## F I L E D United States Court of Appeals Tenth Circuit 

### May 2, 2006
Elisabeth A. Shumaker Clerk of Court PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

vs. KEITH LAMAR ORANGE, Defendant - Appellant. No. 05-6105

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. CIV-01-1606-L)
Kerry A. Kelly, Assistant U.S. Attorney (and John C . Richter, U.S. Attorney, on the briefs), Oklahoma City, Oklahoma, for Plaintiff - Appellee. Gary S. Peterson, Oklahoma City, Oklahoma, for Defe ndant - Appellant.

Before KELLY , BRISCOE , and McCONNELL , Circuit Judges.

KELLY , Circuit Judge.

Petitioner-Appellant Keith Lamar Orange, appeals fr om the district court’s denial of his 28 U.S.C. § 2255 petition based on cl aims of ineffective assistance of counsel. United States v. Orange , 364 F. Supp. 2d 1288 (W.D. Okla. 2005).- 2 -

On appeal, Mr. Orange argues that his trial counsel was ineffective because he failed to challenge the jury composition of Mr. Ora nge’s grand and petit juries, and did not do any factual investigation. Mr. Oran ge maintains that this professionally unreasonable decision prejudiced himbecause a jury composition challenge would have succeeded. We exercise jurisd iction pursuant to 28 U.S.C. § 1291 and affirm.

Background On March 18, 1998, a federal grand jury in the West ern District of Oklahoma indicted Mr. Orange on one count of conspi racy to defraud the United States in violation of 18 U.S.C. § 286, and five co unts of filing and causing a false claim to be presented to a United States agen cy, in violation of 18 U.S.C. § 287 & 18 U.S.C. § 2. The case was based on Mr. Ora nge’s substantial participation in “an elaborate scheme operated from prison to file fraudulent income tax returns seeking refunds.” United States v. Orange , No. 99-6009, 2000 WL 757735, at *1 (10th Cir. June 12, 2000) (unpubli shed). On August 27, 1998, following a four day trial, a jury convicted Mr. Or ange on these counts. The district court sentenced Mr. Orange to 78 months imprisonment on the conspiracy count and 60 months imprisonment on the remaining c ounts, all sentences to run concurrently. The court also imposed a three year term of supervised release. His- 3 -

conviction was upheld on direct appeal, and the Sup reme Court denied certiorari. Orange v. United States , 531 U.S. 939 (2000). Proceeding pro se, Mr. Orange filed a motion pursuant to 28 U.S.C. § 2255 on October 11, 2001, raising a variety of claims. R. Doc. 294. Pertinent to this case, Mr. Orange challenged the district’s jury sel ection process, both facially and as applied, as violative of his Sixth Amendment rig ht to a fair cross section and his Fifth Amendment right to equal protection. R. Doc. 294 at 6-10. Mr. Orange also alleged ineffective assistance of counsel, bec ause of his trial counsel’s failure to challenge the ethnic composition of Mr. Orange’s jury. R. Doc. 299 at 2. The district court denied relief, R. Doc. 302, finding that Mr. Orange failed to demonstrate a systematic exclusion of a group or th at the district’s use of voter registration lists as the source for the master jury wheel names was constitutionally or statutorily unsound. R. Doc. 3 01 at 4. Mr. Orange appealed, and this court denied Mr. Oran ge’s request for a certificate of appealability (“COA”) on all issues and dismissed the appeal. United States v. Orange , No. 02-6112, 2002 WL 31341552 (10th Cir. Oct. 18, 2002) (unpublished). In dismissing the appeal, the panel determined that (1) Mr. Orange failed to make a sufficient showing on eithe r his facial or as-applied challenges to jury composition and (2) having foundthat the jury composition challenges were without merit, counsel was not inef fective for failing to raise1 The hearing transcripts contain a record volume n umber and a transcript

