2003 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
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# U S A v . W hit ak e r P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t 02-1685

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w . v i l l a no va . e du/thir dc ir c uit_2003/549NOT PRE CEDENT IAL THE UNITED STATES COURT OF APPEALS

FO R T HE TH IRD CIR CU IT

___________ No. 02-1685

___________ UNIT ED STA TES OFAMERI CA,

vs. WAYNE WHITTAKER,

Ap pellan t.

___________ APPEAL FROM THE UNI TED STATES DIST RICT COURT FO R T HE EA STE RN DIST RIC T O F PE NN SY LV AN IA

(D.C. No. 01-cr -00107) Distric t Judg e: Th e H ono rable S tewa rt Da lzell

___________ ARG UED JANU ARY 22, 2003 BE FO RE : BE CK ER , Chief Judge , NY GA AR D a nd A M BR O, Circu it Judges
. (Fil ed: May 20, 2003 )

___________ Samuel C. Str etton, Esq. (Argued) 301 South High Stre et P. O. Box 3231 West Chester, PA 19381-3231

Counsel for Appell ant Mark S. Miller , Esq. ( Argued) Office of United St ates Attorney 615 Chestnut St

reet Philadelphia, PA 19106

Counsel for Appell ee2 ___________ OPINI ON OF THE COURT

___________ NY GA AR D, Circu it Judge
.

In thi s case, Appellant

Wayne Whittaker claimed that his car was stole n with out h is kno wled ge or cons ent. T he F BI p resen ted ev idenc e that h e had taken part in an “insur ance give- up” scheme. We are r equired to determi ne whether the evidence us ed to con vict W hittake r of m ail frau d is suf ficien t. Wh ittaker m akes two argu men ts. First, he contends t

hat the Distri ct Court vi olate d the corpus delic ti r ule byallowing t

he Government to use s everal statements that he made to t he FBI. Second, he asserts that the Distri ct Court e rred bynot granting a judgment of acquittal be cause the evidence was insuffi cient

to support

the verdi ct. After anal yzi ng the rel evant cas e law and scouri ng the
re cor d, we r ej ect

both ar gume nt s, andaff irm. I. A rash of automobil e theft s in Phil adelphi a in the early 1990s prompted t

he FB I to set u p a sto len ca r task f orce. T he task force unco vered a secre t location in the c ity where a theft ring maintained a “chop shop” know n as the “Hacienda.” A chop shop is a place wh ere sto len ca rs are d isassem bled a nd so ld, piece -by-piece , to ofte n com plicit repair a nd b ody sho ps. Lik e soc ial secu rity numb ers, eve ry vehicle has a diffe rent ve hicle identi fication number (“VIN”), which is affi xed to vari ous part s of the vehi cle. Once3

separated fro m the ch assis, the vehicle parts do not carry VIN s, or their VIN s are removed, so t

he parts can no longer

be identifie d. An FBI informant working i n the Hacienda ga ve the FBI inf ormation about th e c arth ef

ts th at pa ss ed th ro ughth e c hop sh op, in cl udi ng “ in su ra nc e g iv e- ups .” An insurance give- up is a vehi cle that is turned i n to the c hop shop by or on behalf of someone trying to col lect insurance money byreporting the ve hicle stol en. Both parties benefit from this scheme: the vehicle owner gets insurance money and out of any lease paym ents , and the c ar th ief g ets a car.

Appellant ’s 1998 Jeep Cher okee, i dentif ied byits VIN plates, was delivered to the c hop shop. At the time of i ts ar rival , the re was evidenc e that the car was an insurance give- up: tes timonyshowed that t here was no damage to t he steering column, doo r loc ks, o r w ind ow s, an d th at the key w as in the ig nitio n.

During a subseque nt interview with t he FBI about the car the ft, Whittaker admitt ed that

he had participated in two phone conversati ons with an i ndividualwho offe red to “ get rid o f” his v ehicle as an insura nce g ive-up . Wh ittaker to ld the F BI th at, during t he second phone cal l, he informed the call er that he was not sure he wanted to go through w ith the schem e. He did not tell the man n ot to take his car.

