No. 13476 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

THE STATE OF MONTANA, 

Plaintiff and Appellant, 

JACK M. SCANLON, 

Defend-ant and Respondent. 

Appeal from: District Court of the First Judicial District, 

Honorable Gordon R.Bennett, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Robert Keller, Special Assistant Attorney General, 

argued, Helena, Montana 

For Respondent : 

Donald Garrity argued, Helena, Montana 

Submitted: February 23, 1977 

Decided AUF 2 4 1677 

Filed: 

-.~ws J. &~RNE~ 

clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

This case involves proceedings before a grand jury in Lewis 

and Clark County in which the defendant was indicted on 18 counts 

of perjury relating to his testimony before the grand jury as to 

how his clients who had industrial accident claims came to him. 

In State v. Scanlon, 33 St.Rep. 1355 (December 30, 19761, this 

Court affirmed the dismissal of 16 of the 18 counts by the district 

court, but ordered a trial on two of the counts (counts 9 and 10). 

Thereafter, defendant petitioned for a rehearing, and the state 

petitioned for a rehearing, the thrust of both was that the defendant and the state requested a dismissal of all 18 counts of perjury. 

This Court granted the petitions for rehearing. 

As part of the grand jury investigation into the handling 

of industrial accident claims by the Industrial Accident Board and 

by attorneys in Montana, the grand jury called defendant to testify 

as to how the attorney-client relationship was initiated. The 

purpose of this inquiry was to determine if there were leaks from 

the Industrial Accident Board to certain lawyers in Montana concerning persons in Montana who had filed industrial accident claims 

with the Board. The focus was whether anyone within the Industrial 

Accident Board either referred claimants to the defendant or whether 

they provided him with names of claimants who would be potential 

clients. 

When he was first called to testify before the grand jury, 

defendant refused to answer questions asked him, asserting his 

right against self-incrimination. Thereafter, in an effort to find 

how defendant acquired his clients, the grand jury granted immunity 

against prosecution to the defendant except prosecution for contempt and perjury. For two days defendant testified before the 

grand jury, and denied he solicited his clients and explained how 
they became his clients. As a result of this testimony the grand 

jury indicted defendant on 18 counts of perjury. 

The district court dismissed each of the 18 counts based 

either on lack of direct evidence as to the falsity of the statement, 

lack of corroboration as to the falsity of the statement, or lack 

of materiality. 

Several of the counts against defendant arose out of transactions where defendant testified the clients were referred to him 

by an uncle and aunt, Mr. and Mrs. Richard Mullins, or by Mr. and 

Mrs. Herman Myers, long-time family friends. At the time of his 

testimony before the grand jury, all of these persons had died. The 

clients who appeared before the grand jury denied ever knowing any 

of the people named. The district court dismissed these counts for 

lack of direct evidence as to the falsity. These dismissals were 

proper. These counts were not supported by direct evidence of the 

falsity of the defendant's statements. 

This appeal concerns the evidentiary standard required for 

the proof of perjury, which essentially revolves around three 

statutes. 

Section 94-7-202(7), R.C.M. 1947, provides: 

"No person shall be convicted of an offense under this 

section where proof of falsity rests solely upon the 

testimony of a single person other than the defendant." 

Section 93-401-1, R.C.M. 1947, provides: 

"The direct evidence of one witness who is entitled 

to full credit is sufficient for proof of any fact, 

except perjury and treason." 

Section 93-1401-2, R.C.M. 1947, provides: 

"Perjury and treason must be proved by testimony of 

more than one witness; treason by the testimony of two 

witnesses to the same overt act; and perjury by the 

testimony of two witnesses, or one witness and corroborating circumstances." (Emphasis added.) 

The basis for unusually stringent evidence requirements is 

set out in an article in 19 UCLA Law Review 638, 642, 643 entitled 
"Perjury and Related Offenses Under the Proposed California Criminal 

Code." That same article points out at p. 645, that Tentative Draft 

No. 6 of the Model Penal Code on this point reads: 

"Corroboration. Proof of guilt beyond a reasonable 

doubt shall suffice for conviction under this section 

as in other criminal cases, without special requirement of two witnesses or corroborating circumstances. 

