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ROBERTS AND CARLTON, JJ., CONCUR.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-7380 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus GREGORY PETER HANSEN, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:01-cr-00090-1; 1:06-cv-00220) Submitted: December 14, 2006 Decided: December 20, 2006 Before MICHAEL, GREGORY, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Gregory Peter Hansen, Appellant Pro Se. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gregory Peter Hansen seeks to appeal the district court’s order dismissing as untimely his 28 U.S.C. § 2255 (2000) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Hansen has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED - 2 - 

369 S.W.2d 705 (1963) Claudia LOTSPEICH et vir., Appellants, v. CHANCE VOUGHT AIRCRAFT et al., Appellees. No. 16172. Court of Civil Appeals of Texas, Dallas. May 10, 1963. Rehearing Denied July 26, 1963. *707 Mullinax, Wells, Morris & Mauzy, Dallas, for appellants. Thompson, Knight, Wright & Simmons, Pinkney Grissom, Rust E. Reid and John A. Gilliam, Dallas, for appellees. BATEMAN, Justice. Appellant Claudia Lotspeich (and husband) sued Chance Vought Aircraft, herein called the Company, and its regularly employed physician, Dr. John D. Horgan, for damages on account of appellees' failure to tell her that she had active tuberculosis, a condition alleged to have been disclosed by X-rays of her chest taken by appellees as part of her pre-employment physical examination. The trial court sustained appellees' motion for summary judgment, and our careful consideration of the entire record convinces us that there was no error in doing so. Appellant's first five points and her seventh and eighth points challenge the action of the trial court in holding that appellant's pleadings and the depositions and affidavits on file show as a matter of law that she has no cause of action against appellees. Her sixth point asserts that the court erred in holding by necessary implication that her cause of action was extinguished by the Texas Workmen's Compensation Act. We shall discuss these two groups of contentions in inverse order. FACTS The following facts appear without dispute from the depositions and affidavits: Appellant worked for the Company twice, once in 1949 and again in 1952. Incident to each employment she underwent a physical examination, including chest X-rays at the hands of Company doctors and nurses on Company premises. She and others being examined were told by "the nurses" that if the examinations revealed anything wrong with them they would be told about it. Appellant began her last employment on June 16, 1952, the date of her examination, and quit in September 1952. She was told by Air Force doctors in 1955 that their X-ray examination of her chest revealed active tuberculosis. Subsequently two doctors in Denver, Colorado examined the X-ray plates made of her chest by the Company on June 16, 1952, and one of them was of the opinion that they showed a large cavitary lesion in her left chest and the other was of the opinion that they showed very *708 definite evidence of far-advanced pulmonary disease, probably tuberculosis, and would have indicated to him complete diagnosis and further treatment. The appellee Dr. John D. Horgan was in charge of the Company's medical department since, December 1950. He interpreted appellant's chest X-rays and noted thereon: "Negative for pulmonary pathology; cardiac shadow within normal limits." On re-examination thereof at the time of his deposition he said, "As I see it today, if I saw that I would want another film." The Company had a general rule that required an employee to have a physical examination within the three days preceding his or her going to work. In 1952 X-rays of applicants for employment were in no case read by Dr. Horgan or by any employee working under his supervision in less than three weeks after the X-rays were taken, and in many cases not until from four to eight weeks after they were taken, unless the history of the applicant indicated that they should be read immediately. The physical examination record and medical history given by appellant on June 16, 1952 were considered by Dr. Horgan as routine and not indicative of an immediate reading of her X-ray plates. Throughout the year 1952 the Company was insured under a policy of Workmen's Compensation Insurance under Texas Law. OPINION Effect of Workmen's Compensation Law. Appellant contends that, since she is not claiming damages for injuries received in the course of her employment, the duty of appellees to warn her of the existence of the disease did not arise out of the employer-employee relationship, but was a continuing duty fixed as a matter of public policy and continued throughout the course of her employment, and that her right of action was, therefore, not prohibited or extinguished by the Workmen's Compensation law. We do not agree. Sec. 3 of Art. 8306, Vernon's Ann.Tex.St., provides that the employees of a subscriber "shall have no right of action against their employer or against any agent, servant or employÈ of said employer for damages for personal injuries, etc." Our Courts are fairly uniform in holding that in view of this provision, the remedy given by the Workmen's Compensation Law is exclusive and that the employee has no right of action against his employer on account of bodily injuries sustained in the course or scope of the employment (except for injuries resulting from an intentional or willful act of the employer), even though the injury complained of may not be compensable under the Workmen's Compensation Law. Gordon v. Travelers Ins. Co., Tex.Civ.App., 287 S.W. 911, err. ref.; Montgomery v. United Salt Corp., Tex.Civ.App., 112 S.W. 2d 494, err. dis.; Huckabay v. Hughes Tool Co., Tex.Civ.App., 122 S.W.2d 233, err. dis.; Robertson v. C. A. Bryant Co., Tex. Civ.App., 127 S.W.2d 549, err. dis. "judgment correct." See also Tourville v. United Aircraft Corp., 2 Cir., 262 F.2d 570. In Gordon v. Travelers Ins. Co., supra, it was held that an employee had no valid claim under the Workmen's Compensation Law for injuries resulting from disease caused by his inhaling poisonous fumes while in the course of his employment; also that, not having given the notice mentioned in Sec. 3a, Art. 8306, V.A.T.S., the employee had waived his right of action at common law against his employer. The Supreme Court refused writ of error and we have found no case, and have been cited to none, questioning the validity of those holdings. Appellant also contends that the existence of the Workmen's Compensation Insurance policy was not established by the affidavit of the Company's Insurance and Retirement Manager, wherein he stated under oath that during the year 1952 the Company was insured under such a policy written by Liberty Mutual Insurance Company, because a sworn or certified copy of the policy was not attached to the affidavit as required by *709 subdivision (e) of Rule 166-A, Vernon's Texas Rules of Civil Procedure. No such objection was made in the trial court as required by Rule 90, Vernon's Texas R.C. P.; therefore we hold that the defect, if any, was waived. Employers Mutual Casualty Co. v. Lee, Tex.Civ.App., 352 S.W.2d 155, no wr. hist.; Wade v. Superior Ins. Co., Tex.Civ.App., 244 S.W.2d 893, err. ref. Especially would this be true when, as here, all appellees were trying to prove was the existence of the insurance coverage, not the details of the policy itself. Salinas v. Salinas, Tex.Civ.App., 77 S.W. 2d 568, err. dis. Appellant also takes the position that appellees failed to meet the burden of showing that her cause of action arose while she was an employee, suggesting that it arose at the time of the examination, at which time she was an invitee rather than an employee. It is our view that under the undisputed facts appellant's employment began on June 16, 1952, the date of the examination, and that the appellees could not have learned of the tuberculosis until at least three weeks thereafter, which would be the earliest time the cause of action could have arisen, and that appellant was indubitably an employee of the Company at that time. But even if we were to consider that the cause of action arose at the very time of her physical examination, and before she actually began her work for the Company, we would be compelled to hold that, so far as the applicability of the Workmen's Compensation Law is concerned, she was an employee and subject to and covered by that Law while being given the physical examination. Ott v. Consolidated Underwriters (Mo.App.), 311 S.W.2d 52, and Smith v. Venezian Lamp Co., 5 A.D. 2d 12, 168 N.Y.S.2d 764. In the case before us, the physical examination was conducted on the employer's premises, not for the benefit of the applicant, but wholly for the benefit of the employer and under its direction and control. Therefore, it is clear that appellant was an employee when the duty arose, if it did, to tell her of her disease, regardless of whether that duty came into being at the time of the examination or at least three weeks later when her X-ray plates were read and interpreted. Federal Surety Co. v. Ragle, Tex.Com.App., 40 S.W.2d 63; Heacker v. Southwestern Bell Telephone Co., 5 Cir., 270 F.2d 505. Accordingly, we hold that appellant's right of action, if any ever existed, was extinguished by the Workmen's Compensation Law, Art. 8306, Sec. 3, V.A.T.S. Did appellant have a cause of action? That brings us to a consideration of the question raised by appellant's points of error one through five, seven and eight, wherein she assails the implied holdings of the trial court that it appeared as a matter of law, aside from the prohibition of Sec. 3, Art. 8306, V.A.T.S., that appellant had no cause of action against either the Company or Dr. Horgan. Appellant sues upon two alternative grounds: (1) that her tubercular condition was revealed to appellees by the examination of June 16, 1952 and that they were negligent in withholding and concealing this information from her and in not disclosing it to her; and (2) in the alternative, if they did not know of her tuberculosis they were negligent in failing to examine the X-rays and properly diagnose and identify the tuberculosis symptoms pictured thereon. The first ground raises the question of whether the employer and its physician owed appellant the duty to disclose known information concerning her health, while the second raises the question of whether the employer and its physician, having undertaken to examine her, owed her a duty to discover her tubercular condition. In her brief appellant addresses herself only to the first ground and, assuming that without question appellees knew of her disease, argues and presents authorities to *710 the effect that by their silence they breached a duty to impart this knowledge to her. But the record before us discloses affirmatively and without dispute that appellees did not have this knowledge; therefore, appellant is relegated to her second and alternative ground of recovery based upon appellees' breach of their alleged duty to discover the disease. The record before us indicates an issue of fact on whether appellees exercised ordinary care when they failed to discover the tuberculosis; but this failure would not be actionable negligence unless appellees owed appellant a legal duty to discover it. 30-B Tex.Jur. 175, ß 5. This was not the usual relationship of physician and patient. Dr. Horgan was employed by the Company to determine whether this woman was qualified from a standpoint of health to do the work for which she had applied. This was wholly for the benefit of the Company, and the doctor owed to it alone the duty to perform efficiently the work the Company had employed him to do. Appellant must be charged with knowledge of this. She did not select Dr. Horgan to examine her for her benefit, and she did not ask him for a report. She had no legal right to demand that he exercise any care whatever in conducting the examination, except to avoid injuring her. We find no Texas authorities on this point, but at the same time we find none in any jurisdiction holding that either a physician examining a job applicant, or the employer, owes any duty to the applicant to discover the presence of disease. Such a holding would place an unreasonable burden on employers. Therefore, there being no duty on appellees to discover the tuberculosis, there could be no actionable negligence in their failure to do so. Affirmed. On Motion for Rehearing Appellant earnestly attacks our holding that the affidavit of the Company's Insurance Retirement Manager, which stated that the Company did carry workmen's compensation insurance, was sufficient to support the summary judgment, even though a sworn or certified copy of the policy was not attached. Appellant asserts that our holding conflicts with that of the Supreme Court in Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274, which was a suit for debt and foreclosure on land and wherein the defendants pled that the controversy had been adjudicated in their favor in another suit in the same court between the same parties and filed a motion for summary judgment referring to such former judgment, but not attaching a certified or sworn copy thereto. It is true that the court, speaking through Mr. Justice Griffin, held that relief by summary judgment can be granted only when the provisions of Rule 166-A are strictly complied with, and that such compliance required that certified copies of the documents referred to in the affidavit should be attached to the motion and that, having failed to do so, defendants were not entitled to summary judgment. However, in a later case, Youngstown Sheet & Tube Co. v. Penn, Tex., 363 S.W.2d 230, the Supreme Court, speaking through Mr. Justice Walker, after pointing out that no objection was urged in the trial court to the absence of sworn or certified copies of the papers referred to in affidavits attached to the motion for summary judgment, said: "If petitioner was in any doubt as to these matters or if it was prejudiced in any way by the fact that sworn or certified copies of the operating agreements were not attached to or served with the Johnson affidavit, it should have excepted to the affidavits at or prior to the hearing. The deficiencies which it now urges appear to be purely formal, and it may be assumed that they would have been corrected upon proper exception in the trial court. We hold that objections of this kind may not be raised for the first time on appeal when it fairly appears from the *711 record that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The Supreme Court cited the opinion of this court in Farmers & Merchants Compress & Warehouse Co. v. City of Dallas, Tex.Civ.App., 335 S.W.2d 854, err. ref. n. r. e., in which we made the same holding, citing the opinion of the Austin Court of Civil Appeals in Lobit v. Crouch, Tex.Civ. App., 293 S.W.2d 110, err. ref. n. r. e. In a sincere effort to apply here the doctrine announced in the latest expression of the Supreme Court on the subject in Youngstown Sheet & Tube Co. v. Penn, supra, we adhere to our original holding that appellant's objection to the absence of a sworn or certified copy of the insurance policy as an exhibit to the affidavit in question, not having been raised in the trial court and an opportunity given to appellee to correct the defect, was waived. Rule 90 Vernon's Texas R.C.P. We say this with confidence because we think "it fairly appears from the record that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." If appellant had seriously contended that there was a "contested fact issue" concerning the existence of this insurance coverage, as she now asserts in her motion for rehearing, it is our feeling that she would have insisted by special exception that a sworn or certified copy of the policy be filed in connection with the motion for summary judgment, or requested appellee to admit there was no such policy under Rule 169, Vernon's Texas R. C.P., or requested additional time to establish by deposition the absence of such policy, as authorized by subdivision (f) of Rule 166-A. The complaint of appellant is in reality that the affidavit in question violates the best evidence rule. We adhere to our former holding that the affidavit was sufficient because all it purported to establish was the existence of a certain type of policy, not its contents; and in addition to the cases cited in support of that holding in the main opinion, we would also cite Howard v. Britton, 71 Tex. 286, 9 S.W. 73; Wolf v. Wilhelm, Tex.Civ.App., 146 S.W. 216, err. ref.; Hatfield v. Hatfield, Tex. Civ.App., 233 S.W. 350, err. dism.; Kansas City Life Ins. Co. v. Fisher, Tex.Civ.App., 83 S.W.2d 1063, err. dism.; Haynes B. Ownby Drilling Co. v. McClure, Tex.Civ. App., 264 S.W.2d 204, err. ref. n. r. e.; 23 Tex.Jur.2d 335-349, ß 223; McCormick and Ray, Tex. Law of Evidence, Vol. 2, 409, ß 1566, wherein it is said: "The rule requiring the production of original writings applies only where the purpose of the evidence offered is to prove the contents of the document, for it is only in such cases that the principal danger, that of inaccurate transmission of the terms of the writing, exists. Consequently evidence to the effect that a certain document is in existence, or as to its execution, or delivery, is not within the rule and may be given without producing the document." Appellant also complains of our finding that the X-ray plates were not read by Dr. Horgan or any employee working under him in less than three weeks after the X-rays were taken, as being based wholly on the testimony of Dr. Horgan, an interested party whose testimony is uncorroborated. Appellant offered nothing on the hearing of the motion for summary judgment to cast doubt or suspiction upon the testimony, and it is our opinion that it comes within a well-recognized exception to the general rule, as expressed in the following excerpt from 24 Tex.Jur.2d 375, ß 714: "Ordinarily, the jury is not bound by the uncontradicted testimony of an interested witness. However, under an exception to this general rule, if the uncontradicted testimony of an interested witness is clear, direct, positive, *712 and free of inconsistency, and if there are no circumstances that tend to cast suspicion on it, the witness' testimony must be accepted as true as a matter of law and no issue of fact is created for the jury." Many authorities are cited in support of the above text including Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904, 908, wherein it is said: "But there is an exception to this rule, which is that where the testimony of an interested witness is not contradicted by any other witness, or attendant circumstances, and the same is clear, direct and positive, and free from contradiction, inaccuracies, and circumstances tending to cast suspicion thereon, it is taken as true, as a matter of law." Furthermore, we think it can now properly be said to be the law in Texas that the uncorroborated affidavit or deposition of an interested party or witness will support a summary judgment in the absence of a controverting affidavit or of an attempt by the party against whom the motion is urged to avail himself of the right under subdivision (f) of Rule 166-A, Vernon's Texas R.C.P., and seek such delay as may be necessary to secure affidavits or take depositions to controvert the facts stated by the interested party or witness in his affidavit. Bottomed upon the holding to that effect in Fowler v. Texas Employers Insurance Ass'n., Tex.Civ.App., 237 S.W.2d 373, err. ref.; Rolfe v. Swearingen, Tex.Civ.App., 241 S.W.2d 236, err. ref. n. r. e.; and Gifford v. Travelers Protective Ass'n., 9 Cir., 153 F.2d 209, 211, the Court of Civil Appeals at Waco in Holland v. Lansdowne-Moody Co., Tex.Civ.App., 269 S.W.2d 478, 481, no wr. hist., said: "It is the law that where a plaintiff, at a hearing on defendant's motion for summary judgment under Rule 166-A, files no counter affidavits, and makes no showing other than as stated in their pleadings, and makes no showing that affidavits are unavailable, he in effect admits the facts alleged in defendant's sworn affidavits supporting the motion, and for which reason cannot complain of the court's granting the motion for summary judgment." As so clearly stated by Mr. Justice Pope in Rolfe v. Swearingen, supra: "Summary judgment proceedings do not seek to decide issues of fact, but to ascertain if any genuine issues of material fact exist. * * * Appellees' showing was supported by sworn factual statements sufficient upon their face to establish a complete defense to everything appellants alleged. The verity of those sworn statements was in no way challenged by counter-affidavits or other sworn statements. In the hearing to locate the dispute about genuine and material facts, all facts stood undisputed, unchallenged, and uncontroverted. When such a condition exists, there are no facts to try." But, as pointed out in our main opinion, regardless of the correctness of our position with respect to the showing made as to coverage of the employer under the workmen's compensation law and the question as to whether appellant was an employee at the time her cause of action, if any, arose, or whether under the law the cause of action was extinguished by the workmen's compensation law, in the final analysis this case turns on the question of whether the appellees owed appellant any duty to discover and disclose to her the fact that she had tuberculosis. Appellant says that our holding in this respect was erroneous, citing the early case of Missouri, K. & T. Ry. Co. of Texas v. Wood, 95 Tex. 223, 66 S.W. 449. We have carefully studied the opinion in that case and find nothing in it to suggest, much less require, changing our disposition of this case. The motion for rehearing is overruled.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-99-00704-CR Charles Scott Harnett, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT NO. CR98-339, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING This appeal is taken from a conviction for sexual assault. See Tex. Penal Code Ann. § 22.011(a)(1)(A) (West Supp. 2000). After finding appellant Charles Scott Harnett guilty, the jury assessed his punishment at seven years' imprisonment. Points of Error Appellant advances four points of error. First, appellant claims that the prosecutor violated the order granting the motion in limine by allowing a witness to refer to an extraneous offense. Second, appellant urges that the trial court erred in allowing a social worker to testify as an expert witness. In his third and fourth points of error, appellant complains that the trial court erred in allowing improper jury argument at both stages of the bifurcated trial. We will affirm. Facts The sufficiency of the evidence is not challenged. A brief summary of the facts will, however, place the points of error in proper perspective. Appellant and the complainant lived together for approximately thirteen months, except for a two-week separation in March 1998. Their relationship was somewhat turbulent. Appellant's brief states: "[F]ighting was also a part of their relationship." This statement is supported by the record. The complainant testified that in the early morning hours of Monday, July 20, 1998, she had taken some medication to help her sleep. Appellant began to make sexual advances. She told him that she did not want to have sex and resisted his overtures. They struggled, fought, and then complainant was forced into the bathroom. There, appellant was able to remove her pajamas and have sexual intercourse with her without her consent. Later, on the bed in the bedroom and against her will, appellant sexually assaulted the complainant four times before committing an act of deviate sexual intercourse. The complainant related that she was unable to leave the house until the late afternoon of July 20th when her mother and brother came to get her and took her to a hospital for an examination. Appellant told the jury a different story. Appellant testified that on Friday, July 17, 1998, he came home without his weekly paycheck because he had been unable to contact his boss. Appellant explained that the complainant was upset because they were unable to go out to eat as they normally did on Friday nights after he had been paid. He obtained the paycheck Saturday morning and that night they had consensual sexual intercourse. Appellant stated there was no "spark." During the late hours of Sunday, July 19th or the early morning hours of July 20th, appellant revealed that he informed the complainant that he was going to terminate their relationship. At this point, according to appellant, the complainant became angry, broke a chair on the kitchen floor, and began to hit him with a piece of the chair. Appellant denied that he sexually assaulted the complainant. The Motion in Limine In the first point of error, appellant contends that the "prosecutor violated the motion in limine by allowing his witness to refer to other crimes, wrongs, or acts of misconduct of the defendant before the jury." Prior to trial, the parties informed the trial court that they had agreed on appellant's motion in limine and either party would approach the bench before it would attempt to elicit evidence of any extraneous offense or matter. One of the State's witnesses was Terry Partaka, mother of the complainant. Mrs. Partaka testified that she received a telephone call from her daughter about 4:15 p.m. on July 20, 1998. The daughter sounded upset and requested that her mother come and get her immediately. Mrs. Partaka asked to speak with appellant who requested she come to his house and act as a mediator for him and the complainant. The record then reflects: Q. (by prosecutor): Did you eventually go to her house? A. Yes. After I talked to her again and asked her a question. Q. What did you ask her? A. I asked her if he beat her up again, and I told her to just answer yes or no. Q. And what did she answer? A. Nothing. Mr. Guyer (defense counsel): I have an objection to make. May we approach the bench? The Court: Yes, sir. (Discussion out of hearing of the jury) Mr. Guyer: Violation of the Motion in Limine. The Court: Clearly. Mr. Noble (prosecutor): I instructed the witness not to talk about any other incidents. The Court: I understand. It's a universal problem. All I can do is instruct them to disregard. Mr. Guyer: We would ask the court to instruct them to disregard. The Court: All right. . . . Mr. Guyer: Move for mistrial (discussion at Judge's bench concluded). The Court: Noted. Overruled. Ladies and gentlemen, you are instructed to disregard any statements from the witness regarding any physical violence that may or may not have occurred as she has testified to on any other occasion. Thank you. No formal provision is made for motions in limine in the Texas Code of Criminal Procedure, the Rules, or elsewhere. The lack of an accepted definition renders difficult the determination of the effectiveness of motions in limine in preserving matters for appellate consideration. 43 George E. Dix & Robert O. Dawson, Criminal Practice and Procedure, § 42.51, at 66 (Texas Practice 1995). A "traditional" motion, as in the instant case, is a motion requesting that the opposing party be directed to approach the trial court before offering certain types of evidence, asking certain questions, or otherwise going into particular areas before the jury. See Norman v. State, 523 S.W.2d, 669, 671 (Tex. Crim. App. 1975); State v. Monroe, 813 S.W.2d 701, 702 (Tex. App.--Houston [1st Dist.] 1991, pet. ref'd). It is axiomatic that motions in limine do not preserve error. Webb v. State, 760 S.W.2d 263, 275 (Tex. Crim. App. 1988); Maynard v. State, 685 S.W.2d 60, 64 (Tex. Crim. App. 1985). This is true whether the motion is granted or denied. Willis v. State, 785 S.W.2d 378, 384 (Tex. Crim. App. 1989); Webb, 760 S.W.2d at 275. A ruling on a motion in limine does not purport to be one on the merits but one regarding the administration of the trial. The remedy for a violation of a ruling on a motion in limine rests with the trial court. Brazzell v. State, 481 S.W.2d 130, 131 (Tex. Crim. App. 1972); Wade v. State, 814 S.W.2d 763, 765 (Tex. App.--Waco 1991, no pet.). The trial court may hold the litigant or attorney in contempt or use other remedies or sanctions. Brazzell, 481 S.W.2d at 131. Even if there has been a violation of the order on the motion in limine, it is incumbent that a party object to the admission or exclusion of evidence or other action in order to preserve error for appeal. Id. In the instant case, appellant objected to a claimed violation of the order granting the motion in limine, not to the admission of evidence. On appeal, he continues to rely on his trial objection. No error was preserved. Appellant, however, relies upon Lucas v. State, 378 S.W.2d 340 (Tex. Crim. App. 1964); Tate v. State, 762 S.W.2d 678 (Tex. App.--Houston [1st Dist.] 1988, pet. ref'd) and Govan v. State, 671 S.W.2d 660 (Tex. App.--Houston [1st Dist.] 1984, pet. ref'd). The reliance is misplaced. None of these reversals rested upon preservation of error by a motion in limine. Despite the failure to preserve the error, appellant accepted the trial court's offer to instruct the jury to disregard the testimony. Normally, such an instruction cures any error or renders it harmless. Richards v. State, 912 S.W.2d 374, 378 (Tex. App.--Houston [14th Dist.] 1998 pet. ref'd).(1) Appellant's complaint on appeal does not include the trial court's overruling of the motion for a mistrial. In addition, the same or similar testimony as that here involved came into evidence without objection, rendering any error harmless.(2) Anderson v. State, 717 S.W.2d 622, 626-27 (Tex. Crim. App. 1986); Couchman v. State, 3 S.W.3d 155, 160-61 (Tex. App.--Fort Worth 1999, pet. ref'd); Miranda v State, 813 S.W.2d 724, 739 (Tex. App.--San Antonio 1991, pet. ref'd). The first point of error is overruled. The Expert Witness In his second point of error, appellant contends that the "trial court erred in allowing an untrained and noncertified social worker to testify to matters which are the subject of expertise required by a licensed professional counselor in violation of Rule 702 of the Rules of Evidence." The witness in question was Kathy Moritz, a social worker, who counseled appellant and the complainant after their first separation in March 1998. One of the complainant's requirements for reconciliation after this separation was counseling. The counseling was conducted at the Seguin Family Institute beginning in April 1998, and covered a period of approximately two months before the parties changed their residence. Both appellant and the complainant made reference to the counseling in their trial testimony. Appellant related that: "It [counseling] was good and all. I found out some things about myself and it was good, but it . . . it wasn't working for us." Later, appellant testified: "I did find out that I was insecure but not in any kind of domineering or controlling manner." Appellant admitted that the counselor told him that he should not engage in controlling-type behavior, but he pointed out the counselor told the complainant the same thing. Appellant denied that he told the counselor he thought the complainant was not having sex with him as often as she should, or that he felt the complainant was treating him "badly" when she refused to have sex. Moritz was called in rebuttal. Moritz stated that she graduated from Texas Lutheran College with a degree in social work in 1981; that she was employed for eight years as a child protective service worker, specializing in family and sexual assault violence; that for two years she worked at a rape crisis center providing counseling for sexual assault victims and in training and supervising sixty-five volunteers at the center; and that she had been employed for six years at the Seguin Family Institute as a therapist and assistant clinic director, which was her current employment. Moritz explained that in her current job she counseled family violence offenders, sex offenders, sexual assault survivors, and couples with relationship problems. Moritz testified that beginning in April 1998 she provided counseling services to appellant and the complainant. There were eight sessions, some individually with appellant, before the couple terminated the counseling. Before the objection on which the complaint on appeal is based, Moritz testified that based on her conversations and sessions with the couple and a discussion of their problems, she identified three issues. One was that appellant tried to exercise too much control over the complainant and her activities. The second issue was appellant's attitude that he was entitled to sex on demand. The third issue was appellant's "neediness"--"[h]is emotional need for someone close to be right there with him at all time [sic]." After Moritz explained "neediness," appellant asked for the first time to take the witness on voir dire. See Tex. R. Evid. 705(b). Appellant established that Moritz had not done any post-graduate work in counseling and was not a licensed professional counselor. Moritz related, however, that she worked for a licensed professional counselor and that her license as a social worker allowed her to provide counseling services under the supervision of a licensed professional counselor. Moritz stated that any opinions given had been in response to questions asked and were based on her conversations with appellant. At this point, the prosecutor interjected that he was not asking Moritz to give "a professional opinion as to a specific diagnosis," but was inquiring to establish that the witness had counseled the parties and had identified certain issues, "and more specifically, what did the defendant tell her that is contrary to what he told this jury."(3) Appellant then made his Rule 702 objection, claiming that the State had not laid the proper predicate and noting that Moritz was not a licensed professional counselor. The objection was overruled with the trial court finding that Moritz had "the requisite qualifications to testify as an expert as to the matters that she been asked about so far." The prosecutor was warned about venturing into areas of psychiatry and psychology. On further direct examination, the prosecutor briefly revisited the three issues testified to by Moritz prior to the Rule 702 objection. When Moritz was asked if she was "confident" whether appellant had "come to terms" with the three issues, appellant's "calls for a professional opinion" objection was overruled. The question, however, was not answered. The prosecutor then elicited, without objection, that Moritz definitely did not feel that appellant had successfully adopted a more appropriate attitude about the three issues. In order to preserve error on appeal, a party must make a timely specific objection. Tex. R. App. P. 33.1(a)(1)(A). Here, appellant failed to object to Moritz's testimony on the basis now urged on appeal until midway through the direct examination. Thus, Moritz's identification of the three issues and any opinion testimony was before the jury prior to the Rule 702 objection. No error for review was preserved. In fact, any error was waived. Armstrong v. State, 718 S.W.2d 686, 699 (Tex. Crim. App. 1985); Jackson v. State, 888 S.W.2d 912, 915 (Tex. App.--Houston [1st Dist.] 1994, no pet.). The bulk of Moritz's testimony following the Rule 702 objection was the same as that presented earlier. Generally, improper admission of evidence does not constitute reversible error if the same facts are proven by other properly admitted evidence. Willis, 785 S.W.2d at 383; Couchman, 3 S.W.3d at 160-61; Miranda, 813 S.W.2d at 739. Moreover, the admissibility of evidence generally, and the qualifications of a witness to testify as an expert or as a lay witness, is within the discretion of the trial court. See Tex. R. Evid. 104(a); Ventroy v. State, 917 S.W.2d 419, 422 (Tex. App.--San Antonio 1996, pet. ref'd). A trial court's decision to permit a witness to testify as an expert or as lay witness (under Rule 701 of the Rules of Evidence) will not be disturbed on appeal absent a showing of an abuse of discretion. Ventroy, 917 S.W.2d at 422. Rule 701 provides: If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. Tex. R. Evid. 701. The rule's requirement that the opinion or inference of a lay witness be "rationally based on the perception of the witness" can be said to have two elements. See 2A Steven Goode, Olin Guy Wellborn, III & M. Michael Sharlot, Courtroom Handbook on Texas Evidence, ch. 5, art. VII, at 413 (Texas Practice 2000). The first element involves the personal knowledge of the witness as required by Rule 602. Tex. R. Evid. 602; Bigby v. State, 892 S.W.2d 864, 889 (Tex. Crim. App. 1994). The necessary personal knowledge may be gained by the perception of fact by the senses of the witness. State v. Brainard, 968 S.W.2d 403, 412 (Tex. App.--Amarillo 1998), aff'd in part, rev'd in part on other grounds, 12 S.W.3d 6 (Tex. 1999). Thus, the perception underlying a lay witness's testimony may be what was seen, heard, smelled, tasted, touched, or felt. Id. The second element mandates that the opinion must be one that a reasonable person could draw from the underlying facts. Fairow v. State, 943 S.W.2d 895, 900 (Tex. Crim. App. 1997). Under Rule 701, much must be left to the discretion of the trial court. Austin v. State, 794 S.W.2d 408, 410 (Tex. App.--Austin 1990, pet. ref'd). Rule 702 (Testimony by Experts) provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. Tex. R. Evid. 702. See 2A Goode, at 415. Rule 702 contains two initial hurdles that must be overcome before expert testimony will be admissible. Roise v. State, 7 S.W.3d 225, 234 (Tex. App.--Austin 1999). As the rule itself requires, the proponent of the testimony must establish (1) that the scientific technical, or other specialized knowledge will aid the trier of fact, and (2) that the expert is qualified to testify on the subject. Id. (citing Penry v. State, 903 S.W.2d 715, 762 (Tex. Crim. App. 1995)). Under the first prong, an expert's opinion should be based on a body of scientific, technical, or other specialized knowledge that is pertinent to the facts in issue, and sufficiently reliable for the expert's testimony to assist the trier of fact. Roise 7 S.W.3d at 234. As to the second prong, no rigid formula exists for determining whether a particular witness is qualified to testify as an expert. 2 Steven Goode, Olin Guy Wellborn, III, & M. Michael Sharlot, Guide To The Texas Rules of Evidence: Civil and Criminal § 702.3, at 54 (Texas Practice Supp. 2000). The expertise must be measured against the particular opinion the expert is offering. Roise, 7 S.W.3d at 234. While the proponent of the testimony has the burden of establishing the expert's qualifications, the trial court has the responsibility to ensure that "those who purport to the experts truly have expertise concerning the actual subject about which they are offering an opinion." Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996), and more recently, it has been made clear that a trial court's gate keeping obligation under Rule 702--to insure that the expert witness's testimony rests upon a reliable foundation and is relevant to the task at hand applies to all expert testimony not just scientific expert testimony. Roise, 7 S.W.3d at 235-36 (citing Kumbo Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999)); see also Jackson v. State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000). Rule 702 itself provides that the requisite expertise may be acquired through knowledge, skill, experience, training, or education. "It is almost impossible to lay down any definite guidelines for determining knowledge, skill or experience required in a particular case or of a particular witness." Rogers v. Gonzales, 654 S.W.2d 509, 513 (Tex. App.--Corpus Christi 1983, writ ref'd n.r.e.). "Special knowledge" may be acquired by virtue of the witness's experience. Reece v. State, 878 S.W.2d 320, 325 (Tex. App.--Houston [1st Dist.] 1994, no pet.). Moreover, contrary to appellant's trial objection, licensure, or certification in the particular discipline is not a per se requirement. Southland Lloyd's Ins. Co. v. Tomberlain, 919 S.W.2d 822, 827 (Tex. App.--Texarkana 1996, writ denied); Guentzel v. Toyota Motor Corp., 768 S.W.2d 890, 897-99 (Tex. App.--San Antonio 1989, writ denied). Unlike the common-law requirement, a trial court under Rule 702 may admit an expert's testimony on a matter within most jurors' understanding if the testimony concerns some type of technical or specialized knowledge and would assist the jurors in their fact-finding function. Glasscock v. Income Prop. Serv., Inc., 888 S.W.2d 176, 179-81 (Tex. App.--Houston [1st Dist.] 1994, writ dism'd). As is evident from the record, Moritz's testimony was not of a scientific or technical nature but her opinions or inferences were based on impressions and conclusions derived from perceptions of what she saw, heard, and observed during her eight sessions with appellant, and on her years of experience and training. Ventroy, 917 S.W.2d at 422; Brainard, 968 S.W.2d at 412. Further, based on Moritz's education, training and experience, the trial court found her to be an expert with specialized knowledge under Rule 702. A witness may qualify to give testimony under both Rule 702 governing expert witnesses and Rule 701 permitting a lay or non-expert witness to offer opinions or inferences if the witness's testimony is based on first-hand knowledge. Yohey v. State, 801 S.W.2d 232, 243 (Tex. App.--San Antonio 1990, pet. ref'd); Ventroy, 917 S.W.2d at 422; McCray v. State, 873 S.W.2d 126, 128 (Tex. App.--Beaumont 1994, no pet.); Austin, 794 S.W.2d at 410. Given all the circumstances, we conclude that the trial court did not abuse its discretion in admitting Moritz's testimony over appellant's Rule 702 objection. The second point of error is overruled. First Jury Argument In his third point of error, appellant urges that the "trial court erred in overruling defense counsel's objection to improper jury argument which mischaracterized defense counsel's role in the trial." Near the beginning of his opening jury argument at the guilt/innocence stage of the trial, the prosecutor stated: It seems to me the Defense would have you believe that the law that protects women against sexual assault shouldn't really apply to all the women all the time, but rather maybe the idea is that sexual assault should only protect some of the women some of the time. Appellant's counsel objected on the ground that the argument was a "mischaracterization of the Defense role in the trial" and "he's striking at the Defendant over the shoulder of counsel." The court responded: "This is jury argument, ladies and gentlemen. I'm going to overrule the objection at this time. This is nothing more or less than jury argument at this time. Proceed, please." The prosecutor then continued to explain why the complainant was entitled to protection against sexual assault as any woman is, all without further objection. Proper jury argument normally falls within one of four areas: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) response to argument of opposing counsel; and (4) plea for law enforcement. Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995); Hathorn v. State, 848 S.W.2d 101, 117 (Tex. Crim. App. 1992); Borjan v. State, 787 S.W.2d 53, 57-58 (Tex. Crim. App. 1990). Even when an argument exceeds the permissible bounds of these areas, such will not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statue, or injects new facts harmful to the accused. Todd v. State, 598 S.W.2d 286, 296-97 (Tex. Crim. App. 1980). The remarks must have been a willful and calculated effort on the part of the State to deprive the accused of a fair and impartial trial. Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997). "It is improper for a prosecutor to imply in argument that the defense counsel is acting improperly in defending his client. . . . This type of argument is frequently called 'striking at the defendant over the shoulder of his attorney.'" 42 Dix, § 37.61, at 596-97; see Boyde v. State, 513 S.W.2d 588, 592 (Tex. Crim. App. 1974). This type of inflammatory argument may result in reversible error even if the trial court sustains the objection and instructs the jury to disregard the argument. See Orona v. State, 791 S.W.2d 125, 130 (Tex. Crim. App. 1990); Gomez v. State, 704 S.W.2d 770, 771-72 (Tex. Crim. App. 1985). The prosecutor's jury argument here was not in response to opposing counsel who had not argued, but it was the beginning of a proper plea for law enforcement which was eventually made without further objection. Moreover, the objected-to argument was based on reasonable deductions from the evidence. Appellant had elicited testimony that the thirty-four-year-old complainant had earlier joined the army reserves, received basic training, had served as a prison guard, had married an inmate, had entered into a boyfriend-girlfriend sexual relationship with appellant before the finality of his divorce, and had reentered the stormy relationship after a separation, counseling, and being fully aware of possible consequences. Nevertheless, appellant still urges that the objected-to argument was an attack upon his defense counsel. He relies upon Wilson v. State, 938 S.W.2d 57 (Tex. Crim. App. 1996). We have examined Wilson and the cases cited therein and find the highly improper arguments in those cases factually distinguishable from the argument in the instant case. We conclude that the objected-to argument here was not an attack upon appellant over the shoulder of his counsel. Under any circumstances, the trial court did not err in overruling the objection. The third point of error is overruled. Second Jury Argument In his fourth point of error, appellant again complains of jury argument, this time at the punishment stage of the trial. He urges that the trial court erred in overruling his objection to the prosecutor's jury argument "which mischaracterized the offense and the range of punishment in the case." In his closing jury argument, the prosecutor addressed the proper range of punishment to be assessed. He argued against probation which had been urged by appellant's counsel in his jury argument. Turning to straight-time punishment, the prosecutor argued that the evidence suggested that this was not the least offensive "rape" that can occur. He asked the jury to look at the injuries inflicted. The prosecutor then stated: "I think they want to reward him because he didn't hurt her any worse than he did. I consider maybe give him a year for every abrasion, every - - -." The record then reflects: Mr. Scharmen: Objection, your Honor. That's an improper argument. He's on trial for one offense only, not for multiple offense's [sic]. The Court: It is noted that he is charged with and has been convicted of rape and nothing else. The point is well taken. Proceed. Mr. Scharmen: I would ask the Court that since it sustained my objection, to instruct the jury to disregard the comment. The Court: The Court has not sustained your objection. The Court has added a supplemental instruction. Overruled. The prosecutor then listed nineteen bruises found on the complainant and stated: "One year for every bruise, every - - -." Appellant's "same objection" was overruled. It is difficult to match the complaint on appeal with the trial objection. Unless the complaint on appeal comports with the trial objection, nothing is preserved for review. Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991); Skillern v. State, 890 S.W.2d 849, 859 (Tex. App.--Austin 1994, pet. ref'd). An objection stating one legal basis may not be used to support a different legal theory on appeal. Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). The jury charge correctly set forth the correct range of penalty applicable to the instant case. The prosecutor's argument was in accord. We do not view appellant's objection bearing on a mischaracterization of the range of punishment to have merit. Moreover, we fail to see how appellant's trial objections comport with the appellate complaint that the argument mischaracterized "the offense." Nothing is presented for review. It is true that both the prosecutor and the trial court referred to the offense as "rape," the former statutory name for the offense charged. We do not find that this, however, is the basis for appellant's complaint on appeal. Appellant cites cases holding improper state argument asking the jury to assess punishment for independent, extraneous, or collateral offenses reflected by the record in addition to any punishment to be assessed for the offense alleged in the indictment. Lomas v. State, 707 S.W.2d 566, 569-70 (Tex. Crim. App. 1986); Brown v. State, 530 S.W.2d 118, 119 (Tex. Crim. App. 1975); Klueppel v. State, 505 S.W.2d 572, 574 (Tex. Crim. App. 1974). These cases are inapposite to the facts of the instant case. The prosecutor urged punishment only for the offense charged based on injuries inflicted during the course of the one offense.(4) Point of error four is overruled. The judgment is affirmed. John F. Onion, Jr., Justice Before Justices Kidd, Yeakel, and Onion* Affirmed Filed: November 16, 2000 Publish * Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998). 1. See also Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992); Gardner v. State, 730 S.W.2d 675, 695-97 (Tex. Crim. App. 1987). 2. The complainant testified that after the assault in question one of appellant's sons observed her bruises and stated to appellant: "You hurt mama again." Kathy Moritz, a social worker to whom appellant and the complainant went for counseling after their March 1998 separation, testified without objection: "The separation was due to a physical violation altercation that occurred between them." 3. See Tex. R. Evid. 607 (Who May Impeach). 4. Further, Lomas, Brown, and Klueppel were all decided prior to the 1993 amendment to article 37.07, section 3(a). See Tex. Code Crim. Proc. Ann. art. 37.07 & 3(a) (West Supp. 2000). Under this statute, evidence deemed relevant to punishment by the trial court may be admitted at the penalty stage of the trial, including unadjudicated extraneous offenses or bad acts if it is shown that the defendant committed the same beyond a reasonable doubt. If these requirement are met, the fact finder may use the evidence in assessing punishment. Fields v. State, 1 S.W.3d 687, 688 (Tex. Crim. App. 1999). Thus, a prosecutor may make reference to properly admitted evidence in his jury argument. Arthur v. State, 11 S.W.3d 386, 393 (Tex. App.--Houston [14th Dist] 2000, pet. ref'd). r1"> Mr. Scharmen: Objection, your Honor. That's an improper argument. He's on trial for one offense only, not for multiple offense's [sic]. The Court: It is noted that he is charged with and has been convicted of rape and nothing else. The point is well taken. Proceed. Mr. Scharmen: I would ask the