The Government prosecuted Whittaker , and a j ury found him guil ty of one count of mailfraud, 18 U. S.C. § 1341. Whittaker moved for a judgment of acquittal, but the District

Court denied the motion. Whittaker’s motion for reconsideration was also1. Alth oug h the d iscussio n of the co rpus d elicti doc trine pe rtains to th e adm issibility

of e vid enc e, no t the s uff icien cy ofevid enc e to c onv ict, Government of the Virgin I slands v. Ha rris , 938 F .2d 40 1, 409 (3d C ir. 1991 ), our an alysis of b oth the corp us de licti doc trine and the le gal s uff icien cy ofthe e vid enc e ne ces sarily o ver lap. See, e. g., Unit ed Statesex rel. Hayward v. Johnson , 508 F.2d 322, 330 (3d Cir. 1975) (hol ding that several pieces of circumst antia l evide nce “both satis fy t he corpus del ictirule and provide suf ficie nt ev iden ce f or th e jur y . . . .”). 4 denied and he was se ntenced t o five y ears pr obation, six months of home detenti on, and restitution of $26,543. He timelyfile d a notic e of appeal. The Distri ct Court ha d juri sdiction of the violat ion of 18 U.S.C. § 1341 under 18 U.S.C. § 3231, and we have juris dicti on o ver the a ppe al pu rsua nt to 28 U .S.C . § 12 91. II. Because the Dis tri ct Court’ s decis ion regarding the a dmissi bili ty of Appellant ’s st atements following an objection on corpus delic ti gr ounds is one of law, our
rev iew is ple nar y. United Stat es v. Ser afini , 233 F.3d 758, 768 n.14 (3d C ir. 2000). A. The Supreme Court has hel d that i n order t o sustai n a conviction based upon a confessi on or admissi on on the part of the defendant , the statement of the defendant must

be corrobor ated bysome evidence of t he corpus del icti(“the body of the off ens e” o r the “es sen ce o f the crim e”). Opper v. United St ates , 348 U .S. 84, 93 (195 4). 1 The purp ose o f the c orpu s delicti d octrine is to pre vent c onv ictions o f crim inal de fend ants bas ed s olely u pon unt rue con fes sion s. Warzower v. United State s , 312 U.S. 342, 347 (1941). According to t

he corpus del icti“trus tworthi ness” pri nciple , confess ions and2. The requir ement that the corpus delic ti be e stabl ished byevidence i ndependent of a confessi on is di fferent from the re quirement

that t here be i ndependent evi dence establ ishi ng the tr

uthfulne ss of the confessi on. 5 admissi ons must be cor roborat ed by “s ubstantial i ndependent evi dence which would tend to est ablis h the tr

ustworthi ness of the statement.” Id. ; United Stat es v. Wil son , 436 F.2d 122 , 123 (3d Cir . 197 1).

In a corpus delic ti ana ly sis, suffici ent evi dence est ablis hing the trust wo rthin ess o f the state me nts a t issu e is th e crit ical c ons ider ation
. Government of the Virg in Islan ds v. H arris , 938 F.2d 401, 408 (3d Cir. 1991). I n order t o establ ish cor pus delic ti, the Government need prove onlythat a crime has be en committe d; ident ify ing the def end ant a s the per petr ator of th e crim e is n ot re qui red
. Id . Final ly , the confessi on can prove it self t

rustwort hy i f it di sclose s facts that were unknown to anyone ot her than t

he crim inal. Id. at 403 ; Wilson , 436 F.2d at 123. 2 B. The admissions at is sue took pl ace with FBI Speci al Agent Jenni fer Usleber. When Usleber confront ed Whittaker with evide nce of an ins urance gi ve-up, he seemed “visibly nervous. ” App. 406. He then admi tted t hat an unknown call er cal led him and said , “I u nde rstan d you hav e so me thin g you wa nt to get r id o f.” A pp. 4 09. When he asked the cal ler to clari fy, the cal ler s aid, “your vehicl e,” and t

hen, “We can make it disappear.” A pp. 410. W hittaker adm itted that he listened to the caller’s proposition, and provided the caller with de tails about his car: the m ake, mo del, color,6

lice nse number, a nd where it would be parked. App. 411-12. After Whittaker

asked the caller w hat m ore h e nee ded to do, the caller re plied, “N othing .” Ap p. 412 . In resp onse to Usle ber’s a sking Wh ittaker w hat he thou ght w ould happ en af ter this ca ll, Wh ittaker sa id that he figured hi s car would be t aken, and t hat he would be abl e to get out from under t