"[Alternate, rejected by the council: No person 

shall be convicted of an offense under this Section 

where proof of falsity rests solely upon contradiction by testimony of a person other than the defendant. ] " 

The official draft of the Model Penal Code, which served as 

the basis for section 94-7-202(7), R.C.M. 1947, used the alternate 

provision. In Montana Criminal Code, 1973, Annotated, Prof. William 

F. Crowley - Editor, at page 293 the annotator points out: 

"The common law rule that falsehood be established 

by two witnesses is adopted in part by subsection 

(7). At the common law this rule was adopted to 

deal with the problem of an oath against an oath. 

The modern rationale is a policy determination based 

on a balancing of the need for protection of witness and the need to maintain the sanctions for 

false testimony. In adopting the requirement of 

more than one witness Montana has followed the 

majority of states in affording additional protection to the witness at the possible cost of being 

unable to convict an apparent perjurer. * * * " 

As noted above, the standard of proof required in Montana under the 

new code section 94-7-202(7), R.C.M. 1947, requires that the proof 

of the falsity of a statement must be more than the contradiction 

testimony of a person other than the defendant. The legislature 

recently made this policy determination and despite the contrary rule 

urged by the state, this is the rule in Montana. 

The exact requirements of this evidentiary rule in perjury 

cases are apparent from an examination of the California cases 

interpreting the section of the California Civil Code, identical to 

Montana's section 93-1401-2, R.C.M. 1947. In an article entitled 

"Proof of Perjury: The Two Witness Requirement", 35 Southern California Law Review 86, 97, it is stated: 
"In summary, the California attitude is, and remains, 

that direct testimony of at least one witness must 

always be introduced to prove the falsity of the 

statement set forth in the indictment; circumstantial 

evidence alone will not support a perjury conviction." 

In People v. Roubus, 53 Cal.Rptr. 281, 417 P.2d 865, 866, 

867, the California Supreme Court, sitting In Bank, outlined this 

evidentiary requirement: 

"Perjury must be proved by the testimony of two 

witnesses, or of one witness and corroborating 

circumstances. * * * This statutory provision has 

been interpreted as prescribing not only the amount 

but also the kind of evidence necessary to support 

a perjury conviction. * * * Direct, as distinguished 

from circumstantial, evidence of the falsity of the 

defendant's testimony by at least one witness is 

generally required. * * * This does not mean that 

there must be a denial in the very words of the 

defendant's testimony * * * but that there must be 

testimony by at least one witness furnishing direct 

evidence of facts contrary to, or absolutely incompatible or physically inconsistent with, that sworn 

to by the accused * * *.Evidence that establishes facts 

from which the falsity of an alleged perjured statement may or may not be inferred is insufficient under 

the direct evidence rule.* * * 

"The rule requiring proof of falsity by direct evidence has been criticized. * * * However, this requirement was early established in this state by 

decisions construing our statutory provision. It is 

noteworthy that a majority of jurisdictions which 

apply the rule that falsity must be proved by the 

testimony of two witnesses, or of one witness and 

corroborating circumstances, hold that circumstantial 

evidence alone is generally insufficient to establish 

falsity. " 

An early Montana case indicated this is the law in Montana 

as well. In State v. Gibbs, 10 Mont. 213, 219, 25 P. 289, it is 

said: 

"'It is not necessary that there should be two 

living witnesses in contradiction of the statement 

of the defendant to justify a conviction of perjury. 

It is sufficient if, in addition to one directly 

opposing witness, corroborating circumstances sufficient to turn the scale and overcome the oath of 

the defendant and the legal presumption of his innocence are proved.'" 

The Court in Gibbs approved this instruction as to proof of 

per j ury : 
"' * * * that such act of perjury has been established to your satisfaction beyond a reasonable - doubt by more than one witness, or that the testimony of such witness has been corroborated upon 

that point by other facts and circumstances proved 

on the trial. In other words, the direct evidence 

of one witness alone is not sufficient to convict 

of the crime of perjury, unless corroborated by 

other facts and circumstances proved on the trial.'" 

In Gibbs the Court was construing the then equivalent code section 

to section 93-401-1, R.C.M. 1947. Section 93-1401-2 had not been 

enacted at that time. In State v. Jackson, 88 Mont. 420, 293 P. 