67 F.3d 1515 43 Fed. R. Evid. Serv. 140 UNITED STATES of America, Plaintiff-Appellee,v.Lupe GOMEZ, Defendant-Appellant. No. 94-4049. United States Court of Appeals,Tenth Circuit. Oct. 10, 1995. Jill M. Wichlens, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the briefs), Denver, Colorado, for Defendant-Appellant. Gregory C. Diamond, Assistant United States Attorney (Scott M. Matheson, Jr., United States Attorney, with him on the briefs), Salt Lake City, Utah, for Plaintiff-Appellee. Before ANDERSON, McKAY and BRORBY, Circuit Judges. STEPHEN H. ANDERSON, Circuit Judge. 1 Lupe Gomez appeals his conviction for distribution of cocaine, see 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2, raising five issues. Mr. Gomez claims that (1) he was denied his right to a speedy trial under the Speedy Trial Act and the Sixth Amendment; (2) the district court improperly admitted evidence obtained in the course of a court-ordered wiretap; (3) the district court erred in admitting the testimony of a government interpreter who had assisted in the transcription of the audiotapes obtained during the wiretap; (4) the district court erred in allowing the government to use transcripts of the tape-recorded conversations during its case in chief; and (5) the district court impermissibly answered questions from the jury when the defendant and defense counsel were not present.1 We address each of these issues in turn and, for the reasons set forth below, affirm the conviction. BACKGROUND 2 In early 1992, the Weber-Morgan Narcotics Strike Force began an investigation of Rogelio "Roy" Salinas, who was suspected of trafficking in marijuana. This investigation involved a number of law enforcement agencies in and around the Ogden, Utah, area. As part of the investigation, an undercover officer, Weber County Sheriff's Deputy Douglas Coleman, began negotiating the purchase of a large quantity of marijuana from Salinas. Additionally, pursuant to Utah Code Ann. Sec. 77-23a-10 (1990), the strike force obtained authorization for a wiretap on the telephone of the home where Salinas was living at the time. 3 As the investigation progressed, the focus shifted away from marijuana and toward Salinas' activities involving cocaine. Information gleaned pursuant to the wiretap revealed that Salinas had a source for cocaine in Ogden, known as "Bird" or "Bert" or "Burt."2 4 On February 24, 1992, Salinas called a pager number and was called shortly thereafter by a male who was identified at trial as "Bird." Bird reported to Salinas that he was calling from Layton, Utah, that he was on his way, and that he had "it." R.Supp. Vol. X, Ex. 4. Salinas shortly thereafter paged Deputy Coleman, indicating that his source would be there soon, and the two arranged for the drug transaction to take place at a convenience store in Ogden. 5 Surveillance officers observed an individual, later identified as Mr. Gomez, approach Salinas's home, speak with Salinas as the two leaned over the bed of a pickup truck, and depart shortly thereafter. An officer conducting surveillance at the time testified that it appeared to be a delivery of cocaine. R.Vol. III at 82.3 6 Salinas then made a series of telephone calls to the undercover agent, Deputy Coleman, and drove to the prearranged location for the delivery.4 When Salinas verified that Deputy Coleman was at the prearranged location, he returned to his house, reached into the back of the pickup at the point where he previously had been speaking with Mr. Gomez, and retrieved something. R.Vol. III at 39. Salinas returned to the delivery location with a kilogram of cocaine at which point he was arrested. Approximately ten minutes later, Mr. Gomez again drove past the Salinas residence at which point officers gave pursuit and arrested him.5 7 Mr. Gomez was charged in a federal complaint on March 11, 1992, and he was brought before a magistrate judge on March 19, 1992. A federal information was filed on March 30, a federal indictment charging him with distribution of cocaine was returned on April 4, and he was arraigned on April 17, 1992. 8 Following a number of continuances, Mr. Gomez was tried April 5-6, 1993, and convicted. He moved for a new trial on the basis that the wiretap evidence came to light only "a few days before trial." R.Vol. I, Docs. 56, 57. The government joined Mr. Gomez in a stipulation for a new trial. The stipulation specifically stated that "a new trial should be granted in order to allow the defense sufficient time to review the evidence and documentation regarding the wiretap." R.Vol. I, Doc. 60. 9 The case was retried November 22-24, 1993, and Mr. Gomez was again convicted. This appeal followed. DISCUSSION I. SPEEDY TRIAL 10 Mr. Gomez first claims that he was denied his statutory and constitutional right to a speedy trial, in violation of the Speedy Trial Act, 18 U.S.C. Sec. 3162, and the Sixth Amendment. We review constitutional violations and the district court's compliance with the requirements of the Speedy Trial Act de novo, United States v. Dirden, 38 F.3d 1131, 1135 (10th Cir.1994); United States v. Davis, 1 F.3d 1014, 1017-18 (10th Cir.1993), accepting the court's factual findings unless clearly erroneous. United States v. Pasquale, 25 F.3d 948, 950 (10th Cir.1994). 1. Speedy Trial Act 11 The Speedy Trial Act requires that the trial of a criminal defendant commence within seventy days of the filing of the indictment, or from the date that the defendant first appears before a judicial officer, whichever is later. 18 U.S.C. Sec. 3161(c)(1). The remedy for a violation of the Act is dismissal of the indictment. Id. Sec. 3162(a)(2). However, the statute is not self-executing. It places on the defendant the burden of asserting a violation of the statute, explicitly providing that the "[f]ailure of the defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to dismissal under this section." Id. (emphasis added); see United States v. McKinnell, 888 F.2d 669, 676 (10th Cir.1989) (holding that even if defendant had been "entitled to relief under section 3161(a)(2) [sic], he waived his rights to that relief by his failure to move for dismissal prior to trial"); see also United States v. Alvarez, 860 F.2d 801, 821 (7th Cir.1988) (citing cases), cert. denied, 490 U.S. 1051, 109 S.Ct. 1966, 104 L.Ed.2d 434 (1989). 12 Mr. Gomez does not dispute that he failed to raise his Speedy Trial Act claim prior to trial. Thus, the plain language of the statute itself dictates that he has waived any right that he may have had to dismissal of the indictment under section 3162(a)(2). See McKinnell, 888 F.2d at 676. Mr. Gomez argues, however, that notwithstanding his failure to comply with the Act, we must reverse his conviction for plain error. We disagree. 13 The decision to correct a plain error is within the "sound discretion of the Court of Appeals, and the court should not exercise that discretion unless the error 'seriously affects the fairness, integrity or public reputation of judicial proceedings.' " United States v. Olano, 507 U.S. 725, ----, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993) (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985)); Fed.R.Crim.P. 52(b); United States v. Overstreet, 40 F.3d 1090, 1092 (10th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1970, 131 L.Ed.2d 859 (1995). Rule 52(b) grants an appellate court the authority to correct "an 'error' that is 'plain' and that 'affects substantial rights' " Olano, 507 U.S. at ----, 113 S.Ct. at 1776; United States v. Smith, 24 F.3d 1230, 1233 (10th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 270, 130 L.Ed.2d 188 (1994). However, as a prerequisite to plain error review under Rule 52(b), a court must first find that an "error" indeed has been committed. 14 "Deviation from a legal rule is 'error' unless the rule has been waived." Olano, 507 U.S. at ----, 113 S.Ct. at 1777. The obvious corollary to this statement is that "if there has been a valid waiver, there is no 'error' for us to correct." United States v. Lakich, 23 F.3d 1203, 1207 (7th Cir.1994). Waiver is defined as "an intentional relinquishment or abandonment of a known right." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). And while the mere failure to timely assert a constitutional right does not constitute a waiver of that right, id. at 468, 58 S.Ct. at 1024-25; see United States v. Wade, 388 U.S. 218, 237, 87 S.Ct. 1926, 1937-38, 18 L.Ed.2d 1149 (1967); Miranda v. Arizona, 384 U.S. 436, 470, 86 S.Ct. 1602, 1625-26, 16 L.Ed.2d 694 (1966), a waiver of a statutory right may be valid even if it is not knowingly made. See United States v. Robinson, 8 F.3d 418, 421 (7th Cir.1993). The Supreme Court has stated that "[w]hether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant's choice must be particularly informed or voluntary, all depend on the right at stake." Olano, 507 U.S. at ----, 113 S.Ct. at 1777. 15 The "right at stake" in this case is a statutory right--created by Congress to benefit both the criminal defendant who awaits trial and the public who expect "speedy justice." United States v. Saltzman, 984 F.2d 1087, 1091 (10th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2940, 124 L.Ed.2d 689 (1993). However, just as the Act provides a remedy for violation of its speedy trial mandate, so too it unequivocally provides that the failure of a defendant to move for dismissal prior to trial constitutes a waiver of any right to that remedy. Congress has not included a requirement in the Act that the defendant's waiver be made knowingly and intelligently. Thus, by the clear terms of the statute itself, the defendant's failure to timely assert his right by filing a motion to dismiss the indictment prior to trial does indeed constitute a waiver of that right.6 16 In this case, Mr. Gomez failed to comply with the terms of the Speedy Trial Act requiring him to move for dismissal prior to trial. He has, therefore, waived his right to that remedy. As such, there was no error committed, and therefore nothing for us to review under Rule 52(b).72. Sixth Amendment Right to a Speedy Trial 17 Mr. Gomez next argues that he has been denied the right to a speedy trial guaranteed him by the Sixth Amendment. This issue was not raised below. Unlike the statutory right to a speedy trial, a mere failure to assert the constitutional right does not constitute waiver. Thus, we review this claim for plain error. Olano, 507 U.S. ---- - ----, 113 S.Ct. at 1776-77; Fed.R.Crim.P. 52(b). To constitute plain error, the district court's mistake must have been both obvious and substantial. United States v. Meek, 998 F.2d 776, 779 (10th Cir.1993). 18 Determining whether a defendant's Sixth Amendment right to a speedy trial has been violated requires a careful balancing of the four factors enunciated by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The factors are: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) whether the delay prejudiced the defendant. Id. at 530, 92 S.Ct. at 2192; see United States v. Dirden, 38 F.3d 1131, 1137-39 (10th Cir.1994); United States v. Occhipinti, 998 F.2d 791, 798 (10th Cir.1993); United States v. Tranakos, 911 F.2d 1422, 1427 (10th Cir.1990). "None of these factors, taken by itself, is 'either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant.' " United States v. Kalady, 941 F.2d 1090, 1095 (10th Cir.1991) (quoting Barker, 407 U.S. at 533, 92 S.Ct. at 2193). 19 The length of delay is a threshold factor. Only if the delay is presumptively prejudicial need we inquire into the remaining Barker factors. Dirden, 38 F.3d at 1137. "[I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment." United States v. Marion, 404 U.S. 307, 321, 92 S.Ct. 455, 464, 30 L.Ed.2d 468 (1971); see United States v. MacDonald, 456 U.S. 1, 6-7, 102 S.Ct. 1497, 1501, 71 L.Ed.2d 696 (1981). "Arrest," however, means federal arrest. Arrest by state authorities on state charges does not trigger the speedy trial provisions of the Federal Constitution. United States v. Allen, 986 F.2d 1354, 1356 (10th Cir.1993). 20 In this case, Mr. Gomez was arrested on federal charges on March 16, 1992, and he ultimately was brought to trial on April 5, 1993. Thus, there was a twelve and one-half month delay between his federal arrest and his trial. While we have observed that there is no "bright line beyond which pretrial delay will trigger a Barker analysis," id., we are also cognizant of the Supreme Court's observation in Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), that "[d]epending on the nature of the charges, the lower courts have generally found postaccusation delay 'presumptively prejudicial' at least as it approaches one year," id. at 652 n. 1, 112 S.Ct. at 2691 n. 1. While a longer delay is tolerable for more complex cases such as conspiracy, see Barker, 407 U.S. at 531, 92 S.Ct. at 2192, in this case there was only one defendant; there was but a single count charged; and the drug trafficking prosecution was fairly straightforward. Thus, while we do not find the delay in this case especially egregious, cf. Tranakos, 911 F.2d at 1427 (six-year delay), we nevertheless believe that the delay, in excess of one year, triggers consideration of the other Barker factors. 21 The second Barker factor is the reason for the delay. The reasons set forth by the government for the delay are as follows: (1) the government requested a continuance, to which Mr. Gomez did not object, so that it could have time to prepare for trial; (2) the government requested a continuance, to which Mr. Gomez did not object, in the interest of continuity of counsel; (3) the government requested a continuance in the interest of obtaining the testimony of a witness, Roy Salinas; and (4) the district court continued the case sua sponte because another trial ran longer than expected. Appellee's Br. at 19-20; see Appellant's Br. at 29. 22 The weight given to each delay varies with its cause. 23 A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay. 24 Barker, 407 U.S. at 531, 92 S.Ct. at 2192; Dirden, 38 F.3d at 1138. 25 As the Supreme Court has observed, the defendant's assertion of his right to a speedy trial "is closely related to the other factors." Barker, 407 U.S. at 531, 92 S.Ct. at 2192. In this case, Mr. Gomez never objected to the continuances which the government sought for preparation purposes and for substitution of counsel. Furthermore, there is no evidence before us that the government sought the continuances in order to gain a tactical advantage. See United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 466, 30 L.Ed.2d 468 (1971); Perez v. Sullivan, 793 F.2d 249, 255 (10th Cir.), cert. denied, 479 U.S. 936, 107 S.Ct. 413, 93 L.Ed.2d 364 (1986). Thus, while the delay attributable to trial preparation and substitution of counsel weighs against the government, it is not substantial. 26 Regarding the delay due to the district court's scheduling conflict, as we stated in Dirden, "[a]lthough delay attributable to an overburdened [judge] weighs less heavily than an intentional delay on the part of the government attorney, the delay 'nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.' " Dirden, 38 F.3d at 1138 (quoting Barker, 407 U.S. at 531, 92 S.Ct. at 2192). Thus, this delay weighs slightly against the government.8 27 As to the final reason for the delay--the unavailability of a witness--Mr. Gomez has directed us to nothing in the record which would dictate that this "valid reason," see Barker, 407 U.S. at 531, 92 S.Ct. at 2192, should weigh against the government at all. In short, while we find the reasons for the twelve and one-half month delay less than fully justified, we by no means find them to weigh heavily against the government. 28 The third Barker factor is the defendant's assertion of his right to a speedy trial. As Mr. Gomez candidly admits, this factor weighs against him because he never asserted his right to a speedy trial. This is precisely the type of case to which the Supreme Court referred when it stated that the "failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Barker, 407 U.S. at 532, 92 S.Ct. at 2193. This factor weighs heavily against Mr. Gomez. 29 The final Barker factor, the actual prejudice suffered by the defendant, also weighs heavily against Mr. Gomez. We analyze prejudice to the defendant in terms of three interests: preventing oppressive pretrial incarceration; minimizing concern and anxiety to the defendant; and limiting the possibility that the defense will be impaired. Dirden, 38 F.3d at 1138; Kalady, 941 F.2d at 1095. Of these, Mr. Gomez acknowledges that only the last is at issue in this case. 30 Mr. Gomez claims that he suffered actual prejudice at his second trial because Chrisni Sanchez was unavailable to testify due to pregnancy. Ms. Sanchez had testified at the first trial and her transcribed testimony was read to the jury at the second trial.9 31 This argument fails for two reasons. First, as we stated in Tranakos, "[p]rejudice occurs only when 'defense witnesses are unable to recall accurately the events of the distant past.' " Tranakos, 911 F.2d at 1429 (quoting Barker, 407 U.S. at 532, 92 S.Ct. at 2193) (emphasis in original). Ms. Sanchez's transcribed testimony was introduced in the second trial by the prosecution, not the defense, and Mr. Gomez has directed us to nothing in the record suggesting that, but for the delay, he would have called her as a defense witness in the second trial. 32 Moreover, Mr. Gomez does not claim that Ms. Sanchez would have testified any differently at the second trial than she did at the first trial. Indeed, his argument essentially is that he has been denied the benefit that the emotional impact of Ms. Sanchez's testimony would have had on the jury: "Clearly the reading of a transcript does not have the impact of live testimony." Appellant's Br. at 32. Mr. Gomez fails to recognize, however, that the constitutional guarantee of the right to present evidence does not embody a right to make an emotional impact on the jury. Ms. Sanchez's testimony was properly before the jury and Mr. Gomez has suffered no prejudice. Cf. Mancusi v. Stubbs, 408 U.S. 204, 215-16, 92 S.Ct. 2308, 2314-15, 33 L.Ed.2d 293 (1972). 33 In conclusion, the Supreme Court has observed that the determination of whether a delay in any given case violates the Sixth Amendment must be evaluated on an ad hoc basis. Barker, 407 U.S. at 530, 92 S.Ct. at 2192. In this case, considering the length of the delay, the reasons articulated by the government for the delay, Mr. Gomez's failure to assert his right to a speedy trial, and his failure to demonstrate how the delay prejudiced his defense, we hold that although the twelve and one-half month delay, while certainly lengthy, does not rise to the level of a constitutional violation.10 II. ADMISSION OF WIRETAP EVIDENCE 34 Mr. Gomez next claims that the district court erred in admitting evidence of the conversations recorded pursuant to the wiretap on Roy Salinas's telephone line. He claims that because the government failed to comply with the sealing requirement of 18 U.S.C. Sec. 2518(8)(a), the phone conversations should have been suppressed. 35 Section 2518(8)(a) of Title 18 provides that 36 [t]he recording of the contents of any wire ... communication ... shall be done in such a way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions.... The presence of a seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire ... communication or evidence derived therefrom under subsection (3) of section 2517.11 37 By its clear language, Section 2518(8)(a) requires, as a prerequisite to the admissibility of a recording, that one of two criteria be satisfied: either the recording must have been properly placed under seal, or the government must provide a "satisfactory explanation" for its failure to comply with the sealing requirement. See United States v. Ojeda Rios, 495 U.S. 257, 263, 110 S.Ct. 1845, 1849, 109 L.Ed.2d 224 (1990). The sanction for the government's failure to comply with the statute, by the plain language of the statute itself, is suppression of the recording and evidence derived therefrom. 38 In this case, the government claims that the record reflects "ample evidence to create the presumption that the sealing requirement was met." Appellee's Br. at 25. In support, the government has attached the affidavit of Lieutenant Steven R. Turner, commander of the Weber-Morgan Narcotics Strike Force, which states that the recordings were "sealed in a box" and placed in the Ogden City Police Department evidence room. Appellee's Br. app. 2 at 1. We find the government's contention disingenuous and contrary to law. 39 First, the "seal" to which the government affiant refers is a not the equivalent of sealing under court order. The order authorizing the wiretap in this case specifically required that "[i]mmediately upon the expiration of this Order, or extensions thereof, such recording shall be made available to the Court issuing this order and shall be sealed under the Court's direction. The custody of such recordings shall be where the Court orders, and maintained in accordance with the law." Appellee's Br. app. 1 at 6. This language is consistent with the Utah Interception of Communications Act, under which the wiretap was authorized, see Utah Code Ann. Sec. 77-23a-10 (1995), as well as the federal statute currently at issue, 18 U.S.C. Sec. 2518(8)(a). There is nothing in the record which suggests that the recordings were made available to the state court judge or that the recordings were ever sealed under the court's direction. Simply put, sealing several cassette tapes in an evidence bag in the police department's evidence room does not satisfy the sealing requirements of 18 U.S.C. Sec. 2518(8)(a) or the specific order issued in this case. See United States v. Quintero, 38 F.3d 1317, 1329 (3d Cir.1994) (setting forth mechanism for sealing), cert. denied, --- U.S. ----, 115 S.Ct. 1263, 131 L.Ed.2d 142 (1995). Moreover, the government's argument runs completely counter to the purpose of sealing, which is to ensure that "subsequent to its placement on a tape, the Government has no opportunity to tamper with, alter, or edit the conversations that have been recorded." Ojeda Rios, 495 U.S. at 263, 110 S.Ct. at 1849. The record does not reflect that the state court ordered custody of the tapes to be maintained in the police evidence room. Thus, the government appears to have had ample opportunity to access the tapes for any purpose. 40 In this case, the government failed to comply with the sealing requirement of 18 U.S.C. Sec. 2518(8)(a). However, our inquiry does not end here. Mr. Gomez failed to raise this issue below: he did not move prior to trial for the suppression of the recordings or transcripts, nor did he object to the admission of them into evidence at trial. Generally, the failure to object to the admissibility of evidence is a waiver absent plain error. United States v. Jones, 44 F.3d 860, 875 (10th Cir.1995). Therefore, we must determine whether the admission of this evidence constitutes plain error. Fed.R.Crim.P. 52(b); United States v. Overstreet, 40 F.3d 1090, 1092 (10th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1970, 131 L.Ed.2d 859 (1995). 41 Plain error review under Rule 52(b) is permissive, not mandatory. "The Court of Appeals should correct a plain forfeited error affecting substantial rights if the error 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' " Olano, 507 U.S. at ----, 113 S.Ct. at 1779 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)). As previously noted, to constitute plain error, the district court's error must have been both obvious and substantial. As to the latter, we have stated that "[t]he substantiality requirement of the plain error rule embodies a requirement that the defendant prove prejudice attributable to the error." United States v. Williamson, 53 F.3d 1500, 1521 (10th Cir.1995) (internal quotations omitted), cert. denied, --- U.S. ----, 116 S.Ct. 218, --- L.Ed.2d ---- (1995) (no. 95-5197); see Olano, 507 U.S. at ----, 113 S.Ct. at 1778. The district court did not commit plain error in this case because the "error," if any, was neither obvious nor prejudicial. 42 The order authorizing the wiretap was issued by a state judge pursuant to state law. At his federal trial, however, Mr. Gomez did not move to suppress the tapes or the transcripts nor did defense counsel object at trial when the government attorney introduced them. R.Vol. II at 120-22. Thus, the federal district judge presiding over the proceedings below had no way of knowing that the government had not complied with the sealing requirement of the wiretap order issued by the state judge or the federal wiretap statute, 18 U.S.C. Sec. 2518(8)(a). To the extent that admission of the tapes was erroneous, therefore, the error was neither "obvious" nor "clear." Olano, 507 U.S. at ----, 113 S.Ct. at 1777; United States v. Young, 470 U.S. 1, 17 n. 14, 105 S.Ct. 1038, 1047 n. 14, 84 L.Ed.2d 1 (1985). The error, if any, simply was not "plain." 43 Furthermore, Mr. Gomez has not demonstrated that the admission of the tapes was an error "affecting substantial rights." Fed.R.Crim.P. 52(b). In a case such as this, involving the government's failure to comply with the technical requirements of a statute, a defendant must make a specific showing of prejudice to satisfy the "affecting substantial rights" prong of Rule 52(b). Williamson, 53 F.3d at 1521; see Olano, 507 U.S. at ----, 113 S.Ct. at 1778. Mr. Gomez claims that he has suffered prejudice because the tapes were "critical to the government's case." Appellant's Br. at 36. However, he has not alleged that the government tampered with the tapes or that the recordings are otherwise inaccurate. Nor has he demonstrated exactly how the tapes were of such paramount importance to the government. In short, he simply asserts that because the government failed to seal the tapes, the evidence should have been suppressed, and had the evidence been suppressed, he would not have been convicted. Thus, Mr. Gomez claims, the "prejudice" which he has suffered is the conviction itself. 44 Mr. Gomez misinterprets the focus of our prejudice analysis in the context of plain-error review. Our analysis centers not on the outcome of the trial--conviction or acquittal--but rather on the fairness and integrity of the proceedings themselves. Therefore, we ask simply whether the error, if any, "seriously affect[ed] the fairness, integrity, or public reputation of the judicial proceedings." United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936); see Olano, 507 U.S. at ----, 113 S.Ct. at 1779. Regardless of whether the tape recordings were "critical" to the government's case, Mr. Gomez has not directed us to anything in the record suggesting that the tapes were edited or tampered with in any way, that they were inaccurate, or that the proceeding itself was in any way rendered unfair by the government's failure to comply with the sealing requirement. Thus, we do not believe that the district court's failure to suppress the tapes affected the fairness, integrity, or public reputation of his trial. Accordingly, we hold that there was no plain error and the conviction should not be reversed on this ground. 45 III. ADMISSION OF "EXPERT" TRANSLATION TESTIMONY 46 Mr. Gomez next contends that the district court erred in allowing Dennis Nordfelt to testify as an "expert" witness in Spanish/English translation. Mr. Nordfelt was a college student working part time for the Weber/Morgan Narcotics Strike Force during the investigation in this case and he assisted in translating the recorded conversations, portions of which were in Spanish. At trial, the government called Mr. Nordfelt as a witness through whom the transcribed conversations were admitted into evidence. He was neither offered by the government as an expert nor was he certified by the court as an expert in Spanish language. 47 Assuming that Mr. Nordfelt's testimony could properly be cast as that of an expert, Mr. Gomez did not object at trial to the admission of the expert testimony and, therefore, the issue is not properly before this court. See United States v. Lira-Arredondo, 38 F.3d 531, 533 n. 2 (10th Cir.1994). While we could review for plain error, see United States v. Markum, 4 F.3d 891, 896 (10th Cir.1993), we decline to do so here because the argument is so lacking in merit. See Olano, 507 U.S. at ----, 113 S.Ct. at 1778 ("Rule 52(b) is permissive, not mandatory."). 48 The district court's acceptance of an expert's qualifications will be disturbed only for a clear abuse of discretion, United States v. Davis, 40 F.3d 1069, 1075 (10th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1387, 131 L.Ed.2d 239 (1995), and the court's discretion in determining the competency of an expert is broad. Markum, 4 F.3d at 896 (citing Quinton v. Farmland Indus., 928 F.2d 335, 336 (10th Cir.1991)). 49 Prior to trial, Mr. Nordfelt received a degree with a minor in Spanish from Weber State University. Additionally, he served a 23-month religious mission in South America where he developed his comprehension of the Spanish language. The trial court clearly could have found Mr. Nordfelt's qualifications sufficient to satisfy the liberal standard under Fed.R.Evid. 702 regarding expert qualifications, see Daubert v. Merrell Dow Pharmaceuticals, Inc., --- U.S. ----, ----, 113 S.Ct. 2786, 2794, 125 L.Ed.2d 469 (1993) (noting "liberal thrust" of Federal Rules of Evidence), and admission of such testimony would not constitute an abuse of discretion. See United States v. Brown, 540 F.2d 1048, 1053-54 (10th Cir.1976), cert. denied, 429 U.S. 1100, 97 S.Ct. 1122, 51 L.Ed.2d 549 (1977); see also Fed.R.Evid. 604 (interpreter as witness subject to qualification as expert). Finding no error, plain error review is not warranted. Olano, 507 U.S. at ----, 113 S.Ct. at 1777. IV. ADMISSION OF TRANSCRIPTS 50 Mr. Gomez next argues that the district court erred in admitting transcripts of the recorded conversations. He first argues that the government laid insufficient foundation for the admission of the transcripts. He next objects to the government's use of the word "Bird" to identify one of the parties (putatively Mr. Gomez) in the transcripts.12 And, he finally appears to raise a best evidence claim, arguing that the jury was never informed that the "primary evidence was the tape itself not the transcripts; and they were never informed that, should they detect a discrepancy between the tape and the transcripts, the tape should control." Appellant's Br. at 49. 51 Mr. Gomez raises this issue for the first time on appeal.13 He did not file a motion in limine to suppress the transcripts; he did not object to their admission at trial; he elected not to voir dire the witnesses offered by the government to authenticate the transcripts; he did not object to the prosecution's use of the transcripts as visual aids to the jury as the audio tape was being played; and he did not request a jury instruction directing the jury that the audio tapes were to control in the event that there were a discrepancy between them and the transcript. The failure of the defendant to object to the admission of evidence is a waiver absent plain error. United States v. Jones, 44 F.3d 860, 875 (10th Cir.1995). 52 The admission of transcripts to assist the trier of fact lies within the discretion of the trial court. United States v. Mayes, 917 F.2d 457, 462 (10th Cir.1990), cert. denied, 498 U.S. 1125, 111 S.Ct. 1087, 112 L.Ed.2d 1192 (1991); United States v. Mittleider, 835 F.2d 769, 773 (10th Cir.1987), cert. denied, 485 U.S. 980, 108 S.Ct. 1279, 99 L.Ed.2d 490 (1988); United States v. Devous, 764 F.2d 1349, 1354 (10th Cir.1985); United States v. Watson, 594 F.2d 1330, 1336 (10th Cir.), cert. denied, 444 U.S. 840, 100 S.Ct. 78, 62 L.Ed.2d 51 (1979). In light of this clear circuit precedent, we find Mr. Gomez's argument on this point wholly without merit.14 See also United States v. Green, 40 F.3d 1167, 1173 (11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1809, 131 L.Ed.2d 733 (1995); United States v. Scarborough, 43 F.3d 1021, 1024-25 (6th Cir.1994); United States v. Crowder, 36 F.3d 691, 697 (7th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1146, 130 L.Ed.2d 1105 (1995); United States v. Durman, 30 F.3d 803, 811 (7th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 921, 130 L.Ed.2d 801 (1995).15 The record clearly reflects that the district court did not abuse its discretion in admitting the transcripts and, therefore, committed no error. Finding no error, we need inquire no further. Olano, 507 U.S. ----, 113 S.Ct. at 1777. 53 V. THE DISTRICT COURT'S ANSWERING OF JURY'S QUESTIONS 54 Mr. Gomez's final allegation of error is that the district court improperly answered questions from the jury during deliberations while neither he nor his counsel were present. After the jury began its deliberations, it sent the following note to the judge: 55 1. Cocaine brick--was it in a brown paper bag @ time of drug deal. 2. Information on truck bed 3. Would wife testify for Lupe Gomez 4. Layton Judges Instructions More Juice 56 R.Supp. Vol. XI at 3; Appellant's Supp.Br. attach. A. 57 Upon receiving the note, the district judge appeared in open court. The Assistant United States attorney was present, but neither Mr. Gomez nor his counsel were present.16 The court stated that it had advised defense counsel 58 he could leave today, but I impressed upon him the importance of having a substitute attorney in the event we got some questions, and we've got some pretty important questions.... But I'm not going to delay the jury in getting the answers to these questions, and I find that the defendant through his attorney has waived the right to be present here in connection with answering these questions. 59 R.Supp. Vol. XIII at 2. The district court then discussed the questions with the Assistant United States Attorney on the record, and formulated the following handwritten response, which the court then sent in to the jury: Dear Jurors: 60 This is in response to your questions using your same numbers: 61 1. It was not in the same brown paper bag at the time of the transaction. 62 2. As to the truck bed, I must ask you to base your decision on the evidence already presented to you on this subject at trial. The rules do not permit additional evidence at this time. 63 3. The same rule as stated in # 2 above applies here. Please do not consider whether the wife would or would not testify. Please base your verdict on the evidence and the law presented at trial. 64 4. I am sorry but I don't understand what you are asking on this question # 4 or your reference to "Judges Instructions." Please clarify if you wish further information. David K. Winder 65 P.S. Please return these to the clerk at end of your deliberations. 66 R.Supp. Vol. XI at 1-2. 67 "[A] defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 2667, 96 L.Ed.2d 631 (1987).17 This right is further protected by Fed.R.Crim.P. 43(a) which requires the presence of the defendant "at every stage of the trial." See Rogers v. United States, 422 U.S. 35, 39, 95 S.Ct. 2091, 2094-95, 45 L.Ed.2d 1 (1975); United States v. Carter, 973 F.2d 1509, 1515 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1289, 122 L.Ed.2d 681 (1993). Whether a defendant has a constitutional right to be present at a particular stage of his or her trial--that is, whether the stage is critical and fairness requires the defendant to be present--is a legal question which we review de novo. United States v. Oles, 994 F.2d 1519, 1525 (10th Cir.1993); United States v. Santiago, 977 F.2d 517, 521 (10th Cir.1992). 68 We previously have held that "[a] question from the jury must be answered in open court and only after providing counsel an opportunity to be heard." Carter, 973 F.2d at 1515. The interaction between the court and counsel in formulating an answer to the question is somewhat akin to the jury instruction conference, where the defendant's personal input will generally be minimal at best. See Larson v. Tansy, 911 F.2d 392, 395 (10th Cir.1990) (typically, jury instruction conference attended only by court and counsel); cf. Rogers, 422 U.S. at 39, 95 S.Ct. at 2094-95 (jury question tantamount to request for further jury instructions). Nevertheless, we have held that a defendant has a right to be present when the court responds to a jury question. See Carter, 973 F.2d at 1515; United States v. de Hernandez, 745 F.2d 1305, 1310 (10th Cir.1984). In this case, the district court formulated its answers to the jury's questions while on the record in open court, but neither the defendant himself nor defense counsel were present. 69 The experienced trial judge correctly recognized that a defendant may waive the constitutional right to be present during trial. See Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934) ("No doubt the privilege [to be present] may be lost by consent...."); Tansy, 911 F.2d at 396-97. "However, we indulge every reasonable presumption against waiver of fundamental constitutional rights" such as due process. Tansy, 911 F.2d at 396; Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 1060, 25 L.Ed.2d 353 (1970); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); see Campbell v. Wood, 18 F.3d 662, 672 (9th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 2125, 128 L.Ed.2d 682 (1994). In Tansy we recognized that even if defense counsel could waive defendant's right to be present--a question we need not decide today--defense counsel could not do so without first consulting defendant about the waiver and obtaining defendant's consent. Tansy, 911 F.2d at 396 n. 2. There is no such showing in the instant case. Thus, we cannot agree that the defendant waived his right to be present. Because defendant was not in fact present, Rule 43 was violated and constitutional error occurred, according to the law of this circuit. See Carter, 973 F.2d at 1515. 70 A finding of error, however, does not end our inquiry. A deprivation of the constitutional right to be present at every critical stage of the trial is still subject to harmless error analysis. See Rogers, 422 U.S. at 40, 95 S.Ct. at 2095; United States v. Schor, 418 F.2d 26, 30 (2d Cir.1969); cf. Carter, 973 F.2d at 1515-16. Because we are reviewing a constitutional violation, not simply a violation of Rule 43(a), we apply the harmless-error standard enunciated by the Court in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1966). We may uphold the conviction only if the error was "harmless beyond a reasonable doubt." Id. at 24, 87 S.Ct. at 828; see United States v. Widgery, 778 F.2d 325, 329-30 (7th Cir.1985); Krische v. Smith, 662 F.2d 177, 178-79 (2d Cir.1981); see also Tuttle v. Utah, 57 F.3d 879, 881 n. 3 (10th Cir.1995); cf. Fed.R.Crim.P. 52(a). 71 We are convinced that the court's error was harmless. As to the first question, regarding whether the cocaine were in a brown paper bag at the time of the transaction, the following exchange took place between the Assistant United States Attorney and Deputy Coleman, the undercover officer involved in the arrest of Mr. Gomez: 72 Q (Mr. Diamond) Okay. Officer, I'm going to hand you a brown paper bag and ask you to open that. First of all, how is it sealed? 73 A (Deputy Coleman) How is the bag sealed? 74 Q Yes. 75 A It's stapled with three staples. 76 Q Are you able to just pull the top and undo those staples and open the back? 77 A Oh, yeah. 78 Q Would you do that for us? If it would help I have some scissors here, Officer Coleman. Now, what have you removed from that bag, officer? 79 A This is the brick of cocaine that Roy [Salinas] handed me in his car. 80 Q Now, is there a yellow tag of any kind on that? 81 A Yeah. It says plaintiff's exhibit number 1. 82 Mr. Diamond: Your honor I would submit this as proposed exhibit number 1 at this time. I'm not ready to move its admission however. 83 The Court: All right. 84 Q (Mr. Diamond) You've indicated that that was the brick that you were given that night by Mr. Salinas. How do you recognize that, officer? 85 A (Deputy Coleman) I recognize it from the tape. This is the tape I was indicating earlier that was--there's a duct tape and there's masking tape, and there's the plastic wrap that's underneath that. 86 And this is--he did not hand it to me in this plastic sack. This is ours. I got the brick as it is inside the bag. And this is how I recognize it. This is how it was handed to me.... 87 R.Vol. II at 45-46 (emphasis added). 88 While it is true that as a general principle the jury--guided by the court's instructions--is to act as the sole fact finder, we do not believe that, in this case, the district court's answering of the question prejudiced Mr. Gomez in any way. He does not claim that the court's answer was factually inaccurate, he simply claims that he should have had input into the answer. We fail to see, however, what Mr. Gomez or his counsel could have added to the court's answer. 89 Mr. Gomez cites two cases from the First Circuit, United States v. Argentine, 814 F.2d 783, 786-90 (1st Cir.1987), and United States v. Hyson, 721 F.2d 856, 865 (1st Cir.1983), for the proposition that the district court may not furnish a substantive response to the jury's request for factual information. Appellant's Supp.Br. at 8. We are unpersuaded. 90 The district court in Argentine had to draw inferences from testimony in order to answer a question from the jury which directly related to an element of the crime charged. Argentine, 814 F.2d at 786-87. Whether the cocaine involved in this case was or was not in a brown sack at the time of the transaction, however, has nothing to do with the elements of the crime of distribution, see 18 U.S.C. Sec. 2; 21 U.S.C. Sec. 841(a)(1), and the court clearly did not have to draw any inferences from the testimony in order to provide an answer. Deputy Coleman's testimony was precise: "he did not hand it to me in this plastic sack. This is ours." R.Vol. II at 46. 91 Hyson stands simply for the unremarkable proposition that a district court has discretion to reread testimony of a witness to the jury. Such has long been the law of this circuit as well. United States v. Brunetti, 615 F.2d 899, 902 (10th Cir.1980). Indeed, in this case, the trial court very well could have reread the testimony of Deputy Coleman in response to the jury's question. We do not believe that, in light of the directness of Deputy Coleman's testimony, reversible error should turn upon the court's decision to answer the question directly instead of rereading thirty-two lines of trial transcript. The court's error in answering this first question was harmless beyond a reasonable doubt. 92 With regard to the other questions which were answered, Mr. Gomez contends that "although the answers ... were not necessarily improper, Mr. Gomez, through counsel, may have preferred and suggested other answers." Appellant's Supp.Br. at 8. A finding of constitutional error does not turn on what a criminal defendant prefers; it turns on a determination that a mistake has been made which fundamentally affects the fairness of the proceeding. Because Mr. Gomez acknowledges that, with respect to questions number 2 through 4, no such mistake occurred, our analysis need proceed no further. The court's error in answering the questions was harmless beyond a reasonable doubt. CONCLUSION 93 For the foregoing reasons, Mr. Gomez's conviction is AFFIRMED, and his motion to strike is DENIED. 94 The Appellant's motion to strike references in the supplemental brief of appellee to matters outside the record is GRANTED. The Appellant's motion for leave to file a supplemental reply brief is also GRANTED. McKAY, Circuit Judge, dissenting: 95 I respectfully conclude that I must dissent in this case. I agree fully with all of the court's opinion except its conclusion that the admission of the wiretap evidence was not plain error. 96 The relevant statutory language makes clear that the government bears the burden of proving the admissibility of wiretap evidence. Title 18 U.S.C. Sec. 2518(8)(a) specifically provides: 97 The recording of the contents of any wire, oral, or electronic communication under this subsection shall be done in such way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions. Custody of the recordings shall be wherever the judge orders. 98 As the majority readily admits, the sealing mandate was never complied with in this case. The statute further provides: 99 The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived therefrom under subsection (3) of section 2517. 100 Id. (emphasis supplied). 101 I do not understand the court to suggest that the congressionally mandated sealing requirement was not plain either in its existence, its textual meaning, or its applicability to this case. Indeed, I agree with the court when it characterizes as disingenuous the prosecution's claim that the statutory sealing requirements were in fact met. While it is apparently true that in this case the trial court was not in fact aware of the statute, if its existence and applicability were not plain, then no statutory requirement could ever meet the threshold of being plain. The statute was enacted in 1968 and has been applicable in all wiretap cases since that time. 18 U.S.C. Sec. 2518 (codifying Pub.L. 90-351, Title III, Sec. 802, June 19, 1968, 82 Stat. 218). 102 As I understand it, the court's opinion is bottomed on the conclusion that the error must be substantial and the defendant has the burden to prove prejudice attributable to the error. While that is the general rule, I am persuaded that, through the language and purpose of this statute, Congress has made a deliberate decision to shift this burden to the prosecution even in cases where the defendant makes no objection at trial. The Supreme Court has made clear that some errors affect substantial rights even when prejudice cannot be shown. See Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986). Those cases are ones affecting particularly the "integrity" of the proceedings. The very purpose of section 2518(8)(a) "is to ensure the reliability and integrity of evidence obtained by means of electronic surveillance." United States v. Ojeda Rios, 495 U.S. 257, 263, 110 S.Ct. 1845, 1849, 109 L.Ed.2d 224 (1990) (emphasis supplied). Congress, not the courts, has mandated that this integrity be supplied by the sealing process as a "prerequisite" to its admission as evidence. It is obvious that Congress was not content to rely on the ability of the person objecting to the evidence to show tampering--normally an impossible task. 103 Indeed, the Supreme Court in Ojeda Rios rejected even the notion that the government could cure its failure to seal wiretap evidence by putting on proof of non-tampering. 495 U.S. at 264-65. The Court reached that view based on Congress's choice--not its own. It is hard for me to see how the Court could hold in Ojeda Rios that the government could not cure the failure "timely" to seal the wiretap recording by showing evidence of non-tampering and consistently hold that the defendant has the burden to prove he was prejudiced by the total failure to seal it at all. Congress has determined that the integrity of the tapes be insured by specific sealing requirements. I believe this congressional choice presumes prejudice, and as such, the requirement of proof by the defendant that prejudice exists has been congressionally preempted. As the Supreme Court has pointed out: 104 Congress intended to require suppression where there is failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device. 105 United States v. Giordano, 416 U.S. 505, 527, 94 S.Ct. 1820, 1832, 40 L.Ed.2d 341 (1974). Thus, Mr. Gomez is entitled to a new trial in which the government's wiretap evidence is suppressed. 106 For the foregoing reasons, I respectfully dissent. 1 Mr. Gomez initially raised only the first four issues in this appeal. On February 10, 1995, Mr. Gomez moved to file a supplemental brief, raising the issue regarding the district court's answering of the jury's questions. We granted the motion on June 28, 1995, and Mr. Gomez filed his supplemental brief that same day 2 There was considerable testimony at trial regarding the confusion over the individual's name. Some officers monitoring the calls thought the name was "Burt" or "Bert," while others identified the caller as "Bird." R.Vol. II at 136-37, 143-44; R.Vol. III at 11. According to the government, the confusion regarding the individual's name arose, in part, because the monitored conversations were at times in English and at times in Spanish. Appellee's Br. at 4 3 Two agents were conducting surveillance on Salinas's house from a house across the street. R.Vol. III at 31-32 4 The delivery took place at a convenience store located a few blocks from Salinas's home. R.Vol. II at 39 5 While the lengthy factual discussion in Mr. Gomez's brief suggests that there is a question regarding the identity of the individual who met with Salinas, and the government's brief likewise reflects an attempt to dispel any such notion, this purely factual matter is not before us on appeal. Thus, our recitation of the facts of the case, while somewhat less colorful than the parties', reflects our acceptance of the jury's implicit findings 6 Our holding on this point is not inconsistent with United States v. Saltzman, 984 F.2d 1087 (10th Cir.1993), where we held that a defendant, acting unilaterally, could not waive his right to a speedy trial under the Act. Id. at 1091. In Saltzman, the government's argument, which we rejected, was that the defendant had affirmatively waived his right to a speedy indictment. In this case, however, our finding of a waiver flows directly from the plain language of the statute itself Moreover, as the Second Circuit recently has recognized, in enacting the Speedy Trial Act, Congress specifically considered the circumstances under which the protections of the Act could be waived and ultimately "limited waiver of the 70-day speedy trial requirement to narrowly defined circumstances, i.e., a failure to move for dismissal prior to trial or prior to the entry of a guilty or nolo contendere plea." United States v. Gambino, 59 F.3d 353, 360 (2d Cir.1995); see United States v. Pringle, 751 F.2d 419, 433 (1st Cir.1984) (citing S.Rep. No. 212, 96th Cong. 1st Sess. 28-29 (1979)). Thus, our holding here, read together with Saltzman, simply confirms what the majority of circuits considering the issue have held: Congress has carefully defined the circumstances under which the protections of the Speedy Trial Act may be waived--i.e., failure to move for dismissal--and the individual defendant may not add to this. See Gambino, 59 F.3d at 359-60 (citing cases). 7 In support of his argument that a reviewing court, applying a plain error analysis, may review the merits of a Speedy Trial Act claim, notwithstanding the defendant's failure to move for dismissal prior to trial, Mr. Gomez cites United States v. McKinley, 23 F.3d 181 (7th Cir.1994). Unlike Mr. Gomez, however, we do not conclude that the Seventh Circuit's determination that the claim at issue was patently meritless indicates a rejection of its clear case law applying waiver. See United States v. Alvarez, 860 F.2d 801, 821-22 (7th Cir.1988) 8 We note that this delay was not extraordinary. The trial date was set for March 11, 1993, but because the district judge had another trial in progress at the time, the two-day trial was rescheduled and began approximately three weeks later on April 5, 1993 9 In his brief, Mr. Gomez implies that the transcript reading is somehow suspect because it was read to the jury by "an employee of the United States Attorney's Office." We are unpersuaded for two reasons. First, there is nothing in the record, beyond Mr. Gomez's own bald assertion, which establishes the individual who read the testimony of Chrisni Sanchez as an employee of the U.S. Attorney's Office. Second, Mr. Gomez points to nothing in the record which would have in any way diluted the trial court's instruction to the jury that the individual reading the transcript was "a completely neutral party." R.Vol. III at 133 10 Citing United States v. Carini, 562 F.2d 144, 148 (2d Cir.1977), Mr. Gomez vigorously argues that a reviewing court should consider a violation of the Speedy Trial Act as a factor in determining whether a constitutional violation has occurred. We simply note that under the law of this circuit, analysis of a Speedy Trial Act claim is separate from analysis of a Sixth Amendment violation. See Dirden, 38 F.3d at 1136-39 11 18 U.S.C. Sec. 2517(3) provides for the disclosure of wiretap communications "under oath or affirmation in any proceeding held under the authority of the United States or of any State or political subdivision thereof." 12 The government had placed in the left hand margin of the transcripts the name of the speaker. For example, one excerpt of the transcript is as follows: CALL FROM BIRD TO ROY SALINAS ROY: Hello. BIRD: Hey. ROY: Yeah? BIRD: I'm on my way. ROY: You are? BIRD: Huh? Appellant's Br. at 42. 13 Mr. Gomez contends that he in fact preserved the issue by objecting to the admission of the transcripts in the first trial on the grounds that "the tape is clearly the best evidence of all of this." Appellant's Reply Br. at 10. Citing United States v. Mejia-Alarcon, 995 F.2d 982, 985-88 (10th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 334, 126 L.Ed.2d 279 (1993), he claims that "the futility of an objection at the second trial, given the court's previous ruling on the same issue, excuses his failure to renew the objection at the second trial." Appellant's Reply Br. at 10-11 Mr. Gomez misstates Mejia-Alarcon, wherein we held that the defendant's motion in limine was sufficient to preserve the issue for appeal without the necessity for renewing the objection at trial. Furthermore, it is fundamental that, in cases where a new trial has been ordered, objections made during the first proceeding do not preserve issues for appeal in the second. See United States v. Hill, 60 F.3d 672, 675 n. 2 (10th Cir.1995). 14 Mr. Gomez's failure to raise any objection as to this issue is especially troubling given that the district court ordered the second trial for the specific purpose of allowing the defense "time to review the evidence and documentation regarding the wiretap." R.Vol. I, Docs. 60, 62. If Mr. Gomez had concerns relating to the admissibility of the transcripts, he had ample opportunity to raise them prior to the second trial 15 While a cautionary instruction regarding the use of the transcripts as aids only in understanding the audio tapes would have been preferred, see United States v. Robinson, 707 F.2d 872, 877 (6th Cir.1983), the burden of requesting such an instruction rested squarely with Mr. Gomez. Because he failed to request such a cautionary instruction or to interpose an objection to the court's failure to give the instruction sua sponte, and because we find no plain error in the instructions which were given, we reject this claim on appeal. See United States v. Janus Indus., 48 F.3d 1548, 1559 & n. 3 (10th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 87, --- L.Ed.2d ---- (1995); United States v. Coslet, 987 F.2d 1493, 1497 (10th Cir.1993) 16 The district court had unsuccessfully attempted to locate defense counsel. The record does not reflect if an effort was made to locate Mr. Gomez 17 "Although the [Supreme] Court has emphasized that this privilege of presence is not guaranteed 'when presence would be useless, or the benefit but a shadow,' due process clearly requires that a defendant be allowed to be present 'to the extent that a fair and just hearing would be thwarted by his absence.' " Stincer, 482 U.S. at 745, 107 S.Ct. at 2667 (quoting Snyder v. Massachusetts, 291 U.S. 97, 106-07, 108, 54 S.Ct. 330, 332-33, 78 L.Ed. 674 (1934))