he lease. App. 412. Whitt aker al so described a second phone cal l duri ng which he tol d the caller h e had seco nd th oug hts. A pp. 41 5. Bu t he ad mitted to U sleber that he did n ot tell the man not t o take hi s car, and he did not do anyt hing, s uch as park hi s car i n a differ ent loca tion , that w oul d ha ve p rev ente d it fr om bein g sto len. Id
. C. Whit taker as se rt s that

hi s c onv ic ti on i s ba se d on th is con fes si on t o the F BI agent, and that

these s tate ments are not corrobor ated bysubstant ial i ndependent evi dence which w ould tend to establi sh the trustworthiness of the confession. This argument fails, for we conclude t

hat the re is suffici ent evi dence to es tabli sh the t rustwort hiness of App ellant’s statements to the F BI.

Willi am Stauffer, the inf ormant working i n the Hacienda, testifie d that when he first

entere d Whittaker ’s bla ck Jeep Cherokee, the key s were in the ignit ion and there was no damage t o the steering c olumn, doors , or windows. App. 219-21. Fr ank Ozga, the oper ator of t

he Hacienda, a lso t esti fied that he was provi ded with key s to the Jee p, an d th at the re w as n o da ma ge to the s teeri ng c olu mn , doo rs, or win dow s. A pp. 1 48. Wh ittaker tes tified tha t he no t only lock ed the car, bu t that he also u sed T he C lubTM to7

lock the steering wheel, and acti vated the car al arm. A jury could have bel ieved the testimo ny of S tauff er and Oz ga, an d disb elieve d W hittake r’s testim ony that h e left h is Jee p, lo cke d, ala rme d, an d C lub bed , and that h e w as th e on ly pers on w ho h ad k eys to it
. Ap p. 29 8, 31 0, 32 7.

Wh ittaker to ld Po lice O ffice r Riv era, w ho to ok th e initial stole n veh icle repo rt, that he le ft his Je ep pa rked on th e street o n a F riday, and return ed S und ay night to find it sto len. O zga te stified th at he w ould instruc t the pe rson s urren dering the ve hicle not to report t

he vehicl e stol en for “three day s to a week” t o give him time. App. 91- 92. A jury could have dr awn an inference f rom Whittaker ’s three-daytri p that t his i nstruc tion had bee n co mm uni cate d to him
.

Wh en O ffice r Riv era too k the in itial repo rt from Wh ittaker, W hittake r told him that there w ere no fina ncial arrearages o n the veh icle. App. 29 9. Not on ly were there f inanci al arrearages on t he Jeep Cherokee, but Whitt aker was especi ally anxious about thos e arrearages. According to a Collection Department Supervisor

at World Omni Financia l Corporation (“t he leasi ng company”) , in Apri l and May, after a World Omni custo mer a ccou nt repr esen tative told Wh ittaker th at he w as sign ifican tly behind on h is payme nts, the re prese ntative had d iscussio ns w ith W hittake r abo ut the o ptions of h is voluntar y sur render of t

he Jeep or t

he refi nancing of the vehicl e. App. 389. Whittaker was told t

hat, had he elected to sur render hi s vehicl e voluntaril y t o World Omni, the leasi ng company would t ake possess ion of the vehicl e, sel l it at auction, a nd pursue3. Wh ittaker tes tified at tria l that W orld O mn i wan ted to c harg e him $29 ,000 f or his

Jeep Cherokee, which onlyhad a book value of between $19,000 and $21,000. App. 557.
4. This testimo ny wa s enh ance d by O zga’s details, su ch as that he “neg otiated ” w ith DeWolfson, that

DeWolfson’s son dropped off the Jeep, and that

he had paid the DeWolfsons $300. App. 95-96. 8 Whittaker

for anyoutst anding bal ance sti ll owing. 3 Because of an acci dent that Whitt aker had been in four

days before the Jeep was reported st olen, which required repai rs of an estim ated $1,3 00, A pp. 3 49, t his o utsta ndi ng b alan ce w oul d ha ve b een eve n gr eate r. Whittaker

testifie d he was not making hi s pay ments at t he time because he “didn’ t have the mon ey.” App. 562 . In addition, W hittaker was to ld by World O mni that a vo luntary
su r r en de r of

t he Je ep wo ul d h av e ane ga t i ve ef fe ct on hi s c r ed i t fi l e. Ap p. 61 4. We conclud e that a jury could hav e inferred an insurance g ive-up m otive from Wh ittaker’s automoti ve financi al dire str aits . A jurycould have al so decided t hat Whitt aker li ed to the police officer

about his arrear ages in or der to cove r up his c rime. Other import ant ci rcumstantial e vidence agai nst Whitt aker inc ludes testimony by