309, the Court cited Gibbs as authority of the requirement that 

perjury must be proved by the testimony of two witnesses, or one 

witness and corroborating circumstances indicating that this was 

the law even prior to the passage of section 93-1401-2, R.C.M. 1947. 

A subsidiary question to be determined regards the nature 

of the corroborating circumstances that must be proved. The rule 

in California, that the state argues we should adopt, is stated in 

People v. Casanova, 54 Cal.App. 439, 202 P. 45, 47: 

"* * * The statute respecting the quantum of 

evidence necessary in perjury cases will be 

satisfied, if there be the testimony of one 

witness to facts that are absolutely incompatible 

with the innocence of the accused, corroborated 

by circumstances which, of themselves and independently of such directly inculpatory evidence, 

tend, with a reasonable degree of certitude, to 

show that the accused is guilty as charged." 

See also: People v. Pustau, 39 C.A.2d 407, 103 P.2d 224, 228. 

In Gibbs the Court said that "corroborating circumstances 

sufficient to turn the scale and overcome the oath of the defendant 

and the legal presumption of his innocence" are all that is required. 

In People v. Todd, 9 C.A.2d 237, 49 P.2d 611, 614, it is pointed out: 

"It is also well settled that motive and design to 

commit a crime, if proved, may be considered a 

guilty circumstance * * * and consequently may serve 

legally as corroborative evidence; and in this behalf it has been repeatedly held that where, as 

here, it is claimed that several offenses have been 

committed as part of one scheme or plan, all of the 

same general character, tending to the same common 

end, evidence thereof may be received to show the 
process or motive and design to commit the 

particular offense with which the accused is 

charged, and as tending to show logically that 

the particular offense for which he is being 

tried was part of such common scheme." 

The second issue involves the requirement that the alleged 

perjured statement be material. The Nontana statute, section 94-7- 

202 (3), R.C.M. 1947, provides: 

"Falsification is material, regardless of the 

admissibility of the statement under rules of 

evidence, if it could have affected the course or 

outcome of the proceeding. It is no defense that 

the declarant mistakenly believed the falsification 

to be immaterial. Whether a falsification is material 

in a given factual situation is a question of law." 

The Commission Comment points out: 

"The proposed definition of 'materiality' in subsection (3) does not differ substantially from that 

given by prior law." 

In State v. Hall, 88 Mont. 297, 304, 292 P. 734, the Court 

said: 

" * * * Also it may be conceded that the general 

rule is that anything so connected with the matter 

at issue as to have a legitimate tendency to prove 

or disprove some material issue by giving weight or 

probability to, or detracting from, the testimony 

of a witness, is material * * * and that, if evidence is circumstantially material, it is sufficient 

to sustain a perjury charge." 

The test for materiality as set out by the statute is not particularly 

difficult to meet, it requires only that in the actual factual situation involved would it be reasonable to find that the defendant's 

statement, if believed, could have altered the course of the investigation. 

The grand jury statute, section 95-1408(c), R.C.M. 1947, 

provides : 

"The grand jury shall find an indictment when all 

the evidence before it, taken together, if unexplained or uncontradicted, would, in its judgment, 

warrant a conviction by a trial jury." 

While it is the right of the grand jury to return an indictment, it 

is, nevertheless, the duty of the courts to determine if there was 
the required minimum evidence to prove each of the elements of the 

of the charge of perjury. Both sides conceded here that there was 

no more evidence which could go before a trial jury than what the 

grand jury had already heard. Accordingly, this is not a situation 

where the indictment is faulty but where the defendant can be reindicted. Rather, it is a situation where if the indictment is 

faulty, the defendant cannot again be indicted because there is no 

other evidence to present to the grand jury. 

This Court has carefully reviewed all counts and conclude 

that all counts were properly dismissed. Sixteen of the 18 counts 

were situations where they were not supported by direct evidence 

of the falsity of defendant's statements. However, counts 9 and 10 

deserve more attention in discussing our reasons for their dismissal. 

The two charges are summarized as follows: 

A summary of count 9 charges that Jack M. Scanlon, falsely 

testified that Grace A. Rieker first contacted him on the telephone, 

when in truth and fact he knew that he had instigated the telephone 

conversation with claimant for the purpose of initiating a clientattorney relationship; and that he so testified to deceive and 

frustrate the grand jury in its investigation contrary to section 

94-7-202, R.C.M. 1947. 