volume number. For the purposes of this opinion, T r. Vol. 1 refers to the transcript dated January 8, 2004, Tr. Vol. 2 refers to the transcript dated February 25, 2004, and Tr. Vol. 3 refers to the transcript d ated January 18, 2005. - 4 - them. Id. at *3. On rehearing, a split panel reversed the district c ourt’s ruling on Mr. Orange’s ineffective assistance of counsel claim as it related to the jury composition issue. R. Doc. 312 at 4. This court i nstructed the district court to (1) determine whether trial counsel’s failure to challe nge the jury composition was strategic, and if not, (2) investigate the merits t o determine whether Mr. Orange can show deficient performance and prejudice suffic ient to establish ineffective assistance of counsel. Id. at 4-5. The district court appointed counsel and held evide ntiary hearings over several days, wherein it was established that priorto trial, Mr. Orange asked his counsel, Stan Parsons, to pursue a jury compositionchallenge. Tr. Vol. 1 1 at 14- 16, 49-50. Mr. Parsons testified that in response to Mr. Orange’s request, he undertook legal research and, based on that researc h, concluded a jury composition challenge was unlikely to succeed. Id. at 16-18. Mr. Parsons visited with Mr. Orange, shared his research and did not re call Mr. Orange bringing up the subject again. Id. at 18. Not surprisingly, Mr. Orange remembered th e events differently. He testified that after he brought up the jury composition motion with2 A qualified juror must be a U.S. citizen, at least18 years of age, be a

district resident for at least one year, be able to read, write and understand English, be mentally and physically competent, and not have been convicted of a felony or have charges pending. Id. at 33-34. - 5 - Mr. Parsons, Mr. Parsons “never mentioned it again. ” Id. at 50. Mr. Orange testified that he followed up with Mr. Parsons, who told him he “hadn’t got around to it.” Id. Mr. Orange also claimed he asked Mr. Parsons to o bject to the jury composition on the first day of trial and Mr. Parsons responded that it was too late. Id. at 51. On February 25, 2004, the district court h eard testimony about the practice in the Western District of Oklahoma re garding factual investigation into jury composition issues and the rarity of suchrequests. On January 18, 2005, the district court held a hear ing to address the Western District’s jury selection method and relevant statistical analysis. The district has four divisions for jury selection purp oses, and a jury wheel is maintained for each of the divisions. Tr. Vol. 3 at 21-22. To create the master jury wheel, the clerk’s office randomly and publicl y selects a starting number. The master jury wheel contains only names and addre sses. Every sixteenth name thereafter is selected. Id. at 44-45. The clerk’s office sends out juror questionnaires to the people whose names are drawn in order to create the qualified jury wheel. Id. at 24-25. 2 Only jurors who return the questionnaires are included on the qualified jury wheels. Both the ma ster and qualified jury wheels3 The 1997 grand jury that indicted Mr. Orange was randomly drawn from

the 1993 qualified jury wheel. The petit jury thatheard Mr. Orange’s 1997 trial was drawn from the 1997 qualified wheel.

4 Grand jurors are chosen district-wide, not withinthe individual divisions. - 6 - are created on a random basis. Id. at 35-36. The district court heard expert testimony and recei ved exhibits on the racial composition of the 1993 and 1997 jury wheels. 3 The 1993 district wide 4 qualified wheel was comprised as follows:

Distinctive Group Black Indian Asian Hispanic Percentage of voting age population (1990 Census) 7.40 4.21 1.47 3.02

Percentage of qualified venire 4.78 2.66 .67 1.36

Absolute Disparity 2.62 1.55 .80 1.66 Comparative Disparity 35.41 36.82 54.41 54.97

Orange , 364 F. Supp.2d at 1295; Aplt. Br. at 14; Aplee. B r. Addendum at unnumbered 28. The 1997 qualified wheel for the Ok lahoma City division (where Mr. Orange’s petit jury was selected from) was comp rised as follows:- 7 -

Distinctive Group Black Indian Asian Hispanic Percentage of voting age population (1990 census) 8.63 4.27 1.64 2.74

Percentage of qualified venire 5.06 2.64 .80 1.49

Absolute Disparity 3.57 1.63 .84 1.25 Comparative Disparity 41.37 38.17 51.22 45.62

Orange , 364 F.Supp.2d at 1295; Aplt. Br. at 12; Aplee. Br . Addendum at unnumbered 28. On appeal, these numbers are undisp uted. The district court held that Mr. Orange could not e stablish any prejudice resulting from counsel’s performance, and first dec lined to decide whether that performance was deficient. Orange , 364 F. Supp. 2d. at 1298. Immediately thereafter, the district court noted that Mr. Parso ns certainly viewed his decision not to challenge the jury selection procedure as st rategic, and then indicated that such a decision was not deficient performance. Id. This appeal followed.