Ozga that he was cont acted byLeonard DeWolfson, Sr. (for whom Ozga had done “insur ance jobs” in the pa st), who said that he had a black J eep Cherokee insurance job which he wante d to pass to the Hacienda. App. 93-94. 4 Also, Michael Dyke, who is Ozga’s ste pson and who worked for Ozga in the Haci enda, cor roborat ed Ozga’s tes timonythat t

he Jeep was an “i nsurance j ob” and that the DeWolfsons provi ded the key s with the car. App. 175-76.9 Whittaker

argues that becaus e one would have to drive around f or “forty or
mo re min utes” lo okin g fo r a park ing sp ot in his Philad elphia neigh borh ood , it wou ld
neve r be p ossible to tell anyon e w ith any ce rtainty wh ere he wo uld p ark h is car w ith regu larity. App . 564. T his arg um ent ov erstates th e car th ief’s tas k: the th ief co uld ea sily cover the neighborhood looking for a particular car in a matt er of minutes.

Finall y, the nature of Whitt aker’s statements doom his argument. If the confessi on its elf di sclose s facts that were unknown to anyone ot her than t

he crimi nal, the
con fes sion can pro ve its elf tr ustw orth y. Ha rris , 938 F.2d at 403. In Ha rris , an appeal from a conviction for first- degree murder where no body was re covered, the defendant argued that the e vidence obt ained i ndependent of hi s confessi on did not s atis fy t he trust wo rthin ess d octr ine. Id . In aff irming t he conviction, we hel d that a s long as t he evid enc e w as su bsta ntial and pro ved trust wo rthy, the doc trine wa s sati sfie d. Id. at 41 0. We stated t

hat thi s could be done i n any number of ways, most notabl y bythe det aile d confessi on its elf, if it

demonstrated knowledge unknown to any one other t han the crim inal. Id . In aff irming the co nvictio n, w e held as suf ficien t evide nce th at the v ictim and th e def enda nt had displayed acts of violen ce tow ard ea ch oth er and that the victim had sou ght to av oid the d efe nda nt fo r fea r ofher life. Id. at 417 -18. E ssentia lly, we he ld that e ven in h om icide cas es, w her e no bod y or m urd er w eap on h as b een reco ver ed, a defendant’ s statements concerning how the kil ling was car ried out , corr oborated by circumstantialevidence that there was a homicide, support the admissibi lity of those10

statements. In thi s case, Whittaker ’s st atements about thi s contact with the c ar thi ef discl osed the wayin which the insurance give- up scheme operat es: t he indivi dual who wants an insurance job is contacted, and asked for a descripti on of the car, the li cense plate n um ber, an d w here it w ould be pa rked . The refor e, Ap pellan t’s statem ents ab out h is
con tact w ith a m an w ho i den tified him self as a car th ief f or “ insu ran ce jo bs,” corrobor ated bycircumst antia l evide nce that there was an i nsurance j ob, support the adm issib ility of th ose state me nts.

In sum, because the record evi dence is s uffici ent to e stabl ish the trustworthines s of Whittaker’s s tate ments and satisfythe requirements of t he corpus delic ti doct

rine, the st atements are admiss ible. III. When reviewing a dis tri ct court ’s deci sion re garding s uffici ency of t he evidence, we apply “ a parti cularl y deferentia l st andard of revi ew when deciding whether a juryverdict

rest s on legal ly suffici ent evi dence. . . . [ W]e must view the evi dence in the light most favorabl e to the government, and will s ustai n the verdi ct if any r ationa l trier of fac t cou ld h ave fou nd t he e ssen tial ele me nts o f the crim e be yond a rea son able dou bt.” United Stat

es v. Dent , 149 F.3d 180, 187 (3d Cir. 1998) (ci tati ons omitted). Afte r scouri ng the rec ord, we concl ude that there was more t