438 F.2d 1128 George A. HUNT, Jr., Selective Service No. 9-45-45-1035, Appellant,v.LOCAL BOARD NO. 197. No. 18076. United States Court of Appeals, Third Circuit. Argued February 3, 1970. Reargued October 13, 1970. Decided February 5, 1971. John David Egnal, Egnal and Egnal, Philadelphia, Pa., for appellant. Robert V. Zener, Dept. of Justice, Washington, D. C., for appellee. Before HASTIE, Chief Judge, and FREEDMAN, SEITZ, VAN DUSEN, ALDISERT, ADAMS and GIBBONS, Circuit Judges. OPINION OF THE COURT PER CURIAM: 1 For different reasons, stated in separate opinions, five judges constituting a majority of the court have concluded that the judgment of the district court dismissing the appellant's complaint cannot stand. Judges Freedman, Seitz and Adams think that the uncontested facts are such that we should not only reverse the dismissal of the complaint but also order that on remand judgment be entered for the appellant requiring that he be accorded selective service reclassification as III-A. Judges Hastie and Gibbons think that we should do no more than require that the district court consider and dispose of this controversy on its merits. 2 To achieve an otherwise lacking majority for a particular disposition of the appeal,1 Judges Freedman, Seitz and Adams join Judges Hastie and Gibbons in voting for the less comprehensive disposition; namely, reversal and remand for appropriate action on the merits of the controversy. 3 It may be that, in the light of the circumstances pointed out in our several opinions, the parties will be able to agree upon a consent judgment that will obviate the necessity for adversary proceedings in the district court. 4 The judgment will be reversed and the cause remanded for consideration and disposition on the merits. Notes: 1 Cf. Screws v. United States, 1945, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495. 5 GIBBONS, Circuit Judge (concurring in the result). 6 Plaintiff appeals from the order of the district court dismissing his complaint pursuant to Rule 12(b) (1), Federal Rules of Civil Procedure, for want of jurisdiction over the subject matter. The complaint claims jurisdiction under 28 U.S.C. § 1331 (1964) (federal questions) and under 28 U.S.C. § 1361 (1964) (mandamus against a federal official) and prays for relief appropriate under both sections. The complaint alleges that in June, 1968 plaintiff was classified I-A by the defendant Local Board; that he appealed this classification on the ground that he was a conscientious objector; that while that appeal was pending he notified the defendant Local Board of changed conditions which prima facie entitled him to a III-A deferment and requested that the Local Board reopen his classification; that the Local Board refused to reopen. The complaint does not specify what changed conditions were called to the attention of the Local Board. It alleges that the failure of the Local Board to reopen plaintiff's classification and consider his prima facie claim to a III-A deferment was a denial of his constitutional rights. 7 No answer was filed. Instead the defendant Local Board filed a motion under Rule 12(b) asserting: 8 "(1) The court lacks jurisdiction of the person of the defendant. 9 (2) The court lacks jurisdiction of the subject matter. 10 (3) The venue of the action is improper. 11 (4) Service of process was insufficient. 12 (5) The complaint fails to state a claim upon which relief can be granted. 13 (6) Plaintiff has an adequate remedy at law." 14 Neither party filed any affidavits on the motion. At the conclusion of the argument the district court invited the plaintiff "to complete your record as to what you are going to prove on the merits," and eight exhibits, letters from the file of the defendant Local Board, were marked in evidence without objection. There was no waiver, however, by either party of the right to a final hearing after answer in the event of a ruling on the Rule 12(b) motion favorable to the plaintiff. At best there was a partial presentation by plaintiff of evidence in support of his Rule 65 motion for a preliminary injunction. The district court did not rule on that motion. 15 The exhibits disclose that plaintiff, who had received a II-S (student deferment) classification, was classified I-A in June of 1968. He appealed that classification to the State Appeal Board on the ground that he was entitled to a I-O (conscientious objector) classification. By letter on November 7, 1968 he notified the Local Board of his wife's pregnancy. This letter was supplemented by three letters from a physician confirming the pregnancy, the expected date of confinement in June of 1969, and certain other of the wife's health problems. When the State Appeal Board decided against him on his I-O claim plaintiff on April 7, 1969 requested a III-A classification, asserting both his impending fatherhood and hardship to his wife if he were to be drafted. The Local Board on May 2, 1969 advised him that it would not reopen. Although it does not appear in the record before the district court, the parties had advised this court that plaintiff is now a father. Neither plaintiff's fatherhood claim nor his hardship claim are referred to expressly in the complaint. It refers only generally to "changed conditions, which, prima facie, entitle Plaintiff to a 3-A deferment." 16 Defendants relied in the district court on lack of jurisdiction over the subject matter because of § 10(b) (3) of the Selective Service Act of 1967, 50 App. U.S.C. § 460(b) (3) (Supp. IV 1969). The order appealed from provided: 17 "ORDERED that defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b) (1) is GRANTED." 18 The district court opinion, although it makes reference to the nature of the III-A deferment claims asserted by plaintiff to the Board, is expressly limited to a determination of lack of subject matter jurisdiction. It makes no determination on any of the remaining grounds advanced by the defendant. It make no determination (aside from that respecting subject matter jurisdiction) that the allegations of the complaint fail to state a cause of action. The district court did not treat the motion as one under Rule 12(b) (6) which it converted to Rule 56 motion. It expressly limited its order to granting a motion under Rule 12(b) (1). 19 Judge Freedman and the judges who concur in his opinion, looking at the exhibits which were marked at the hearing on the preliminary injunction, conclude that the Local Board acted solely on the mistaken legal ground that any II-S classification received after July 1, 1967, even one based on a post-baccalaureate student status, prevented a III-A fatherhood classification. See Gregory v. Hershey, 311 F.Supp. 1 (E.D.Mich.S.D.1969). But on this sparse record it is not clear that the rejection of the fatherhood claim was the sole basis of the Board's action, nor do we know for certain whether the plaintiff's student deferment was pre- or post-baccalaureate. I would not assume original rather than appellate jurisdiction to decide the fatherhood issue which was never decided by the district court. 20 Judge Aldisert, and Judge Van Dusen who concurs in his opinion, also look at the contents of the exhibits to reject the plaintiff's fatherhood claim. They find that the exhibits do not evidence that appellant's II-S classification was at a post-baccalaureate stage, and that appellant therefore failed to carry the burden of his immunity from service. They also would affirm a final summary judgment which was never made in the district court. But the more fundamental defect in their position is that it ignores the allegations of the complaint. Plaintiff complains that the Local Board refused to reopen. Thus, he says, he was denied the procedural opportunity to carry the burden of establishing his entitlement to a deferment. We cannot, by looking at those parts of the registrant's selective service file which are in the record, conclude that he has failed to meet a burden which he was never given an opportunity to meet. 21 On the hardship claim Judges Aldisert and Van Dusen confront the issue which was framed by the complaint and the Rule 12(b) motion and which was decided by the district court. That issue is whether, assuming the truth of the allegation that the Local Board failed to reopen after being notified of changed conditions which prima facie entitled plaintiff to a III-A deferment, § 10(b) (3) barred pre-induction judicial review. It is on those pleadings that the same issue is presented here, since the district court order is expressly limited to a decision of the Rule 12(b) (1) motion. Since, assuming subject matter jurisdiction, the allegations of the complaint might well be controverted, I see no appropriate way to avoid the decision of that issue. Judge Freedman and the judges who concur in his decision distinguish between the undiluted question of law presented to the Local Board by the fatherhood claim and the mixed question of law and fact presented by the hardship claim. An erroneous Local Board decision of the former, they say, may give rise to an opportunity for pre-induction judicial review. The refusal to reopen and consider the latter apparently would not. I do not think the opportunity to draw such a line is presented on this record. 22 Plaintiff was already classified when the changed circumstances occurred on which he relied for his change of classification from Class I-A to Class III-A. Class III-A includes persons deferred for reason of family relationship, 32 C.F. R. § 1522.30(a), and for reasons of extreme hardship, 32 C.F.R. § 1622.30(b). The regulations creating these classifications were adopted pursuant to 50 U.S.C. App. § 456(h) (2) (Supp. IV 1969), which by virtue of the Universal Military Training Act of June 19, 1951, ch. 144, § 1(o), 65 Stat. 84, limited dependency deferments for married men who had no dependents other than a wife to cases of extreme hardship. 23 The Local Boards are creatures of the Selective Service Act. Their jurisdiction is defined in 50 U.S.C. App. § 460(b) (3) (Supp. IV 1969): 24 "Such local boards, or separate panels thereof each consisting of three or more members, shall, under rules and regulations prescribed by the President, have the power within the respective jurisdictions of such local boards to hear and determine, subject to the right of appeal to the appeal boards herein authorized, all questions or claims with respect to inclusion for, or exemption or deferment from, training and service under this title * * *, of all individuals within the jurisdiction of such local boards. The decisions of such local board shall be final, except where an appeal is authorized and is taken in accordance with such rules and regulations as the President may prescribe." (emphasis added) 25 Regulations have been adopted which set forth the procedure for taking an appeal to the appeal boards, which the same statute creates in each federal judicial district. 50 U.S.C. App. § 460(b) (3) (Supp. IV 1969); 32 C.F.R. pt. 1626 (1969). Recognizing that the status of a registrant is subject to change, the regulations provide that no classification is permanent. 32 C.F.R. § 1625.1(a) (1969), and provide a mechanism for reopening the registrant's classification, 32 C.F.R. pt. 1625 (1969). The sections of pt. 1625 relevant to this case provide: 26 "The local board may reopen and consider anew the classification of a registrant (a) upon the written request of the registrant, * * * if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant's classification; * * *" 32 C.F.R. § 1625.2 (1969). 27 "When a registrant * * * files with the local board a written request to reopen and consider anew the registrant's classification and the local board is of the opinion that the information accompanying such request fails to present any facts in addition to those considered when the registrant was classified or, even if new facts are presented, the local board is of the opinion that such facts, if true, would not justify a change in such registrant's classification, it shall not reopen the registrant's classification * * *." 32 C.F.R. § 1625.4 (1969). 28 If the Local Board determines that the information submitted does not warrant reopening, the regulations provide no right of appearance and no right of appeal. 29 Thus, under the regulations, establishment of a right to deferment because of changed circumstances following an initial classification depends in the first instance on the ex parte determination by a Local Board whether or not to reopen. This determination is not appealable to an appeal board despite the fact that Local Boards are, under the statute, authorized only "to hear and determine, subject to the right of appeal to the appeal boards herein authorized." 50 U.S.C. App. § 460(b) (3) (Supp. IV, 1969) 30 The respondents would have us hold that the language "subject to the right of appeal to the appeal boards herein authorized" either has no meaning or is limited by the later language: 31 "The decision of such local boards shall be final except where an appeal is authorized and is taken in accordance with such rules and regulations as the President may prescribe." 32 The right of administrative appeal, in other words, would depend on whether and to what extent the President decides to allow it. In this instance, respondents contend, the President has seen fit not to allow it. He has permitted the Local Boards, by refusing to reopen, to eliminate administrative appeal. 33 As I will develop hereinafter, such a construction of the statute, when read together with a prohibition of pre-induction judicial review, raises very serious questions of due process and separation of powers. In fact, however, the courts have not so construed the statute. 34 This reclassification procedure has been before the courts in a number of cases. It is now firmly established that where a registrant presents to a Local Board facts which prima facie set forth a basis for reclassification the local board must reopen. Failure to reopen where a prima facie case for reclassification is claimed has consistently been held to be a denial of procedural due process. Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970); United States v. Turner, 421 F.2d 1251 (3d Cir. 1970); Davis v. United States, 410 F.2d 89 (8th Cir. 1969); United States v. Grier, 415 F.2d 1098 (4th Cir. 1969); Petrie v. United States, 407 F.2d 267 (9th Cir. 1969); Fore v. United States, 395 F.2d 548, 554 (10th Cir. 1968); Robertson v. United States, 404 F.2d 1141 (5th Cir. 1968), rev'd en banc on other grounds, 417 F.2d 440 (1969); Vaughn v. United States, 404 F.2d 586 (8th Cir. 1968), vacated on other grounds sub nom. Morico v. United States, 399 U.S. 526, 90 S.Ct. 2230, 26 L.Ed.2d 776 (1970); Miller v. United States, 388 F.2d 973 (9th Cir. 1967); United States v. Freeman, 388 F.2d 246 (7th Cir. 1967); Townsend v. Zimmerman, 237 F.2d 376 (6th Cir. 1956); Stain v. United States, 235 F.2d 339 (9th Cir. 1956); United States v. Ransom, 223 F.2d 15 (7th Cir. 1955); United States v. Vincelli, 215 F.2d 210 (2d Cir. 1954); United States ex rel. Berman v. Craig, 207 F.2d 888 (3d Cir. 1953); United States v. Burlich, 257 F.Supp. 906, 911 (S.D.N.Y.1966). 35 While all but one of these cases involved post- rather than pre-induction review, all are quite directly in point insofar as the statutory jurisdiction of Local Boards is involved. All hold that despite the permissive or discretionary language of 32 C.F.R. § 1625.2 a Local Board must, when faced with a prima facie claim of changed circumstances calling for reclassification, reopen and afford administrative appellate review. That part of the statute on which the respondents rely to establish that appellate review exists only when the President authorizes it makes no distinction between post- and pre-induction judicial review. 36 The Mulloy case would seem to put all doubts to rest, for in it Justice Stewart, for a unanimous court, writes: 37 "Though the language of 32 CFR § 1625.2 is permissive, it does not follow that a Board may arbitrarily refuse to reopen a registrant's classification." 398 U.S. at 415, 90 S.Ct. at 1770. 38 Thus it is beyond argument that a Local Board is obliged to reopen a classification when presented with a prima facie claim for reclassification. The remaining question is whether pre-induction judicial review is available when a Local Board fails to afford this opportunity. 39 Respondents rely principally on Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968). That case is the slenderest of reeds. In the first place that per curiam opinion dealt with a situation entirely unrelated to the instant case. It did not involve reopening. The registrant was afforded a hearing before the Local Board on his conscientious objector claim. He was afforded the full panoply of de novo administrative appeal rights applicable to conscientious objector claims before the 1967 amendments to the Selective Service Act. There was no charge of procedural irregularity or abuse of discretion. Plaintiff's only contention was that the administrative process had made an erroneous determination of a factual issue after all administrative hearing and appeal safeguards were afforded. The case summarily reversed a district court decision that § 10(b) (3) was unconstitutional even as so applied. Thus reliance on Clark v. Gabriel is justified only if the nonavailability of administrative review following a refusal to reopen can be ignored. To liken an administratively nonreviewable refusal to reopen to a reclassification determination which was followed by full administrative review, including a de novo investigation and interview, we would have to ignore the Mulloy decision which said: 40 "Even if the local board denies the requested reclassification [after reopening], there is a crucial difference between such board action and a simple refusal to reopen the classification at all." 398 U.S. at 414, 90 S.Ct. at 1770. 41 The Supreme Court observed, further, that precisely because judicial review is postponed in the Clark v. Gabriel situation, "the opportunity for full administrative review is indispensible to the fair operation of the Selective Service System." Id., 398 U.S. at 416, 90 S.Ct. at 1771. 42 In the second place, the language of the per curiam opinion in Clark v. Gabriel on which the respondents place such heavy reliance, represents the thinking of only three members of that Court, Justices Warren, Harlan and Marshall. Justice Black voted against summary reversal. Justice Douglas concurred on a very narrow ground, and his brief opinion supports pre-induction judicial review where the Board has abused its discretion. A refusal to reopen and reconsider a prima facie claim of change in circumstances which would result in a reclassification has repeatedly been held to be an abuse of discretion. Justices Brennan, Stewart and White concurred in the judgment, but not in the opinion, for the reasons set forth in Justice Stewart's dissent in Oestereich v. Selective Service System Local Bd., 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968). They concurred, in other words, not because the distinction between Oestereich and Clark v. Gabriel suggested in the per curiam opinion in the latter case was valid, but because in their view Oestereich was wrongly decided. Thus the per curiam opinion on summary reversal in Clark v. Gabriel affords no guidance whatsoever to the proper construction of § 10(b) (3).1 43 In Oestereich the Supreme Court rejected a literal reading of § 10(b) (3) which would have barred judicial review even in a post-induction habeas corpus case. The case was remanded to a district court so that petitioner might have the opportunity to prove that he had been ordered to report for induction pursuant to the delinquency regulations, 32 C.F.R. pt. 1642, when he was entitled to an exemption as an enrolled divinity student. 44 The Second Circuit, in Breen v. Selective Service Local Bd., 406 F.2d 636 (2d Cir. 1969), rev'd, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970), assumed that the Oestereich interpretation of § 10(b) (3) could somehow be circumscribed. It drew a distinction between reclassification of registrants seeking statutory exemption (such as divinity students, 50 U.S.C. App. 456(g)) and that of registrants seeking deferments (such as students, 50 U.S.C. App. § 456 (h) (1)). The Supreme Court rejected this distinction, holding that the Oestereich exception was equally available to either category of registrant. Justice Black, writing for the Court said: 45 "In both situations a draft registrant who was required by the relevant law not to be inducted was in fact ordered to report for military service. In both cases the order for induction involved a `clear departure by the Board from the statutory mandate,' Oestereich, supra, [393] at 238, [89 S.Ct. [414], at 416, 21 L.Ed.2d 402, and in both cases § 10(b) (3) of the Act should not have been construed to require the registrant to submit to induction or risk criminal prosecution to test the legality of the induction order." 396 U.S. at 467-468, 90 S.Ct. at 666. 46 Both in Oestereich and in Breen Justice Harlan suggested a somewhat different formulation of the exceptions to § 10(b) (3) than that announced in the opinion of the Court. In Oestereich he suggested that a challenge to the administrative procedure itself was beyond the competence of the Selective Service Boards to hear and determine and therefore outside § 10(b) (3). Oestereich v. Selective Service System Local Bd., 393 U.S. at 242, 89 S.Ct. 414, 21 L.Ed.2d 402. In Breen he wrote: 47 "The Court's opinion here, as in Oestereich v. Selective Service [System Local] Bd., 393 U.S. 233 [89 S.Ct. 414, 21 L.Ed.2d 402] (1968), appears to make the availability of pre-induction review turn on the lawfulness of the draft board's action or, to put it another way, on the certainty with which the reviewing court can determine that the registrant would prevail on the merits if there were such judicial review of his classification. On the other hand, under the test put forward in my separate opinion in Oestereich, 393 U.S. 239-245, [89 S.Ct. 417, 420-421], the availability of pre-induction review turns, not on what amounts to an advance decision on the merits, but rather on the nature of the challenge being made. 48 "In Oestereich, the registrant sought pre-induction review of claims that the delinquency procedure employed by the board was `not authorized by any statute,' was `inconsistent with his statutory exemption,' and was `facially unconstitutional,' 393 U.S., at 239, [89 S.Ct. at 417]." 396 U.S. at 468, 90 S.Ct. at 666. 49 Whether under the test suggested by Justice Harlan or under that suggested by the majority opinions in Oestereich and Breen, it would seem that pre-induction judicial review is available of refusals to reopen when a prima facie claim has been filed. I can perceive no valid distinction between the challenge to the delinquency reclassification procedures considered in Breen and Oestereich and the challenge to the reopening procedures made here. As the case comes before us, plaintiff has given notice of a prima facie change in conditions entitling him to reclassification. He complains that the reclassification procedures followed by the Local Board, which ex parte denied him a hearing and an appeal, are both lacking in statutory authorization and violative of constitutional rights. That challenge to 32 C.F. R. § 1625.4 (1969) is no different in kind than the challenge to 32 C.F.R. pt. 1642 (1969) permitted in those cases. 50 Moreover, Estep v. United States, supra, and Falbo v. United States, supra, relied on by respondents, are not controlling. They only decided that a previous statute, § 10(a) (2) of the Selective Training and Service Act of 1940, 54 Stat. 893, did not, despite its broad language to the effect that decisions of Local Boards were final except for administrative review, prohibit judicial review at some point. Estep and Falbo, by so construing that statute, as well as Witmer v. United States, supra, and Billings v. Truesdell, supra, avoided the decision of the question whether Congress could constitutionally in the same statute (1) permit a local administrative agency to make an ex parte determination which is unreviewable in any administrative appellate proceeding if the local agency so decides, and (2) prohibit any review of the factual or legal correctness or even the fundamental fairness of that decision except in a criminal enforcement or post-induction habeas corpus proceeding. The Supreme Court has avoided deciding this same issue by its construction of § 10(b) (3) in Oestereich and Breen.2 It cannot be avoided if we accept the interpretation of § 10(b) (3) urged by the respondents in this case. 51 Administrative appellate review may be a sufficient due process substitute for pre-induction judicial review. But discretionary elimination by the original administrative agency of any administrative review, coupled with postponement of judicial review until a criminal trial or a post-induction habeas corpus proceeding presents a much more complex due process issue. It is true that Congress has the power to give, withhold and restrict the jurisdiction of the lower federal courts. Ex parte McCardle, 7 Wall. 506, 19 L.Ed. 264 (1868), and Cary v. Curtis, 3 How. 236, 245, 11 L. Ed. 576 (1845). Both this proposition and those cases are somewhat beside the point, however, for while Congress may have more or less unlimited power over the jurisdiction of the lower federal courts, the extent of its authority to eliminate or postpone any judicial power to test the due process of an unreviewable administrative decision has not been determined. Taken literally, § 10(b) (3) is applicable to all courts. Article III, § 2 says that the judicial power of the United States "shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made * * *." By interpreting § 10(b) (3) as postponing judicial review only where the administrative remedies have been fully and legally afforded to the registrant in a non-arbitrary manner, the Supreme Court in Oestereich and Breen has avoided the necessity of determining the full meaning of Article III, § 2 in the face of what may be a due process claim.3 When Oestereich, Breen and Mulloy as read together point out a path which avoids a constitutional issue, that path should be followed. The Mulloy case, read in conjunction with Oestereich and Breen, indicates that the deprivation of administrative review by a local board which couches its decision on a prima facie claim in the guise of a refusal to reopen is an arbitrary action subject to pre-induction judicial review. If this is not so, § 10 (b) (3) may well be unconstitutional. Clark v. Gabriel, supra, holds no more than that postponement of judicial review is constitutional where administrative review has in the meantime been afforded. 52 It seems to me that the correct interpretation of 50 U.S.C. App. § 460(b) is this: 53 (1) The power of a Local Board to decide whether a change in circumstances entitled a registrant to a new classification is subject to administrative appeal whenever a prima facie claim is presented. 54 (2) The refusal of a Local Board to reopen when presented with such a prima facie claim is an abuse of discretion subject to judicial review. Mulloy v. United States, supra, and cases therein cited. 55 (3) Such an abuse of discretion is a clear legal error and judicial review of that legal error is available not only in post-induction habeas corpus and criminal cases but also in pre-induction mandamus or injunction cases. Oestereich v. Selective Service Bd., supra; Breen v. Selective Service Bd., supra. 56 A disturbing aspect of the construction of governing cases set forth in Judge Aldisert's opinion is its potential impact on post-induction judicial review. It suggests an interrelationship between Clark v. Gabriel and Mulloy which makes a decision to reopen "discretionary" in deferment claims cases such as hardship, where an evaluation of the claim (not the facts) "inescapably involves a determination of fact and an exercise of judgment." If this is true of a hardship claim, a fortiori it is true of a conscientious objector claim. By reviewing such Local Board refusals to reopen as discretionary, and the exercise of such discretion as beyond the scope of administrative review mandated by the statute, one might invite a reviewing court in a criminal or habeas corpus case to uphold such refusals to reopen on the same ground. It is quite difficult to reconcile any such unreviewable Local Board discretion with the holding in Mulloy that a Local Board must reopen unless a prima facie claim is "conclusively refuted" by the file. 398 U.S. at 416, 90 S.Ct. 1766, 26 L.Ed. 2d 362. I view the Mulloy standard for judicial review as looking no further than the legal sufficiency of the new facts alleged. This is exactly what federal courts always do on a motion under Rule 12(b) (6). Such a decision is neither factual nor discretionary. Nothing in the language of § 10(b) (3) or in the opinions in Oestereich and Breen suggest that a different scope of review of the legal sufficiency of the facts alleged applies in pre-versus post-induction cases. 57 The government urges in virtually every pre-induction selective service case that the interpretation of the statute suggested by the plaintiff will invite extensive judicial interference with the operation of the Selective Service System. Always we are reminded of the plight of the party, not before the court, who must serve in place of the registrant who obtains relief. But this interference with the operation of the system arises not because of judicial review but because of the nature of a selective rather than a universal system. Congress has chosen a selective service system. Having made that choice it may not subject individual registrants to methods of selection which fail to comport with due process standards. If it does so, the congressional power to raise armies may run afoul of the judicial power of the United States to enforce constitutional standards of due process of law in appropriate cases. In my view an adequate means of administrative review is a due process quid pro quo for postponement of judicial review until a criminal or other post-induction proceeding.4 58 Judge Hastie's position with respect to the disposition of this case is essentially no different from mine, except that he would read § 10(b) (3) as possibly barring suits for injunction but inapplicable to mandamus actions. If that position commanded a majority I would concur in his opinion and, as he does, leave to another occasion a discussion of the due process and jurisdictional issues. Since we are unable to agree on a majority opinion I feel it is appropriate to express the view that the Oestereich-Breen interpretation of § 10(b) (3) is not limited to situations in which mandamus would be available. 59 I would reverse the order of the district court and remand for further proceeding to determine whether plaintiff had notified the defendant Local Board of changed conditions which, prima facie, would entitle him to a III-A deferment. If the court should determine that he had, then I would require that the district court order the Board to reopen plaintiff's classification and hold a hearing on his claim for deferment. Notes: 1 TheMulloy case sheds light on the limited precedential value of Clark v. Gabriel for present purposes. It was, of course, a post-induction case. But in listing the authorities establishing the prima facie claim test for reopening a classification it included not only most of the post-induction cases listed hereinabove but also Justice (then Judge) Stewart's own opinion in Townsend v. Zimmerman, supra, which is a pre-induction case. Mulloy v. United States, supra, 398 U.S. at 415 n. 6, 90 S.Ct. 1766, 26 L.Ed.2d 362. This reference to Townsend v. Zimmerman must be contrasted with the reference to the same case in Justice Stewart's dissenting opinion in Oestereich v. Selective Service System Local Bd., 393 U.S. 233, 247 n. 4, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968). There he noted that the enactment of § 10(b) (3) indicated specific congressional disapproval of exceptions such as Townsend v. Zimmerman to the rule against pre-induction judicial review laid down in Witmer v. United States, 348 U.S. 375, 377, 75 S.Ct. 392, 99 L.Ed. 428 (1955); Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946); Billings v. Truesdell, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917 (1944), and Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305 (1944). His dissenting view did not prevail and in Mulloy, for a unanimous court he cited Townsend v. Zimmerman approvingly. While I do not claim that this footnote reference was a binding precedent for the instant case, at the very least it negates any indication that Clark v. Gabriel overruled Townsend v. Zimmerman. 2 In Boyd v. Clark, 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 511 (1969), the Supreme Court also carefully avoided deciding whether the jurisdictional amount requirement of 28 U.S.C. § 1331 would bar judicial review in selective service cases. It has never, so far as I know, explicitly addressed itself to this issue, which has not been raised in this case, perhaps assuming as I do, and as Judge Hastie does, that 28 U.S.C. § 1361 is a sufficient jurisdictional basis in this and similar cases 3 See Oestereich v. Selective Service System Local Bd., 393 U.S. 233, 243 n. 6, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968) (Harlan, J., concurring) 4 In his concurring opinion in Oestereich v. Selective Service System Local Bd.,supra, Justice Harlan noted that the opportunity for a hearing and administrative appeals prior to induction was one of the major considerations which impelled Congress to postpone judicial review. 393 U.S. at 240-241, 89 S.Ct. 414, 21 L.Ed.2d 402. 60 FREEDMAN, Circuit Judge. 61 I would reverse the judgment of dismissal for want of jurisdiction. It denies relief to a registrant on the ground that he has not carried the burden of proving his right to a III-A fatherhood classification even though the decisive facts which establish his claim are now acknowledged and necessarily must be present in his selective service file. 62 When he made his application for a III-A fatherhood classification the registrant had no cause to believe that he should draw the Board's attention to the fact, now known to be decisive,1 that his II-S classification was based on a post-baccalaureate student status. The Board, however, as it now appears, acted solely on the mistaken legal ground that any II-S classification received after July 1, 1967, even one based on a post-baccalaureate student status, prevented a III-A fatherhood classification. That this was the basis of its action is clear-cut from the record. Its letter of rejection states: "Since you had requested and received a II-S deferment after July 1, 1967, you are not entitled to a III-A for fatherhood."2 The Board, however, is bound by the law as it is later declared to have been applicable in the proper classification of a registrant. The registrant is not bound by the Board's error of legal interpretation. Indeed, in view of the Board's relationship to him which requires the utmost fairness and helpfulness in deciding his claim as a matter of law,3 it should itself have sought out the vital factor which required his III-A fatherhood classification. 63 This factor is not in dispute. It was agreed by the parties at bar that the registrant's II-S classification was based on his status as a post-baccalaureate student. There is no necessity for the Board to examine its file to determine the fact, for it is now made conclusive by the stipulation. It therefore seems to me unjust to affirm the denial of relief when the agreement of the parties shows that as a matter of law the registrant was entitled to a III-A fatherhood classification. 64 There remains then the question whether § 10(b) (3) of the Military Selective Service Act of 1967,4 prevents pre-induction judicial review of the Board's mistake of law. 65 There is involved in the present case no element of discretionary judgment or evaluation of evidence; there is simply an undiluted question of law, which is an established basis for pre-induction review. See Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 467-468, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970); Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968).5 The characterization in Oestereich of the conduct of a board which justifies pre-induction judicial intervention as "blatantly lawless" (393 U.S. at 238, 89 S.Ct. 414) is intended as a description of a clear-cut error of law. It does not require an intentional defiance of the law. Indeed, the phrase is used in the opinion as the equivalent of "basically lawless." (393 U.S. at 237, 89 S.Ct. 414) 66 Here the Board took a view of a highly debatable legal issue which I believe was the wrong one. Its action was lawless in the sense that it was contrary to the correct rule of law. It is of no material significance that in Oestereich the registrant sought a statutory exemption, whereas here he seeks a deferment. Breen, supra, 396 U.S. at 467, 90 S.Ct. 661, 24 L.Ed.2d 653. Nor is it significant that the applicable law is established by a selective service regulation rather than by the statute. See Breen, supra, 396 U.S. at 467, 90 S.Ct. 661, 24 L.Ed.2d 653; Shea v. Mitchell, 421 F.2d 1162, 1165 (D.C.Cir. 1970). 67 Since the agreement of the parties clearly establishes the registrant's right to a III-A fatherhood classification, I would reverse the judgment of dismissal and remand the case to the district court with direction to order the Board to afford him that classification. I therefore do not reach the important conflict presented by the opinions of Judge Aldisert and Judge Gibbons. 68 SEITZ and ADAMS, Circuit Judges, join in this opinion. Notes: 1 See Gregory v. Hershey, 311 F.Supp. 1 (E.D.Mich.1969) 2 Letter of Local Board No. 197, Appendix 23a 3 United States v. Turner, 421 F.2d 1251 (3 Cir. 1970) 4 50 U.S.C.App. § 460(b) (3) 5 Mr. Justice Harlan, concurring inBreen, summarized the holdings in Breen and Oestereich, saying: "The Court's opinion here, as in Oestereich v. Selective Service [System Local] Bd., 393 U.S. 233 [89 S.Ct. 414, 21 L.Ed.2d 402] (1968), appears to make the availability of pre-induction review turn on the lawfulness of the draft board's action or, to put it another way, on the certainty with which the reviewing court can determine that the registrant would prevail on the merits if there were such judicial review of his classification. * * *" Breen, supra, 396 U.S. at 468, 90 S.Ct. at 666. 69 HASTIE, Chief Judge. 70 Section 1361 of title 28, United States Code, explicitly grants the district courts "original jurisdiction of any action in the nature of mandamus to compel * * * [any federal officer or agency] to perform a duty owed to the plaintiff." Invoking the district court's jurisdiction under that section, the complaint in this case includes a claim that the plaintiff is entitled to a peremptory writ of mandamus requiring federal officers, the members of the Selective Service Board, to perform a plain ministerial duty owed to him to reopen and consider anew his classification. When this controversy is considered as an invocation of jurisdiction under section 1361, I think some of the complications that have divided the court are avoided, or at least more easily resolved. 71 To begin with, I find no conflict between the above quoted grant of judicial power in section 1361 and the restrictive requirement of section 10(b) (3) of the Military Service Act of 1967 that no "judicial review shall be made of the classification or processing of any registrant * * * except as a defense to a criminal prosecution * * *" 50 U.S.C. App. § 460(b) (3) (Supp. IV 1969). Conceptually, mandamus is not "judicial review." To require a selective service board to perform a plain ministerial duty to reopen and consider anew what a registrant's classification should be, is not to engage in "judicial review" of any classification. Rather, it is an exercise of a special and circumscribed power Congress has conferred upon the courts to protect the individual against arbitrary refusal to perform a public duty owed to the individual. Thus, I find it unnecessary to consider the interrelations of the Oestereich, Breen and Clark cases to which other members of the court have directed their attention. Oestereich v. Selective Service System Local Board, 1968, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402; Breen v. Selective Service Local Board, 1970, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653; Clark v. Gabriel, 1968, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418. 72 It remains to consider whether the plaintiff in this case adequately asserts an arbitrary refusal to perform in the plaintiff's interest such a duty as section 1361 contemplates. The complaint alleges that the board was under such a duty to reopen the registrant's case and consider his status anew. If the registrant made a request for reclassification "accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in registrant's classification," 32 C.F.R. § 1625.2, reopening was mandatory. Full documentation of this proposition appears in Judge Gibbons' opinion and need not be repeated here. However, it bears repeating that the Supreme Court has asserted that "[t]hough the language of 32 CFR § 1625.2 is permissive, it does not follow that a Board may arbitrarily refuse to reopen a registrant's classification." Mulloy v. United States, 1970, 398 U.S. 410, 415, 90 S.Ct. 1766, 1770, 26 L.Ed.2d 362. It is just such arbitrary refusal to act in a complainant's interest that the present complaint asserts and section 1361 is designed to correct. 73 Thus it seems clear to me that if the district court had considered only the complaint, the granting of the motion to dismiss would have been error. But before acting on the motion, the court, sua sponte, suggested that the plaintiff disclose "what you are going to prove on the merits." The plaintiff acquiesced and introduced into the record a number of letters from the files of the local board. I am not prepared to say that the court erred in considering these letters as if they had been incorporated in the complaint. However, the letters do not show that the registrant had failed to supply the board with new information "which, if true, would justify a change in the registrant's classification," 32 C.F.R. § 1625.2. They do show that the registrant requested a III-A reclassification because his wife was pregnant and his induction "would work a great deal of hardship on my wife and child." In addition, the board was supplied with written statements of the registrant's wife and her physician certifying her pregnancy and specifying serious physical and emotional disorders that she was experiencing. I do not see how it could reasonably be contended that these facts would not have "justified" reclassification upon the basis of extreme hardship, and no more than that is required to make reopening, with its attendant procedural rights, mandatory under 32 C.F.R. § 1625.2. Thus, the material submitted by the plaintiff amplified and in no way contradicted the allegations of his complaint. 74 Apart from the showing made by the registrant on his claim of extreme hardship, Judge Freedman has taken the position that the registrant's representations to the board, if properly proved to be true, would have justified reclassification on the basis of fatherhood.1 My difficulty with this contention arises out of the fact that the registrant had been classified II-S, and 32 C.F.R. § 1622.30 explicitly precludes a deferment of a registrant on the basis of fatherhood after he has been classified II-S. There is a substantial question of interpretation, upon which reasonable men may differ, whether this restriction covers graduate, as well as undergraduate, II-S classifications. See Gregory v. Hershey, E.D.Mich.1969, 311 F.Supp. 1. Mandamus under Section 1361 should be confined strictly to arbitrary action and I am not prepared to say that the board's reading of the regulation as covering every II-S classification was arbitrary, though upon judicial review, as distinguished from mandamus, that interpretation of the regulation might well be reversed as erroneous. Cf. Guffanti v. Hershey, S.D.N.Y.1969, 296 F.Supp. 553. 75 Accordingly, I vote to reverse the judgment and require a denial of the board's motion to dismiss the complaint solely because the complaint, on its face and as supplemented, adequately asserts an arbitrary refusal to reopen to consider the registrant's extreme hardship claim. Notes: 1 If the physician's representations concerning the wife's pregnancy were less detailed than 32 C.F.R. § 1622.30 (c) (3) required, amplification could and should have been sought after reopening 76 ALDISERT, Circuit Judge (dissenting). 77 I am not persuaded that any of the multifaceted approaches suggested in the various plurality opinions justify reversal of the district court. I am moved, therefore, to add to the existing proliferation of views a rather lengthy expression of my own position. 78 In my view, the dispositive question in this appeal is whether the local board's refusal to reopen and consider appellant's requested III-A deferment involved determinations of fact and an exercise of discretion or whether, instead, it was based on non-discretionary standards mandated by statute or regulation. If the former, this civil action for pre-induction review of the board's decision should be barred by the jurisdictional limitation of Section 10(b) (3) of the Military Service Act of 1967, 50 App. U.S.C. § 460(b) (3) (Supp. IV 1969), which provides there shall be no pre-induction review "of the classification or processing of any registrant."1 If the latter, review should be permitted at this time under judicially recognized exceptions to the statute. Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968); Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970). And at the risk of appearing meretricious, I feel compelled, in light of the approaches taken by several of my brethren, to point up the obvious: our decision, as an appellate tribunal, must be based on the record compiled in the district court. 79 Alleging federal question jurisdiction, 28 U.S.C. § 1331, appellant sought to enjoin his local board from issuing an order for induction and requested, in the alternative, a reopening of his classification through mandamus against a federal official, 28 U.S.C. § 1361. The board responded with a motion to dismiss, based in part on the contention that the district court lacked jurisdiction over the subject matter. Appellant appealed from the district court's dismissal of the complaint "pursuant to Fed.R.Civ.Pro. 12(b) (1)."2 80 The gravamen of appellant's complaint is that he was denied due process in the consideration of his request for reopening. He argues that he established a prima facie case for a III-A deferment, based on "nonfrivolous allegations of facts that have not been previously considered by his Board, and that, if true, would be sufficient under regulation or statute to warrant granting the requested reclassification." Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970). He correctly contends that "where the registrant has set out new facts which establish a prima facie case for a new classification, a Board must reopen to determine whether he is entitled to that classification," Mulloy, supra, and once the Board reopens, it is required by the regulations to "consider the new information which it has received [and to] again classify the registrant in the same manner as if he had never been classified." 32 C.F.R. § 1625.11. This new classification would afford the registrant "the right * * of appearance * * * and appeal as in the case of an original classification." 32 C.F.R. § 1625.13. It is the denial of a reopening and the resulting foreclosure of administrative review which appellant seeks to remedy by this action for an injunction or writ of mandamus. 81 Our task as an appellate court should be to decide whether the court below was correct — based on the facts before it — in holding that it was without jurisdiction to entertain appellant's action. We should, of course, be guided by the presumption that a federal court lacks jurisdiction until it has been demonstrated that jurisdiction exists,3 and by the recognition that Congress has the power to give, withhold, and restrict the jurisdiction of the lower federal courts.4 My principal line of inquiry concerns, therefore, the applicability of Section 10(b) (3) and the effect of recent Supreme Court decisions construing the statute. 82 The record below discloses that appellant requested and received a II-S classification (student deferment) after July 1, 1967.5 In June, 1968, he was classified I-A and unsuccessfully appealed to the state board on the ground that he was entitled to I-O (conscientious objector) status. While this appeal was pending before the state appeals board, however, appellant by letter of November 17, 1968, notified his local board (1) that his wife was pregnant, and (2) that he wished "to appeal [his] classification of I-A on July 11, 1968," for the reason that he was "entitled to the classification of III-A (3A)." 83 On November 22, a physician notified the board that he had examined appellant's wife and made a "presumptive diagnosis of pregnancy." Mrs. Hunt wrote on December 24 requesting the III-A reclassification for her husband, indicating that she was pregnant, that she had a "number of rectal problems." "a spastic condition of the bowel tract." "severe abdominal cramps and extreme tension resulting from my husband's dealing with the Selective Service System," and that "the nervous tension which has resulted from the potentiality of his being drafted led me to seek professional help." A second physician told the board that he had been treating Mrs. Hunt "since August 1, 1968, with irritable colon syndromes, along with anorectal pathology," and that she had undergone a hemorrhoidectomy on September 18, 1968. Still a third physician communicated with the board on December 30, 1968, diagnosing a positive pregnancy with an expected date of confinement of June 24, 1969. The first doctor wrote again the next day advising that Mrs. Hunt was "under emotional distress as a result of her concern over her husband's possible induction." 84 Following the denial on appeal of his request for a I-O, and after the issuance of a new I-A classification, appellant wrote the board on April 18, 1969: "I wish to appeal my classification I-A dated April 7, 1969. I request you reclassify me in category III-A on the ground that: 85 "1 I am soon to be a father 86 "2 If I were inducted it would work a great deal of hardship on my wife and child." 87 The local board acknowledged the receipt of "supporting documents" for the III-A claim from appellant's wife and her physicians, but on May 2, 1969, advised him that, having "considered the information in your file submitted while your file was at the Appeal Board and since it has been returned," it "did not feel the information warranted reopening your case. Since you had requested and received a II-S deferment after July 1, 1967, you are not entitled to a III-A for fatherhood." 88 Initially, I must reject the position, which I once shared,6 that the Military Selective Service Act of 1967 mandates an absolute right of administrative appeal from a local board's refusal to reopen and consider a request for reclassification, irrespective of the quantum of evidence presented to the board. 50 App. U.S.C. § 460(b) (3) provides: 89 * * * Such local boards, or separate panels thereof each consisting of three or more members, shall, under rules and regulations prescribed by the President, have the power within the respective jurisdictions of such local boards to hear and determine, subject to the right of appeal to the appeal boards herein authorized, all questions or claims with respect to inclusion for, or exemption or deferment from, training and service * * *. The decisions of such local board shall be final except where an appeal is authorized and is taken in accordance with such rules and regulations as the President may prescribe. (Emphasis supplied.) 90 A fair reading of the statute compels the conclusion that the right to an administrative appeal from a decision of a local board is not absolute but is dependent upon the existence of regulations conferring such a right. The statute merely authorizes the creation of rights of appeal and provides that appeals which are permitted by regulation shall be "taken in accordance with such rules and regulations as the President may prescribe." In the absence of provisions for an appeal, "the decisions of * * * local board shall be final." 91 Clearly the regulations themselves are not open to the sweeping interpretation urged by appellant, particularly in light of Mulloy, supra, which established the necessity of proving a prima facie case as a prerequisite to reopening. Furthermore, the due process attacks on the regulations, based on their failure to provide for an appeal from a refusal of a local board to reopen,7 have proved unsuccessful, and the constitutionality of the regulations has been sustained. United States ex rel. La Charity v. Commanding Officer, 142 F.2d 381, 383 (2 Cir. 1944); United States v. Beaver, 309 F.2d 273, 277 (4 Cir. 1962), cert. denied, 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 499 (1963); Boyd v. United States, 269 F.2d 607, 611 (9 Cir. 1959); Klubnikin v. United States, 227 F.2d 87, 90-91 (9 Cir. 1955), cert. denied, 350 U.S. 975, 76 S.Ct. 453, 100 L.Ed. 846 (1956). 92 In determining the basis for the local board's refusal to reopen and consider appellant's request for the III-A classification — a determination that is critical to the jurisdictional issue of pre-induction review — separate attention must be given the two subsections of 32 C.F.R. § 1622.30.8 Subsection (a) deals with consequences of fatherhood; subsection (b), with hardship. 93 I turn first to the hardship claim based on § 1622.30(b). For appellant to prevail in seeking pre-induction review, he must, as I have indicated above, overcome Section 10(b) (3), a statute of jurisdictional limitation which has already withstood constitutional attack. The Supreme Court has found "no constitutional objection to Congress' thus requiring that assertion of * * * claims * * * be deferred until after induction * * * or until defense of the criminal prosecution which would follow should he press his objections to his classification to the point of refusing to submit to induction. Estep v. United States, 327 U.S. 114 [66 S.Ct. 423, 90 L.Ed. 567] (1946); Falbo v. United States, 320 U.S. 549 [64 S.Ct. 346, 88 L.Ed. 305] (1944)." Clark v. Gabriel, 393 U.S. 256, 259, 89 S.Ct. 424, 426, 21 L.Ed.2d 418 (1968). 94 To be sure, this section has not received a literal interpretation. Exceptions to the Congressional restriction were found in Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), and Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970). But though it is true that Oestereich and Breen have permitted pre-induction review, they must be read in conjunction with Clark v. Gabriel, supra, the second of the Supreme Court's pre-induction review trilogy which was decided on the same day as Oestereich. In Gabriel, the Court distinguished a case in which the registrant "was by statute unconditionally entitled to exemption," as in Oestereich, from one which "inescapably involves a determination of fact and an exercise of judgment," 393 U.S. at 258, 89 S.Ct. at 426 and declared that if a case fits within the latter category, there may be no pre-induction review. Thus, jurisdiction to entertain appellant's complaint should depend on whether the district court's resolution of his claim to a prima facie case and entitlement to reopening entails a "determination of fact and an exercise of judgment," as in Gabriel, or whether it requires a ruling on an alleged violation of a right over which the board has no prerogative, as in Oestereich and Breen. 95 Procedurally, the prima facie case is a standard designed to determine whether the quantum of evidence presented is sufficient to support a finding. One charged with the duty to decide whether such a case has been made out must accomplish an exquisite intertwining of functions. He must act not only as a fact-finder, but also as an evaluator of those facts. The discretion utilized in the evaluating process is so refined that the determination of a prima facie case in civil and criminal trials is exclusively a judicial function. In selective service cases, a prima facie case is present "if a registrant has presented facts which, if true and uncontradicted by other information contained in the file, would be sufficient under the regulations to warrant granting his requested classification." United States v. Burlich, 257 F. Supp. 906, 911 (S.D.N.Y.1966). 96 But the Supreme Court has clearly said that there may be no pre-induction review where it is necessary to review "the quantum of evidence necessary to sustain a Board's classification," Oestereich v. Selective Service System Local Board, supra, 393 U.S. at 238 n. 7, 89 S.Ct. at 417, or, as noted before, where the action of the board "inescapably involves a determination of fact and an exercise of judgment," Clark v. Gabriel, supra, 393 U.S. at 258, 89 S.Ct. at 426. Consistent with this approach, the Court in Breen distinguished between "discretionary standards" and "explicit requirements for student deferments." 97 This court's decision in Bucher v. Selective Service System, Local Boards Nos. 2, etc., 421 F.2d 24 (3 Cir. 1969), did not enumerate different standards. We held that Section 10(b) (3) does not bar pre-induction judicial review where the regulations and the classification procedures pursuant thereto are challenged "on the grounds that they lack statutory authorization, and/or violate constitutional rights." We were careful to add that "[t]he Section bars pre-induction review only where there is a challenge to the System's resolution of factual questions in the classification or processing of a draft registrant." Id. at 27. 98 I cannot conclude that the circumstances of Mrs. Hunt's condition amounted to hardship as a matter of law. The assessment and evaluation of these circumstances — supported by letters referring to her rectal and bowel problems, abdominal cramps, tension and nervousness because of her husband's impending induction — were the responsibility of the local board, and it was for the board to decide whether such facts constituted a prima facie case of hardship justifying a reopening. This decision "inescapably involve[d] a determination of fact and an exercise of judgment," properly left to the local board. Clark v. Gabriel, supra, 393 U.S. at 258, 89 S.Ct. at 426. To accept the position of Judge Gibbons and sanction pre-induction review of this decision would be to permit "precisely the kind of `litigious interruptions of procedures to provide necessary military manpower' (113 Cong.Rec., 15426 (report by Senator Russell on Conference Committee action)) which Congress sought to prevent when it enacted § 10(b) (3)." Clark v. Gabriel, supra, 393 U.S. at 258, 89 S.Ct. at 426. 99 Moreover, I detect no inclination by the Supreme Court to restrict the holding of Clark v. Gabriel and to extend the exceptions of Oestereich and Breen. Indeed, in Mulloy, the Court, citing Clark v. Gabriel, re-emphasized the policy of a "narrowly limited scope of judicial review." In view of this strong and continuing policy, I am unable to accept Chief Judge Hastie's suggestion that Section 10(b) (3) can be avoided merely by the use of mandamus. I am convinced that the congressional objective was to minimize "litigious interruptions" of selective service procedures, whether the interruption be cast in terms of a request for an injunction or for a writ of mandamus. 100 It may be suggested that appellee's failure to file an answer amounted to an admission of the complaint's averments, thus obviating the need for factual findings by the district court and removing the Clark v. Gabriel issue from the case. Paragraph 6 of Complaint alleged: 101 While the appeal was pending, plaintiff notified defendant of changed conditions which, prima facie, entitled plaintiff to a 3-A deferment. 102 I find no merit in this technical argument. First, no answer was required since appellee's motion to dismiss, served within the 60 day period and raising the Rule 12(b) defenses, was granted. And, although for the purposes of appellee's motion to dismiss — asserting as one ground the failure to state a claim under Rule 12(b) (6) — "the well-pleaded material allegations of the complaint [were] taken as admitted," "conclusions of law or unwarranted deductions of fact [were] not admitted." 2A MOORE'S FEDERAL PRACTICE § 12.08 at 2266-69. It is clear that the existence vel non of a prima facie case was the ultimate issue that appellant sought to establish, requiring the application of relevant law to given facts. This being so, it cannot fairly be said that appellant's mere allegation of a prima facie case was taken as admitted by appellee. 103 Turning now to the fatherhood claim, it is arguable that 32 C.F.R. § 1622.30(a) establishes standards for the fatherhood deferment which are explicit and non-discretionary, and which can be applied in the absence of extensive factual findings. In United States v. Worstell, 419 F.2d 762 (3 Cir. 1969), we held that the II-S classification establishes a right to deferment for eligible registrants which may not be refused or withdrawn at the discretion of the local board. This right was analogized to the right to a IV-D ministerial exemption, the denial of which was subject to pre-induction review in Oestereich, supra. The Supreme Court subsequently made it clear in Breen, supra, that the II-S deferment is not to be treated differently from the IV-D exemption for the purposes of pre-induction review. In Bucher v. Selective Service System, Local Board Nos. 2 etc., supra, 421 F.2d at 34, we deemed it unnecessary, however, to decide whether the III-A classification "achieve[s] the dimension of statutory deferments akin to the statutory deferment status of the II-S (student) classification dealt with in Worstell," since the invalidity of the delinquency reclassifications created the entitlement to pre-induction review despite the limitations of Section 10(b) (3). Here, too, I find it unnecessary to decide whether the refusal of a fatherhood deferment — like the denial of a II-S — is open to pre-induction review. Even in the case of a non-discretionary deferment, the registrant must, in order to obtain review, show the court that his status formally complies with that defined by the regulation or statute. A bare allegation that the Board has denied him that to which he is entitled is insufficient to overcome the jurisdictional barrier. In this case, appellant's charge that the board acted illegally in rejecting the fatherhood deferment was, on its face, insufficient. 104 Section 1622,30(a) provides that "a registrant who is classified in Class II-S after the date of enactment of the Military Selective Service Act of 1967 (June 30, 1967) shall not be eligible for a classification in Class III-A under this [fatherhood] paragraph." Evidence introduced by appellant himself demonstrated his ineligibility, establishing that he "requested and received a II-S deferment after July 1, 1967." Moreover, I find no occasion to consider the correctness of Gregory v. Hershey, 311 F.Supp. 1 (E.D. Mich.S.D.1969), which suggests that the III-A is barred only by a II-S received as an undergraduate and not as a graduate student, because there was no evidence in the record before the district court that appellant's II-S was obtained at a post-baccalaureate stage. 105 Judges Freedman, Seitz, and Adams do not, however, confine their review to that record. Instead, they rest their conclusions on information that was presented for the first time at oral argument before this court. "[T]he decisive facts which establish his [fatherhood] claim are now acknowledged. * * * This factor is not in dispute. It was agreed by the parties at bar that registrant's II-S classification was based on his status as a post-baccalaureate student." I agree with Judge Gibbons that we cannot "assume original jurisdiction rather than appellate jurisdiction to decide the fatherhood issue which was never decided by the district court." Implicit in the grant of jurisdiction to this court to review decisions of the district courts, 28 U.S.C. §§ 1291 and 1292, is the basic concept that our scope of review is limited to matters of record. Fed.R.App.Pro. 10. 106 Therefore, even were I to assume the validity of the Gregory distinction, I would hold that appellant failed in the trial court to sustain the burden of proving the post-baccalaureate II-S status and, consequently, immunity from military service. 107 In sum, I would hold that appellant did not establish the subject matter of jurisdiction of the district court because he failed to surmount the jurisdictional hurdle of Section 10(b) (3). He presented a request for a III-A hardship case which "inescapably involve[d] a determination of fact and an exercise of judgment" by the local board, and not an issue capable of framing as a purely legal question involving an alleged "departure by the Board from its statutory mandate." Oestereich, supra, 393 U.S. at 238, 89 S.Ct. at 416. What appellant presented to the district court was a question inextricably tied to a special factual context, the resolution of which was discretionary with the local board and mandated by neither statute nor regulation. Appellant was not deprived of his hardship deferment in a "blatantly lawless manner." And in asserting the right to a fatherhood deferment, he failed to demonstrate to the court below that his status was that designated by the regulation. 108 For all of the foregoing reasons, I would affirm the judgment of the district court. 109 VAN DUSEN, Circuit Judge, joins in this dissent. Notes: 1 No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under § 12 of this title * * * after the registrant has responded either affirmatively or negatively to an order to report for induction * * * * * 2 Appellee's motion to dismiss was based on Fed.R.Civ.Pro. 12(b) (1), (2), (3), (5), and (6). Since it was, in part, grounded on subsection (6) (failure to state a claim upon which relief can be granted), it could have been treated as one for summary judgment subject to the provisions of Fed.R.Civ.Pro. 56. This is so because the court considered not only the pleadings but also eight separate exhibits which appellant introduced in support of his contention that entitlement to III-A deferment had been established as a matter of law. It was not improper for the court to have considered the exhibits in conjunction with its consideration of the Rule 12(b) (1) motion. Wide leeway is accorded the courts in this circuit in considering all matters of record relevant to subject matter jurisdiction. See,e. g., Berkowitz v. Philadelphia Chewing Gum Corp., 303 F.2d 585 (3 Cir. 1962). From the transcript of the May 19, 1969, hearing, the following colloquy appears: THE COURT: I think I understand your position on the motion to dismiss, and I will take the matter under advisement. In the meantime, I suggest that you complete your record as to what you are going to prove on the merits. MR. EGNAL: Your Honor, what I have here are the seven letters. Eight, not seven, letters were then introduced, without objection, as plaintiff's exhibits. Certain statements purporting to be additional factual background were then given by plaintiff's counsel who carefully and properly explained: MR. EGNAL: * * * The factual recitation that I just gave you is not proved. I don't know what Mr. Wright [government counsel] wants — I mean the proof would be in the file he has. 3 Turner v. President, Directors and Company of Bank of North America, 4 Dall. 8, 1 L.Ed. 718 (1799); WRIGHT, LAW OF FEDERAL COURTS, (2nd Ed. 1970) § 7, at 15 4 Ex Parte McCardle, 7 Wall. 506, 19 L. Ed. 264 (1868). In Cary v. Curtis, 3 How. 236, 245, 11 L.Ed. 576 (1845), the Court declared: [T]he judicial power of the United States, although it has its origin in the Constitution, is (except in enumerated instances, applicable exclusively to this court) dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, who possesses the sole power of treating the tribunals (inferior to the Supreme Court), for the exercise of the judicial power, and of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good. See cases collected in WRIGHT, supra, § 10, at 25 n. 28. 5 The record does not indicate whether this student deferment was pre- or post-baccalaureate. See 32 C.F.R. 1622.25, 1622.26 6 Clark v. Commanding Officer, 3 Cir., 427 F.2d 7, 11-12 (1970) (Aldisert, J., concurring) 7 We are not presented in this case with the question of the right to an appeal from ade facto reopening clothed in the guise of a refusal to reopen. See Miller v. United States, 388 F.2d 973 (9 Cir. 1967). 8 32 C.F.R. § 1622.30 Class III-A: Registrant With a Child or Children; and Registrant Deferred by Reason of Extreme Hardship to Dependents. — (a) in Class III-A shall be placed any registrant who has a child or children with whom he maintains a bona fide family relationship in their home and who is not a physician, dentist or veterinarian, or who is not in an allied specialist category * * *, except that a registrant who is classified in Class II-S after the date of enactment of the Military Selective Service Act of 1967 shall not be eligible for classification in Class III-A under the provisions of this paragraph. (b) In Class III-A shall be placed any registrant whose induction into the armed forces would result in extreme hardship (1) to his wife, divorced wife, child, parent, grandparent, brother, or sister who is dependent upon him for support, * * *