A summary of count 10 charges that defendant falsely testified that prior to the telephone call from claimant he had never 

heard of the claimant nor the fact that she was injured, while in 

truth and fact he knew the claimant and that she had been injured 

prior to ever talking to her, and he so testified for the purpose 

of deceiving and frustrating the grand jury contrary to section 

94-7-202, R.C.M. 1947. 

The gist of count 9 is the contradictory statements of attorney Scanlon and Rieker as to who called the other first. 

Scanlon claims she called him first and she claims that Scanlon 
called her first. A determination must be made whether attorney 

Scanlon's testimony, if false, was material to the grand jury 

investigation; that is, would it be reasonable to find that the 

defendant's statement, if believed, could have altered the course 

of the investigation. Section 94-7-202(3), R.C.M. 1947, provides 

that I' * * * Whether a falsification is material in a given factual 

situation is a question of law." Accordingly, we must determine 

if the testimony was material. We conclude that it was not. 

The focus of the grand jury inquiry was to determine if there 

were any personnel within the Industrial Accident Board who were 

leaking information concerning claimants' cases to certain attorneys. 

The testimony elicited from Mr. and Mrs. Rieker and from attorney 

Scanlon must be weighed in light of this inquiry; Was anyone within 

the Industrial Accident Board referring claimants to attorney 

Scanlon, or were they providing him with the names of potential 

clients? 

The testimony centers around Mrs. Rieker, a secretaryreceptionist at the Boulder River School in Boulder; Ron Fuller, 

the principal of Jefferson County High School in Boulder; and 

attorney Scanlon. Fuller and Scanlon are close personal friends 

dating back to high school days. Fuller and Mrs. Rieker were 

casual acquaintances in Boulder. Mrs. Rieker's industrial accident 

claim occurred at the school when she slipped on the steps and 

sustained back or neck injuries. Fuller had no connection with 

the Industrial Accident Board which handled claims sustained by 

injured workers. 

Mrs. Rieker testified that it was Ron Fuller, and him alone, 

who twice suggested that she obtain a lawyer to handle her claim. 

On the first occasion she claims Fuller told her she should see a 

lawyer, and he would help her get one. On the second contact 

made by Fuller she claims that Fuller telephoned her and asked her 
if she would like to talk to attorney Scanlon who was with Fuller 

at the time. She claims she did talk to Scanlon and he later came 

over to her house to discuss her case. 

There was no evidence that Mrs. Rieker became a client of 

Scanlon as a result of inside contacts Scanlon had with the Industrial 

Accident Board. There was no evidence that personnel of the Industrial Accident Board were referring possible clients to Scanlon or 

providing him with the names of potential clients. After Mrs. Rieker 

testified that it was Fuller who furnished the contact with attorney 

Scanlon, there was simply no evidence that personnel of the Industrial Accident Board had leaked information concerning Mrs. Rieker 

to attorney Scanlon. However, when Scanlon was later called before 

the grand jury, they wanted to know who had first done the contacting. 

Did Plrs. Rieker contact attorney Scanlon first or did Scanlon contact 

her first? 

Regardless of the answer given to this question by Scanlon, 

it would not have affected the outcome of the proceedings or misled 

the grand jury in its investigation into possible leaks from the 

Industrial Accident Board. If they chose to believe Mrs. Rieker, 

they could conclude that Fuller telephoned her on behalf of attorney 

Scanlon and then put Scanlon on the phone to talk to her about her 

accident claim. If they chose to believe Scanlon they could con- ' 

clude that Mrs. Rieker went to him on her own volition and that he 

could not recall how she happened to call him as an attorney. either 

conclusion suggests a leak to Scanlon from the Industrial ~ccident 

Board. It is clear that Scanlon's testimony was not material to the 

grand jury's inquiry. 

Count 9 must be dismissed for yet another reason. Mrs. 

Rieker's testimony that attorney Scanlon called her first was not 

corroborated by admissible evidence. There was only the direct 

testimony of Mrs. Rieker that Scanlon called her first. The only 
attempted corroboration was testimony from Mrs. Rieker's husband 

that his wife told him that attorney Scanlon had called. It is 

manifest that section 93-1401-2, R.C.M. 1947, which sets out the 

requirement of corroboration, contemplates only admissible corroboration. Here, the testimony was not admissible because it was 

hearsay and because it attempted to obtain corroboration from the 

same witness who was the source of the direct evidence. 