han suffici ent evi dence that Whittaker

gave up his J eep Cherokee as part of an i nsurance fr aud scheme.11 To c onv ict W hittake r of m ail frau d, the G over nm ent ha d to es tablish (1 ) his kno win g and willfu l particip ation in a sch eme to def raud , (2) w ith the sp ecific in tent to defraud, and (3) the use of the mail or i nters tate wire communicati ons in furtheranc e of the s che me . United Stat es v. Ant ico , 275 F.3d 245, 261 (3d Cir. 200 1). W hitta ker ’s ad mis sion to th e FB I, de scrib ed a bov e, is q uite c ond em nin g. Further , the jurycould choose to belie ve that his story to the FBI was not the entire t

ruth: that he had more tha n two c onversation s with the ca ller, or that the telephone ca lls were differe nt than t

he way he described the m. The jurycould have determined that Whitt aker told Usl eber about

the two cal ls becaus e he real ized that the FBI might have phone
reco rds. See United St

ates v. Voigt , 89 F.3d 1050, 1090-91 (3d Cir . 1996) ( stre ssing t hat the jurymay reject t

he defendant’s proffered interpretation and accept the government’s, and that w e draw all reasonable inf erences in fa vor of the jury’s verdict).

Whittaker

testifie d that he never tol d any friends, familymembers, or t he insu ran ce c om pan y abo ut th e ca lls. A pp. 5 80- 81. T he c alls “ did n’t st ick in to [h is] m ind ,” and a fter his J eep w as stole n, the c alls “did n’t really po p into [ his] m ind” u ntil a m onth later
. Id
. Whittaker assert s that

because of a di screpancy between the date of the maili ng in the i ndictment and the evi dence prese nted at tri al concerning the a ctual date of mailin g, the g over nm ent “f ailed to prov e w hat it alleg ed in th e com plaint.” T his argument i s meritless be cause ti me is not an e ssenti al el ement of mail fraud, and proof of12

the ac ts char ged, b efore the ind ictme nt and with in the sta tute of limitation s, is norm ally suf ficie nt. United States v. Somers , 496 F .2d 72 3, 745 (3d C ir. 1974 ). This v arianc e did not depri ve Whittaker

of due process because he was suffi ciently appris ed of the char ge aga inst h im s uch that h e w as n ot p rev ente d fr om mo unt ing a stro nge r or d iffe ren t def ens e. See United St

ates v. Crocker , 568 F.2d 1049, 10 59 (3d C ir. 1977). We conclude that

the Government’ s evidence is suff icie nt for a c onvicti on, and that the jur y di d not base i ts ver dict on mer e speculation. Whittaker ’s admiss ions concerni ng the te lephone conver sati ons are i ncriminating; the jur y’ s conclus ion that

the disappear ance of his Jeep flowed from the conversat ions does not

rest merelyupon conjecture. Whittaker’ s financi al moti vation and his attempts to escape the lease in talks with World Omni provi de motive. Finall y, evidence s hows that t he undamaged Jeep
ar riv ed at t he H ac ien da w ith th e k ey. IV.

For th e reaso ns disc ussed , we w ill affirm the D istrict Co urt.13

Beck er, Circuit

Judge , dis senti ng. The Government is t o be congratulate d on its successf ul prose cution of

the operator s of the “c hop shop” known as the “Haci enda.” Si milar kudos are not warr anted with res pect t o the Government’ s prosecut ion of Mr. Whitt aker. To be s ure, t he evidence is cl ear that Whitt aker was in ar rears on his l ease pay ments, and would have taken a financi al “bath” had the vehi cle si mply bee n reposses sed; hence he stood t o gain byan “insu rance give u p.” Y et me re mo tive ca n nev er be e nou gh to establish guilt, esp ecially in a case such as this one. Rather, there ne eds to be evi dence in the record from which the factfinder c ould reas onablyconclude that the re was some complic ity between W hitta ker and the c hop sho p op erato rs, or the th ief w ho t ook the J eep to th e H acie nda
. But there is none.