615 P.2d 594 (1980) Melody PRESTON, Appellant, v. STATE of Alaska, Appellee. No. 3757. Supreme Court of Alaska. August 8, 1980. *597 David C. Steward and Thomas G. Nave, Asst. Public Defenders, Fairbanks, and Brian Shortell, Public Defender, Anchorage, for appellant. Rhonda F. Butterfield, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C.J., and CONNOR, BOOCHEVER,[*] BURKE, and MATTHEWS, JJ. OPINION RABINOWITZ, Chief Justice. Melody Preston appeals from her conviction of burglary in a dwelling[1] and the superior court's sentence of eight years imprisonment, with three years suspended. The only direct evidence adduced at trial of Preston's involvement in the burglary itself was presented by an accomplice, Franklin Clay.[2] Franklin testified at trial that on the morning of March 9, 1977, he, Preston, and Robert Clay gave Franklin's wife a ride to her job at the Fairbanks Memorial Hospital. At Robert Clay's suggestion, they then drove to the residence of Charles "Chico" Williams in order to "rip him off." Preston's sister had been staying at the Williams' residence for a short time prior to the burglary and upon departing she failed to return to Mr. Williams the key which she had been using to his house.[3] Franklin stated that when they arrived at Williams' home, Robert produced a set of keys; Robert went to the front door, knocked, and then returned, suggesting that they forget the burglary. Preston commented that Robert was scared. Robert handed the keys over to Franklin, who proceeded to open the door to Williams' home. The three entered and proceeded to remove several items of stereo equipment, two television sets, and a gun. When Franklin attempted to sell the stolen property, Williams discovered its location and informed the police. A search warrant was issued for the residence where Preston, Robert, and Franklin lived, and police found a number of the stolen items scattered in the field behind the house. Preston's first claim of error on appeal relates to the indictment. Preston's arguments emphasize two factors which she contends demonstrate that the indictment is defective: first, the admission before the grand jury of certain hearsay statements; *598 and second, the failure of the prosecution to present to the grand jury each of three inconsistent statements made by Franklin Clay to the police. The presentation of evidence to a grand jury is governed by Alaska Rule of Criminal Procedure 6(r).[4] Under Rule 6(r), "compelling justification" for the introduction of otherwise inadmissible hearsay evidence before the grand jury must be demonstrated on the record.[5]See Frink v. State, 597 P.2d 154, 162-63 (Alaska 1979). In State v. Gieffels, 554 P.2d 460, 464-65 (Alaska 1976), we held that "[f]or purposes of interpreting Criminal Rule 6(r) we equate compelling with necessity.[6] Prior to the instigation of grand jury proceedings against the Clay brothers and Preston, Franklin Clay asserted his privilege granted by the fifth amendment of the United States Constitution not to testify before the grand jury.[7] In order to inform the grand jury of the direct burglary evidence against appellant, the prosecutor elected to have Franklin's confession repeated before the grand jury by one of the investigators to whom Franklin gave the incriminating statement.[8] Ordinarily, such evidence would be inadmissible hearsay and, therefore, not competent for use in a grand jury hearing. State v. Gieffels, 554 P.2d 460, 463-65 (Alaska 1976).[9] The state's attorney recognized that the offered testimony was hearsay which is subject to the Rule 6(r) compelling justification test. Our ruling in the case of Galauska v. State, 527 P.2d 459 (Alaska 1974) is controlling on this point. In Galauska, after *599 analyzing a virtually identical grand jury evidence issue, we held that a co-defendant's invocation of the privilege against self-incrimination is a sufficiently compelling justification for the admission of his hearsay statement against another co-defendant during grand jury proceedings. Id. at 465. Specifically, we stated: Calling Peter [the co-defendant] before the grand jury would have led to the introduction of direct evidence only if Peter incriminated himself. Concern for Peter's substantive rights constituted a compelling reason under Criminal Rule 6(r) for the use of his hearsay statement at the grand jury. Id. at 465. In the case at bar Franklin claimed his fifth amendment privilege, and the grand jury was informed, on the record, of this circumstance. Thus, we conclude that the hearsay evidence concerning Franklin Clay's confession incriminating appellant complied with Criminal Rule 6(r) and was admissible before the grand jury. During the course of the police investigation of the Williams burglary, Franklin made inconsistent statements to the police on at least three separate occasions. The first statement was apparently made to a detective on the day after the burglary, in the cafeteria of the hospital at which Franklin's wife was employed. In response to the detective's inquiries regarding Franklin's knowledge of the burglary, Franklin professed ignorance of the crime. Later, while the police were at Franklin's home executing search warrants for the stolen property, Franklin indicated his desire to cooperate in the investigation. After leading police to the area in which the stolen property was concealed, Franklin made a statement to investigators which implicated his brother and appellant, but which "didn't say anything" about his own participation in the burglary. Shortly after making his second statement, Franklin voluntarily proceeded to the police station. At that time he admitted to investigators his involvement in the burglary. The grand jury was not informed of the two statements Franklin Clay initially gave to the police, but only of his eventual voluntary confession.[10] Preston argues that this selective submission of statements on the part of the prosecutor prevented the grand jury from evaluating the veracity of the hearsay declarant, Franklin. Prior decisions by this court have engendered some degree of confusion regarding the so-called "reliability" of hearsay which is admitted under the compelling justification test of Criminal Rule 6(r). In this case, for example, counsel for appellant appears to have misapprehended the interface between the two-step analysis set forth in Taggard v. State, 500 P.2d 238, 242-43 (Alaska 1972), and the "compelling justification" hearsay exception of Criminal Rule 6(r).[11] In Taggard, we made the following statement: "When secondary evidence is utilized before the grand jury ... it should be scrutinized with special care to ensure that it can `rationally establish facts' sufficient to support an indictment."[12] The issue in Taggard revolved around the sufficiency of the evidence supporting the grand jury indictment. The only evidence of Taggard's culpability presented to the grand jury was a single statement made to police by an informant. This statement was subsequently repeated to the grand jury by a police officer. After propounding a test for measuring the sufficiency of the evidence supporting a grand jury indictment, we applied that test and found there to be insufficient evidence to justify an indictment against Taggard. The test provided that: *600 The threshold question, which must be determined in all cases involving a challenge to the sufficiency of the evidence supporting a grand jury indictment, is whether the evidence presented a sufficiently detailed account of criminal activity and the defendant's participation in this activity so that `if unexplained or uncontradicted if would warrant a conviction of the person charged with an offense by the judge or jury trying the offense.' Where hearsay evidence has been introduced, we must also determine whether the credibility of the informant has been sufficiently established so that the grand jury may know how much weight to give to the hearsay testimony. Id. at 242-43 (footnote omitted), quoting State v. Parks, 437 P.2d 642, 644 (Alaska 1968). As to the first step, there was a detailed account of the burglary presented to the grand jury concerning the goods which were stolen and where they were found. Franklin's statement as related to the grand jury set forth details of Preston's involvement in the burglary. Officer Nielson summarized for the grand jury Franklin's confession in the following manner: Basically he stated himself, his brother Robert Clay and his brother's girlfriend, Melody Preston, took his car; went to the victim Williams' house between 10:00 and 11:00 in the morning. Melody Preston had a key; she opened the house and the — the three of them stole stereo equipment and a handgun from the house. It is the second step of the Taggard analysis which Preston argues is not met in the case at bar. Preston contends that this case is similar to Taggard in which we stated: The problem in this case, however, is the complete lack of evidence by which the grand jury could evaluate the trustworthiness of the hearsay informant's testimony. The grand jury was not presented with any evidence which would demonstrate the reliability of the particular informant or independently corroborate his story. The prosecutor's unsupported assertion before the grand jury that the informant was reliable hardly qualifies as "independent evidence" of trustworthiness. In addition, the statement by the police officer that the informant's hearsay testimony had been used in a series of narcotics cases before this same grand jury is also inadequate to establish the informant's trustworthiness. The fact that the same informant's uncorroborated hearsay testimony has been repeated to the grand jury in a series of earlier cases does not lend credence to his testimony in a particular case. Id. at 243 (footnote omitted). In the instant case no one asserted that Franklin Clay was a reliable witness. The prosecution made no effort to place before the grand jury any evidence of Franklin Clay's credibility as a witness. The fact that a statement is incriminating is itself some indication of its reliability, but primarily as to the declarant's own participation in a crime, and much less so as to the involvement of others. It cannot be concluded that the mere making of the statement itself is sufficient indication of Franklin Clay's credibility to meet the test in Taggard. However, we think that when this admission is joined with the independent evidence presented as to Preston's participation,[13] the second part of the Taggard test is met.[14] *601 Preston also contends that the prosecutor's introduction of the third statement made by Franklin while withholding his earlier statements violated the prosecutor's duty to present exculpatory evidence.[15] It is well established that the prosecutor "should seek justice, not simply indictment or conviction." Frink v. State, 597 P.2d 154, 165 (Alaska 1979). This court has long held that the prosecutor is obligated to "disclose *602 to the grand jury any evidence which he knows will tend to negate guilt."[16] The reason for this requirement stems from our view that "before the accused suffers any of the grave inconveniences which are apt to ensue upon the return of a felony indictment, there should be a reliable determination made as to the probability of his guilt." State v. Gieffels, 554 P.2d 460, 465 (Alaska 1976). The grand jury functions as a "shield" as well as a "sword" of justice,[17] and "should operate to control abuses by the government and protect the interests of the accused."[18] Preston argues that the second statement given by Franklin to investigators inculpating only Preston and Robert Clay was sufficiently inconsistent with Franklin's eventual confession to be considered as exculpatory evidence. In Frink v. State, 597 P.2d 154, 165 (Alaska 1979), we quoted with approval language from a California opinion stating that "when a district attorney seeking an indictment is aware of evidence reasonably tending to negate guilt he is obligated ... to inform the grand jury of its nature and existence... ."[19] Thus, we must determine whether the evidence is exculpatory, reasonably tending to negate guilt, or merely inconsistent. In the present case, we find that we cannot agree with Preston's characterization of Franklin's second statement as exculpatory evidence in so far as that statement concerns her. The mere fact of inconsistency does not automatically convert all such evidence into exculpatory material. If we were to adopt Preston's broad reading of the exculpatory evidence rule, such action would go a long way toward turning "this [grand jury] stage of the proceedings into a mini-trial."[20] It is our intention to avoid such a result and we must, in appropriate cases, defer to a reasonable degree to the discretion of the prosecutor in evaluating the breadth of the evidence which he will present to the grand jury.[21] Our evaluation of the evidence which appellant contends was exculpatory convinces us that the single deviation between Franklin's second and third statements concerned his own involvement in the criminal transaction. The consistent thrust of these two statements was that Preston and Robert Clay had been immediately involved in the burglary. The exculpatory quality lay only in the fact that he had made inconsistent statements as to his own participation and, thereby, somewhat lessened his own general credibility. Given the incriminating effect of admitting to *603 participation, we find this inconsistency minimally probative of Franklin's veracity or lack thereof. Franklin was thoroughly questioned at trial regarding the prior statements which he made to police.[22] We believe that the prosecutor's failure to introduce before the grand jury Franklin's earlier statements did not violate his duty to present exculpatory evidence;[23] the evidence presented by the prosecutor was reasonably complete and fair in the context of a grand jury proceeding.[24] Preston's third assignment of error on appeal concerns the trial judge's refusal to grant her motion for a mistrial. Prior to trial, Preston secured an order of the trial court preventing the prosecution from introducing before the jury evidence of Preston's recent conviction for receiving stolen property and her resultant probationary status.[25] During the direct examination of Franklin Clay, the following exchange occurred: Q. What day was that that you took it [the stolen property] out in the woods? A. A few days after. Well, whatever day it was that her [Preston's] probation officer came out. Preston's counsel immediately moved for a mistrial, which was denied. The court informed Preston's counsel he could "either let the matter rest, or you can draft a cautionary instruction and I'll instruct the jury with reference to the matter." He replied, "Well, at this point I imagine it's better to let it rest and just hope that nobody picked up on it." We find no error in this denial. The trial judge is granted discretion in admitting or rejecting evidence of a defendant's prior convictions for a proper purpose.[26] The purpose of the protective order *604 was to preclude the jury from improperly considering evidence of Preston's prior conviction for an unrelated offense as bearing upon her guilt in the present case. Although revealing substantive evidence of appellant's earlier conviction as proof of her criminal disposition would clearly violate Alaska Rule of Evidence 404(b),[27] we cannot say that the simple reference at trial to Preston's probation was a substantial violation of the protective order. We also note that this occurred in a seemingly unintentional fashion. There is no evidence of any prosecutorial misconduct which would involve other concerns on review. However, we think that especially when there is an outstanding protective order, the parties should instruct their witnesses not to discuss any forbidden topics. The mention of Preston's probationary status neither informed the jury of the substance of the underlying conviction nor so prejudiced the defense as to demand a mistrial or a finding that the trial court abused its discretion in ruling on the motion. Finally, Preston alleged that the sentence of eight years with three suspended imposed upon her by the trial court was excessive. The maximum permissible sentence which may be imposed upon a person convicted of burglary under circumstances such as those in the present case, is ten years.[28] At the sentencing proceeding, the superior court was reluctant to characterize Preston as the worst type of offender. The court also considered Preston's positive employment history and the numerous favorable character recommendations submitted by her friends. However, the superior court found it necessary to discount these factors in light of the countervailing character information provided by other acquaintances of Preston. The court also noted at sentencing that the seriousness of Preston's crimes is escalating, and that a weapon had been involved in the present offense as well as in appellant's prior crime. However, we note that in both crimes, the weapons involved were not used in perpetrating the offenses of which Preston was convicted but were part of the stolen property involved. Thus, we think the sentencing court unduly emphasized this factor in its decision. This was only Preston's second conviction, neither of which involved use of a weapon or any danger to life. The entry here was not forcible. Preston had an excellent employment history, and highly favorable character recommendations from numerous people. At least two people, including her brother, attributed her problems to her tendency to be overinfluenced by those around her. We cannot ignore the fact that the instant offense occurred only four months after Preston was put on probation for receiving stolen property. But we believe that five years' imprisonment followed by a period of three years' probation is not warranted in this case. In our opinion, Preston should not be sentenced to imprisonment for more than three years, followed by a period of five years' probation.[29] *605 The conviction is Affirmed, and the case is Remanded to the superior court for resentencing consistent with this opinion. BOOCHEVER, Justice, concurring. I believe that under certain circumstances the confession of an informant may furnish sufficient indicia of credibility to meet the test set forth in Taggard v. State, 500 P.2d 238 (Alaska 1972). MATTHEWS, Justice, dissenting. I do not believe the superior court was clearly mistaken in imposing a sentence of eight years with three suspended. This was appellant's second felony, which she committed while on probation for her first. I would affirm the judgment in its entirety. NOTES [*] This case was submitted to the court for decision prior to Justice Boochever's resignation. [1] At the time of the offense, AS 11.20.080 provided: Burglary in dwelling house. A person who breaks and enters a dwelling house with intent to commit a crime in it, or having entered with that intent, breaks a dwelling house or is armed with a dangerous weapon in it, or assaults a person lawfully in it is guilty of burglary, and upon conviction is punishable by imprisonment in the penitentiary for not less than one year nor more than 10 years. However, if the burglary is committed at nighttime, it is punishable by imprisonment for not less than one year nor more than 15 years. If a human being is within the dwelling at the time of the burglary during the nighttime or daytime, it is punishable by imprisonment for not less than one year nor more than 20 years. [2] Franklin Clay is the brother of Preston's one-time boyfriend, Robert Clay. [3] It appears from the record that Preston's sister had been expected to pay rent to Williams during her stay with him, but had refused to do so. Williams and Preston's sister were not on the best of terms at the time of her departure. [4] Alaska R.Crim.P. 6(r) provides: Admissibility of Evidence. Evidence which would be legally admissible at trial shall be admissible before the grand jury. In appropriate cases, however, witnesses may be presented to summarize admissible evidence if the admissible evidence will be available at trial. Hearsay evidence shall not be presented to the grand jury absent compelling justification for its introduction. If hearsay evidence is presented to the grand jury, the reasons for its use shall be stated on the record. [5] Alaska R.Crim.P. 6(r) plainly sanctions the presentation of hearsay evidence to a grand jury provided that it "would be legally admissible at trial" or if there is a "compelling justification for its introduction." See Coger v. State, 517 P.2d 1403, 1406 (Alaska 1974). Compelling justification is required only for otherwise inadmissible hearsay. Galauska v. State, 527 P.2d 459, 464 (Alaska 1974); State v. Taylor, 566 P.2d 1016, 1018 (Alaska 1977). Where neither of these two requirements is met, an indictment is still valid if "there was adequate direct testimony to justify the indictment." Webb v. State, 527 P.2d 35, 36 (Alaska 1974) (footnote omitted); State v. Taylor, 566 P.2d 1016, 1019 (Alaska 1977). Insofar as Franklin's testimony was the only direct link between the appellant and the burglary of the Williams home, it is crucial primary evidence of Preston's participation in the transaction. Accordingly, to be admissible in the present action, such evidence must withstand the Rule 6(r) hearsay analysis. However, by recognizing that Franklin's statement was the only direct evidence presented of Preston's involvement in the burglary, we do not mean to be understood as suggesting that "[t]here was nothing before the grand jury other than the statement itself upon which the jury could evaluate the reliability of the testimony." Galauska v. State, 527 P.2d 459, 464 (Alaska 1974); see State v. Skan, 511 P.2d 1296 (Alaska 1973). Indeed, there was substantial, albeit circumstantial, additional evidence before the grand jury. See also Taggard v. State, 500 P.2d 238, 242-43 (Alaska 1972). [6] See also Adams v. State, 598 P.2d 503, 508 (Alaska 1979). [7] At the time of the indictments here, Franklin was engaged in plea negotiations with the prosecution. He ultimately agreed to plead guilty to receiving stolen property in exchange for dismissal of the burglary charge against him and, presumably, for his testimony against the others. [8] It is established in this state that a grand jury indictment may be validly based upon the uncorroborated testimony of an accomplice. Merrill v. State, 423 P.2d 686, 695 (Alaska), cert. denied, 386 U.S. 1040, 87 S.Ct. 1497, 18 L.Ed.2d 607 (1967); State v. Skan, 511 P.2d 1296 (Alaska 1973). Even so, we believe that no genuine corroboration issues are presented by this case. Abundant independent evidence which tended to corroborate Franklin's story was presented to the grand jury. See note 5 supra; see also note 9 infra. [9] For discussion of the hearsay problem as it relates to statements by one co-defendant which are sought to be admitted against another co-defendant, see Galauska v. State, 527 P.2d 459, 463 n. 3 (Alaska 1974). [10] At Preston's trial, Franklin testified that he lied about his own involvement in the burglary because he "was scared" when he made the first two statements. After Preston and Robert were arrested upon the strength of Franklin's accusations, he "felt guilty" and compelled by his conscience to share the blame. Accordingly, Franklin confessed and was himself arrested. [11] We note, in passing, that the Taggard decision was handed down prior to the February, 1973 effective date of Alaska R.Crim.P. 6(r). [12] Taggard v. State, 500 P.2d 238, 242 (Alaska 1972) (footnote omitted), quoting Burkholder v. State, 491 P.2d 754, 758 (Alaska 1971). [13] We agree, as the state noted in its brief at 17-19, that the following facts presented to the grand jury were sufficient independent evidence: Charles G. Williams, Sr., testified that his house had been burglarized on March 9, and stereo equipment, televisions, and a gun had been taken. Whoever had entered had done so with a key. The only non-family person who had a key was Venita Preston, Melody Preston's sister. Venita had been staying at the Williams' residence up until about two weeks prior to the burglary. Williams knew Melody Preston, had met Robert Clay once, but had never met Franklin Clay. Detective Nielsen testified that he had assisted in recovering the stolen items a few days later at 21 Mile Old Richardson Highway, near the residence of Robert and Franklin Clay. Franklin Clay assisted in recovering the property. Melody Preston was also living at that residence, and she and Robert Clay were sharing a room there. Christina Clay testified that she was married to Franklin Clay, and knew Melody Preston and Robert Clay. She testified that Melody Preston and Robert Clay were living at her parents' residence, and were using her brother's room. She testified that one day she came home from work, and there was stereo equipment in Preston's and Robert Clay's room. Preston and Robert Clay didn't say anything about where they had gotten the equipment. Christina also caught a glimpse of something that looked like a gun. Christina became aware that the property did not belong to Preston and Robert Clay, and she told them to leave, and to take the stuff with them. Willie Henry testified that he knew the Clay brothers, and was at their residence on Wednesday, March 9, when he saw some stereo equipment in a bedroom at the residence. The brothers did not say where the stuff had come from, but Robert Clay had said it was his stuff from Germany, and had offered to sell it to Henry for $5,000. Robert Clay told Henry the equipment belonged to him (Clay). Henry also testified he saw a gun there, which Robert said was his. Henry also testified that Franklin Clay owned or drove a gray or silver Trans Am. Officer Frank Colletta testified that he stopped a silver Trans Am the day of the burglary when his dispatcher had told him that someone with a CB radio was following someone he suspected of breaking into his house, and described the Trans Am. Mr. Williams had followed the vehicle, and he and Officer Colletta contacted the vehicle at 10th and Barnette. The occupants of the vehicle were Robert Clay, Franklin Clay, Melody Preston, and a Mr. Hamilton. With the consent of the occupants, Mr. Williams looked through the vehicle but did not find his property. A search warrant was executed less than one week later on the premises where Preston and the Clays were residing, and the stolen property was recovered. [14] Cf. McKinnon v. State, 526 P.2d 18, 27 (Alaska 1974) (evidence of a hearsay declarant's professional status may justify the introduction of the hearsay statement in appropriate circumstances); State v. Johnson, 525 P.2d 532, 535 (Alaska 1974) (validity upheld when the declarant was a store security guard and trained police officer whose statements were substantially corroborated by a testifying eyewitness). In Galauska v. State, 527 P.2d 459, 465 (Alaska 1974) (footnote omitted), we also found the evidence sufficient to support the indictment. In particular, we noted the following facts in support of the hearsay statements: As we have noted, the evidence before the grand jury when taken together presented a detailed account of the crime so as to warrant a conviction if the evidence is unexplained or uncontradicted at trial. Peter's statement itself outlined a detailed account of the criminal activity and the participation of both Galauska and Peter. The statement related specific details concerning the manner of the assault and the subsequent abandonment of the injured victim in a ravine. In addition to Peter's statement the state produced considerable corroborative testimony at the Grand Jury. Testimony was given that Galauska, Peter and Charlie were seen driving toward the highway in Galauska's truck shortly before the assault, and that the truck was found the next morning in Galauska's driveway. Police officers testified to the presence of bloodstains in the truck. The officers further testified to Galauska's admission of having seen Charlie in the bar on the evening of the killing, and related Galauska's claim of loaning his truck to a third party on that evening. The third party testified to the falsity of Galauska's claim. In addition, according to police testimony, it would probably have required two men to carry the inert Peter to the edge of the ravine. As we see it, this evidence was sufficiently corroborative of Peter's story to enable the grand jury to properly weigh the worth of Peter's hearsay statement and was sufficient. [15] Alaska R.Crim.P. 6(q) sets forth one aspect of the exculpatory evidence standard: Sufficiency of Evidence. When the grand jury has reason to believe that other available evidence will explain away the charge, it shall order such evidence to be produced and for that purpose may require the prosecuting attorney to subpoena witnesses... . We have previously held that "[a] requirement that the prosecutor present exculpatory evidence to the grand jury is implicit in the mandate of Criminal Rule 6(q)." Frink v. State, 597 P.2d 154, 165 (Alaska 1979). Patent in this assertion is recognition of the fact that "[t]he grand jury cannot be expected to call for evidence of which it is kept ignorant." Id. at 165, quoting Johnson v. Superior Court, 15 Cal.3d 248, 124 Cal. Rptr. 32, 34, 539 P.2d 792, 794 (1975). [16] Frink v. State, 597 P.2d 154, 165 (Alaska 1979), quoting American Bar Association, Standards Relating to the Prosecution Function and the Defense Function § 3.6(b), at 89 (Approved Draft 1971); see generally Coleman v. State, 553 P.2d 40, 47-52 (Alaska 1976). [17] See, e.g., United States v. Cox, 342 F.2d 167, 186 n. 1 (5th Cir.) (Wisdom, J., concurring), cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965). [18] Coleman v. State, 553 P.2d 40, 47 (Alaska 1976) (footnote omitted). [19] Johnson v. Superior Court, 15 Cal.3d 248, 124 Cal. Rptr. 32, 36, 539 P.2d 792, 796 (Cal. 1975); see also Gieffels v. State, 590 P.2d 55, 59 (Alaska 1979). [20] State v. Gieffels, 554 P.2d 460, 465 (Alaska 1976). [21] See Frink v. State, 597 P.2d 154, 166 (Alaska 1979). In Frink, we concluded that "the prosecutor's obligation to present exculpatory evidence to the grand jury does not turn the prosecutor into a defense attorney; the prosecutor does not have to develop evidence for the defendant and present every lead possibly favorable to the defendant." See also Cassell v. Texas, 339 U.S. 282, 302, 70 S.Ct. 629, 639, 94 L.Ed. 839, 855 (1950) (Jackson, J., dissenting) wherein Justice Jackson stated his view of the grand jury function: [The grand jury's] power is only to accuse, not to convict. Its indictment does not even create a presumption of guilt; all that it charges must later be proved before the trial jury, and then beyond a reasonable doubt. The grand jury need not be unanimous. It does not hear both sides but only the prosecution's evidence, and does not face the problem of a choice between two adversaries. Its duty is to indict if the prosecution's evidence, unexplained, uncontradicted and unsupplemented, would warrant a conviction. If so, its indictment merely puts the accused to trial. The difference between the function of the trial jury and the function of the grand jury is all the difference between deciding a case and merely deciding that a case should be tried. [22] This case does not present a situation in which "the protective value of the grand jury" is so eroded by the prosecutor's presentation of questionable evidence "as to make it nothing more than an administrative arm of the district attorney's office." State v. Gieffels, 554 P.2d 460, 465 (Alaska 1976). Neither does this case manifest a situation in which the state has attempted at trial to "validate an otherwise invalid indictment." Adams v. State, 598 P.2d 503, 510 (Alaska 1979). In Taggard v. State, 500 P.2d 238, 243 (Alaska 1972) (footnotes omitted), we stated as follows: A mere formal defect does not require dismissal of an indictment after the guilt of the defendant has been established at a fair trial. But courts do not hesitate to dismiss an indictment, even after a conviction, when the defect in the indictment is substantial. The conviction must be overturned when an indictment is invalid and the error was properly preserved by a timely objection prior to trial. [23] Preston has also raised a claim that she was denied a due process right imposed by the state constitution. In light of our conclusion that the prosecutor did not violate Criminal Rule 6, our holding in Frink v. State, 597 P.2d 154, 166 (Alaska 1979) is dispositive. In Frink, we held that if the prosecutor did not violate the duty imposed in Alaska R.Crim.P. 6, then the prosecutor has not "violated any constitutionally-imposed duty of disclosure." Id. at 166. [24] We emphasize, however, that the line between exculpatory evidence and simple inconsistent evidence cannot be clearly delineated. Our review must proceed on a case by case basis. Compare Frink v. State, 597 P.2d 154 (Alaska 1979) and Gieffels v. State, 590 P.2d 55, 59-60 (Alaska 1979) with Adams v. State, 598 P.2d 503 (Alaska 1979). [25] Preston's earlier conviction for this unrelated offense was the subject of a per curiam opinion entitled Preston v. State, 583 P.2d 787 (Alaska 1978). We take this occasion to correct an error in that opinion which relates to the present offense. In that opinion, we mistakenly indicated that Preston pleaded guilty to the present burglary charge. 583 P.2d at 788. Preston in fact denied participation in the burglary, stood trial for the offenses charged and was convicted by a jury; she did not plead guilty. [26] See Ladd v. State, 568 P.2d 960, 968 (Alaska 1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1498, 55 L.Ed.2d 524 (1978). Article IV of the Alaska Rules of Evidence deals generally with the admissibility of relevant evidence and sets forth several factors which the trial judge must consider in deciding whether proffered evidence is relevant and otherwise admissible. Rule 403 states: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time. Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Rule 404(b) reads: 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. 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. [27] See note 26 supra, for the text of Alaska R.Evid. 404(b). [28] See note I supra. [29] Preston, who is black, also suggests in vague terms that the length of her sentence was motivated by racial bias. However, appellant fails to allege with any particularity in what respect her sentence was racially discriminatory or inspired by racial prejudice. Johnson v. State, 607 P.2d 944, 947-48 (Alaska 1980); Bell v. State, 598 P.2d 908, 916 (Alaska 1979). With the absence of any specificity in support of a claim of racial bias, appellant has not met the burden of establishing a prima facie case. Johnson v. State, 607 P.2d 944, 947-48 (Alaska 1980); Bell v. State, 598 P.2d 908, 916 (Alaska 1979); Campbell v. State, 594 P.2d 65, 68-69 (Alaska 1979).