In State v. Newman, 162 Mont. 450, 457, 513 P.2d 258, we 

defined hearsay as follows: 

" * * * 'Hearsay' is testimony or evidence of 

someone's words or conduct outside the court, when 

offered in court to prove the truth of the thing 

being asserted, and thus resting for its value upon 

the credibility of the out-of-court asserter." 

Here, the state attempted to use the statement made by Mrs. Rieker 

to her husband to prove that Scanlon had actually called Mrs. Rieker 

on the telephone. Its credibility rested not on Mr. Rieker but on 

Mrs. Rieker. This plainly is hearsay. 

The vice of this kind of evidence is even more apparent when 

considered in relation to the kind of proof needed for a prima facie 

case of perjury. To allow the testimony of Mr. Rieker as corroboration would be to fly in the face of Montana statutes requiring corroboration. Section 93-401-1, R.C.M. 1947, provides that the direct 

testimony of one person is not sufficient to prove the crime of perjury. Section 93-1401-2, R.C.M. 1947, requires that " * * * per jury 

[must be proved] by the testimony of two witnesses, or one witness 

and corroborating circumstances." (Emphasis and bracketed material 

added.) Mrs. Rieker was the only person who testified directly that 

attorney Scanlon had called her first and so there was a need for 

corroborating circumstances. 

To be admissible, the corroborative evidence must be independent of the testimony of the same witness who is the source of 

the direct evidence. See, for example, United States v. Freedman, 

445 F.2d 1220 (2ndCir.1971); United States v. Thompson, 379 F.2d 
625 (6th Cir. 1967) and United States v. Rose, 215 F.2d 617 (3rd 

Cir. 1954), which cases engraft a requirement of corroboration onto 

the federal perjury statute. Here, the grand jury had to rely on 

the direct testimony of Mrs. Rieker that attorney Scanlon had called 

her first, but also, for corroboration, it had to rely on her indirect 

testimony by virtue of her husband testifying to what she told him. 

What Mrs. Rieker told her husband is not corroboration under the 

perjury statute. 

For these reasons count 9 must be dismissed. 

Count 10 concerns the nature of the proof required for a 

charge of perjury, specifically, the requirement of direct evidence. 

The gist of count 10 concerns a conflict as to whether attorney 

claim 

Scanlon knew of Mrs. Rieker's compensation/before the first time he 

talked to her about the case. Scanlon claims he did not; Mrs. Rieker 

claims he did. Regardless of who is right, there is no direct evidence as required by section 93-1401-2 to establish a prima facie 

case. 

The only evidence concerning attorney Scanlon's prior knowledge of Mrs. Rieker's claim came from Mr. and Mrs. Rieker. They 

testified Scanlon told them he knew of Mrs. Rieker's claim before 

he talked to her on the telephone. However, this is not direct evidence. Rather, under section 93-301-10, R.C.M. 1947, it is indirect 

evidence. That section provides: 

"Indirect evidence is that which tends to establish 

the fact in dispute by proving another, and which, though 

true, does not of itself conclusively establish that fact, 

but which affords an inference or presumption of its 

existence. For example, a witness proves an admission 

of the party to the fact in dispute. This proves a fact 

from which the fact in dispute is inferred." 

Under this statute any statement made to them by Scanlon is in 

the nature of an admission and, therefore, is indirect evidence of 

the fact sought to be proved. The result is that there is no direct 

evidence to sustain a prima facie case of perjury as required by 
sections 93-401-1 and 93-1401-2, R.C.M. 1947. There being no 

direct evidence, count 10 must also be dismissed. 

Defendant has raised other issues in his petition for rehearing, but in light of our holding, we find no need to discuss them. 

Counts 9 and 10 are ordered dismissed and the dismissal order 

of the district court is affirmed in its entirety. 

,/W~A A,Justice fl 

We Concur: 

,- -3 

Justices 
Mr. Justice John Conway Harrison dissenting: 

I dissent. As the author of the earlier 4-1 opinion of 

this Court from which this rehearing was granted, I find no reason 

to change that opinion. 