Discussion We review the district court’s legal rulings on a § 2255 motion de novo and- 8 -

its findings of fact for clear error. United State s v. Pearce , 146 F.3d 771, 774 (10th Cir. 1998). A claim for ineffective assistan ce of counsel presents a mixed question of fact and law, which we review de novo. Boltz v. Mullin , 415 F.3d 1215, 1221 (10th Cir. 2005). In order to establish a successful claim for ineffe ctive assistance of counsel, Mr. Orange must show (1) that counsel’s pe rformance was deficient, and (2) that this deficient performance prejudiced his defense, depriving him of a fair trial with a reliable result. Strickland v. Washin gton , 466 U.S. 668, 687 (1984). Here, Mr. Orange claims ineffective assistance, bas ed on counsel’s failure to file a motion or object based on jury composition. Beca use Mr. Orange must demonstrate both Stricklandprongs to establish his claim, id. at 692, a failure to prove either one is dispositive. Smith v. Robbins , 528 U.S. 259, 286 n.14 (2000) (quoting Strickland , 466 U.S. at 697) (“The performance component need not be addressed first. ‘If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect wi ll often be so, that course should be followed.’”); see also Romano v. Gibson , 239 F.3d 1156, 1181 (10th Cir. 2001) (“This court can affirm the denial of ha beas relief on whichever Stricklandprong is the easier to resolve.”). To satisfy the prejudice prong, Mr. Orange must sho w that there is a reasonable probability that but for counsel’s alleg ed errors, the result of the5 We need not decide whether the district court deci ded the deficient

performance issue and whether that resolution was c orrect. Examination of Strickland ’s prejudice prong is sufficient to resolve the matter.

6 Claims of violation of the Jury Selection and Serv ice Act, 28 U.S.C. §§ 1861-1869, are evaluated under the Sixth Amendme nt standard. Shinault , 147 - 9 - proceeding would have been different. Strickland , 466 U.S. at 694; see also Sallahdin v. Gibson , 275 F.3d 1211, 1235 (10th Cir. 2002); Hickman v. Spears , 160 F.3d 1269, 1273 (10th Cir. 1998). When, as her e, the basis for the ineffective assistance claim is the failure to raise an issue, we must look to the merits of the omitted issue. See Jones v. Gibson , 206 F.3d 946, 959 (2000). If the omitted issue is without merit, then counsel’s failure to r aise it is not prejudicial, and thus is not ineffective assistance. Id. Assuming, arguendo, that counsel’s performance was deficient, Mr. Orange cannot establish prejudic e because his jury composition claim would have failed on the merits. 5 As such, we now turn to the merits of Mr. Orange’s jury composition claim. The district court’s factual determinations relevan t to the jury composition claim are reviewed for clear error and its legal determin ation of whether a prima facie violation of the fair cross section requirement has occurred is reviewed de novo. United States v. Shinault , 147 F.3d 1266, 1271 (10th Cir. 1998). The Sixth Amendment guarantees a defendant the right to a jury pool consisting of a fair cross section of the community. Taylor v. Louisian a , 419 U.S. 522, 538 (1975); United States v. Gault , 141 F.3d 1399, 1402 (10th Cir. 1998). 6 A defendant hasF.3d at 1270. - 10 -

no constitutional right to a jury composed in whole or in part of persons of his race. Beachum v. Tansy , 903 F.2d 1321, 1331 (10th Cir. 1990). To establish a violation of the fair cross section requirement, Mr. Orange must show (1) that the group alleged to be excludedis a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representati on is due to systematic exclusion of the group in the jury-selection proces s. Duren v. Missouri , 439 U.S. 357, 364 (1979). The Fifth Amendment requires a su bstantially similar showing, that the district’s system resulted in substantial under-representation of a distinct group over a substantial period of time. Castenedav. Partida , 430 U.S. 482, 494 (1977); Gault , 141 F.3d at 1402. There is no dispute that Mr. Orange satisfied the f irst Durenelement, Aplee. Br. at 28, and we note that he need not belo ng to one of the distinctive groups to have standing to challenge the fair cross section, Taylor , 419 U.S. at 526. We next consider whether the distinctive groups’ representation is fair and reasonable in relation to their representation in t he community. In order to make this determination, we have consistently relied upo n two measurements: absolute and comparative disparity. Shinault , 147 F.3d at 1272; Gault , 141 F.3d at 1401-- 11 -