720 S.E.2d 28 (2011) STATE v. CLARK. No. COA11-75. Court of Appeals of North Carolina. Filed December 6, 2011. Case Reported Without Published Opinion No Error.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 97-6467 LESTER DAVID GOODE, Defendant-Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. William M. Kidd, Senior District Judge. (CR-88-12, CA-97-53-1) Submitted: September 10, 1998 Decided: September 28, 1998 Before MURNAGHAN, MICHAEL, and MOTZ, Circuit Judges. _________________________________________________________________ Vacated and remanded by unpublished per curiam opinion. _________________________________________________________________ COUNSEL Lester David Goode, Appellant Pro Se. Robert H. McWilliams, Jr., Assistant United States Attorney, Wheeling, West Virginia, for Appellee. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION PER CURIAM: Appellant appeals from a district court order dismissing his motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998), as barred by the one-year limitations period. Because Appellant's conviction became final on June 18, 1988, Appellant had until April 23, 1997, to file his § 2255 motion. See Brown v. Angelone, ___ F.3d ___, 1998 WL 389030 (4th Cir. July 14, 1998) (Nos. 96-7173, 96-7208). Appel- lant filed this habeas motion on March 12, 1997. Therefore, his motion was not time barred. Accordingly, we grant a certificate of appealability on this issue, vacate the district court's order, and remand for further proceedings. 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. VACATED AND REMANDED 2 

NUMBER 13-98-624-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ___________________________________________________________________ BHP DE VENEZULA, C.A., A/K/A BHP VENCA , Appellant, v. EUGENE PAUL CASTEIG , Appellee. ___________________________________________________________________ On appeal from the 214th District Court of Nueces County, Texas. ____________________________________________________________________ O P I N I O N Before Justices Dorsey, Hinojosa, and Rodriguez Opinion by Justice Rodriguez Appellee Eugene Casteig brought suit in Nueces County against BHP Engineering and Consulting ("E&C") (1) and BHP de Venezuela ("Venca") claiming he was entitled to unemployment benefits under Venezuelan law for consulting services he performed in Venezuela. Venca filed a special appearance, which the trial court denied. This is an interlocutory appeal from that denial. (2) We reverse the trial court's order and dismiss for lack of personal jurisdiction. Venca is a foreign corporation organized and established under Venezuelan law. Its corporate residence and principal place of business are in Venezuela. It was formed in January 1992 with E&C as a 19% shareholder. Venca was formed to provide engineering services to companies in Venezuela. Venca has conducted no business since 1994. E&C is incorporated in the state of Texas and has offices in Nueces and Victoria Counties, Texas. The day-to-day operations of Venca were coordinated by Alejandro Garcia and Joe Burch. Burch was the president of Venca and the secretary/treasurer of E&C. It is undisputed that Burch was a Texas resident. It is further undisputed that Burch assisted in the day-to-day operations of Venca while he was located in Venezuela. E&C and Venca entered into a Technical Services Agreement ("Agreement") which provided, inter alia, that Venca may request that E&C send qualified professionals to Venezuela to assist Venca on various projects as needed. Venca could also send personnel to Texas for training. The Agreement further provided that E&C would assist Venca in acquiring equipment needed for its projects. The Agreement was entered into in Venezuela, was registered in Venezuela, and chose Maracaibo, Venezuela as its domicile for all matters arising under the contract. Eugene Casteig was an employee of E&C. Pursuant to the Agreement, E&C sent Casteig to Venezuela to assist Venca on its engineering projects. Venca paid E&C for Casteig's services. When Venca closed its doors, there obviously was no longer a need to have Casteig in Venezuela and he was instructed to return to Texas. Under the Agreement, E&C sold approximately $95,000 worth of equipment to Venca. This equipment was delivered to Venca in Venezuela with payment being made to E&C's account at a Venezuelan bank. On July 29, 1996, Casteig filed suit for breach of an employment contract and wrongful termination against E&C and Venca. Venca filed a special appearance, which the trial court denied. Venca appeals the denial of its special appearance. In issues one, thirteen, and fourteen, Venca argues the trial court erred in denying its special appearance. In Texas, personal jurisdiction over a nonresident defendant is proper only if the requirements of both the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution and the Texas long-arm statute are satisfied. See U.S. Const. amend. XIV, § 1; Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (Vernon 1997);Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 413-14, 104 S.Ct. 1868 (1984); CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996); J&J Marine, Inc. v. Le, 982 S.W.2d 918, 923 (Tex. App.--Corpus Christi 1998, no pet. h.). The Texas long-arm statute permits a court to exercise personal jurisdiction over a nonresident defendant doing business in Texas. Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (Vernon 1997). The long-arm statute provides, inter alia, that a non-resident defendant is doing business in Texas within the meaning of the statute if it directly or through an intermediary "recruits" Texas residents for employment. Id. The Texas Supreme Court has consistently interpreted the statutory language "to reach as far as the federal constitutional requirements of due process will allow." CSR Ltd., 925 S.W.2d at 594 (quoting Guardian Royal Exch. Assurance, Ltd. v. English China Clays,P.L.C., 815 S.W.2d 223, 226 (Tex. 1991)). Accordingly, the Texas long-arm statute requirements are satisfied if the exercise of personal jurisdiction comports with federal due process limitations. CSR Ltd., 925 S.W.2d at 594; see Guardian Royal, 815 S.W.2d at 226. Compliance with the Texas long-arm statute and federal due process requires a plaintiff to show that the defendant has established "minimum contacts" with the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154 (1945); Guardian Royal, 815 S.W.2d at 230; Schroeder v. Valdez, 941 S.W.2d 312, 314 (Tex. App.--Corpus Christi 1997, no writ). There must be a "substantial connection" between the nonresident defendant and Texas arising from action or conduct of the nonresident defendant purposefully directed toward Texas. Guardian Royal, 815 S.W.2d at 230;Schroeder, 941 S.W.2d at 314. A nonresident defendant who purposefully avails itself of the privileges and benefits of doing business in this state has sufficient contacts to confer personal jurisdiction. CSR Ltd., 925 S.W.2d at 594; see Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76, 105 S.Ct. 2174 (1985). Minimum contacts may give rise to either specific or general jurisdiction. CSR Ltd., 925 S.W.2d at 594. General jurisdiction requires there to be continuous and systematic contacts between the nonresident defendant and Texas. CSR Ltd., 925 S.W.2d at 594; Guardian Royal, 815 S.W.2d at 228; Schroeder, 941 S.W.2d at 314. Such contacts permit Texas courts to exercise personal jurisdiction over a defendant even though the cause of action did not arise from or relate to activities conducted within the forum state. CSR Ltd., 925 S.W.2d at 594; see Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex. 1990). General jurisdiction requires a showing of "substantial" activities by the nonresident defendant in Texas, a more demanding minimum contacts analysis than for specific jurisdiction. CSR Ltd., 925 S.W.2d at 594; Guardian Royal, 815 S.W.2d at 228; Schroeder, 941 S.W.2d at 314. Specific jurisdiction, on the other hand, is established where the defendant's alleged liability arises from or is related to an activity purposefully directed toward the forum state. Helicopteros, 466 U.S. at 417; CSR Ltd., 925 S.W.2d at 595;Schroeder, 941 S.W.2d at 314. When specific jurisdiction is asserted, the minimum contacts analysis focuses on the relationship between the defendant, the forum, and the litigation. Helicopteros, 466 U.S. at 414; Guardian Royal, 815 S.W.2d at 228. Aside from "minimum contacts," due process also requires that the assertion of personal jurisdiction comport with traditional notions of fair play and substantial justice. Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 114, 107 S.Ct. 1026 (1987); Guardian Royal, 815 S.W.2d at 231; Juarez v. United Parcel Serv. de Mex. S.A. de C.V., 933 S.W.2d 281, 284 (Tex. App.--Corpus Christi 1996, no writ). The following factors, when appropriate, should be considered: (1) the burden on the defendant; (2) the interests of the forum state in adjudicating the dispute; (3) the plaintiff's interest in obtaining convenient and effective relief; (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several states in furthering fundamental substantive social policies. Asahi Metal, 480 U.S. at 115; Guardian Royal, 815 S.W.2d at 231; United Parcel Serv., 933 S.W.2d at 284. Furthermore, when an international dispute is involved, this Court must also consider: (1) the unique burdens placed upon the defendant that must defend itself in a foreign legal system; and (2) the procedural and substantive policies of other nations whose interests are affected as well as the federal government's interest in its foreign relations policies. Asahi Metal, 480 U.S. at 115; Guardian Royal, 815 S.W.2d at 229;United Parcel Serv., 933 S.W.2d at 284. On appeal from a special appearance, this Court reviews all the evidence in the record. J&J Marine, 982 S.W.2d at 924;Vosko v. Chase Manhattan Bank, N.A., 909 S.W.2d 95, 99 (Tex. App.--Houston [14th Dist.] 1995, writ denied); General Elec. Co. v. Brown & Ross Int'l, 804 S.W.2d 527, 529-30 (Tex. App.--Houston [1st Dist.] 1990, writ denied). To sustain a special appearance, the nonresident defendant must negate all bases of personal jurisdiction. CSR Ltd., 925 S.W.2d at 596. Existence of personal jurisdiction is a question of law. However, the proper exercise of personal jurisdiction sometimes must be preceded by the resolution of underlying factual disputes. We review the appropriateness of the trial court's resolution of those facts under an ordinary sufficiency of the evidence standard. J&J Marine, 982 S.W.2d at 924;ContiCarriers, 944 S.W.2d at 411; Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 632 (Tex. App.--Dallas 1993, writ denied). We will consider all the evidence that was before the trial court, including the pleadings, any stipulations, affidavits and exhibits, the results of discovery, and any oral testimony. J&J Marine, 982 S.W.2d at 924; ContiCarriers, 944 S.W.2d at 411;Vosko, 909 S.W.2d at 99. While the trial court's findings of fact have the same force and dignity as a jury's verdict, see Taiwan Shrimp Farm Village Ass'n v. U.S.A. Shrimp Dev., Inc., 915 S.W.2d 61, 70 (Tex. App.--Corpus Christi 1996, writ denied), they are not conclusive when a complete reporter's record is presented on appeal. See Tucker v. Tucker, 908 S.W.2d 530, 532 (Tex. App.--San Antonio 1995, writ denied). We may not disregard findings of fact if the record contains some evidence of probative value from which inferences may be drawn, or unless the findings are so contrary to the overwhelming weight of the evidence as to be manifestly wrong. J&J Marine, 982 S.W.2d at 925;Al-Turki v. Taher, 958 S.W.2d 258, 260 (Tex. App.--Eastland 1997, pet. denied); De Prins v. Van Damme, 953 S.W.2d 7, 13 (Tex. App.--Tyler 1997, pet. denied). We review the trial court's conclusions of law for correctness. J&J Marine, 982 S.W.2d at 925; Ashcroft v. Lookadoo, 952 S.W.2d 907, 910 (Tex. App.--Dallas 1997, pet. denied). To determine whether the trial court could properly assert general jurisdiction over Venca, this Court will review all of Venca's contacts with Texas to ascertain whether any such contacts were substantial, continuous, and systematic. In the instant case, the record clearly reflects that Venca entered into the Agreement with E&C, a Texas corporation. The Agreement was executed, registered, and domiciled in Venezuela. Pursuant to the Agreement, Casteig, who was an employee of E&C, went to Venezuela to perform engineering consulting services for Venca. Venca had no involvement in the decision to employ Casteig. E&C did not hire any employees on behalf of Venca. While Casteig worked in Venezuela, Venca was billed by E&C for his services. Casteig, on the other hand, was paid by E&C. Venca purchased approximately $95,000 worth of computer equipment from E&C. The equipment was shipped to Venca from Texas and payment was made by Venca to E&C's account at a Venezuelan bank. While the Agreement provided that Venca could send its employees to E&C in Texas for training, no employees ever traveled to Texas on behalf of Venca. Joe Burch was the president of Venca and secretary/treasurer of E&C. Burch resided in Texas and traveled between Texas and Venezuela on numerous occasions. Burch did not travel to Texas as an employee or representative of Venca. Burch did not conduct business on behalf of Venca while in Texas. Burch communicated by telephone with Venca management approximately ten times for the purpose of collecting information for E&C on the performance of Venca. There was no other communication between Venca and E&C. There were approximately four Venca shareholder's meetings, all of which were held in Venezuela. Burch retains some Venca files in his Texas office. Venca never owned, leased, or rented property in Texas. It did not own or rent vehicles, equipment, or other property in Texas. It had no houses, trailer houses, offices, or buildings that it owned, rented, leased, or operated in Texas. It did not have any accounts with financial institutions in Texas. While the trial court found the above evidence constituted substantial activities purposefully directed toward Texas, we find any contacts Venca may have had with Texas were neither continuous nor systematic, but merely fortuitous. Courts have consistently held "random," "fortuitous," or "attenuated" contacts such as the ones in the case before us are insufficient to subject a non-resident defendant to suit in this state. See Helicopteros, 408 U.S. at 411-12, 416 (holding Texas court did not have personal jurisdiction over a foreign business even where the foreign business had purchased $4 million worth of products in Texas, had sent employees to train in Texas, and payments were drawn on a Texas bank); CSR Ltd., 925 S.W.2d at 595 (emphasizing defendant should not be subject to the jurisdiction of a foreign court based upon "random," "fortuitous," or "attenuated" contacts); J&J Marine, 982 S.W.2d at 926-27 (holding Texas court did not have personal jurisdiction where nonresident defendant sold seven shrimp boats to Texas residents, amounting to $3.5 million in revenue; made several phone calls to Texas residents, one of which could be construed as soliciting business; and filed application for admeasurement in Texas);Conner v. ContiCarriers & Terminals, Inc., 944 S.W.2d 405, 417 (Tex. App.--Houston [14th Dist.] 1997, no writ) (holding nonresident defendant did not establish "continuous and systematic" contacts even though it had a certificate of authority to do business in Texas; maintained an agent for service of process in Texas; filed franchise tax returns in Texas; sent barges to Texas ports; had contacts with Texas businesses; earned yearly revenue from barges loaded or unloaded in Texas; hired Texas employees; and litigated in a Texas court); Reyes v. Marine Drilling Co., Inc., 944 S.W.2d 401, 404 (Tex. App.--Houston [14th Dist.] 1997, no writ) (holding nonresident corporation that designed portion of drilling rig on which worker was injured did not have "minimum contacts;" although corporation sent representatives to companies in Texas when visits were necessitated by contractual obligations and made numerous purchases of equipment in Texas from various suppliers). Accordingly, we hold that Venca did not have "systematic and continuous" contacts sufficient to confer general jurisdiction upon Texas courts. We next consider whether Venca's contacts were sufficient to confer specific jurisdiction. Casteig contends specific jurisdiction is proper because his claim arises from the Agreement between E&C and Venca. Specifically, he asserts that pursuant to the Agreement he was "recruited" to work for Venca. As noted above, the Texas long-arm statute extends to nonresident defendants who "recruit" in Texas. Tex. Civ. Prac. & Rem. Code Ann. § 17.042(3) (Vernon 1997). Therefore, the dispositive issue before us is whether Venca recruited Casteig. To answer this question, we look to the language of the Agreement upon which Casteig relies. The Agreement specifically stated that "BHP-Venca may request technical assistance from BHP-Corpus by means of the participation of specialized foreign personnel in specific projects under the control and execution [of] BHP-Venca, either the client's direct request or by prompt requirement for the continued proper operation of BHP-Venca." We read this language to provide that upon request from Venca, E&C would send E&C employees to Venezuela as consultants on Venca projects. The Agreement contains no language that is indicative of recruiting. Furthermore, we note that Casteig was never recruited by E&C, he unilaterally sought employment at E&C, and was already an employee of E&C when he was sent to Venezuela. We, therefore, hold there is no basis for the exercise of specific jurisdiction over Venca. Assuming, arguendo, that personal jurisdiction was otherwise proper, we further hold that to require a foreign company to be hailed into a Texas court to defend itself in a suit whereby a Texas court would apply Venezuelan law to an agreement executed and performed in Venezuela would not comport with notions of fair play and substantial justice. We sustain Venca's first, thirteenth, and fourteenth issues. Having sustained the above points, we need not address Venca's remaining issues. Tex. R. App. P. 47.1. The trial court's order denying Venca's special appearance is REVERSED and this cause is DISMISSED for lack of personal jurisdiction. Nelda V. Rodriguez Justice Publish. Tex. R. App. P. 47.3. Opinion delivered and filed this the 6th day of May, 1999. 1. E&C is not a party to this appeal as it is a corporation doing business in Texas. 2. Tex. Civ. Prac. & Rem. Code Ann. §51.014(a)(7) (Vernon Supp. 1999).