Two recent opinions of the United States Supreme Court 

considering perjury before a grand jury are of import in consideration of the instant case. Both were decided on May 23, 1977: 

United States v. Wong, No. 74-635, 45 LW 4464; United States v. 

Washington, No. 74-1106, 45 LW 4465. 

In Wong, the Court reversed the suppression of testimony 

of a Chinese woman of limited education given to a grand jury concerning illegal gambling and obstruction of state and local law 

enforcement. 

Referring to its holding in United States v. Mandujano, 

425 U.S. 564, 96 S.Ct. 1768, 48 L ed 2d 212, the Court, in Wong, 

noted: 

" * * * the Fifth Amendment privilege does not condone perjury. It grants a privilege to remain silent 

without risking contempt, but it 'doesnot endow the person who testified with a license to commit perjury.' 

Glickstein v. United States, 222 U.S. 139, 142 (1911). 

The failure to provide a warning of the privilege, in 

addition to the oath to tell the truth, does not call 

for a different result. The contention is that warnings inform the witness of the availability of the 

privilege and thus eliminates the claimed dilemma of 

self-incrimination or perjury. Cf. Garner v. United 

States, 424 U.S. 648, 657-658 (1976). However, in 

United States v. Knox, 396 U.S. 77 (1969), the Court 

held that even the predicament of being forced to choose 

between incriminatory truth and falsehood, as opposed to 

refusing to answer, does not justify perjury. * * * " 

In Washington, the Court overruled a lower court's judgment 

granting a motion to suppress grand jury testimony and quashing an 

indictment on the ground that it was based on evidence obtained in 

violation of Fifth Amendment privileges against self-incrimination. 

The Court held: 
" * * * But this Court has not decided that the 

grand jury setting presents coercive elements 

which compel witnesses to incriminate themselves. 

Nor have we decided whether any Fifth Amendment 

warnings whatever are constitutionally required 

for grand jury witnesses; moreover, we have no 

occasion to decide these matters today, for even 

assuming that the grand jury setting exerts some 

pressures on witnesses generally or on those who 

may later be indicted, the comprehensive warnings 

respondent received in this case plainly satisfied 

any possible claim to warnings. Accordingly, respondent's grand jury testimony may properly be 

used against him * * *." 

Further, in Washington, as in the instant case, the defendant 

argued that having to invoke the Fifth Amendment before the grand 

jury placed him at a disadvantage in the eyes of the grand jury. 

This argument entirely overlooks the fact that the grand jury's 

historic role is as an investigative body; it is not an arbiter of 

guilt or innocence. Moreover, it is well settled that invocation 

of Fifth Amendment privilege in a grand jury proceeding is not admissible in a criminal trial, where guilt or innocence is actually at 

stake. United States v. Wong, supra. 

The same holding and reasoning should, in my opinion, be 

applied here. This is a case that in my opinion should have been 

tried to a jury. They, not this Court, should have decided the 

fact question. 

/ 
Mr. Justice Daniel J. Shea commenting on the dissent: 

Since writing this opinion a dissent has been prepared and 

filed. 

I strongly support the right and the need for dissenting 

opinions, but it seems to be that it should be responsive to the 

facts and law of the case. 

This case does not concern itself in any form with the suppression of testimony before a grand jury, and therefore, the Wong 

case and the Washington case cited, quoted and discussed in the dissent are simply not applicable. And, neither does the invocation 

of the Fifth Amendment, as in the Washington case, have anything to 

do with the facts or law of this case, except perhaps as a procedural 

and historical aside. 

It should be noted that the dissenter wrote the original 

majority opinion in this case dismissing 16 of the 18 counts, but 

ordering a trial on counts 9 and 10. In the original opinion, the 

facts were not applied to the law of perjury, and that is the reason 

for the original mistake on counts 9 and 10. Specifically, the test 

of materiality was never applied to the facts of count 9. And, 

neither in count 9 was the requirement of corroboration applied to 

the facts, i.e., the corroborating evidence must be admissible evidence and not hearsay as in this case, and the corroborating evidence 

must be independent of the direct evidence. In count 10 the direct 

evidence requirement for proof of perjury was not applied to the 

facts of count 10. 

The true test of the validity of this dissent, can, I believe, 

be summarized as follows: If the dissent would reverse the district 

court, then on what counts and for what legal reasons? On these 

matters the dissent is silent.