02; United States v. Yazzie , 660 F.2d 422, 426 (10th Cir. 1981). We have explained these measures: Absolute disparity is determined by subtracting the percentage of a group in the jury wheel from the percentage of thatsame group in the general population. Comparative disparity is d etermined by dividing the absolute disparity of a group by the p ercentage of that group in the general population.

Gault , 141 F.3d at 1402 (internal citation omitted). Wh ile absolute disparity measures the difference between the percentage of agroup in the general population and its percentage in the qualified whee l, comparative disparity measures the decreased likelihood that members of adistinct and underrepresented group will be called for a jury. Unite d States v. Chanthadara , 230 F.3d 1237, 1257 (10th Cir. 2000); Shinault , 147 F.3d at 1272. In order to warrant judicial intervention, the disparities must be “gro ss” or “marked.” Yazzie , 660 F.2d at 428; United States v. Test , 550 F.2d 577, 590 (10th Cir. 1976). Absolute disparity is the starting point for all ot her methods of comparison in this circuit. Chanthadara , 230 F.3d at 1256; Shinault , 147 F.3d at 1273. The highest absolute disparity here, in either the 1993 or 1997 wheels, was 3.57%. This disparity falls far short of the percentages i n cases in which the Supreme Court has found a Sixth Amendment violation. See Duren , 439 U.S. at 365-66 (39% absolute disparity); Casteneda , 430 U.S. at 482 (40% absolute disparity); Jones v. Georgia , 389 U.S. 24 (1967) (14.7% absolute disparity). M oreover,7Other circuits have upheld selection mechanisms w ith absolute disparities

between 2% and 11.5%. See e.g. , United States v. Hafen , 726 F.2d 21, 23 (1st Cir. 1984) (2.02%); Bryant v. Wainwright , 686 F.2d 1373, 1377-78 (11th Cir. 1982) (7.4%); United States v. Hawkins , 661 F.2d 436, 442 (5th Cir. 1981) (5.45%); United States v. Clifford , 640 F.2d 150, 155 (8th Cir. 1981) (7.2%); United States ex rel. Barksdale v. Blackburn , 639 F.2d 1115, 1126-27 (5th Cir. 1981) (11.5%); United States v. Potter , 552 F.2d 901, 906 (9th Cir. 1977) (2.7%) (rev’d on other grounds), United States v. Brady , 579 F.2d 1121, 1132 (9th Cir. 1978); Thompson v. Sheppard , 490 F.2d 830, 832-33 (5th Cir. 1974) (11.0%); United States v. Musto , 540 F.Supp. 346, 356 (D.N.J. 1982), aff’d sub nom ., United States v. Aimone , 715 F.2d 822 (3d Cir. 1983) (5.4%).

- 12 - selection mechanisms with absolute disparities high er than those presented in this case have been upheld. Yazzie , 660 F.2d at 427 (4.29% absolute disparity); Gault , 141 F.3d at 1402-03 (7% absolute disparity); Test , 550 F.2d at 588-89 (4% absolute disparity). 7The numbers for the district’s jury wheels for 19 93 and 1997 fall clearly within this range. See Shinault , 147 F.3d at 1273. Similarly, we have upheld selection procedures withhigher comparative disparities than those involved here, which range f rom 38.17% to 51.22%. In Shinault , the comparative disparities were 59.84%, 50.09% a nd 48.63% with group populations comprising 1.27%, 5.11% and 2.92% of the total community, respectively. Id. The court noted that while “these numbers may be more indicative of a Sixth Amendment violation, they [] are distorted by the small population of the different minority groups . . . c onsidering the small size of each of the groups in relation to the larger community, it is not surprising that the- 13 -