63 F.Supp.2d 104 (1999) AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFLCIO, Local 1164 & William Thoms, Plaintiffs, v. UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES, Defendant. No. Civ.A. 98-11321-PBS. United States District Court, D. Massachusetts. August 26, 1999. *105 Martin R. Cohen, AFGE, Bala Cynwyd, PA, Burton E. Rosenthal, Segal, Roitman & Coleman, Boston, MA, Mark D. Roth, AFGE, Washington, DC, for plaintiffs. George B. Henderson, U.S. Attorney's Office, Boston, MA, for defendant. ORDER SARIS, District Judge. After review of the Report and Recommendation on plaintiffs' and defendant's cross-motions for summary judgment (Docket Nos. 2 and 21), dated June 23, 1999, the documents submitted in camera, the Vaughn index, which states that all separable factual information was disclosed, and the plaintiffs' objections, I accept the recommendation of the Magistrate Judge and order that judgment enter in favor of the defendant. I also agree that the Motion Pursuant to Rule 56(f) for Discovery should be denied for the reasons stated in the order and notice of hearing dated April 29, 1999. REPORT AND RECOMMENDATION ON PLAINTIFFS' AND DEFENDANT'S CROSS-MOTIONS FOR SUMMARY JUDGMENT (DOCKET NOS. 21 & 22) June 23, 1999 KAROL, United States Magistrate Judge. Plaintiffs, a union of government employees and one of its local representatives, have sued the United States Department of Health and Human Services ("HHS") under the Freedom of Information Act, 5 U.S.C. § 552 (West 1996 & Supp.1999) ("FOIA"). Plaintiffs seek to compel disclosure of documents concerning a February 1997 Indoor Air Quality ("IAQ") survey conducted at the Social Security Administration's ("SSA") Salem, *106 Massachusetts office ("the Salem site"). HHS' division of Federal Occupational Health, which is responsible for industrial hygiene in federal office buildings, had engaged a private contractor to conduct the IAQ survey at the request of the SSA's Office of Environmental Policy and Automation Resources ("OEPAR") and pursuant to an inter-agency agreement between HHS and SSA. The genesis of this suit is the differences between Plaintiffs' recollection of the private contractor's conclusions about the conditions at the Salem site (as reported in a post-survey briefing to site employees) and the contents of HHS' final IAQ survey report. Plaintiffs seek six withheld documents, including drafts and memoranda exchanged among the private contractor, HHS and OEPAR following the site visit pursuant to an HHS/SSA IAQ survey protocol. Plaintiffs see something nefarious in the involvement of OEPAR, the entity presumably responsible for implementation of any recommended changes, in what they claim was to be an objective survey of the environmental conditions at the Salem site. HHS, for its part, claims that the drafts and memoranda fall squarely within FOIA's "deliberative process privilege," a statutory exemption from FOIA's disclosure requirements for "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5) ("Exemption 5"). Pending before the court are the parties' cross-motions for summary judgment. Plaintiffs' Motion for Summary Judgment, Docket No. 21; Defendant's Motion for Summary Judgment, Docket No. 22. Pursuant to an order issued on April 29, 1999, Defendant has submitted in camera, and I have reviewed, the six withheld documents at issue in this case. Order and Notice of Hearing, Docket No. 42. I have also reviewed HHS' final report to SSA. Indoor Air Quality Survey, attached as Ex. D to Declaration of William Thoms, Docket No. 30. For reasons set forth below, I find that all of the withheld documents are both pre-decisional and deliberative within the meaning of the case law interpreting Exemption 5. Accordingly, they are entitled to protection from disclosure. I therefore recommend that summary judgment enter in favor of Defendant and that Plaintiffs' cross-motion for summary judgment be DENIED. I. Applicable Law The FOIA mandates that agencies make available for public inspection a broad range of information, including the agency's organization, general methodology, rules of procedure, substantive rules, final opinions, and statements of policy and interpretation that have been adopted by the agency. 5 U.S.C. § 552(a)(1)-(2). The FOIA, however, specifically exempts nine categories of documents from its otherwise broad disclosure requirements. 5 U.S.C. § 552(b). Unless documents fall within one of the nine specific exemptions to the disclosure requirement, they are presumed to be available for public inspection. See 5 U.S.C. § 552(d). As the FOIA presumes public access to agency information, an agency withholding information must prove entitlement to an exemption. 5 U.S.C. § 552(a)(4)(B); Providence Journal Co. v. United States Dep't of the Army, 981 F.2d 552, 556 (1st Cir.1992). The district court undertakes a de novo determination as to the validity of an agency's exemption claim. Providence Journal, 981 F.2d at 556-57 (citing Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989)). Any "[d]oubts are customarily to be resolved in favor of openness." Irons v. Federal Bureau of Investigation, 811 F.2d 681, 685 (1st Cir.1987). HHS withholds the disputed documents on the strength of Exemption 5, an exemption for "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other *107 than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). As Plaintiffs observed at oral argument, it is not immediately apparent how the draft reports, handwritten comments on those reports and memoranda commenting on the drafts come within the plain language of Exemption 5. Nevertheless, in the years since the FOIA's enactment, courts have made clear that Exemption 5 encompasses a "deliberative process privilege," a form of executive privilege designed to protect the "decision-making processes of government agencies." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149-150, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) ("That Congress had the Government's executive privilege specifically in mind in adopting Exemption 5 is clear...."); see National Wildlife Fed'n v. United States Forest Serv., 861 F.2d 1114, 1116-17 (9th Cir.1988). The privilege protects the quality of administrative decisionmaking by ensuring that it does not take place "in a fishbowl." Environmental Protection Agency v. Mink, 410 U.S. 73, 87, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). The intended beneficiaries of Exemption 5 include: (1) agency subordinates, who can provide their superiors with candid opinions without fear that those opinions will later be subjected to public ridicule or criticism; (2) the agencies themselves, which are protected against premature disclosure of proposed policies; and (3) the public, which can be confused and misled by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for that action. Providence Journal, 981 F.2d at 557; see City of Virginia Beach v. United States Dep't of Commerce, 995 F.2d 1247, 1252-53 (4th Cir.1993) (Exemption 5 insulates against chilling effect disclosure would have on agency employees "judged not on the basis of their final decisions, but for matters they considered before making up their minds."). Exemption 5 "was created to prevent the disruption of a free flow of ideas, opinions, advice and frank discussions within agencies concerning their policies and programs." National Wildlife, 861 F.2d at 1117 (quoting Julian v. United States Dep't of Justice, 806 F.2d 1411, 1419 (9th Cir.1986)). To establish the privilege, HHS must show that, in "the context in which the materials are used," the documents are both "predecisional" and "deliberative." Virginia Beach, 995 F.2d at 1253; Providence Journal, 981 F.2d at 557. Predecisional documents are "prepared in order to assist an agency decisionmaker in arriving at his decision." Virginia Beach, 995 F.2d at 1253. Deliberative material "reflects the give-and-take of the consultative process" and the manner in which an agency evaluates possible alternative policies or outcomes. Virginia Beach, 995 F.2d at 1253 (citing Access Reports v. Dep't of Justice, 926 F.2d 1192, 1196 (D.C.Cir. 1991)). A pre-decisional document will qualify as "deliberative" provided that it: "(i) form[s] an essential link in a specified consultative process, (ii) `reflect[s] the personal opinions of the writer rather than the policy of the agency,' and (iii) if released, would `inaccurately reflect or prematurely disclose the views of the agency.'" Providence Journal, 981 F.2d at 559 (citing National Wildlife, 861 F.2d at 1118-19). Although expressions of personal opinion generally render a document "deliberative," segregable factual portions of that document may still be subject to disclosure if they are not so "inextricably intertwined" with the deliberative material that their disclosure would compromise the private remainder of the document. Id. II. Discussion HHS offers only one justification for withholding the drafts, memoranda and comments: that they are all pre-decisional and deliberative as to what the final IAQ survey should look like. Memorandum in Support of Defendant's Motion for Summary *108 Judgment ("Def.'s Mem."), Docket No. 23, at 10.[1] HHS argues further that releasing the drafts themselves would necessarily reveal the substance of the comments and memoranda, as any comparison of the draft and final reports would alert a careful reader to what recommended changes were and were not adopted by HHS. Def.'s Mem. at 13-14. Defendant is correct that draft documents have frequently been held to be deliberative material because comparing them to final documents can disclose editorial judgments that reflect the agency decisionmaking process. In National Wildlife, for example, the Ninth Circuit refused to order disclosure of draft environmental impact statements authored by Forest Service employees. The court observed: To the extent that National Wildlife seeks through its FOIA request to uncover any discrepancies between the findings, projections, and recommendations between the draft [reports] prepared by lower-level Forest Service personnel and those actually adopted in the final Forest Plan and EIS published by the Forest Service, it is attempting to probe the editorial policy and judgment of the decisionmakers. Materials that allow the public to reconstruct the predecisional judgments of the administrator are no less inimical to exemption 5's goal of encouraging uninhibited decisionmaking than materials explicitly revealing his or her mental processes. 861 F.2d at 1122; see also Mobil Oil Corp. v. United States Environmental Protection Agency, 879 F.2d 698, 703 (9th Cir. 1989) (same); Dudman Comms. Corp. v. Dep't of the Air Force, 815 F.2d 1565, 1569 (D.C.Cir.1987) (draft manuscript treating Air Force involvement in South Vietnam held to be both pre-decisional and deliberative); Russell v. Dep't of the Air Force, 682 F.2d 1045, 1049 (D.C.Cir.1982) (same). The documents withheld in this case are similar to those in the draft cases discussed above. The handwritten comments by SSA and HHS employees and the memoranda arising from those comments are not final agency policy. They are the suggestions of individual agency employees as to what the final IAQ survey report should look like. Release of these materials would discourage candid discussion within the agency and thereby undermine HHS' ability to perform effectively its assigned function. See Dudman, 815 F.2d at 1568. Even the first draft of the report represents the private contractor's view of what form the final IAQ survey should take, not HHS' final statement on the air quality at the Salem site. Releasing the draft would enable a careful reader to determine the substance of HHS' proposed and adopted changes. See Dudman, 815 F.2d at 1569. Moreover, in addition to the chilling effect that disclosure could have on agency employees, the release of incomplete, inaccurate or unsubstantiated information in the drafts could cause harm by providing the public with erroneous information about the conditions at the site. See Providence Journal, 981 F.2d at 559. For example, one section of the draft report refers to a set of superseded federal regulations. If the deliberative process privilege is to protect the public's interest in accurate and complete statements of agency positions, an agency must be left to make such changes outside of the public spotlight. See id. at 561. Plaintiffs argue that invocation of the deliberative process privilege should be limited to situations in which an agency is engaged in an "essential function." As Plaintiffs would have it, for example, the SSA could withhold drafts and comments relating only to its core mission: the provision of retirement and disability benefits to the citizenry. I see at least four problems with Plaintiffs' proposed "essential functions" test. *109 First, Plaintiffs have cited no case law supporting an essential functions test under the FOIA. Plaintiffs stated at oral argument that Mink is favorable to their position, but the case fails to hint at the "essential functions" component Plaintiffs propose. One case even rejects a comparable premise that Exemption 5 materials must contain some recommendation regarding law or policy in addition to being pre-decisional and deliberative. National Wildlife, 861 F.2d at 1117. Second, it is exactly the function of the HHS, and particularly its Federal Occupational Health division, to provide occupational health and industrial hygiene services to federal agencies such as SSA/OEPAR. Declaration of David Eisenhardt, attached as Ex. 3 to Defendant's Statement of Material Facts as to Which There is No. Genuine Issue to be Tried, Docket No. 24, at ¶¶ 1-2. Third, the essential functions test is inconsistent with the rationale behind the deliberative process privilege. Subjecting agency employees' views to public scrutiny discourages candor whether or not the decision under consideration is one of central importance to the agency. Premature disclosure and public confusion are also injurious to agency functions and decisions, peripheral though they may be. The "fishbowl" process against which the deliberative process guards threatens the quality and integrity of all agency decisionmaking. Finally, determining what are and are not the essential functions of a government agency adds an additional and unworkable level of complexity to the pre-decisional and deliberative tests that courts presently apply. Is writing history, for example, a more essential function to an armed service, see Russell, 682 F.2d at 1047, than the disciplining of its reserve officers? See Providence Journal, 981 F.2d at 560 (Army's prosecutorial discretion is "no less an agency function than the formulation or promulgation of agency disciplinary policy"). The government acknowledged at oral argument that its position — that the draft IAQ survey is predecisional and deliberative of the content of the final IAQ survey — would justify extending deliberative process protection to almost all, if not all, draft materials. If this were the case, I would have some concern that Exemption 5 had swallowed FOIA's presumptive rule of disclosure. Cf. National Wildlife, 861 F.2d at 1124 (Pregerson, J., concurring) (government agencies could be afforded unrestrained discretion in deciding whether to disclose FOIA materials "because nearly everything an agency generates is somehow related to the deliberative process"). We have not arrived at this daunting moment, however, for two reasons. First, as the D.C. Circuit observed in Dudman, "if a person requests particular factual material, ... an agency cannot withhold the material merely by stating that it is in a draft document. In such a case, the agency will usually be able to excise the material from the draft document and disguise the material's source, and thus the agency will usually be able to release the material without disclosing any deliberative process. When the agency can take such steps, it may not withhold the information under Exemption 5." 815 F.2d at 1569. This is precisely what HHS did in this case, providing several appendices containing segregable factual information to Plaintiffs. Second, and more importantly here, my in camera review of the contested documents reveals no attempt by the government to withhold adverse facts from Plaintiffs. As HHS has averred throughout the litigation, "none of the withheld documents, including the draft reports, contains any factual information concerning conditions at the Salem [site] that is not also included in the final Indoor Air Quality Report." Def.'s Mem. at 5.[2] *110 Plaintiffs are left then to stand on the proposition that "secret government" is abhorrent to democratic values. Plaintiffs' Memorandum of Reasons in Support of their Motion for Summary Judgment, Docket No. 25, at 11. Few could dispute this maxim, but it cannot take Plaintiffs beyond the statutory exemption provided under the FOIA and the case law interpreting it. For the reasons set forth above, I find that the contested drafts, memoranda and handwritten comments thereon are protected by the deliberative process privilege. I therefore recommend that summary judgment enter in favor of the Defendant. III. Conclusion For the reasons set forth above, I recommend that Defendant's motion for summary judgment (Docket No. 21) be GRANTED and that Plaintiffs' cross-motion for summary judgment (Docket No. 22) be DENIED. Judgment should accordingly enter in favor of Defendant. IV. IMPORTANT NOTICE OF RIGHT TO OBJECT AND WAIVER OF RIGHT TO APPEAL FOR FAILURE TO DO SO WITHIN TEN DAYS The parties are hereby advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court WITHIN 10 DAYS of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has indicated that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court's order entered pursuant to this Report and Recommendation. See United States v. Valencia-Copete, 792 F.2d 4, 5-6 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 379 (1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980); see also Thomas v. Arn, 474 U.S. 140, 148-149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), reh'g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986). NOTES [1] HHS does not claim, for example, that the drafts were pre-decisional or deliberative as to any remedial air quality measures SSA might take at the Salem site. [2] This would be a much more difficult case if the government were withholding adverse information from SSA employees.

749 So.2d 192 (1999) Alberta SIMMONS, Appellant, v. Josephine S. CLEVELAND, Appellee. No. 98-CA-00375-COA. Court of Appeals of Mississippi. July 27, 1999. *193 Joe Vandyke, Sardis, Attorney for Appellant. James McClure, III, Sardis, Attorney for Appellee. BEFORE THOMAS, P.J., LEE, AND SOUTHWICK, JJ. LEE, J., for the Court: ¶ 1. This appeal regards a property line dispute between neighbors, Alberta Simmons and Josephine Cleveland, in a subdivision in the town of Como. The Panola County Chancery Court ordered that the property lines be consistent with Cleveland's survey, and Simmons appeals the judgment rendered against her raising the following issues: *194 I. THAT THE TRIAL COURT ERRED IN ESTABLISHING THE BOUNDARY LINE IN ACCORDANCE WITH CLEVELAND'S SURVEY WHICH DISREGARDED PHYSICAL MONUMENTS. II. THAT THE TRIAL COURT ERRED BY REFUSING TO CONSIDER THE PROOF OFFERED TO ESTABLISH TITLE THROUGH ADVERSE POSSESSION. ¶ 2. We find that the chancellor was within his discretion in establishing the boundary in accordance with a survey which disregarded physical monuments; however, we find that the trial court was in error in its refusal to consider proof offered to establish adverse possession. Therefore, we reverse and remand. FACTS ¶ 3. Alberta Simmons and Josephine Cleveland lived in the Pointer Subdivision in the town of Como and had been neighbors since May 1965, sharing a property boundary. In reliance on their undisputed testimony, sparks began to fly between Simmons and Cleveland, and Simmons erected a wooden fence in 1995 adjacent to her driveway between her property and that of Cleveland. The fence ran the entire length of the lot. ¶ 4. Simmons indicated that she did not seek the permission of Cleveland to erect the fence, as she understood it to be located inside of her own property line. Cleveland objected to the placement of the fence and subsequently hired a surveyor to determine the exact location of her property line. In preparation for litigation, Simmons also engaged the services of a surveyor. Neither parties' warranty deeds contained a metes and bounds description of their respective lots, but referenced the official map and plat of the Pointer Subdivision. ¶ 5. The surveyors's results were in disagreement. Cleveland's surveyor stated that the fence was over the property line into Cleveland's side by four feet throughout the length of the fence. Simmons's surveyor likewise stated that the fence encroached upon Cleveland's property, but only by a distance of approximately one foot at the front of the lots. The fence then crossed the property line, making a long, thin "x" approximately mid-length the fence, and was actually located on the Simmons side of the line at the back of the lot. ¶ 6. The testimony of the parties indicated that they were in agreement that the corner of a neighbor's fence that adjoined the disputed properties at the rear actually defined the common back corner of their lots. Both parties also testified that Simmons's driveway had been located in essentially the same place for over twenty years, without the objection of Cleveland. Cleveland's survey, however, established the line to be several feet into the pavement of Simmons's driveway and about two feet from Simmons's house. ¶ 7. Testimony was presented which revealed the differing procedures utilized by the surveyors in arriving at their respective conclusions regarding the location of the boundary line of the two lots. The surveyors began their respective surveys from different points in the subdivision. Also, Simmons's surveyor relied on a particular marker at the rear of their lots, which both parties agreed defined the common back corner of their respective lots, in arriving at his result, whereas Cleveland's surveyor did not utilize this monument in ascertaining the boundary in his survey. Though the parties agreed on the location of the common back corner of their lots, Simmons assertion on appeal that Cleveland's surveyor testified that he too agreed that that marker indicated the back corner of the lots is incorrect. His testimony was incorrectly interpreted by the appellant as referring to the common back corner of the lots in question. This *195 testimony, however, referred to the southwest front corner of Cleveland's lot, which is not even the corner adjacent to Simmons's property. Nevertheless, the testimony of both Simmons and Cleveland was consistent that the back corner of the new wooden fence erected by Simmons was on Simmons's side of the marker agreed by them to define the common back corner of their property. ¶ 8. In taking all the testimony and evidence into account, the court deferred to Cleveland's survey, divesting Simmons of 714.6 square feet of her property, which includes a portion of her driveway that she had used for twenty years. Also, during the trial, Simmons brought forth a motion, ore tenus, to conform the pleadings to the allegations of adverse possession. At the end of the presentation of testimony, the court ruled that there would be no consideration as to adverse possession. Simmons thus appeals the trial court's decision on the foregoing assertions of error. LAW ¶ 9. This Court's scope of review requires the application of the substantial evidence/manifest error test to questions of fact. Johnson v. Black, 469 So.2d 88, 90 (Miss.1985). As the court in Johnson stated: It requires little familiarity with the institutional structure of our judicial system to know that this Court does not sit to redetermine questions of fact. Our scope of review is severely limited.... Suffice it to say that we have no authority to grant appellant any relief if there be substantial credible evidence in the record undergirding the determinative findings of fact made in the chancery court. Johnson, 469 So.2d at 90 (citations omitted). This standard of review is also enunciated in Travis v. Hartford Accident & Indem. Co., 630 So.2d 337, 338 (Miss.1993) (quoting Richardson v. Riley, 355 So.2d 667 (Miss.1978)): The principle of law with which we are concerned has been repeated by this Court many times. It is that where the chancellor was the trier of facts, his findings of fact on conflicting evidence cannot be disturbed by this Court on appeal unless we can say with reasonable certainty that these findings were manifestly wrong and against the overwhelming weight of the evidence. Even if this Court disagreed with the lower court on the finding of fact and might have arrived at a different conclusion, we are still bound by the chancellor's findings unless manifestly wrong, as stated above. ¶ 10. With questions of law, the scope of review is de novo. Planters Bank & Trust Company v. Sklar, 555 So.2d 1024, 1028 (Miss.1990). I. DID THE TRIAL COURT ERR IN ESTABLISHING THE BOUNDARY LINE IN ACCORDANCE WITH CLEVELAND'S SURVEY WHICH DISREGARDED PHYSICAL MONUMENTS? ¶ 11. Simmons argues that it was error to establish the boundary between the properties in accordance with a survey which disregarded any reference to physical monuments. She does not, however, cite authority for this argument. Therefore, consideration of this argument on appeal is precluded. See Grey v. Grey, 638 So.2d 488, 491 (Miss.1994) (citing Estate of Mason, 616 So.2d 322, 327 (Miss.1993)); R.C. Petroleum, Inc. v. Hernandez, 555 So.2d 1017, 1023 (Miss.1990); Kelly v. State, 553 So.2d 517, 521 (Miss.1989); Brown v. State, 534 So.2d 1019, 1023 (Miss. 1988); Shive v. State, 507 So.2d 898 (Miss. 1987); Pate v. State, 419 So.2d 1324 (Miss. 1982). Furthermore, even if Simmons were not barred from raising this issue, the argument would fail on its merits. ¶ 12. Simmons bases this point of her appeal on the reliability of her own survey and the trial court's disregard of the existing physical monuments evidencing the correct location of the parties's common *196 boundary line. The chancellor stated that he based his decision to rely on Cleveland's survey as opposed to Simmons's survey on the credibility of the surveyors' testimony at trial as experts in their field. He noted that Cleveland's surveyor was very familiar with the Pointer Subdivision, having surveyed lots in that neighborhood at least fifteen times over the years, whereas Simmons's surveyor had never conducted a survey in the Pointer Subdivision before. Cleveland's surveyor therefore had the benefit of information he had accumulated during the previous surveys at his disposal in determining the location of points referred to in the plat. There was much testimony regarding the two surveys by the two engineers who actually surveyed the property. The chancellor stated that most of the consideration he gave in determining the property line came from this evidence. He expressly recognized both surveys. Simmons makes quite a fuss in comparing the two surveys; however, after applying the substantial evidence/manifest error test, stated in Johnson, 469 So.2d at 90, we hold that the record shows that substantial credible evidence exists supporting the chancellor's judgment of this issue, so that the decision was not manifestly erroneous. The surveys were made by two registered land surveyors, and it was within the chancellor's purview to recognize one survey and reject the other. We therefore find that the trial court has committed no error on this issue. II. DID THE TRIAL COURT ERR BY REFUSING TO CONSIDER PROOF OFFERED TO ESTABLISH TITLE THROUGH ADVERSE POSSESSION? ¶ 13. At the end of the presentation of evidence in this case, the court made its ruling from the bench, recognizing that Simmons had brought forth a motion, ore tenus, to conform the pleadings to the allegations of adverse possession offered into the record. The court then stated that "there will be no consideration as to adverse possession at all," reasoning that such a holding requires proof in great detail. While it is correct that the standard to establish title by adverse possession in Mississippi is by clear and convincing evidence, West v. Brewer, 579 So.2d 1261, 1262 (Miss.1991), we find that there is ample evidence in the record to justify an examination of that evidence more closely instead of having dismissed it offhandedly. The proof of adverse possession requires the presence of those certain elements in Miss.Code Ann. § 15-1-13(1) (Supp.1998) as supported by relevant authority. Trotter v. Gaddis and McLaurin, Inc., 452 So.2d 453, 456 (Miss.1984), recites the six fundamental elements which are necessary to constitute an effective adverse possession claim. "There must be possession which is (1) under claim of right, (2) actual, (3) open, notorious, and visible, (4) exclusive, (5) continuous and uninterrupted for ten years, and (6) peaceful." See also Houston v. U.S. Gypsum Co., 652 F.2d 467 (5th Cir.1981), Florida Gas Exploration Co. v. Searcy, 385 So.2d 1293 (Miss.1980), and Eady v. Eady, 362 So.2d 830 (Miss.1978). "[M]ere possession is not sufficient to satisfy the requirements of open and notorious possession." Craft v. Thompson, 405 So.2d 128 (Miss.1981); see People's Realty & Development Corp. v. Sullivan, 336 So.2d 1304 (Miss.1976). Trotter, 452 So.2d at 457. ¶ 14. Under claim of Right: Simmons built her driveway on the south end of her lot, fully believing that it was on her property. This state has long held that the claim of title through adverse possession must be through acts sufficient to fly the "flag on the land, and keep it flying, so that the (actual) owner may see, and if he will that an enemy has invaded his domains, and planted the standard of conquest." Blankinship v. Payton, 605 So.2d 817, 820 (Miss.1992). It appears that Simmons's act of surfacing a portion of another's land for driveway purposes for personal parking use is an act sufficient to put Cleveland on notice of Simmons's claim of ownership. *197 ¶ 15. Actual: Actual possession has been held to mean "effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses." Id. at 819-20. The driveway ran almost adjacent to the south end of what Simmons understood to be her property and it was clearly visible. She and her family used it on a daily basis. The placement of the driveway was on the same portion of land that Cleveland is claiming as her own. It seems that there is evidence in the record to support that Simmons's use of the driveway was sufficient to satisfy this element. ¶ 16. Open, notorious, and visible: The Simmons's driveway was clearly visible to Cleveland. It was apparent that her family used it on a daily basis. In fact, it was her very observation of the use of the driveway and adjacent area that precipitated this action. Cleveland herself testified that it was an altercation with Simmons's son, who had allegedly driven too far to the south of the driveway and on to the Cleveland property to park his car, that first caused her to question the property line. Because she perceived this as an encroachment onto her property, she called the police to complain. She then hired the surveyor, who found the property line to be inside the pavement of Simmons's driveway. The evidence is undisputed that for some twenty years, the placement of the driveway was in all aspects open, notorious, and visible. ¶ 17. Continuous and uninterrupted for a period of ten years: Testimony was uncontradicted that the driveway had been in essentially the same place for twenty years or more. There was an issue brought forth regarding the fact that Simmons had only been the title holder of record for a short time and that her period of ownership fell short of the ten continuous years. However, Simmons testified that title had been in her husband's name since 1965, and that when he died, it passed to her and her two children. The children then deeded their interest to her, vesting her with ownership in fee simple. Simmons had lived in the house for thirty years and evidence is consistent that Simmons and Cleveland had been neighbors for thirty years. Mosley v. Clark, 362 So.2d 615, 617 (Miss.1978), clearly allows Simmons to tack her (adverse) possessory interest to that of her predecessor in title. Evidence of Simmons length of occupancy of the disputed area of property is undisputed to be considerably more than the ten years required by Mississippi law. ¶ 18. Exclusive: The Simmons's driveway was constructed for their private and personal use. It served no purpose other than to the Simmons family and its guests. There was no evidence presented to indicate that the Clevelands used the driveway or that it serviced any portion of their property. ¶ 19. Peaceful: The evidence is clear that the use of the driveway was peaceful. The drive was constructed about twenty years prior to trial, and no one had objected to its placement. The parties lived without a boundary dispute from 1965 until 1995. It was only after an altercation between Cleveland and Simmons's son that the fence was erected and the dispute arose. Cleveland's failure to cry "foul" when the driveway was originally placed is evidence of her tacit acceptance of its location. Also, the parties' manifested an acceptance that the common back corner formed one point of their boundary. The record is not clear as to how long the parties have accepted this as their common boundary; however, adjoining landowners who occupy their respective premises up to a certain line, if continued for a sufficient length of time, are precluded from claiming that the boundary thus recognized and acquiesced in is not the true one. York v. Haire, 236 Miss. 711, 112 So.2d 245, 246 (1959). Evidence clearly exists to support that the use of at least a portion of the property in dispute was peaceful. *198 CONCLUSION ¶ 20. With evidence having been presented as to each and every element of adverse possession, we find that the trial court was manifestly in error in declining to consider it in any way. Because there is ample evidence to support that title had vested in Simmons by adverse possession to that portion of the disputed property where Simmons's driveway is located, we so conclude, and we reverse and render. We reverse and remand for a determination of the boundary of the driveway and for a further determination which may or may not include adverse possession as to the portion of the disputed property line beginning at the end of the driveway and running to the back of the two lots. ¶ 21. THE JUDGMENT OF THE PANOLA COUNTY CHANCERY COURT IS REVERSED AND REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. ALL COSTS OF APPEAL ARE ASSESSED TO APPELLEE. KING, P.J., BRIDGES, DIAZ, IRVING, PAYNE, AND THOMAS, JJ., CONCUR. McMILLIN, C.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY SOUTHWICK, P.J. MOORE, J., NOT PARTICIPATING. McMILLIN, C.J., CONCURRING IN PART AND DISSENTING IN PART: ¶ 22. I would concur with the Court's decision to reverse and render on adverse possession solely as to that part of the Simmons driveway that encroached onto the Cleveland property. There should be clarification, however, that, except for issues of adverse possession, the line between Simmons and Cleveland would be as established by the survey of Cleveland's surveyor, Monroe Short and not Simmons's surveyor. This would, therefore, be a very limited remand to determine exactly what property south of the line as surveyed by Short was acquired by adverse use of the driveway itself. Evidence of adverse possession of any other portion of the property was so lacking that, in my view, we intrude on the proper role of the trial court when we substitute our collective opinion for that of the chancellor to conclude that Simmons might have gotten in enough evidence to show adverse possession of some part of the property not used for driveway purposes. Having no valid claim to any part of the Cleveland property under color of title, Simmons's "title by adverse possession, if any, runs only to such part of the land as was actually held by [her] in possession or enclosed or otherwise actually and continuously occupied by [her] for the statutory period of ten years." Page v. O'Neal, 207 Miss. 350, 355, 42 So.2d 391, 392 (1949). The standard for proving adverse possession is high. It must be established by clear and convincing evidence. Stallings v. Bailey, 558 So.2d 858, 859 (Miss.1990). In this case, the parties were actually trying a land line case based almost exclusively on the competing evidence of two surveyors who could not agree on a proper point of beginning to survey a lot in the subdivision. The question of adverse possession was not before the court on the pleadings. Evidence relating to the principles of law governing adverse possession came in, not by the design of the parties, but almost coincidentally. It required a post-evidence motion by Simmons to even get the matter before the chancellor for consideration. The only evidence (except testimony concerning the location of the driveway) that might possibly have related to adverse possession of other portions of the property consisted of inconclusive testimony regarding the location of the back corner constituting Simmons' southeast corner and Cleveland's northwest corner. There was no testimony from Simmons to show where the property line she contended for ran from this corner or to show who had "flown the flag" of ownership over any part of the land outside the driveway itself. *199 The driveway ended at the front of Simmons's home because she admitted that, even if the line were where she contended it to be, it ran so close to her home that it was impossible to drive a vehicle up that side of her home without encroaching on Cleveland. On those facts, the chancellor was entirely correct in finding an absence of a legitimate issue of adverse possession with the limited exception of the driveway area. Simply because the majority disagrees with the chancellor's conclusions on the narrow issue of the driveway encroachment, that does not constitute a basis to reopen those parts of the chancellor's decision that are entirely correct. Therefore, I dissent insofar as the majority proposes to permit Simmons a second attempt to prove adverse possession of any property lying outside the driveway. ¶ 23. I also write separately to point out that both surveyors—one testifying for Simmons and one testifying for Cleveland—were of the opinion that Simmons's recently-erected wooden fence encroached onto the Cleveland property. The only real difference in the two experts' testimony on that score was whether the fence encroached one foot or as much as four feet onto Cleveland, and none of the evidence touching on adverse possession even faintly suggests that the driveway itself extended as far south as this fence. Therefore, the majority errs, in my view, when it fails to affirm that portion of the chancellor's judgment directing the immediate removal of the fence. By prolonging the implementation of that relief any further, this Court does a disservice to Cleveland by permitting a continuing encroachment that is, beyond dispute, wrongful. It is the common practice of this Court—one that is laudatory in its effect—to bring as much finality as possible to an appeal, even when reversal is required, by affirming so much of the chancellor's decision as can properly be accomplished and remanding only for those limited matters essential to the final resolution of all disputed issues. The evidence coming from both sides demonstrated beyond question that the fence encroached onto the Cleveland property. The chancellor's decision to order removal of the fence was, thus, supported by the overwhelming weight of the evidence. A cursory review of photographic Exhibit 3 introduced at trial demonstrates that, no matter how much of the disputed area used by Simmons as a driveway may ultimately be awarded to her on remand, it could not possibly extend as far south as the wooden fence. Cleveland ought to be entitled to have the fence removed without further delay. ¶ 24. In summary, I dissent as to the propriety of permitting evidence of adverse possession of any part of the property beyond that used by Simmons as a driveway, and I dissent as to the majority's failure to affirm the chancellor's judgment ordering the timely removal of the encroaching wooden fence. I concur in the decision to remand for the very limited purpose of (a) determining what part of the Simmons driveway lies on the Cleveland side of the property line as established by the Monroe Short survey, and (b) awarding Simmons title to that property by adverse possession. SOUTHWICK, P.J., JOINS THIS SEPARATE WRITTEN OPINION.

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 13-3527 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. VICTOR G. BANKS, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 12-CR-244 — Rudolph T. Randa, Judge. ____________________ ARGUED MAY 28, 2014 — DECIDED AUGUST 20, 2014 ____________________ Before RIPPLE, WILLIAMS, and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge. Victor Banks played a small role in the sale of two guns to undercover federal agents and pled guilty to possessing a firearm as a convicted felon. He appeals his sentence of three years in prison and three years of supervised release. Banks argues that the district court failed to calculate the applicable Sentencing Guidelines range, did not address his main mitigation argument, and 2 No. 13-3527 imposed a substantively unreasonable sentence. We find no error and thus affirm. In July 2012, Banks took part in the sale of two guns to a federal agent who was posing as an employee of a store in Milwaukee that was in fact an undercover operation run by the Bureau of Alcohol, Tobacco, Firearms, and Explosives. On the way into the store, Banks’s associate James Warren asked him to hold a revolver. Banks put it in his waistband. Once inside, Warren negotiated the sale of the guns for $1,000. He took back the revolver from Banks and handed it to the buyer. Banks and Warren then offered to sell the agent some crack cocaine. The agent said he had money only for the guns but that he would gladly purchase the crack the next day. Banks and Warren duly returned a day later and sold the agent one ounce of what turned out to be fake crack co- caine. (Banks was not charged for this sale, but it played a role in his sentencing, as explained below.) Based on his brief custody of the revolver in his waistband before the sale, Banks was charged with possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). He pled guilty and now appeals his sentence. We discuss Banks’s three argu- ments in turn. 1. Banks first claims that the district court committed a reversible error by failing to calculate his Sentencing Guide- lines range. He bases this argument on two facts. One is that his initial presentence report said that his guideline range was 41 to 51 months when in fact it was 30 to 37 months. The report correctly calculated that Banks had an offense level of 17 and a criminal history category of III. (Unlawfully pos- sessing a firearm after an earlier felony drug conviction gave No. 13-3527 3 Banks a base offense level of 20, U.S.S.G. § 2K2.1(a)(4)(A), which was reduced three levels for acceptance of responsi- bility under § 3E1.1(b).) But for unknown reasons the initial report misstated the resulting guideline range. The second fact on which Banks relies is that the district judge never ex- plicitly stated the correct range at sentencing. The Supreme Court has made clear that a district court must begin sentencing by calculating the applicable guide- line range. See Peugh v. United States, 133 S. Ct. 2072, 2080 (2013), citing Gall v. United States, 552 U.S. 38, 49 (2007); see also United States v. Garcia, 754 F.3d 460, 483 (7th Cir. 2014). Failure to do so is a significant procedural error. Peugh, 133 S. Ct. at 2080. In this case, however, it is abundantly clear that the dis- trict judge did calculate the correct range. Although the pro- bation officer initially submitted a presentence report stating the wrong range, she filed a correction with the court and the parties several days before sentencing. The addendum called attention to the error and explained that the correct range was 30 to 37 months. The recalculated range was not in dispute, and neither party objected to any facts in the cor- rected report. In case any confusion remained, defense coun- sel again pointed out the mistake at the sentencing hearing and stated the correct range. Both the prosecutor and the judge made reference to the actual sentence of 36 months as being within the guideline range. Those statements were ob- viously inconsistent with any belief that the range was 41 to 51 months. Finally, the district judge recorded the correct guideline range in the court’s written statement of reasons filed the day of sentencing. The judge’s failure to state the guideline range affirmatively at sentencing was not reversi- 4 No. 13-3527 ble error where there could be no mistake that the judge and all parties were well aware of the proper range. 2. Banks argues next that the district judge failed to con- sider his main mitigation argument under 18 U.S.C. § 3553(a)(1): that the guideline range did not adequately ac- count for his limited role in the offense. In support of this argument, Banks’s sentencing memorandum said that he did not arrange or profit from the sale of the guns. He possessed one gun for only the short time it was in his waistband. The gun did not belong to him, it was not loaded, and it may not even have worked. He contends that his violation of § 922(g) was essentially a technical one. A sentencing judge is obliged to “address all of a defend- ant’s principal arguments that are not so weak as to not mer- it discussion.” United States v. Villegas-Miranda, 579 F.3d 798, 801 (7th Cir. 2009) (internal quotation marks omitted). A judge who fails to do so is likely to have erred. United States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). We have called this “[p]erhaps the most frequently argued issue on our docket in recent years.” United States v. Castaldi, 743 F.3d 589, 595 (7th Cir. 2014) (collecting cases). It is not always clear which arguments are “principal” or which ones require comment, and there is no bright line showing when a judge has said enough. Although the judge could have been clearer, the tran- script of Banks’s sentencing hearing shows that the judge considered his mitigation argument but found it was out- weighed by the seriousness of the offense and Banks’s crimi- nal history. The district judge began his discussion of the fac- tors under § 3553(a) by explaining that the Sentencing Guidelines must be fitted to each defendant’s particular case. No. 13-3527 5 Turning to “the nature of this offense first,” the judge dis- cussed the seriousness of gun crimes. Some of his comments were quite general and, standing alone, might not reflect the individualized assessment required at sentencing. See United States v. Washington, 739 F.3d 1080, 1081 (7th Cir. 2014) (“the court’s reference to the seriousness of drug crimes in general did nothing to explain” reasons for particular defendant’s sentence). Other statements showed, though, that the judge was fo- cused on Banks’s role in this particular gun sale. The judge noted that although selling guns to undercover agents did not result in putting weapons on the streets where they could enable violence, that was the exact danger the sting operation was meant to address. The judge also took into ac- count the dangerous combination of guns and drugs in Banks’s business dealings. Although there is no bright-line rule for when a sentenc- ing judge has sufficiently addressed a defendant’s mitigation argument, see Castaldi, 743 F.3d at 595, the judge’s explana- tion was clear enough in this case. The judge listened to Banks’s attorney reiterate his client’s limited role in the gun transaction and was well aware of these particulars even if he did not repeat them himself. Nevertheless, the judge clearly felt that even brief possession of a gun by a felon can be a serious offense when done in furtherance of drug- and gun-dealing. The judge explained his reasoning in terms of Banks’s particular criminal conduct and his criminal history, which included state court convictions for possessing and selling drugs, as well as for felony firearm possession. The judge did not abuse his discretion in concluding that the de- tails of Banks’s crime—along with the additional need for 6 No. 13-3527 deterrence suggested by Banks’s recidivism—actually weighed against him in this case. 3. Finally, Banks challenges his sentence as substantively unreasonable. He faces an uphill climb on this point, as the “substantive reasonableness of a sentence is reviewed for an abuse of discretion and a correctly calculated, within- Guidelines sentence is entitled to a presumption of reasona- bleness.” United States v. Pulley, 601 F.3d 660, 664 (7th Cir. 2010). Appellate decisions finding a within-guideline sen- tence unreasonable are exceedingly rare. Banks’s objection is based on the district judge’s com- ments about Banks’s drug use and about the relatively light sentences he received in state court for earlier crimes. The judge made clear his disapproval of Banks’s daily marijuana use and speculated that the only way Banks could have sup- ported his habit without a job was through criminal activity. He also said four times during the relatively short hearing that he thought Banks had “caught a break” in state court by being charged with lesser crimes than his conduct could have supported. Banks concludes from these comments that his sentence was based not on the factors in 18 U.S.C. § 3553(a) but by a desire to make up for past sentences the district court judge disagreed with. Although perhaps ill-advised and certainly not necessary, the judge’s speculation falls short of providing a basis for be- lieving that the guideline sentence he imposed was substan- tively unreasonable. Viewed in context, the comments were a response to defense counsel’s arguments that the judge should impose a sentence below the guideline range. The judge explained that Banks’s marijuana use and continued involvement with guns and drugs were part of a troubling No. 13-3527 7 pattern of poor choices in his life and peer group. The judge explicitly noted that he could not and was not imposing a sentence to make up for the light sentences Banks received in state court. But he believed Banks’s record did not fully re- flect his past relevant conduct. That conclusion and the sen- tence based on it did not amount to an abuse of discretion. Accordingly, the judgment is AFFIRMED. 