The Government reli es heavil y on the fact t hat Whitt aker admitted to an investigati ng officer

that, in res ponse to an i nquiry from an anony mous telephonecall er wh o likely ha d acc ess to W hittake r’s lease payme nt reco rd, he g ave th e caller c ertain information that might suggest complicit y. But there is nothing in the r ecord to suggest that Whittaker was l yi ng when he told the same officer that during a second c all f rom the anonymous man, he got “col d feet, ” and did not agree t o a “give- up.” In hi s tri al testimony, Whittaker

denied compli city , and adduced evi dence that the Jeep was l ocked and “clubbed, ” and parked at differe nt locations in Queen Vill age, where we can14

judici ally

notice that parking i s “hen’s teeth” sc arce. Queen Village i s a lar ge neigh borh ood , and I h ave n o idea wh ere the majo rity gets the n otion th at the th ieves c ould scour the area i n a matter of minutes; Whittaker

testifie d that i t could t ake 30-45 minut es to fin d pa rkin g, w hich see ms cor rect t o th is w riter.

I acknowledge that Whitt aker’s statements duri ng the inve sti gation were not entirelyconsistent. But theydo not, i n my view, establ ish such c onsciousne ss of guil t as to sav e the G over nm ent’s c ase. W hittake r had no re ason to belie ve tha t he w as a su spec t, and the i nvesti gation of him was at a nasc ent st age, and mis statement at t hat junc ture was not crim inal. The linchpi n of the Government’ s case i s the car keys . The Government contends t

hat the juryproperl y i nferred compl icit y fr om testi mony demonstr ating t hat the chop shop had k eys to W hittake r’s Jeep and th at the Je ep w as rece ived a t the ch op sh op in an undamaged condition. Thes e facts are certainl y sus picious and may sugges t that the Jeep was a “give up.” But there is no evidence t hat the chop shop got t

he keys from or through Whitt aker. I ndeed, he testi fied that he threw them away when he found out t hat the Jeep ha d been stol en. I do not belie ve that

a reasonabl e jurycould inf er that Whittaker

had turned ove r his ke ys to the thi eves si mply from the fact t hat the chop shop poss essed the ke ys. For ex amp le, a cop y of the k eys cou ld hav e bee n m ade u sing a mo ld of the l ock. In s hort, the government was not able to link Whittaker’ s acti ons to the fact that the chop shop had th e keys. M oreo ver, the re w as ev idenc e in the record that a5. I note th at the m ajority states th at:

Other import ant ci rcumstantial e vidence agai nst Appell ant inc ludes testi mony by Ozga that he was cont acted byLeonard DeWolfson, Sr. , for whom Ozga had done “insur ance jobs” in the pa st, who said that he had a black J eep Cherokee insura nce jo b of wh ich he wa nted to dispo se. A lso, M ichae l Dyke, w ho is Ozg a’s stepson an d wh o wo rked for O zga in the H acienda, co rroborated O zga’s testimony t

hat the Jeep was an “ins urance j ob” and that the DeWolfsons provi ded the k eys w ith th e ca r. I fail to see how this “important circu mstantial eviden ce” helps e stablish the necess ary linkage that DeWolfson was the car thief, since t here is no indication t

hat DeWolfson had pe rso na l co nt ac t w ith W hi tta ke r. T he re is n o e vi de nc e a s to ho w D eW ol fs on go t th e k eys and Dyk e’s “ cor rob ora tion ” is p ure ly con clus ory an d lac ks e vid entia ry sup por t. 6. I need not a ddress t he corpus del ictiissue s ince I would reverse t he conviction bas ed o n th e fa ct tha t ther e w as in suf ficie nt ev iden ce to sus tain a con victi on. H ow eve r, I do belie ve that

the majority

conflat es the di scussi on of corpus del ictiwith the di scussi on of le gal s uff icien cy. 15 “virtuo so” c ar thief could steal ev en a lo cked vehic le with out d ama ging it. 5

There is c ertai nly suspici on that Whittaker was i nvolved. There might eve n be enough to convi ct him i f the st andard of proof were a fair preponderanc e of the evide nce. B ut the G over nm ent ha s pros ecute d W hittake r for a crime , and th e stand ard is proo f beyon d a rea sona ble do ubt. O n the e viden ce tha t I have desc ribed, th at stand ard is simp ly not me t. In my vie w, the conv iction sh ould be se t aside, h ence I respe ctfully dissen t. 616

_________________________ TO THE C LERK:

Please fi le the foregoing opi nion.

/s/ Richard L . Nygaard Circuit Judge