comparative disparity numbers are large.” Id. (internal citations and quotations omitted). The court concluded that these figures w ere not “gross” or “marked” enough to warrant judicial intervention. Id. In Chanthadara , comparative disparities of 40.89% (for the group 7.9% of the po pulation) and 58.39% (for the group 2.74% of the population) were insufficient to establish a prima facie violation. 230 F.3d at 1257. Here, the comparativ e disparity figures are less: 35.41%, 36.82%, 54.41%, and 54.97%, while the perce ntage of adult populations are roughly the same. As such, the comparative dis parity figures here are insufficient to establish a prima facie case that t he representation is not fair and reasonable. Mr. Orange suggests that persistent and statistical ly significant disparities in minority representation (based on other statisti cal measures) exist and that such a showing, coupled with reasonable procedures the d istrict could have taken to reduce such disparities, should establish a prima f acie case. Aplt. Br. at 42. We reject that approach when the existing measures, ab solute and comparative disparity, fail to establish a prima facie case und er existing law. A court’s consideration of reasonable measures that may reduc e disparity is primarily remedial and really does not address whether the di sparity is a result of systematic exclusion of a particular group. We do recognize, as we have in the past, certain l imitations associated8 Mr. Orange’s case is entirely distinguishable fro m, and our holding not

inconsistent with, the Sixth Circuit’s decision in United States v. Ovalle , 136 F.3d 1092, 1104-1107 (6th Cir. 1998), where the court he ld that proof of disparities - 14 - with using absolute and comparative disparities as our measures in these types of
cases. See Shinault , 147 F.3d at 1273 (“Indeed, small absolute dispari ty figures are less persuasive in a case . . . where, because of the minorities’ small population, even the complete exclusion of the groups would result in absolute disparities of less than 6%. . . . [Similarly], the smaller the group is, the more the comparative disparity figures distorts the proporti onal representation.”); Chanthadara , 230 F.3d at 1256-57 (internal citations and quotations omitted); see also United States v. Jackman , 46 F.3d 1240, 1247 (2nd Cir. 1995) (discussing weakness of absolute disparity analysis); Hafen , 726 F.2d at 24 (discussing weakness of comparative disparity analysis). Still , we have consistently used these methods, and absent evidence of intentional t ampering, selection procedures that result in disparities within the accepted rang e will be upheld. Mr. Orange did present evidence based on other stat istical measures, such as chi square and standard deviation, and suggestedthat the selection process was non-random. Tr. Vol. 3 at 99-100, 102-09. Absent direct evidence of tampering or purposeful discrimination, we hold that when a c ourt is presented with evidence of comparative and absolute disparities, a nd those disparities fall within our accepted range, a court need not look further i nto other statistical methods. 8was unnecessary. There, the jury selection plan atissue, in an effort to assure

that African-Americans are fairly represented in th e qualified jury wheel, one in five non-African-Americans were selected at random to be removed from the jury wheel simply because of their racial status. Id. at 1105. Thus Ovalle dealt with the situation, distinct from the one presented here , where the plan affirmatively excludes jurors based on race. - 15 - Nor do we find any systematic exclusion in the district’s jury selection methods. Systematic exclusion is exclusion “inhere nt in the particular juryselection process utilized.” Duren , 439 U.S. at 366. Mr. Orange identified several causes for the alleged minority under-repre sentation: (1) the clerk’s office made no effort to update addresses before mailing q uestionnaires, or any effort to locate those whose questionnaires were returned as undeliverable, thereby decreasing representation in the more mobile minori ty population, Aplt. Br. at 16- 17; (2) the minority population was less likely to return the juror questionnaires and the clerk’s office takes no further follow-up a ction, Aplt. Br. 19-22; and (3) the voter registration list is itself unrepresentat ive because minorities are less likely to register to vote as their majority counte rparts, Aplt. Br. 23-25. Mr. Orange urges the use of the Department of Public Sa fety (“DPS”) list of holders of drivers’ licenses and identification cards. Apl t. Br. at 23. None of these purported causes for under-representation constitute systematic exclusion. Discrepancies resulting fromthe private choices of potential jurors do not represent the kind of const itutional infirmity contemplated9 We also find unpersuasive Mr. Orange’s arguments that the selection

plans violate statutory requirement of randomness, Aplt. Br. at 60, and the alleged “creation of a non-statutory exclusion.” The failu re of a person to comply with the law and return a jury questionnaire does not vi olate either of these provisions.