Present: All the Justices JENNIFER BING v. Record No. 102270 OPINION BY JUSTICE DONALD W. LEMONS March 2, 2012 TERESA W. HAYWOOD, ET AL. FROM THE CIRCUIT COURT OF MIDDLESEX COUNTY R. Bruce Long, Judge In this appeal, we consider whether the Circuit Court for Middlesex County (the "trial court") erred when it granted, pursuant to Code § 8.01-243.2, the special plea of the statute of limitations filed by Teresa W. Haywood ("Haywood"), Teddy Bagby ("Bagby"), and Mary M. Hodges ("Hodges"). I. Facts and Proceedings Below On May 28, 2008, Jennifer Bing ("Bing") was arrested by Deputy Christopher W. Rhoades ("Deputy Rhoades") of the Mathews County Sheriff's Department on suspicion of drug possession and distribution. Police found narcotics and paraphernalia in the car in which Bing had been riding as a passenger and on the seat of Deputy Rhoades' police cruiser after Bing had been placed in the vehicle. After her arrest, Bing was transported to the Middle Peninsula Regional Security Center (the "Security Center"). Deputy Rhoades told the staff at the Security Center that Bing "might be hiding narcotics on or in her person." Bing alleged that, at the direction of shift commander Bagby, Haywood, the medical supervisor, and Hodges, a lieutenant, "conducted a full cavity search on Bing . . . searching her anus, vagina and other body parts without a court order and without the search being performed by a medically trained person who was on duty at the time of the search." On May 21, 2010, almost two years later, Bing filed a complaint against Haywood, Bagby, and Hodges (collectively, "the defendants") in the trial court. In her three-count complaint, Bing alleged that she suffered an assault and battery by Haywood, Bagby, and Hodges; the search authorized by Babgy and performed by Haywood and Hodges was illegal; and the actions of Deputy Rhoades, * Haywood, Bagby, and Hodges constituted intentional infliction of emotional distress. Bing sought $250,000 in compensatory damages and $250,000 in punitive damages, alleging that the defendants "acted consciously in an unjustifiable, willful, wanton and reckless disregard of [Bing's] rights." In response, the defendants filed an answer raising several affirmative defenses including probable cause to search Bing and consent by Bing to the search. Also, the defendants filed a demurrer and a plea of the statute of limitations. The defendants demurred as to count three, arguing that Bing failed to allege facts necessary to support a cause of action for * Deputy Rhoades was not named as a defendant. 2 intentional infliction of emotional distress. In the plea of the statute of limitations, the defendants argued that Bing's claim was based upon the conditions of her confinement; "Code § 8.01-243.2 prescribes a one-year statute of limitations for inmate claims based on conditions of confinement"; and Bing's claim was barred by the statute of limitations. The trial court held a hearing on the defendants' demurrer and plea of the statute of limitations. We need not address the demurrer because the trial court did not decide that question. Rather, the trial court sustained the plea of the statute of limitations and dismissed the complaint. Bing timely filed her petition for appeal, and we granted Bing's appeal on the following assignment of error: 1. The trial judge erred by sustaining Defendants' Special Pleas, by holding that Plaintiff's claim was barred by the statute of limitations and by dismissing with prejudice the instant cause of action. II. Analysis A. Standard of Review Well-settled principles of statutory review guide our analysis in this case. [A]n issue of statutory interpretation is a pure question of law which we review de novo. When the language of a statute is unambiguous, we are bound by the plain meaning of that language. Furthermore, we must give effect to the legislature's intention as expressed by the language used unless a literal interpretation of 3  the language would result in a manifest absurdity. If a statute is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute. Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007) (citations omitted). B. Statute of Limitations On appeal, Bing contends that the trial court erred in granting the defendants' plea of the statute of limitations and dismissing her case with prejudice because the trial court improperly applied the one-year statute of limitations in Code § 8.01-243.2 instead of the two-year statute of limitations prescribed by Code § 8.01-243. Specifically, Bing argues that she was not "confined" within the meaning of Code § 8.01-243.2 and that "her complaint did not relate to the conditions of her confinement." We disagree. Code § 8.01-243.2 provides that, No person confined in a state or local correctional facility shall bring or have brought on his behalf any personal action relating to the conditions of his confinement until all available administrative remedies are exhausted. Such action shall be brought by or on behalf of such person within one year after cause of action accrues or within six months after all administrative remedies are exhausted, whichever occurs later. (Emphasis added.) For the one-year provision in Code § 8.01- 243.2 to apply, the plaintiff must have been "confined" at the 4 time the cause of action accrued, and the cause of action must relate to plaintiff's "conditions of confinement." Code § 8.01-243.2. While we have not yet addressed whether the one-year provision in Code § 8.01-243.2 applies to a pre-trial detainee such as Bing, we have interpreted Code § 8.01-243.2 in the context of a post-conviction inmate on two prior occasions. Billups v. Carter, 268 Va. 701, 604 S.E.2d 414 (2004); Ogunde v. Commonwealth, 271 Va. 639, 628 S.E.2d 370 (2006). Billups and Ogunde were serving prison terms in state correctional centers when their respective causes of actions accrued. Billups, 268 Va. at 705, 604 S.E.2d at 416; Ogunde, 271 Va. at 641, 628 S.E.2d at 371. Billups, a prisoner at a correctional center, brought an action under 42 U.S.C § 1983 against the Virginia Department of Corrections and a correctional center employee. Billups, 268 Va. at 705, 604 S.E.2d at 416. The claim against the correctional center employee included a count for assault and battery. Id. Billups' complaint was filed more than one year but less than two years after the occurrence of the incident giving rise to the lawsuit. Id. at 705, 604 S.E.2d at 416-17. The trial court held "that the statute of limitations applicable to § 1983 actions was one year, as prescribed by Code § 8.01-243.2, which governs personal actions brought by 5 inmates of correctional institutions relating to the conditions of their confinement." Id. at 710, 604 S.E.2d at 419. We reversed and held that: (1) "§ 1983 actions brought in Virginia courts are governed by the two-year limitation prescribed" in Code § 8.01-243(A); and (2) Billups' assault and battery claim, based on an alleged sexual assault, was governed by the one- year statute of limitations provision prescribed in Code § 8.01-243.2. Id. Ogunde was a prisoner at a state correctional center who filed a complaint under the Virginia Tort Claims Act alleging "that the Commonwealth's employees negligently assigned him to an upper bunk bed and, in December 2002, ordered him to climb down from the bed for roll call when they knew, or should have known, that he had an injured knee and could fall." Ogunde, 271 Va. at 641, 628 S.E.2d at 371. The Tort Claims Act's statute of limitations, Code § 8.01-195.7, requires a claimant to file a notice of claim within one year of the accrual of the cause of action, and the claimant must commence the suit within eighteen months of filing the notice of claim. Id. at 642, 628 S.E.2d at 371-72. We concluded that Ogunde's cause of action was related to the conditions of his confinement; however, we held that the Tort Claims Act's statute of limitations applied to Ogunde's action because "[t]he Act is self-contained, 6 incorporating its own statute of limitations, which likewise is self-contained." Id. at 643-44, 628 S.E.2d at 372-73. Our holdings in Billups and Ogunde are not directly on point with the present case. Bing stipulated that her complaint "sets forth state-law causes of action only, and does not purport to set forth a cause of action under 42 U.S.C. § 1983"; whereas, Billups asserted a federal claim under 42 U.S.C. § 1983. Billups, 268 Va. at 705, 604 S.E.2d at 416. However, Bing's case is similar to Billups in that both Bing and Billups alleged a count of common-law assault and battery. Id. Bing's case is distinguished from Ogunde because Bing's complaint was not brought under the Tort Claims Act. Ogunde, 271 Va. at 641, 628 S.E.2d at 371. The United States District Court for the Eastern District of Virginia has held that the one-year statute of limitations provision in Code § 8.01-243.2 applied to a pre-trial detainee's common-law assault and battery claim. Harris v. Commonwealth, No. 3:07CV701, 2008 U.S. Dist. LEXIS 33834, at *16 (E.D. Va. Apr. 24, 2008). Irrespective of Harris' status as a pre-trial detainee, the court concluded that our holding in Billups "is applicable to the facts of [the] instant case," and the court held that Harris' common-law assault and battery claim is "subject to [Code] § 8.01-243.2's one-year period of limitations." Harris, 2008 U.S. Dist. LEXIS 33834, at *17. 7  For the one-year statute of limitations to apply, Bing must have: (1) been a "person confined in a state or local correctional facility"; and (2) "brought on [her] behalf [a] personal action relating to the conditions of [her] confinement." Code § 8.01-243.2. The word "confine" is defined as "the state of being imprisoned or restrained." Black's Law Dictionary 318 (9th ed. 2009). The statute further provides that such confinement must be in a state or local correctional facility. Code § 8.01-243.2. The Security Center is clearly such a facility, and it was there that she was clearly confined. Her status as a pre-trial detainee is immaterial to this determination. Each claim in Bing's three-count complaint was based upon the body cavity search. Because she was confined at the time of the body cavity search, the question remains whether the search related to the conditions of Bing's confinement. Significantly, the United States Supreme Court has stated that "it is reasonable to search [a] person to prevent the introduction of weapons or contraband into [a] jail facility and to inventory the personal effects found on [a] suspect." United States v. Robinson, 414 U.S. 218, 258 n.7 (1973). Without question, governmental officials operating jails, detention centers, and prisons have a compelling interest in 8 maintaining a drug free, contraband free, and weapon free environment in their facilities. Additionally, Code §§ 53.1-30 and -127, respectively, provide that any person entering a correctional facility "shall be subject to a search," and the search shall be "reasonable under the circumstances." As a result, searching a prisoner prior to placing the prisoner within a prison population to prevent contraband, whether drugs, weapons, or other substances, from entering the facility is related to the conditions of confinement. We express no opinion whether the body cavity search was done properly. In this case we are concerned only with the issue of the statute of limitations for her claim. III. Conclusion We hold that the trial court did not err when it granted defendants' plea of the statute of limitations because Bing was "confined" within the meaning of Code § 8.01-243.2, and the body cavity search related to the conditions of her confinement. Accordingly, we will affirm the judgment of the trial court. Affirmed. 9 

Court of Appeals of the State of Georgia ATLANTA,____________________ October 20, 2014 The Court of Appeals hereby passes the following order: A15A0223. ALFRED F. FUCIARELLI v. WILLIAM J. MCKINNET et al. On February 10, 2014, this Court granted Alfred Fuciarelli’s application for interlocutory appeal. The order notified Fuciarelli that he would have 10 days from the date of the order to file his notice of appeal. See OCGA § 5-6-34 (b). Eleven days later, on February 21, 2014, Fuciarelli filed his notice of appeal. The timely filing of a notice of appeal is an absolute requirement to confer jurisdiction on this Court. White v. White, 188 Ga. App. 556 (373 SE2d 824) (1988). Because Fuciarelli failed to file his notice of appeal within 10 days of our order granting his application, his notice of appeal is untimely. Accordingly, this appeal is DISMISSED for lack of jurisdiction. See OCGA § 5-6-48 (b) (1); Barnes v. Justis, 223 Ga. App. 671, 671-672 (478 SE2d 402) (1996). Court of Appeals of the State of Georgia 10/20/2014 Clerk’s Office, Atlanta,____________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk. 

548 U.S. 912 (2006) ROSS v. KANSAS. No. 05-10804. Supreme Court of United States. June 26, 2006. Certiorari denied.

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-18,442-02 EX PARTE JOHN CHERRY, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1259848 IN THE 351ST DISTRICT COURT FROM HARRIS COUNTY Per curiam. O R D E R Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty and was convicted of delivery of a controlled substance. He was sentenced to six years' imprisonment. He did not appeal his conviction. Applicant contends, inter alia, that his plea was involuntary because: (1) the State did not follow the plea agreement as discussed by the parties, and; (2) counsel did not explain the applicable law of accomplice testimony, compulsory process, and actual transfer. Applicant has alleged facts that, if true, might entitle him to relief. 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 shall order trial counsel to respond to Applicant's claims of involuntary plea based on ineffective assistance of counsel. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04. The trial court shall make findings of fact and conclusions of law in regard to Applicant's claim that his plea was involuntary. 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 shall be obtained from this Court. Filed: September 26, 2012 Do not publish

990 F.2d 1260 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.Dang Minh TRAN, Petitioner-Appellant,v.Manfred MAASS, Superintendent, Oregon State Penitentiary,Respondent-Appellee. No. 92-36716. United States Court of Appeals, Ninth Circuit. Submitted Feb. 5, 1993.*Decided March 26, 1993. Before: TANG, KOZINSKI, and FERNANDEZ, Circuit Judges. 1 MEMORANDUM* 2 Dang Minh Tran appeals the district court's denial of his habeas corpus petition brought pursuant to 28 U.S.C. § 2254. 3 Tran was convicted of robbery and burglary in Oregon and was duly sentenced. In this habeas corpus petition he does not challenge his conviction or sentence in the criminal proceedings. He does assert that his sentence should now be set aside because no motion for a Judicial Recommendation Against Deportation (JRAD)1 was made at the time of his original sentencing. The district court found that he had procedurally defaulted and had not demonstrated cause and prejudice for the default or a fundamental miscarriage of justice. We affirm. 4 Tran's conviction for burglary and robbery was in 1983. At that time counsel did not ask for a JRAD. Tran appealed that conviction but the Oregon Court of Appeals affirmed and the Oregon Supreme Court denied review. He did not raise the JRAD issue on that appeal. 5 In 1985, Tran filed two petitions for post conviction relief in Oregon. Those were consolidated and we will refer to them as the first post conviction petition. That petition did not raise the JRAD issue. It was denied. 6 Then in 1991, Tran filed another petition for post conviction relief in the Oregon courts. In that second petition he asserted that his trial counsel was ineffective because he had not asked for a JRAD. Tran did not assert that counsel in his first post conviction petition was ineffective due to his failure to raise the JRAD issue, nor did Tran otherwise attempt to explain the failure to raise the issue in the first proceeding. The second post conviction petition was denied on the ground that Oregon law generally permits only one post conviction proceeding. Or.Rev.Stat. § 138.550(3). 7 Tran then brought this habeas corpus proceeding.2 He, again, claimed that trial counsel was ineffective because he had failed to ask for a JRAD. The district court denied the petition on the ground that Tran had procedurally defaulted when he failed to raise the JRAD issue in his first post conviction proceeding in Oregon. Because we agree, we do not consider the district court's other grounds for denying the petition.3 8 The Oregon courts denied Tran's second post conviction petition on the independent and adequate state ground that he was, generally speaking, entitled to only one post conviction proceeding and had, therefore, procedurally defaulted. Given that, it is clear that "federal habeas review of the claim[ ] is barred unless [he] can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim[ ] will result in a fundamental miscarriage of justice." Coleman v. Thompson, --- U.S. ----, ----, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). He has not done so. 9 Tran attempts to establish cause by asserting ineffective assistance of counsel at the first post conviction proceeding. That assertion must come to naught because he was not entitled to counsel in that proceeding. See Coleman, --- U.S. at ----, 111 S.Ct. at 2566. Contrary to Tran's assertion, the Supreme Court has not said, or hinted, that there is an exception to the Coleman rule if the first post conviction proceeding is the first place an issue can be raised. Cf. id. at ----, 111 S.Ct. at 2567. He cites no other authority for that proposition and we have found none. Moreover, it is far from clear that the ineffective assistance of counsel issue could not have been raised on direct appeal of the criminal case, inasmuch as the failure to request a JRAD appeared on the face of the record. Oregon, like our court, does recognize the possibility that the ineffective assistance of counsel issue can be raised on direct appeal. See State v. Chase, 624 P.2d 1100, 1101 (Or.App.1981) (per curiam); cf. United States v. Robinson, 967 F.2d 287, 290 (9th Cir.1992). 10 Tran also attempts to demonstrate cause by asserting that his claim that trial counsel was ineffective when he did not request a JRAD was so novel that counsel at the first post conviction proceeding could not have been expected to raise it. This assertion must also fail. Tran cites Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 2910, 82 L.Ed.2d 1 (1984), for that proposition. 11 However, "the cause standard requires the petitioner to show that 'some objective factor external to the defense impeded counsel's efforts' to raise the claim in state court." McCleskey v. Zant, --- U.S. ----, ----, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991) (citation omitted). Even under Reed the claim must be a " 'clear break with the past.' " 468 U.S. at 17, 104 S.Ct. at 2911 (citation omitted). Examples are decisions which have overruled precedents, overturned almost unanimous lower court authority, or disapproved previously sanctioned practices. See id. In short, "the question is not whether subsequent legal developments have made counsel's task easier, but whether at the time of the default the claim was 'available' at all." Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 2667, 91 L.Ed.2d 434 (1986). Certainly the claim that a trial counsel should have raised the JRAD issue does not fall into that category. Rather, the claim was fairly obvious and, if not always successful, was not foreclosed. Interestingly enough, the Oregon Supreme Court did not purport to sweep away some prior impediment when it declared that failure to raise the JRAD issue at trial was ineffective assistance. Lyons v. Pearce, 694 P.2d 969, 978 (Or.1985). 12 Finally, it cannot be said that a miscarriage of justice has occurred. The most Tran can do is speculate that, despite the heinousness of his crimes,4 a trial judge might have granted a JRAD had it been asked for. 13 Thus, Tran's procedural default precludes us from reaching the merits of his claim. 14 AFFIRMED. * The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 34(a) ** 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 1 8 U.S.C. § 1251(b) was repealed in 1990 by the Immigration Act of 1990, Pub.L.No. 101-649 § 505, 104 Stat. 4978, 5050 (1990). It gave the sentencing court discretion to make, at the time of first imposing sentence "judgment ... or within thirty days thereafter, a recommendation to the Attorney General that such alien not be deported" under section 1251(a)(4) for being convicted of crimes of "moral turpitude." 8 U.S.C. § 1251(b) (1988). This recommendation was binding on the government. Janvier v. United States, 793 F.2d 449, 452 (2d Cir.1986) 2 He also had prior federal habeas corpus proceedings. In the posture of this case those are not relevant. However, the JRAD issue was not raised in them either 3 Those grounds went to the availability of JRAD relief in view of the repealed statute. See United States v. Murphey, 931 F.2d 606, 609 (9th Cir.1991) 4 Tran and others forced their way into people's residences at gunpoint, poked guns in their victims' heads and backs, bound and blindfolded their victims with duct tape, and robbed them

609 F.Supp.2d 1282 (2009) EXHIBIT ICONS, LLC et al, Plaintiffs, v. XP COMPANIES, LLC, et al, Defendants. No. 07-80824-CIV. United States District Court, S.D. Florida. March 26, 2009. *1287 Mark Robert Vogel, Mark R. Vogel, P.A., Hollywood, FL, Steven Frederick Samilow, Weston, FL, for Plaintiffs. Steven Neil Lippman, Rothstein Rosenfeldt Adler, Fort Lauderdale, FL, Chad M. McShane, Brega & Winters, Denver, CO, for Defendants. OPINION AND ORDER KENNETH A. MARRA, District Judge. This cause is before the Court upon Defendant XP Companies, LLC, XP Entertainment, LLC and William Wall III's Motion to Dismiss the Amended Complaint or, in the Alternative, Transfer of Venue (DE 19); Plaintiffs Exhibit Icons and Russell Etling Company's Motion for Leave to File a Brief Surreply to Defendants' Reply Memorandum (DE 88); Plaintiffs Exhibit Icons and Russell Etling Company's Request for Oral Argument on Defendants' Motion to Dismiss for Lack of Jurisdiction (DE 92); Defendant XP Companies, LLC, XP Entertainment, LLC and William Wall III's Motion to Dismiss Second Amended Complaint for Lack of Personal Jurisdiction, or, in the Alternative, Change of Venue (DE 99); Plaintiffs Exhibit Icons and Russell Etling Company's Request for Oral Argument on Defendants' XP Companies, LLC, XP Entertainment, LLC and William Wall III's Motion to Dismiss Verified Second Amended Complaint (DE 112); Defendant XP Apparel, LLC's Motion, and Joinder in the Defendants' Motion, to Dismiss Second Amended Complaint for Lack of Personal Jurisdiction or, in the Alternative, Change of Venue (DE 115); Plaintiffs Exhibit Icons and Russell Etling Company's Request for a Hearing on Defendant XP Apparel, LLC's Motion to Dismiss for Lack of Jurisdiction (DE 119); Plaintiffs Exhibit Icons and Russell Etling Company's Motion to Strike Affirmative Defenses and Portions of Defendants' Answer (DE 126) and Plaintiffs Exhibit Icons and Russell Etling Company's Motion to Strike Affirmative Defenses and Portions of Defendants' Answer (DE 132). MOTIONS RELATING TO PERSONAL JURISDICTION I. Background According to the Second Amended Complaint ("SAC"), Plaintiff Exhibit Icons ("EI") is a Florida limited liability company and Plaintiff Russell Etling Company ("Etling") is a Florida corporation. (SAC ¶ ¶ 2-3.) Defendants XP Companies, LLC ("XP Companies"), XP Entertainment, LLC ("XP Entertainment") and XP Apparel, LLC ("XP Apparel") are Colorado limited liability companies. Defendant William Wall resides in Colorado. (SAC ¶ ¶ 4-7.) The eight-count SAC alleges: (1) breach of contract against XP Companies, XP Entertainment and Wall (count one); (2) breach of the duty of good faith and fair dealing against XP Companies, XP Entertainment and Wall (count two); (3) declaratory relief against XP Companies, XP Entertainment and Wall (count three); (4) money owed against XP Companies, XP Entertainment and Wall (count four); (5) intended third-party beneficiary breach of contract against XP Companies, XP Entertainment and Wall (count five); (6) fraud in the inducement against XP Apparel and Wall (count six); (7) negligent misrepresentation in the inducement against XP Apparel and Wall (count seven) and (8) promissory estoppel against XP Apparel (count eight). In 2003, Etling entered into a long-term licensing agreement to produce a traveling exhibition of the Napoleon Collection, a collection of personal items and memorabilia associated with Napolean Bonaparte. (SAC ¶ ¶ 12-13.) Etling's responsibilities included providing supporting work to the Collection, including design, development and marketing work to be performed in Florida. (SAC ¶ 14.) In March of 2006, Etling and EI entered into an agreement *1288 in Florida whereby EI was hired as Etling's agent to promote and arrange the tour of the Collection. (SAC ¶ 17.) Thereafter, EI entered into an agreement with XP Companies for XP Companies to be the exclusive tour operator of the Napoleon Tour, beginning June 1, 2007 and ending April 30, 2012. During the first year of the agreement, XP Companies was to pay EI one million dollars. XP Companies was referred to in the agreement as XP Exhibits and Mr. Wall signed the agreement on behalf of XP Exhibits. (Sept. 8, 2006 Contract, attached to DE 1.) Plaintiffs allege that Defendants XP Companies, XP Entertainment and Mr. Wall breached their contractual obligations as Napoleon tour operator and failed to pay amounts due under the contract. (SAC ¶ ¶ 50-73.) In addition, Plaintiffs allege that XP Apparel and Mr. Wall represented to Plaintiffs that XP Apparel and the other corporate defendants were one and the same entity in order to induce them to enter into the aforementioned contract. (SAC ¶ ¶ 84-97.) Defendants XP Companies, XP Entertainment and Wall moved to dismiss the first amended complaint for lack of personal jurisdiction on December 4, 2007 (DE 19). On March 3, 2008, the Court granted Plaintiffs' motion for leave to take jurisdictional discovery and permitted the parties to file amended responses/replies to Defendants' motion to dismiss (DE 40). Defendants XP Companies, XP Entertainment, Wall and XP Apparel now argue that Plaintiffs cannot establish either specific or general jurisdiction over them. The Court will examine the evidence garnered by the parties with respect to the motion to dismiss for lack of personal jurisdiction. Specific Jurisdiction Evidence In early 2006, Gary Stern, the president of EI, had a business discussion with Zvi Harpaz, the operator of a marketing and placement services in Boca Raton, Florida, about the Napoleon Collection. (Harpaz Aff. ¶ 2; Stern Aff. ¶ 2, attached to DE 30 and 31.) Mr. Harpaz then discussed the Napoleon Collection with Jeremy Fey, who worked for XP Apparel, and Jeremy Fey told Mr. Harpaz that he thought his company would be interested in obtaining the touring rights and that he would discuss it with Mr. Wall, the president of "XP."[1] Subsequently, Jeremy Fey telephoned Mr. Harpaz and said that "they had a strong interest" in obtaining the touring rights and a contract was signed by Mr. Wall on behalf of XP Apparel to secure Mr. Harpaz's commission. Jeremy Fey instructed Mr. Harpaz to have Mr. Stern call Mr. Wall. (Harpaz Aff. ¶ ¶ 4-8; Stern Aff. ¶ 3.) Mr. Stern then called Mr. Wall and was told to call Jeremy Fey who was his "point man" with respect to the Napoleon Collection. (Stern Aff. ¶ 4.) When Mr. Stern called Jeremy Fey, he stated that Mr. Wall and XP were very interested in purchasing the rights to market the Napoleon Collection. On April 12, 2006, Jeremy Fey emailed Mr. Stern that Mr. Wall wanted Mr. Stern to make the offer. (Stern Aff. ¶ 5.) Mr. Stern and Jeremy Fey had "hundreds of follow-up telephone conversations" and communicated nearly every day by telephone, email and facsimile regarding the terms for "defendants"[2] to obtain the tour rights to the Napoleon Collection. Jeremy Fey called Mr. Stern in Florida at least 188 times from April 13, 2006 through June 28, 2006. (Stern Aff. ¶ 6.) *1289 During all of the telephone calls with Jeremy Fey, Jeremy Fey stated that "defendants" had a keen interest in obtaining the tour rights to the Napoleon Collection. (Stern Aff. ¶ 7.) In addition, Jeremy Fey spoke to Mr. Stern about his famous father, promoter Barry Fey, "who has a world-wide reputation for working with such groups as The Who, the Rolling Stones," and emphasized that Barry Fey was a resource that could be used in marketing the exhibit. (SAC ¶ ¶ 24, 27.) In late March or early April of 2006, Mr. Stern received a draft contract from Jeremy Fey, sent to him in Florida via email. In June and August of 2006, Mr. Stern met with Jeremy Fey and Mr. Wall in Colorado and then again with Jeremy Fey in Georgia. Final contract terms were agreed to in principle. (Stern Aff. ¶ 7.) In September of 2006, EI entered into the contract with XP Companies, LLC, which was referred to in the contract as "XP Exhibits" and "XP Sports and Entertainment." The contract provided that XP Companies would pay EI $75,000.00. (September 8, 2006 Contract, DE 1.) According to the SAC, XP Apparel and Wall induced EI to enter into the contract with these entities by representing these entities as divisions of a large conglomerate that were legally one and the same. (SAC ¶ 1.) XP Apparel and Wall sought to shift liability to XP Companies, LLC, a non-operational and defunct entity, in order to shield XP Apparel from liability under the contract. (SAC ¶ ¶ 2, 75.) In March 2007, Mr. Stern met with Jeremy Fey and Mr. Wall in Denver. They had decided to pursue promotion of the Napoleon Collection in exhibit space rented in Florida. Mr. Stern was asked to suggest sites and Plaintiffs then explored sites in Miami, Fort Lauderdale and West Palm Beach. On March 20, 2007, Jeremy Fey sent Russell Etling, Etling's President, an email with a budget and numerous questions about the Miami venue. (Stern Aff. ¶ 11.) Jeremy Fey told Mr. Stern that "defendants" would lease three storefronts in West Palm Beach and sent him a copy of an email he sent to a representative of CityPlace in West Palm Beach. Jeremy Fey also sent Plaintiffs a schedule which contemplated him living in Florida for at least 30 consecutive weeks while he was managing the exhibit. (Stern Aff. ¶ 12.) Jeremy Fey also told Mr. Stern that Mr. Wall was his "best friend" and that Mr. Wall would be traveling to Florida to confer about this transaction. (Stern Aff. ¶ 13.) William Wall, the president of XP Companies and XP Entertainment, states that neither XP Companies nor XP Entertainment have any offices, real property or bank accounts in the state of Florida. No representative of XP Companies or XP Entertainment has traveled to Florida for any business dealings with EI. Mr. Wall first met Mr. Stern in Colorado and the Agreement between EI and XP Companies was signed there. (DE 8-2.) Jeremy Fey first met Mr. Stern and Mr. Etling in South Carolina to view the Napoleon exhibit. Jeremy Fey next met Mr. Stern in Georgia at a USA volleyball event where XP Companies was present for the purpose of apparel sales. Mr. Stern traveled there to see how XP Companies conducted its events. Jeremy Fey never traveled to Florida to meet with Plaintiff or Plaintiffs' representatives. Nor have any other XP Companies representatives traveled to Florida to meet with Plaintiffs. Jeremy Fey's communications with Plaintiffs were by telephone and email. According to Jeremy Fey, XP Companies did not solicit or approach Plaintiffs to enter into any agreement to exhibit or display the Napoleon exhibit (DE 8-3.) Mr. Wall has never been to Florida on business. (Wall Dep. 153.) *1290 General Jurisdiction Evidence XP Entertainment, LLC, which uses the trade name "XP Events" manages facilities and events for clients in Jacksonville and Sunrise, Florida as well as locations in North Carolina and Arizona. (Ex. 21 to Wall Dep. Alan Fey Dep. 7-8.) In 2006, XP Events entered into a ten-year contract with the Jacksonville Jaguars after the Jaguars sent them a "request for proposal" to manage the day-to-day game operations for retail sales at their venue on ten game days. (A. Fey Dep. 9-13, 99.) The Jaguars pay XP Events a management fee with the potential for more revenue, depending on the performance of the season (A. Fey Dep. 17, 55.) There are 30 to 50 employees who are hired by XP Events. (A. Fey Dep. 13, 15.) XP Events does not lease any space in the Jaguar stadium. (A. Fey Dep. 16, 100.) XP Events' buyer in Arizona places the merchandise order for the Jaguars, which is billed and sent to the Jaguars directly. (A. Fey Dep. 15-17.) XP Events helps in the purchasing of merchandise, but does not own the merchandise. (A. Fey Dep. 13.) The merchandise is approved and paid for by the Jaguars. (A. Fey Dep. 16.) XP Events has an office at the stadium where one person works. (A. Fey Dep. 16.) Alan Fey, the president of XP Entertainment, has visited Jacksonville once in connection with its business with the Jaguars. (A. Fey Dep. 4, 47-48.) Jennifer Simmons is the director of merchandising for the Florida Panthers. (Simmons Dep. 3.) In 2006, she received an information packet from XP Events. (Simmons Dep. 6.) After an initial meeting with Alan Fey in 2006, the parties continued with negotiations in 2007. (A. Fey Dep. 22-23; Simmons Dep. 7-8.) Even before a contract had been entered into, the Panthers and XP Events agreed that XP Events would order merchandise for the Panthers, which XP Events did. (A. Fey 51-53; Simmons Dep. 9.) During the course of negotiation, Alan Fey came to Florida two or three times. (Simmons Dep. 17.) A contract was eventually signed in late June of 2007 to begin operations in October of 2007. (A. Fey Dep. 24.) After the contract was signed, Alan Fey came to Florida three or four times. (A. Fey Dep. 48.) The first game for the Panthers, managed by XP Events, occurred in late September of 2007. (Simmons Dep. 23.) The season runs from October through the middle of April. (Simmons Dep. 38.) Pursuant to the contract, XP Events was granted the exclusive right to sell Panthers' licensed merchandise during the Panthers' games. (Contract, Ex. 1 to Simmons Dep.) XP Events was paid a significant amount of money[3] upfront and then a percentage of royalties. (A. Fey Dep. 56; Simmons Dep. 28, 40.) XP Events supplies all the Panthers' merchandise and has storage facilities at the arena. (A. Fey Dep. 27; Simmons Dep. 10-11.) XP Events has two full-time employees and between 15-40 part time workers who work the kiosks. (A. Fey Dep. 24-25 Simmons Dep. 11.) XP Events orders product for the store on a continuing basis. (Simmons Dep. 13.) The merchandise is ordered out of state and shipped to Florida and the bills are paid out of the Denver office. (A. Fey Dep. 53-54.) XP Events works with Ms. Simmons on a weekly basis regarding ordering merchandise, the day-to-day operation of the stores, customer service and promotion. (Simmons Dep. 14-15, 30.) XP Events takes care of art and design work and has given input on the Panthers' new point of sale software system. (Simmons Dep. 24, 32.) Two buyers from XP Events' Phoenix *1291 office visited Florida on business three or four times. (Simmons Dep. 34-35.) XP Events is in control of the store space and storage area the entire year. (Simmons Dep. 20-21.) XP Events does not manage the stores when the Panthers are not playing. (Simmons Dep. 5.) When payment is made to the Panthers by XP Events, it is done by check which is given to the Panthers in Florida. (Simmons Dep. 22.) Pursuant the contract, XP Events is required to purchase a certain number of tickets to the arena. (Simmons Dep. 31.) The volume of sales sold by XP Events in 2007 was substantial.[4] (Simmons Dep. 39.) The contract is governed by Florida law and must be litigated in Florida. (A. Fey Dep. 41-42.) XP Events was required to maintain insurance that identified the Panthers as additional insureds. (Section 3.10, Contract, Ex. 32 to Wall Dep.) XP Events has a bank account in Florida and a cash room at the arena. (A. Fey Dep. 32; Simmons Dep. 40.) XP Events is responsible for paying the Florida sales tax. (Simmons Dep. 41.) XP Events is not currently soliciting any business contacts in Florida. (A. Fey Dep. 71.) XP Events does not own any real estate in Florida. (A. Fey Dep. 32-33.) XP Events has no other written contracts with any other Florida business besides the Jaguars and the Panthers. (A. Fey Dep. 33.) XP Events has bank accounts with national banks that have branches in Florida. Its accounts were set up in Colorado and XP Events uses those banks in its contracts with the Panthers. (A. Fey Dep. 102-03.) According to William Wall, who acts as the manager of XP Apparel, XP Apparel does not systematically transact business in Florida. Its only offices are located in Colorado. XP Apparel is a licensing company, specializing in sports merchandising, including the manufacturing of apparel and sports-related memorabilia. It maintains no bank accounts in Florida, has no employees in Florida and has no warehouses, offices, retail locations or leases of interest in real property in Florida. Its only contacts involve internet retail sales and telephone sales made by consumers to purchase its products. All sales are made through its Colorado office. XP Apparel has not conducted or attended any exhibitions or trade shows in Florida nor has any representative traveled to Florida for business. (Wall Aff. ¶ ¶ 2-10, DE 116.) XP Events buys some of XP Apparel's t-shirts and hats to sell at the BankAtlantic Center and in Jacksonville, Florida. (A. Fey Dep. 36.) With respect to the Jacksonville Jaguars, the amount of XP Apparel merchandise is "minimal" and with respect to the Panthers, the amount of XP Apparel merchandise is about ten percent of what XP Events sells in Florida. (A. Fey Dep. 75-77.) On April 18, 2008, Mr. Walter Haigh purchased a visor cap at Walt Disney World in Lake Buena Vista, Florida with a tag that states "officially licensed by XP Apparel" and "www.XPApparel.com-100% Cotton-Made in Vietnam." (Haigh Aff. ¶ 2, attached to DE 120.) II. Legal Standard The plaintiff's burden in alleging personal jurisdiction requires that the plaintiff establish a prima facie case of personal jurisdiction over a nonresident defendant. A prima facie case is established if the plaintiff presents enough evidence to withstand a motion for directed *1292 verdict. The district court must accept the facts alleged in the complaint as true, to the extent they are uncontroverted by the defendant's affidavits. If by defendant's affidavits or other competent evidence, defendant sustains the burden of challenging plaintiff's allegations, the plaintiff must substantiate the jurisdictional allegations in the complaint by affidavits, testimony or documents. However, where the evidence conflicts, the district court must construe all reasonable inferences in favor of the plaintiff. See Future Tech. Today, Inc., v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir.2000); Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 255 (11th Cir.1996) citing Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.1990). III. Discussion A. Personal Jurisdiction over Defendant XP Companies Plaintiffs assert specific jurisdiction over XP Companies and point to Jeremy Fey's communications with Plaintiff by way of telephone calls, emails and facsimiles The determination of personal jurisdiction over a nonresident defendant requires a two-part analysis. When jurisdiction is based on diversity, Rule 4(e) of the Federal Rules of Civil Procedure requires that the assertion of jurisdiction be determined by the state long-arm statute. If there is a basis for the assertion of personal jurisdiction under the state statute, the Court must next determine whether: (1) sufficient minimum contacts exist to satisfy the Due Process Clause of the Fourteenth Amendment and that (2) maintenance of the suit does not offend "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). Only if both prongs of the Due Process analysis are satisfied may this Court exercise personal jurisdiction over a nonresident defendant. Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 256 (11th Cir.1996) citing Madara, 916 F.2d at 1514; International Shoe Co. v. Washington, 326 U.S. at 316, 66 S.Ct. 154. Minimum contacts in the context of specific jurisdiction involve three criteria: First, the contacts must be related to the plaintiff's cause of action or have given rise to it. Second, the contacts must involve some purposeful availment of the privilege of conducting activities within the forum, thereby invoking the benefits and protections of its laws. Finally, the defendant's contacts within the forum state must be such that it should reasonably anticipate being haled into court there. See Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 631 (11th Cir.1996). Notably, XP Companies concedes that the requirements of Florida long-arm statute, Florida Statutes § 48.193(1), are met. Thus, the Court need only conduct an analysis regarding minimum contacts and fair play. The Eleventh Circuit has stated that a contract with an out-of-state party cannot, standing alone, automatically establish sufficient minimum contacts. Francosteel Corp. v. M/V Charm, 19 F.3d 624, 627 (11th Cir.1994). In so holding, the Court noted that a contract is "ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction." The inquiry must instead focus on "prior negotiations," "contemplated future consequences," "the terms of the contract and the parties' actual course of dealing." Id. at 627-28 citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478-79, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Here, Plaintiffs rely on the communications and negotiations by this Defendant via telephone, email and facsimile to Florida to establish *1293 the necessary minimum contacts. Defendant does not present any evidence to refute Plaintiffs' contention that these numerous communications, including 188 telephone calls made by Jeremy Fey to Plaintiffs, occurred. Instead, Defendant argues that there is no evidence showing that telephone calls and emails are sufficient to establish contacts. In support, Defendant cites Hartcourt Cos., Inc. v. Hogue, 817 So.2d 1067 (Fla. Dist.Ct.App.2002) and Sun Bank, N.A., v. E.F. Hutton & Co., Inc., 926 F.2d 1030 (11th Cir.1991). Both of these cases are factually inapposite. The plaintiff in Sun Bank relied on a mere two telephone calls upon which to base its argument for jurisdiction. Here, there are 188 telephone calls. In Hartcourt, the Court stated that "although it took a few telephone calls and email transmissions to make the arrangements, the agreement was an isolated transaction." Id. at 1072. This agreement was intended to run for approximately five years. Moreover, the Court does not read Hartcourt as holding that telephone calls and emails are categorically insufficient to establish minimum contacts. Defendant also points to Borg-Warner Acceptance Corp. v. Lovett & Tharpe, Inc., 786 F.2d 1055 (11th Cir.1986) and notes that it "quoted with approval" Scullin Steel v. National Railway Utilization Corp., 676 F.2d 309 (8th Cir.1982). In Scullin, the court stated that the use of the telephone and mail are ancillary factors that cannot alone provide minimum contacts. Borg-Warner did not directly address this issue. Instead, it stated in a footnote that some of these ancillary factors "may not" have been present in Borg-Warner and that the absence of these factors supported a finding that there were no minimum contacts. Borg-Warner, 786 F.2d at 1062 n. 4. Moreover, Borg-Warner did not address whether numerous telephone calls and other communications could establish jurisdiction over a defendant.[5] Of course, in examining the telephone calls and emails, the Court must look to whether Defendant "purposefully directed" its actions towards Florida. Burger King, 471 U.S. at 476, 105 S.Ct. 2174. The United States Supreme Court has stated that "it is an inescapable fact of modern commercial life that a substantial amount of business is transacted solely by mail and wire communications across state lines," and that personal jurisdiction cannot be defeated merely because a defendant did not "physically enter" the forum state. Id.; see Cable/Home Comm. Corp. v. Network Prods., Inc., 902 F.2d 829, 858 (11th Cir.1990) ("[i]n our technologically sophisticated world permitting interstate business transactions by mail, wire and satellite signals, physical presence by the nonresident defendant is not necessary for personal jurisdiction in the forum state") Of course, purposeful direction would require that the telephone communications be substantial, and not a single telephone call. See Future Tech., 218 F.3d at 1251 (finding no personal jurisdiction based on one telephone call and no visits to the forum state); see also Air Prods. and Controls, Inc. v. Safetech Intern., Inc., 503 F.3d 544, 551-52 (6th Cir.2007) (numerous telephone calls, emails and facsimiles initiated by the non-resident defendant can demonstrate purposeful availment); Rambo v. American Southern Ins. Co., 839 F.2d 1415, 1418 (10th Cir.1988) (telephone calls and letters may provide sufficient contacts to meet due process standards); Mayville v. Glatkowski, No. 1:08-CV-232-TWT, *1294 2008 WL 2037155, at *5 (N.D.Ga. 2008) (telephone, email and written correspondence adequate to establish personal jurisdiction); Achievers Unlimited, Inc. v. Nutri Herb, Inc., 710 So.2d 716 (Fla.Dist. Ct.App.1998) (additional contacts with Florida established by communicating with plaintiff in Florida by telephone, telefax, and mail). Given the number of contacts initiated by Defendant, the Court finds that minimum contacts are established.[6] Next, the Court concludes that finding XP Companies amenable to personal jurisdiction in Florida comports with "traditional notions of fair pay and substantial justice." In this Circuit, the factors to decide whether the assertion of personal jurisdiction comports with "traditional notions of fair play and substantial justice" are: 1) the burden on the defendant in defending the lawsuit; 2) the forum state's interest in adjudicating the dispute; 3) the plaintiff's interest in obtaining convenient and effective relief; 4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies and 5) the shared interest of the states in furthering fundamental substantive social policies. Cronin v. Washington Nat. Ins. Co., 980 F.2d 663, 671 (11th Cir.1993) citing Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987); Madara, 916 F.2d at 1517. The Court finds that Florida has an interest in adjudicating a dispute that revolves around an out-of-state corporation engaged in a breach of contract for an exhibition in Florida. Furthermore, Plaintiffs have sued numerous Defendants, over whom the Court can also assert personal jurisdiction, and it is in the interstate judicial system's interest to litigate this case in one forum. Plaintiffs will also obtain the most convenient and effective relief by litigating this case in Florida. Lastly, "modern transportation and communication have made it much less burdensome" for an out-of-state Defendant to be sued in another state. Cable/Home, 902 F.2d at 858 (citations omitted). As such, personal jurisdiction can be exercised over XP Companies. B. Personal Jurisdiction over Defendant XP Entertainment In order for a court to exercise general jurisdiction in Florida, the contacts must be especially pervasive and substantial to satisfy section two of the Florida long-arm statute 48.193. General Cigar Holdings, Inc. v. Altadis S.A., 205 F.Supp.2d 1335, 1343 (S.D.Fla.2002); see Florida Statutes.§ 48.193(2). The general jurisdiction provision of the statute states: *1295 A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity. Id. General jurisdiction arises from a defendant's contacts with Florida that are not directly related to the cause of action being litigated and connexity between a defendant's activities and the cause of action is not required. Consolidated Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1292 (11th Cir.2000). The "substantial and not isolated activity" requirement of the long-arm statute has been recognized by Florida courts as the functional equivalent of the continuous and systematic contact requirement for general jurisdiction under the Fourteenth Amendment Due Process Clause as discussed in Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 413-416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); see Woods v. Nova Cos. Belize, Ltd., 739 So.2d 617, 620 (Fla.Dist.Ct.App. 1999); Achievers Unlimited, Inc. v. Nutri Herb, Inc., 710 So.2d 716, 720 (Fla.Dist.Ct. App.1998). A finding that a defendant's activities satisfy section 48.193(2)'s requirements also necessitates a finding that minimum contacts exist. See Universal Caribbean Estab. v. Bard, 543 So.2d 447, 448 (Fla.Dist.Ct.App.1989). Therefore, the analysis of jurisdiction under section 48.193(2) and the Due Process clause merge. As there is no requirement of a connection between the defendant's activities and the cause of action, the Due Process requirements are much more stringent for general personal jurisdiction than for specific personal jurisdiction. Due Process requires a showing of substantial, persistent, continuous, and systematic business contacts between the defendant and the forum state. Helicopteros, 466 U.S. at 414 nn. 8, 9, 104 S.Ct. 1868; Ruiz de Molina v. Merritt & Furman Ins. Agency, Inc., 207 F.3d 1351, 1357 n. 4 (11th Cir.2000); Meier v. Sun International Hotels, Ltd., 288 F.3d 1264, 1274 (11th Cir.2002); Borg-Warner, 786 F.2d at 1057. "The substantial connection between a defendant and the forum state must come about by an action of the defendant purposefully directed toward the forum state." Nida Corp. v. Nida, 118 F.Supp.2d 1223, 1229 (M.D.Fla.2000) citing Asahi Metal Indus. Co. v. Superior Ct. of Cal., Solano Cty., 480 U.S. 102, 108-09, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). The defendant's contacts "must be so extensive to be tantamount to [a defendant] being constructively present in the state to such a degree that it would be fundamentally fair to require it to answer in [the forum state's courts] in any litigation arising out of any transaction or occurrence taking place anywhere in the world." Baker v. Carnival Corp., No. 06-21527-CIV-HUCK, 2006 WL 3360418, at *2 (S.D.Fla. Nov. 20, 2006) citing Purdue Research Foundation v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 787 (7th Cir.2003) The evidence shows that XP Entertainment has two lucrative contracts, one of which extends over ten years, with two professional sports teams in the state of Florida for the sale of apparel. XP Entertainment has permanent employees, offices and storage facilities in Florida to manage these contractual obligations. The president of XP Entertainment, Alan Fey, has traveled to Florida in connection with these contracts and buyers for XP Entertainment have also visited Florida on business-related duties. XP Entertainment orders product for the Panthers' store on a continuing basis and ships merchandise to Florida. Furthermore, XP Entertainment works on a weekly basis with the Panthers *1296 to effectuate the ordering of the merchandise and the day-to-day operation of the stores. Lastly, XP Entertainment has a bank account in Florida and a cash room at the Panthers' arena. The Court finds that these facts meet the test for general jurisdiction. See KVAR Energy Savings, Inc. v. Tri-State Energy Solutions, LLP, No. 6:08-cv-85-Orl-19KRS, 2009 WL 103645, at *6 (M.D.Fla. Jan. 15, 2009) (finding general jurisdiction when the defendant initiated contact with the plaintiff in Florida, distributed the plaintiff's products, regularly made contact with the defendant's representatives in Florida and demonstrated an intent to maintain a long-term relationship with the plaintiff); Auto-Nation, Inc. v. Hankins, No. 03-14544, 2003 WL 22852206, at *5 (Nov. 24, 2003) (general jurisdiction found when the defendant received frequent supervision and direction from his Florida employer and obtained confidential business information from his employer); Achievers Unlimited, Inc. v. Nutri Herb, Inc., 710 So.2d 716, 720 (Fla.Dist.Ct.App.1998) (three-year distribution relationship with a Florida corporation establishes general jurisdiction). While XP Entertainment attempts to minimize these contacts, the focus of its attack on the assertion of personal jurisdiction is primarily a legal one. Namely, XP Entertainment argues that its contacts with the Panthers and Jaguars did not commence until after the filing of the Complaint in this action and therefore must not be considered. In support, Defendant points to Carib-USA Ship Lines Bahamas Ltd. v. Dorsett, 935 So.2d 1272 (Fla.Dist. Ct.App.2006). Carib-USA stated that "[c]ontacts are generally assessed over a period of years prior to the filing of the complaint" and that contacts established after the time of the service of the complaint should not be used to establish minimum contacts. Id. at 1276. Carib-USA relied upon Woods v. Nova Companies Belize Ltd., 739 So.2d 617 (Fla.Dist.Ct. App.1999), which cited to Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 569 (2d Cir.1996). However, Metropolitan Life addressed whether contacts should be assessed based on the time period of one year prior to the lawsuit being filed or based on several years prior to the lawsuit being filed. There was no discussion about disregarding a defendant's contacts that commenced in the forum state after the lawsuit was filed. Nor should there have been. Once a defendant has continuous and systemic contacts with a forum state, its activities are no longer haphazard or fortuitous.[7] For these reasons, the Court rejects Defendant's argument. Finally, with respect to fair play, the Court adopts the reasoning applied supra to XP Companies. C. Personal Jurisdiction over XP Apparel and Mr. Wall Plaintiffs contend that jurisdiction can be asserted over XP Apparel and Mr. Wall pursuant to both specific and general jurisdiction. With respect to specific jurisdiction, Plaintiffs claim that Jeremy Fey, XP Apparel's agent, sought out Plaintiffs for a business relationship that resulted in "the misrepresentations and promises" that are the subject of the claims for fraud in the inducement, negligent misrepresentation and promissory estoppel against XP Apparel. With respect to general jurisdiction, Plaintiffs point to XP Apparel's substantial *1297 activities in Florida as grounds for asserting jurisdiction. It appears that Plaintiff is claiming specific jurisdiction under Fla. Stat. 48.193(1)(b) which provides: (1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself, and if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from doing of any of the following acts: (b) Committing a tortious act within this state. Fraud in the inducement and negligent misrepresentation are torts that can establish personal jurisdiction.[8]OSI Industries, Inc. v. Carter, 834 So.2d 362, 367 (Fla.Dist.Ct.App.2003) (discussing both intentional and negligent misrepresentation as torts under the long-arm statute). In Wendt v. Horowitz, the Florida Supreme Court found long-arm jurisdiction where an out-of-state defendant allegedly made "telephonic, electronic, or written communications into Florida" and the cause of action arose from those communications. Wendt v. Horowitz, 822 So.2d 1252, 1260 (2002); see Acquadro v. Bergeron, 851 So.2d 665 (Fla.2003) (allegations sufficient to support jurisdiction where nonresident allegedly committed defamation in a single telephone call into Florida); Machtinger v. Inertial Airline Services, Inc., 937 So.2d 730, 735 (Fla.Dist.Ct.App. 2006) (fraudulent misrepresentations made from outside Florida and directed into Florida by phone, fax, and writings constitute tortious acts committed within Florida under Florida's long-arm statute). Moreover, the Wendt Court held that a defendant's physical presence is not required in order to "commit a tortious act in Florida."[9]Id. Given that it is uncontested that XP Apparel made telephone calls and email communications into Florida in furtherance of a business relationship with Plaintiffs, long-arm jurisdiction would be established, assuming that Plaintiffs could demonstrate that the tort occurred.[10] After all, "[w]here the jurisdictional issues are intertwined with the substantive merits, `the jurisdictional issues should be referred to the merits, for it is impossible to *1298 decide one without the other.'" Eaton v. Dorchester Dev., Inc., 692 F.2d 727, 733 (11th Cir.1982) quoting Chatham Condo. Assocs. v. Century Village, Inc., 597 F.2d 1002, 1011 (5th Cir.1979). In reaching that conclusion, the Court in Eaton relied on binding Fifth Circuit precedent[11] that held that when substantive and jurisdictional issues are intertwined, a finding on jurisdiction should not be rendered until a decision on the merits could be resolved.[12]See id. (citations omitted). Based on this directive from the Eleventh Circuit, the Court will exercise its discretion to reserve ruling on the jurisdictional issues until a decision on the merits can be rendered.[13]See Nissim Corp. v. ClearPlay, Inc., 351 F.Supp.2d 1343, 1351-52 (S.D.Fla.2004). The Court next turns to minimum contacts. When an intentional tort is alleged, personal jurisdiction may be supported over a non-resident defendant who has no other contacts with the forum. Calder v. Jones, 465 U.S. 783, 790, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). In Calder, a California entertainer and resident brought suit, claiming she was a victim of libel by an article published in the National Enquirer, a publication with a large California circulation. Id. at 784, 104 S.Ct. 1482. The Calder defendants were residents of Florida. Id. at 785-86, 104 S.Ct. 1482. One of the defendants, a reporter, did most of his research in Florida and made several telephone calls to California for information. Id. at 785, 104 S.Ct. 1482. The other defendant had no contacts with Florida, and simply reviewed the reporter's article. Id. at 786, 104 S.Ct. 1482. In finding that personal jurisdiction over the Florida defendants was properly asserted in the California court, the Supreme Court noted that the defendants knew that the article would harm the plaintiff and that the injury would be sustained by the plaintiff in California, the state where she lived and worked and where the publication had its largest circulation. Id. at 789-90, 104 S.Ct. 1482. Accordingly, the United States Supreme Court held that personal jurisdiction can be based on an intentional act that was "expressly aimed" at the forum state and which the defendant knew would cause harm in the forum state. Id. In other words, personal jurisdiction over defendants may be based on the "effects" of their conduct. Id. at 789, 104 S.Ct. 1482. In Keeton v. Hustler Magazine, Inc., decided the same day as Calder, the Supreme Court explained that "states have a special interest in exercising personal jurisdiction over those who commit torts within its territory." Keeton, 465 U.S. 770, 776, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984) quoting Leeper v. Leeper, 114 N.H. 294, 319 A.2d 626 (1974). Here, there is uncontested evidence that numerous telephone calls and emails were sent by XP Apparel to Plaintiffs. See Neal v. Janssen, 270 F.3d 328, 332 (6th Cir.2001) ("[M]aking phone calls and sending facsimiles into the forum, standing alone, may be sufficient to confer jurisdiction *1299 on the foreign defendant where the phone calls and faxes form the bases for the action."); Oriental Trading Co., Inc. v. Firetti, 236 F.3d 938, 943 (8th Cir.2001) (in the intentional tort context, minimum contacts exists when non-resident defendant made only phone calls and faxes and did not enter state). These contacts far exceed the nature of the contacts that established minimum contacts in Calder. Thus, assuming that Plaintiff can prove that XP Apparel and Wall induced Exhibit Icons to enter into the contract, and sought to shift liability to XP Companies, LLC in order to shield XP Apparel from liability under the contract, due process would be satisfied under the Calder test. See New Lenox Industries v. Fenton, 510 F.Supp.2d 893, 904 (M.D.Fla.2007) ("where a defendant's tortuous conduct is intentionally and purposefully directed at a resident of the forum, the minimum contacts requirement is met, and the defendant should anticipate being haled into court in that forum.")[14] The Court adopts the reasoning applied to XP Companies regarding fair play. With respect to personal jurisdiction over Mr. Wall for these tort claims, the Court notes that individual officers are personally liable for torts they commit, even if those torts arise from acts performed within the scope of their employment. See Florida Specialty, Inc. v. H 2 Ology, Inc., 742 So.2d 523, 527-28 (Fla. Dist.Ct.App.1999). Therefore, assuming that Plaintiff succeeds on the merits, minimum contacts are established over Mr. Wall.[15] As such, it is necessary to examine whether assertion of personal jurisdiction over Mr. Wall comports with fair play. Litigating this action against Mr. Wall will not be a burden to him. Given Mr. Wall's role with the corporate Defendants, Mr. Wall will have a significant role in their defense. He will undoubtedly be a witness at trial and thus will not be unduly burdened by answering the claims against him in Florida. For these reasons, the Court finds that the requirements of reasonableness and fairness of asserting jurisdiction over Mr. Wall have been met.[16] *1300 MOTION TO STRIKE In response to Plaintiffs' Second Amended Complaint, Defendants filed a Second Amended Answer, asserting numerous affirmative defenses. Plaintiffs have moved to strike several of Defendants' affirmative defenses and portions of their answer. Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, a party may move to strike "any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter" within the pleadings. Fed.R.Civ.P. 12(f). Motions to strike, however, are generally disfavored by the court. See Williams v. Jader Fuel Co., 944 F.2d 1388, 1400 (7th Cir.1991). The reason is that courts consider striking a pleading to be a "drastic remedy to be resorted to only when required for the purposes of justice." Augustus v. Bd. of Pub. Instruction of Escambia County, Fla., 306 F.2d 862, 868 (5th Cir.1962) quoting Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir. 1953). That stated, an affirmative defense may be stricken if the defense is "insufficient as a matter of law." Microsoft Corp. v. Jesse's Computers & Repair, Inc., 211 F.R.D. 681, 683 (M.D.Fla.2002) citing Anchor Hocking Corp. v. Jacksonville Elec. Auth., 419 F.Supp. 992, 1000 (M.D.Fla. 1976). A defense is insufficient as a matter of law only if: (1) on the face of the pleadings, it is patently frivolous, or (2) it is clearly invalid as a matter of law. Id. Plaintiffs move to strike several affirmative defenses on the basis that they have not been pled with adequate specificity to give fair notice of the defenses asserted. The Court agrees that the defenses alleged in paragraph 99, 118 and 119 fail to provide adequate specificity. That failure, however, does not render these Affirmative Defenses insufficient as a matter of law and subject to a motion to strike. Instead, the lack of specificity is best dealt with by a motion for a more definite statement under Rule 12(e) of the Federal Rules of Civil Procedure. That Rule requires a more definite statement when a pleading is "vague" or "ambiguous." Fed. R.Civ.P. 12(e). Therefore, the Court will allow Defendants the opportunity to amend these affirmative defenses to provide the necessary specificity. Next, the Court notes that several of the affirmative defenses are not affirmative defenses, but a denial of an allegation lodged against Plaintiffs by Defendants. As such, paragraphs 113, 114 and 117 must be stricken. See In re Rawson Food Service, Inc., 846 F.2d 1343, 1349 (11th Cir. 1988) ("[a] defense which points out a defect in the plaintiff's prima facie case is not an affirmative defense.") Paragraph 110 states that "The purpose of any alleged agreement has been commercially frustrated because of the impossibility or impracticability of performance, preventing plaintiffs' claims for breach of contract." Plaintiffs state that this defense is improper because commercial impracticability only applies to contracts involving the sale of goods. Defendants respond that the "impracticability defense" does not just apply to the sale of goods. The Court finds that this affirmative defense suffers from several pleading deficiencies. First, it is unclear if Defendants are claiming common law "impracticability of performance" as a subset of impossibility of performance, see Valencia Ctr., Inc. v. Publix Super Markets, Inc., 464 So.2d 1267, 1269, or commercial impracticability as envisioned under the Uniform Commercial Code, see Eastern Air Lines, Inc. v. Gulf Oil Corp., 415 F.Supp. 429, 438 (S.D.Fla.1975). Furthermore, both the impossibility or impracticability defenses fail to provide fair notice of the defenses alleged. Thus, paragraph 110 must be re-pled. *1301 Paragraph 115 states that "Any alleged agreement is void as a result of unilateral mistake." Both parties point to Orkin Exterminating Co. v. Palm Beach Hotel Condominium Assoc., 454 So.2d 697 (Fla.Dist. Ct.App.1984). That case states that a mistake by one party may make a contract voidable. Id. at 698 (emphasis added). Defendants may amend this affirmative defense to comply with Orkin. Defendants should also provide fair notice of the facts supporting this affirmative defense. Lastly, regarding paragraphs 24 and 32, Plaintiffs note that Defendants have agreed to amend these paragraphs to identify which Defendants are admitting or denying the allegations. Thus, Defendants amended answer shall include this amendment. The Court has examined paragraphs 33 through 37 and finds nothing improper about Defendants' response. CONCLUSION It is hereby ORDERED AND ADJUDGED as follows: 1) Defendants XP Companies, XP Entertainment and Wall's Motion to Dismiss the Amended Complaint or, in the Alternative, Transfer of Venue (DE 19) is DENIED. 2) Plaintiffs' Motion for Leave to File a Brief Surreply to Defendants' Reply Memorandum (DE 88) is DENIED. 3) Plaintiffs' Request for Oral Argument on Defendants' Motion to Dismiss for Lack of Jurisdiction (DE 92) is DENIED. 4) Defendants XP Companies, XP Entertainment and Wall's Motion to Dismiss Second Amended Complaint for Lack of Personal Jurisdiction, or, in the Alternative, Change of Venue (DE 99) is DENIED. 5) Plaintiffs' Request for Oral Argument on Defendants' XP Companies, LLC, XP Entertainment, LLC and William Wall III's Motion to Dismiss Verified Second Amended Complaint (DE 112) is DENIED. 6) Defendant XP Apparel's Motion, and Joinder in the Defendants' Motion, to Dismiss Second Amended Complaint for Lack of Personal Jurisdiction or, in the Alternative, Change of Venue (DE 115) is DENIED WITHOUT PREJUDICE. 7) Plaintiffs' Request for a Hearing on Defendant XP Apparel, LLC's Motion to Dismiss for Lack of Jurisdiction (DE 119) is DENIED. 8) Plaintiffs' Motion to Strike Affirmative Defenses and Portions of Defendants' Answer (DE 126) is DENIED AS MOOT. 9) Plaintiffs' Motion to Strike Affirmative Defenses and Portions of Defendants' Answer (DE 132) is GRANTED IN PART AND DENIED IN PART. DONE AND ORDERED. NOTES [1] The Stern affidavit does not identify to which company "XP" refers. [2] The Court assumes "defendants" include XP Companies, XP Entertainment and Mr. Wall. At the time this affidavit was created, XP Apparel was not a defendant in the case. [3] The precise amount is under seal and can be found on page 56 of Alan Fey's deposition. [4] The exact figure is under seal and can be found on page 39 of Jennifer Simmons' deposition. [5] Borg-Warner also looked at personal jurisdiction cases involving non-resident purchasers for one-time transactions. Future Tech., 218 F.3d at 1251-52. Here, the contract envisioned a long-term relationship between the parties. [6] With respect to Mr. Wall, the Court finds that there is no long-arm jurisdiction over him related to the contract entered into with Plaintiffs. None of Mr. Wall's acts are alleged to have been taken outside his corporate duties. See Doe v. Thompson, 620 So.2d 1004, 1006 (Fla.1993) ("acts of corporate employee performed in corporate capacity do not form the basis for jurisdiction over corporate employee in individual capacity"); cf. Ryan v. Wren, 413 So.2d 1223, 1224 (Fla.Dist. Ct.App.1982) (an officer of a corporation cannot be held liable on a contract "in his individual capacity unless he either signed the contract in his individual capacity or unless the corporate veil was pierced or the corporate entity should be ignored because it was found to be formed or used for fraudulent purposes or where the corporation was merely the alter ego of the shareholder."). As such, personal jurisdiction cannot be exercised over Mr. Wall for counts one through five of the SAC based on his actions taken on behalf of XP Companies. If these contract-related claims were the only claims against Mr. Wall, there would be no personal jurisdiction against him. However, to the extent that personal jurisdiction could be exercised over him with respect to the tort claims, the Court would have pendent personal jurisdiction over the contract-related claims. See Section III(C), infra, at 1296-99 and n. 15. [7] Under Defendant's approach to personal jurisdiction, a Florida resident could escape personal jurisdiction in Florida because he did not live in Florida at the time of the act in question. Of course, such an argument would fail. See Haueter-Herranz v. Romero, 975 So.2d 511, 516 (Fla.Dist.Ct.App.2008) (residents of Florida are subject to jurisdiction by Florida courts). [8] XP Apparel states that Plaintiffs' claims for negligent misrepresentation, a non-intentional tort, and promissory estoppel, a non-tort claim, cannot establish personal jurisdiction. The long-arm statute provides for long-arm jurisdiction over a tort and does not distinguish between intentional and negligent torts. See OSI Industries, 834 So.2d at 367 (discussing both intentional and negligent misrepresentation as torts under the long-arm statute). However, to the extent Plaintiffs are asserting personal jurisdiction for promissory estoppel under this provision of the long-arm statute, it would fail. [9] Notably, Posner v. Essex Ins. Co., Ltd., which was decided prior to Wendt, went even further and interpreted Florida Statutes § 48.193(1)(b) to mean that a defendant who commits a tort that causes injury in Florida is subject to personal jurisdiction even if the act that caused the injury occurred entirely out of state. See Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1216-17 (11th Cir.1999). In other words, a tortious act committed outside of the state of Florida resulting in injury to a Florida resident confers personal jurisdiction under Florida Statutes § 48.193(1)(b). [10] Defendant's reliance on McLean Financial Corp. v. Winslow Loudermilk Corp. for the holding that alleged misrepresentations made in telephone conversations between plaintiffs in Florida and defendants in Virginia did not provide a basis for exercising personal jurisdiction is unpersuasive. McLean, 509 So.2d 1373, 1374 (Fla.Dist.Ct.App.1987). After Wendt, McLean is no longer good law. Wendt, 822 So.2d at 1260. Furthermore, Defendant's reliance on Sculptchair is misplaced. Sculptchair did not address the commission of a tort. Sculptchair, 94 F.3d at 627-30. [11] In Bonner v. City of Prichard, 661 F.2d 1206, 1207 & 1209 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as binding precedent the decisions of the Fifth Circuit rendered prior to October 1, 1981. [12] Although Eaton and the binding Fifth Circuit cases it relies upon address subject matter jurisdiction, the Court concludes that the reasoning of these cases apply with equal force to personal jurisdiction. [13] The Court notes that XP Apparel may renew its arguments in a summary judgment motion. Of course, if material issues of fact exist on the merits of the claim, then the issue will need to be presented at trial. See Nissim, 351 F.Supp.2d at 1352; Lawrence v. Dunbar, 919 F.2d 1525, 1530-31 (11th Cir.1990). [14] Given that Plaintiff has established specific jurisdiction over XP Apparel, it is unnecessary to reach the question of general jurisdiction. Nonetheless, the Court observes that the evidence provided by Plaintiff about the sale of XP Apparel merchandise purchased by Florida vendors constitutes de minimis and fortuitous contacts which are insufficient to establish general jurisdiction over XP Apparel. See TRW Vehicle Safety Systems, Inc. v. Santiso, 980 So.2d 1149 (Fla.Dist.Ct.App.2008). [15] The tort claims and the contract-related claims arise out of a common nucleus of operative facts. Thus, the doctrine of "pendent personal jurisdiction" comes into play. Under this doctrine, as long as personal jurisdiction can be asserted over Mr. Wall for the tort claims, there would be also be personal jurisdiction over the contract-related claims. See Cincinnati Ins. Co. v. Belkin Corp., No. 07-0615-WS-C, 2008 WL 4949783, at *16 (S.D.Ala. Nov. 14, 2008) citing Action Embroidery Corp. v. Atlantic Embroidery, Inc., 368 F.3d 1174 (9th Cir.2004); United States v. Botefuhr, 309 F.3d 1263, 1272-75 (10th Cir. 2002); Robinson Eng'g Co., Ltd. Pension Plant Trust v. George, 223 F.3d 445, 449-50 (7th Cir.2000); ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 628-29 (4th Cir.1997); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1056-57 (2d Cir.1993); Oetiker v. Jurid Werke, G.m.b.H., 556 F.2d 1, 5 (D.C.Cir. 1977); Robinson v. Penn Cent. Co., 484 F.2d 553, 555-56 (3d Cir.1973). [16] The Court notes that Defendants made the alternative argument that venue is improper. The causes of action for contract and tort arose in the Southern District of Florida. Therefore, venue is proper in this district. 28 U.S.C. § 1391. Furthermore, Defendants have not set forth sufficient grounds to establish that a change of venue is appropriate pursuant to 28 U.S.C. § 1404, especially given that there is a presumption in favor of a plaintiff's choice of forum. See Tampa Bay Storm, Inc. v. Arena Football League, Inc., 932 F.Supp. 281, 282 (M.D.Fla.1996).

891 S.W.2d 785 (1995) LYNX EXPLORATION AND PRODUCTION COMPANY, INC., Appellant, v. 4-SIGHT OPERATING COMPANY, INC., Appellee. No. 06-94-00026-CV. Court of Appeals of Texas, Texarkana. January 19, 1995. *786 Timothy G. Moore, G. Thomas Allison, III, Merriman, Patterson & Allison, Longview, Hubert A. Crouch III, Patrick O. Strauss, Crouch & Hallett, LLP, Dallas, for Lynx Exploration and Production, Inc. Melvin Wilcox III, Mark D. Strachan, Smead, Anderson, Wilcox & Dunn, Longview, for 4-Sight Operating Co., Inc. Before CORNELIUS, C.J., and BLEIL and GRANT, JJ. OPINION GRANT, Justice. Lynx Exploration appeals from a summary judgment in favor of 4-Sight. Lynx raises seven points of error in which it contends that the trial court erred by denying Lynx's motion for summary judgment, by granting 4-Sight's motion for summary judgment, and by failing to award attorney's fees to Lynx. *787 Lynx attempted to purchase oil and gas properties from 4-Sight for about $5,000,000. Lynx contends that a binding agreement was reached and that 4-Sight breached that agreement by refusing to transfer the property as agreed. Lynx sought specific performance. The trial court denied Lynx's motion and granted judgment in favor of 4-Sight. This case revolves around a single document: a three-page letter sent by Lynx to 4-Sight on December 9, 1992. In that letter, Lynx raised its monetary offer to a level requested in previous negotiations by 4-Sight. Lynx contends that the letter is a contract. 4-Sight contends that it is not an enforceable agreement because too many terms are left for later negotiation. Lynx brought suit requesting an order of specific performance or alternatively seeking damages for breach of contract. Summary judgment is singularly appropriate when a written instrument is worded such that it can be given a definite legal interpretation. Such an instrument should be construed by the court as a matter of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). In pursuing an action for specific performance, the first question is whether there is an enforceable contract to be performed. Guzman v. Acuna, 653 S.W.2d 315, 318 (Tex.App.—San Antonio 1983, writ dism'd). The two issues which we must address are (1) whether there was a mutual reciprocal obligation sufficient to constitute a binding contract and (2) whether the document is sufficient to fix the legal obligations and liabilities of the parties. Mutual Reciprocal Obligation Lynx correctly contends that the letter agreement sets forth a number of items that are subject to its approval. This can be done in a satisfaction contract. The Texas Supreme Court adopted a reasonableness test for a "satisfaction" provision of contract in deciding whether a party acted in good faith. This is an objective standard which does not seek to find the mental state of satisfaction of that party, but rather whether the performance would satisfy a reasonable person. Black Lake Pipe Line Co. v. Union Construction Co., 538 S.W.2d 80 (Tex. 1976); Cranetex, Inc. v. Precision Crane & Rigging, 760 S.W.2d 298 (Tex.App.-Texarkana 1988, writ denied). The problem with the acceptance in the present case is that the letter gives Lynx an absolute right not to execute the contemplated purchase and sale agreement in the following language: In the event Lynx E & P does not execute a Purchase and Sale Agreement by February 1, 1993, the Letter Agreement will expire and neither party will have any obligation to the other thereafter. When a party is given an absolute right not to be bound by the terms of the contract, this is not the type of satisfaction provision to which a court can apply an objective standard. Other acceptance requirements included in the letter were as follows: This offer is subject to Lynx E & P having the option of obtaining confirmation of it's (sic) engineering and reserve studies by a third party engineer and the results of that evaluation being acceptable to Lynx E & P's partners. This option will expire with the complete execution of Purchase and Sale Agreement. This offer is subject to Lynx E & P's acceptance of the status of joint interest billings, suspended revenue and other accounting matters relating to the Properties. The letter was not a binding contract enforceable by both parties. Lynx was given the option of not executing a purchase and sale agreement, and if Lynx chose not to do so, the agreement was to expire with neither party having any obligation to the other. In other words, Lynx would have total discretion to avoid the sale. Under the terms of this contract, Lynx could tie up the property until February 1, 1993, and then not execute a purchase and sale agreement. This is what the court referred to in the Baldwin v. New, 736 S.W.2d 148 (Tex.App.—Dallas 1987, writ denied), as a "free look" contract. Thus, this instrument did not amount to a binding contract, but was rather in the nature of an option without consideration. Because there was no consideration for the purchase option, *788 see Culbertson v. Brodsky, 788 S.W.2d 156, 157 (Tex.App.—Fort Worth 1990, writ denied), and there was no mutuality, this letter agreement was not subject to specific performance enforcement and did not bind either party. Sufficiency of Terms If an alleged agreement is so indefinite as to make it impossible for a court to fix the legal obligations and liabilities of the parties, it cannot constitute an enforceable contract. University National Bank v. Ernst & Whinney, 773 S.W.2d 707, 710 (Tex. App.—San Antonio 1989, no writ). Absent an enforceable contract, there can be no breach. Shandee Corp. v. Kemper Group, 880 S.W.2d 409 (Tex.App.—Houston [14th Dist.] 1994, writ denied). The document contains an offer and acceptance. The question to be answered is whether the offer and acceptance constitute a contract or whether there are material provisions left to be agreed to later. The instrument states that, even if signed by 4-Sight, the offer is subject to Lynx's approval and acceptance of "Assignment, Purchase and Sale Agreement and other instruments associated with the purchase contemplated by this offer.... The Purchase Agreements will address, but not be limited to, the following items." (Emphasis added.) The listed items are as follows: 1. Performance deposit ($150,000.00 to be delivered to mutually agreeable escrow agent upon complete execution of Purchase and Sale Agreement), 2. Title, including acceptance of form and terms of existing contractual agreements relating to the properties, 3. Liabilities and responsibilities associated with or arising from ownership and/or operations prior to closing date, 4. Environmental conditions, 5. Designation of successor operator, 6. Over/under-produced gas wells, 7. Inspection of the properties and verification of price, quality and quantity of production, 8. Accounting matters. Lynx contends that it would have been better off having signed an enforceable agreement on a napkin containing only the essential terms of price and property. We agree. There is no requirement as to the quality of paper upon which an agreement is written and a court would have no trouble enforcing an agreement which involved only the essential terms of price and property. Lynx cites the case of Street v. Johnson for the proposition that the essential elements in writing for the sale of real property are the price, the property description, and the seller's signature. 96 S.W.2d 427, 429 (Tex.Civ. App.-Amarillo 1936, no writ). The court in the Street case was making a determination as to the application of the statute of frauds. The court found that these elements were sufficient to satisfy the statute of frauds. This does not mean that the contract in the Street case would have remained enforceable if additional terms had been incorporated into the agreement which were so indefinite as to be impossible for the court to fix the legal obligation and liabilities of the parties. Of course, Lynx could have waived these conditions and purchased the property. Inasmuch as all of the conditions were for its benefit, it could have chosen to ask for specific performance. See Smith v. Nash, 571 S.W.2d 372 (Tex.Civ.App.-Texarkana 1978, no writ). A contract which is unconditional as to one party but conditional as to the other party is valid and enforceable upon either the occurrence or the waiver of the condition. Here we have had neither. Terms may be implied in a written agreement, provided they are implied by the language used by the parties. There are Texas cases in which the price to be paid was supplied by the court on the basis of what a reasonable price would be. Ford Motor Company v. Davis Bros. Inc., 369 S.W.2d 664 (Tex.Civ.App.—Eastland 1963, no writ). The court may also imply what a reasonable time for performance will be. Berne v. Keith, 361 S.W.2d 592 (Tex.Civ.App.-Houston [1st Dist.] 1962, writ ref'd n.r.e.). Implied provisions in contracts, however, are not favored by the law. Achterberg v. Gillett, 322 S.W.2d 306 (Tex.Civ.App.-El Paso), writ ref'd n.r.e. per curiam, 159 Tex. 591, 325 S.W.2d 384 (1959). *789 In the present case, it would be impossible for a court to infer what the parties meant by stating only that the purchase agreements to be prepared will address such matters as "environmental conditions," "over/under-produced gas wells," "accounting matters," liabilities and responsibilities associated with or arising from ownership and/or operations prior to closing date. A valid usage or custom concerning the subject matter of a contract may be imputed to the parties and incorporated into the contract by implication. Kerr v. Taylor, 317 S.W.2d 589 (Tex.Civ.App.—San Antonio 1958, writ dism'd). Lynx presented summary judgment proof in the form of an affidavit that the supplemental terms were consistent with the standards of the oil and gas industry at the time and place in question, but it never offered any summary judgment proof showing a usage of the terms in the oil industry that would make the terms specific enough for the court to enforce. In order for the court to enforce this agreement as a contract, it would have to provide an agreement for the parties in the areas left to be resolved by the letter. The court would also need to, according to Lynx, adjust the price downward if title to the various properties was not to Lynx's liking. The Supreme Court has made it clear that if an "agreement is so indefinite as to make it impossible for a court to fix the legal liability of the parties thereto, it cannot constitute an enforceable contract." Moore v. Dilworth, 142 Tex. 538, 179 S.W.2d 940, 942 (Tex.1944). [In Moore the time for performance was not stated.] Thus, [i]n order to be legally binding, a contract must be sufficiently definite in its terms so that a court can understand what the promisor undertook. Bendalin v. Delgado, 406 S.W.2d 897, 899 (Tex.1966); University Nat'l Bank v. Ernst & Whinney, 773 S.W.2d 707, 710 (Tex.App.-San Antonio 1989, no writ). The material terms of the contract must be agreed upon before a court can enforce a contract. Where an essential term is open for future negotiation, there is no binding contract. Gerdes v. Mustang Exploration Co., 666 S.W.2d 640, 644 (Tex.App.-Corpus Christi 1984, no writ). [In Gerdes, a price for a collateral matter was not set out, and negotiations were to be held to arrive at an amount due.] T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992). (In Stanley, a loan agreement was at issue. No evidence of interest rates or repayment terms was presented.) Lynx does not want the document presently before this Court to be enforced. Rather, it wants this Court to enforce this document along with a "reasonable" purchase agreement that would address each of the concerns set out by the offer and to adjust the price accordingly. Some terms will be implied in contract analysis. Id.; see 14 TEX.JUR.3d Contracts §§ 220-223 (1981); 67 TEX.JUR.3d Specific Performance §§ 16-24 (1989). Where, however, material terms of the contract were not agreed to, but were left for future adjustment, as in this case, enforcement cannot be granted. Condovest Corp. v. John Street Builders, Inc., 662 S.W.2d 138 (Tex.App.-Austin 1983, no writ); Elliott v. Brooks, 184 S.W.2d 929, 935 (Tex.Civ.App.-Eastland 1944, no writ). The trial court correctly analyzed the document in this case as a matter of law. The judgment of the trial court is affirmed.