- 16 - by Duren . See Test , 550 F.2d at 586-87; see also Barber v. Ponte , 772 F.2d 982, 997 (1st Cir. 1985) (en banc); United States v. Cec il , 836 F.2d 1431, 1446-47 (4th Cir. 1988). The circuits are “in complete agreemen t that neither the Act nor the Constitution require that a supplemental source of names be added to voter lists simply because an identifiable group votes in a pro portion lower than the rest of the population.” Test , 550 F.2d at 587 n.8 (collecting cases) (internal quotations and ellipses omitted). In addition, voter registration lists are the presumptive statutory source for potential jurors. 28 U.S.C § 1863(b). Because Mr. Orange cannot satisfy the second element of Duren , he cannot establish a prima facie case that the Western Distr ict of Oklahoma’s selection procedure violates the Sixth Amendment or the Jury Service Selection Act of
1968. 9 Mr. Orange cannot establish a Fifth Amendment vio lation because the record does not support any purposeful discriminati on, Duren , 439 U.S. at 368 n. 26, and Mr. Orange has failed to show systematic ex clusion. Finally, we turn to Mr. Orange’s statutory claim th at the district’s grand jury procedure violates the Jury Selection and Serv ice Act’s proportionality requirement. 28 U.S.C. § 1863(b)(3) requires a plan to assure that “each county,- 17 -

parish, or similar political subdivision is substantiallyproportionally represented in the master jury wheel for that judicial district , division, or combination of divisions.” Id. (emphasis added). Specifically, the number of prospective jurors from each divisional wheel to the pool from which Mr. Oranges grand jury was d rawn was: Oklahoma City 62 Enid-Ponca City 13 Lawton-Mangum 15 Woodward 10 The district court determined that the correct prop ortional allocation (and Mr. Orange does not challenge, Aplt. Br. at 63) sho uld have been: Oklahoma City 66 Enid-Ponca City 12 Lawton-Mangum 15 Woodward 7
The district court found that while there existed a“minor geographic imbalance,” there was insufficient evidence for a s ubstantial violation of the Act. Orange , 364 F.Supp. 2d at 1297. We agree. “Mere geograp hical imbalance [as measured by a division’s over representation in a m aster jury wheel], absent evidence that an identifiable and cognizable segmen t of the community has been systematically excluded or underrepresented by reas on of such imbalance, does- 18 -

not violate the statutory and constitutional requir ement that the jury panel represent a fair cross section of the community.” Test , 550 F.2d at 582 n.4 (internal quotations omitted). The differences here (one in twenty-five misplaced jurors) are not significant enough to constitute substantial failur e to comply with the Act. See United States v. Bailey , 76 F.3d 320, 322 (10th Cir. 1996). It does not n ecessarily follow that because the minimally under-represented district has the highest black population, a correction would have resulted in a h igher number of black jurors. Moreover, having already determined that the distri ct-wide composition did not have disparity substantial enough to warrant judici al intervention, Mr. Orange has failed to show that the geographic imbalance carrie d with it a racial impact. In Mr. Orange’s case, the merits of his jury compos ition claim would have failed under both constitutional and statutory stan dards. As such, there could be no prejudice from his counsel’s failure to raise th e issue. Mr. Orange thus failed to satisfy the prejudice prong of Strickland , and the district court properly denied his § 2255 motion based on ineffective assistance o f counsel.
AFFIRMED.- 19 -

United States v. Orange , No. 05-6105 McCONNELL , J., concurring. I am not necessarily convinced that, “[a]bsent dire ct evidence of tampering or purposeful discrimination, . . . when a court is presented with evidence of comparative and absolute disparities, and those dis parities fall within our accepted range, a court need not look further into other statistical methods,” as the majority holds, Maj. Op. 13-14, especially whe re expert testimony indicates that there exist low cost, but effective, means by which disparities could be significantly reduced, even without resorting to so urces other than voter registration lists. But I am convinced that the gr eat weight of this Circuit’s precedent points in that direction, and that defens e counsel cannot be thought to have provided constitutionally ineffective assistan ce on account of devoting his energies to other more promising lines of defense. I therefore concur in the judgment.